ROUTING AND RECORD SHEET TO EO/DDA FROM LEGISLATIVE COUNSEL
Document Type:
Collection:
Document Number (FOIA) /ESDN (CREST):
CIA-RDP86-00101R000100030016-4
Release Decision:
RIPPUB
Original Classification:
K
Document Page Count:
13
Document Creation Date:
December 15, 2016
Document Release Date:
October 23, 2003
Sequence Number:
16
Case Number:
Publication Date:
December 20, 1977
Content Type:
FORM
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Body:
App
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SENDER WILL CHECK';LASSIFICATION TOP AND BOTTOM
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
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ACTION
DIRECT REPLY
PREPARE REPLY
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FOLD HERE TO RETURN TO SENDER
FROM: NAME. ADDRESS AND PHONE NO.
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FOIN NO. 237 Use previous editions
1-67 L I
This document may
contain
Attorney-Client/Att rn
ey Work-Product
Privileged Informs ion
^ UNCLASSIFIED
ROUTING AND RECORD SHEET
SUBJECT: (optional)
DD/A Registry
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FROM:
EXTENSION
NO.
Legislative Counsel
6D15 HQ
DATE
20 December 1977
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
11~~
1d/DDA
7D18 HQ
2,1 D `-
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Attached is an "issues paper"
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John Blake
ADDCI.
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16 DEC 1977
TO: (O'.Tcer designation, room number, and
DATE.
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OFFICER'S
COMMENTS (Number each comment to show from wham
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RECEIVED
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Approved For Release 2003/12/19 : CIA-RDP86-00101 R000100030016-4
MAJOR ISSUES RELATING TO TITLE I OF THE CHARTER
LEGISLATION WHICH ARE IN CONFLICT WITH OR NOT
ADDRESSED IN THE DRAFT EXECUTIVE ORDER
(References are to the 18 November 1977 Senate Select Committee
on Intelligence Draft Title I, DOD's 22 November 1977 Draft Title I,
the DCI's 13 December 1977 Draft Title I and the draft revision of
E.O. 11905.)
1. ISSUE: Statutory Director, Deputy Director and Assistant
or Functional Deputy Directors.
a. E. O. --Not addressed; cannot change present
"Director of Central Intelligence" designation.
b. SSCI--Establishes the positions of Director of
National Intelligence (Level I) and Deputy Director (Level II);
the President may appoint up to five Assistant Directors. All
seven of these positions would be subject to Senate confirmation.
The Deputy would assist the Director in carrying out his functions
and would act for and exercise the powers of the Director in his
absence or in the event of a vacancy. The President may transfer--
subject to congressional approval--such of the Director's duties
as head of CIA as he deems appropriate to the Deputy or to any
Assistant(s). There would be a six-year term (with the possibility
of one six-year reappointment) for the Director and Deputy, both
of which positions could not be occupied simultaneously by
military officers. The Director shall "act as director" of the
CIA.
c. DOD--Similar to provisions in the SSCI draft except:
one and only one of the two positions of Director and Deputy
Director shall be occupied by a military officer; the President
could appoint up to [only] four Assistant Directors; the Director
would "serve as executive head" of the CIA; the Director would
be Level II and the Deputy Level III.
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d. DCI Position--The Director should be a Level I
appointee and should be given clear authority to "head" the
CIA. There should be a single Deputy Director at Level II
as the Director's alter-ego, and four "functional Deputy
Directors, " at Level III, to assist the Director as he
deems appropriate (i. e. , no functions or titles specified
in the statute). Since the Director is given certain statutory
duties and authorities, with a Deputy and four functional
Deputies, he should be able to assign and delegate, and re-
assign and re-delegate, such of his duties and authorities
to these subordinate officers as he deems appropriate in his
discretion. It therefore would be inappropriate and unnecessary
to require by statute a Presidential authorization-- subject to
congressional approval--for such "transfer" of duties and
authorities. The title of the Director should be changed to
"Director of National Intelligence.
2. ISSUE: Authorities of the Director.
a. E.O. --The Director is given 19 separate authorities
and duties, with several specified included authorities and
duties, to exercise under the direction of the NSC.
b. SSCI--The listing of the Director's "authority and
duties" covers eight pages of the draft title. Included, for
example, are provisions that direct the Director to review
and report annually to the President, the NSC and the Congress
on "relationships among the national intelligence activities
and other intelligence and intelligence-related activities";
to review "on a continuing basis ... all ongoing and proposed
national intelligence activities ... to assure that [they] are
properly, efficiently and effectively directed, regulated,
coordinated and administered" and that they provide the
most cost-efficient intelligence; to "evaluate on a continuing
basis the quality of national intelligence" and to report to
the Congress thereon; and to ensure that "diverse points of
view are ... carefully considered and that differences of
judgment ... are fully expressed ... " in the production of
national intelligence. Moreover, the Director would be
required to report to the Congress, among other things, on
use of his termination authority, on proposed "intelligence"
arrangements with foreign governments, and on proposed special
activities or any "exceptionally sensitive or sensitive clandes-
tine collection project, " and he would have to certify that all
national intelligence activities are being conducted properly and
lawfully. The Director is granted "full and exclusive approval
authority over the annual national intelligence budget, " with
a list of directives to implement this authority.
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efficient coordination and administration, to ensure all three
Branches of the Government are provided the national intelligence
necessary to fulfill their responsibilities, to serve as executive head
of the CIA, to coordinate collection of national intelligence (including
three additional implementing authorities), to coordinate dissemina-
tion of national intelligence (with specified implementing directives)
to ensure implementation of special activities, and to approve liaison
arrangements. The Director is given responsibility for production
of national intelligence analyses (with several specific further
directives). The Director also "shall prepare and present to the
Congress the unified budget for national intelligence activities.
d. DCI Position--The Director's duties and authorities
should be clearly delineated in general terms; specific imple-
menting directives and organizational considerations are more
appropriately addressed in Executive Order. Excessive detail
in statute mandates requirements that are unmanageable in
practice, and tends to bring about results not intended by height-
ening the probability that activities that are not proscribed by
by either the letter or the intent of the law will be determined to
be unauthorized for want of a specific statutory authority. The
emphasis should be on defining and delimiting the Director's duties
and authorities, the most important of which are that: (1) the Director
shall be the principal intelligence officer and adviser; (2) the Director
shall be responsible for coordinating national intelligence activities;
(3) the Director shall. head the CIA; (4) it shall be the duty of the
Director to collect, produce, analyze and disseminate national intel-
ligence and that, in carrying out this duty, among other things,
he shall be able to levy analytical and collection tasks, promote and
maintain services of common concern, and formulate policies on
and coordinate liaison relationships with foreign governments;
(5) the Director shall ensure implementation of special activities;
(6) the Director shall retain his existing statutory termination authority
without being required to report to the Congress within a specified
time frame on the exercise thereof; (7) the Director shall be responsible
for protecting intelligence sources and methods; (8) the Director shall
have full and exclusive authority for approval of the NFIP budget
submitted to the President through O IVIB; and (9) review and evaluate
all national intelligence activities and special activities to ensure
that such activities are carried out in accordance with the Constitution
and laws of the U. S. and with Presidential directives. Insofar as
these enumerated authorities and duties are addressed in the draft
E.O., Title I need not and should not conflict substantively with the Order. However, since in many respects the charter
and the E. O. serve different functions, or at least approach
issues relating to intelligence activities from different per-
spectives, there will be differences. Thus, for example,
much of the organizational detail in the E. 0. need not and
should not be in the charter, the language of which must he
as tightly drawn and precise as possible.
3
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3. ISSUE: Establishment of specialized committees within the NSC.
a. E.O. --Establishes the Special Coordinating Committee
to review special activities and sensitive collection operations
and to make recommendations thereon to the President. The SCC
also is tasked with developing policy on national foreign counter-
intelligence activities.
b. SSCI- -Establishes the following committees within the
NSC and specifies in detail the manner in which they will carry
out their duties within the respective areas of concern: the Operations
Coordinating Committee (special activities and sensitive collection
operations), the Counterintelligence Committee and the Communications
Security Committee.
c. DOD--Establishes the Intelligence Coordinating
Committee to review and approve special activities, sensitive
collection operations and sensitive counterintelligence activities.
d. DCI Position--The statute should not direct the
establishment of any specific, named organizations to review
and act on particular categories of authorized activities.
This matter is appropriately addressed in Executive Order;
to do so in law needlessly locks the Executive into a particular
format and procedure. Rather, as in the DCI draft, responsibility
for reviewing and acting on certain categories of activities (i. e.
special activities and those collection operations determined by
the President to be specially sensitive) should be placed with the
NSC, leaving the mechanics to Executive Order. This establishes
the appropriate authority and accountability but without interferring
in the President's prerogatives to manage the Executive Branch
within those statutory limits. Further, statutory directives as
in the SSCI draft as to the material which the various members
(e.g., the Director and the Attorney General) must provide the
committees, and which the committees must utilize in carrying
out their responsibilities, is unnecessary and would tend to be
extremely burdensome if not unworkable in practice.
4. ISSUE: Restrictions and prohibitions on intelligence activities.
a. E. O. --Places specific restrictions on collection
activities, special activities, experimentation, contracting,
assistance to law enforcement authorities, personnel assigned
to other agencies, indirect participation in prohibited activities,
assassination and dissemination and storage of information.
b. SSCI--Places restrictions on relationships with foreign
governments, use of individuals following religious vocations,
Government grantees and journalists, use of persons as com-
batants in foreign countries, covert military assistance,
certain forms of special activities, and assassination.
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prohibitions for inclusion in another title.
d. DCI Position--Restrictions and prohibitions should
not be included in Tit e I, which concerns grants of authority
and the structure for the Government's intelligence capability.
In whichever title they are included, the restrictions and
prohibitions should be clearly delineated, should not preclude
voluntary relationships between the Government and other
persons or entities, and should not attempt to deal with
matters concerning the laws of other countries.
5. ISSUE: Appropriations for intelligence activities.
a. E.O. --Does not address.
b. SSCI--Requires that funds for national intelligence
activities be authorized by legislation before appropriation.
The Select Committees on Intelligence of the House and the
Senate will recommend annually to their respective Houses
what information regarding intelligence appropriations
should be made public.
c. DOD--Requires that no funds for national intelligence
activities may be appropriated unless authorized by legislation.
The funds will be authorized "in a single specified amount, without
further limitation. " The President is directed to make public
such "information regarding the total amount appropriated and
expended ... to the extent required by the Constitution and laws
of the United States."
d. DCI Position--The charter may provide that no funds
for intelligence activities may be appropriated unless previously
authorized. The legislation, however, should not direct that
any portion of the funds so authorized shall be made public
either specifically, subject to interpretation of any Constitutional
or legal requirements, or as determined by the Congress.
6. ISSUE: Reprogramming of funds.
a. E.O. --Grants the Director "full and. exclusive authority
for reprogramming" NFIP funds, subject to OMB guidelines,
appropriate consultation with the heads of affected agencies
and the Congress, and Presidential review.
b. SSCI--Similar to provisions in the Executive Order.
c. DOD--Directs only that reprogramming "or a transfer
of funds to or from:I an agency within the IC in an amount over
$2 million must be in accordance with law and on the approval
of the Director and the head of the department or agency to
which the funds were appropriated. "
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reprogram and should be directed to establish guidelines under
which proposed reprogramming require his prior approval.
Heads of other agencies should be directed to advise the
Director of proposed reprogramming within such guidelines
and to obtain his approval.
7. ISSUE: Reserve for Contingencies.
a. E. 0. --Does not address.
b. SSCI--Authorizes the Director to establish a
"Contingency Reserve Fund" to which may be credited only
such sums as are "specifically appropriated to the Director"
for it. Expenditures of funds from the Reserve by the Director
are subject to: prior approval by OAMB; prior notification to
the intelligence committees of Congress (with a "48-hour-after"
exemption for "extraordinary circumstances"); being used only
for requirements not anticipated at the time the budget was
submitted to the Congress; being used solely for purposes
requiring protection against disclosure; and being used only for
lawful activities. There are additional limitations on returning
monies to the fund and on post-expenditure budgeting.
c. DOD Authorizes the Director to establish a
"Contingency Reserve Fund, " under guidelines similar to
those in the SSCI draft, except there are no provisions for
prior congressional notification or for prior OMB approval.
d. DCI Position--The Director should be authorized to
maintain a Reserve for Contingencies, " to credit to it such
newly appropriated funds as are so specifically appropriated,
and to withdraw funds from the Reserve for emergency and
extraordinary expenses relating to an intelligence or special
activity. Such withdrawal should be subject only to. OMB
approval; keeping the intelligence committees of the Congress
"fully and currently informed"; unexpended funds remaining in or
reverting to the Reserve; and subsequent budgetary process treat-
ment for continuing activities.
8. ISSUE: Expenditure of funds for intelligence activities of
an extraordinary or emergency nature accounted for solely on the
certificate of the Director.
a. E.O. --Does not address.
b. SSCI--Contains such authority, subject to the proviso
that such expenditures shall be expended only for lawful activities.
The Director would report to the Congress quarterly on use of
this authority.
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C, DOD--Contains such an authorization, but limited
to "amounts ... appropriated to the Director for such purpose.
The authority could only be exercised to carry out lawful
activities.
d. DCI Position--The Director's authority should be that
currently provided in section 8(b) of the CIA Act of 1949 as
regards sums made available to the Agency. The proviso that
such expenditures shall be limited to lawful activities is not
objectionable but is unnecessary. The intelligence committees
of the Congress currently may, pursuant to their existing juris-
diction, obtain appropriate information regarding the Director's
use of this authority, and a particular manner or time frame for
such reporting should not be made a matter of statutory directive.
9. ISSUE: Comptroller General audit and review of national
intelligence funds and activities.
a. E. O. --Not addressed.
b. SSCI--Provides that appropriated national intelligence
funds and activities "shall be subject to financial and program
management audit and review b' the Comptroller General, "
under "such security standards as prescribed by the Director
and the oversight committees. An exemption from such
review would be available only upon determination by the
Director that exemption is "essential to protect the security
of the United States"; the Director would be required to
report to the Congress as to each such exemption.
c. DOD--Provides that "all funds appropriated to the
Director"i. e. , not agencies within the IC) for "national
intelligence activities, and information relating thereto" shall
be subject to Comptroller General audit and review, under joint
Director-congressional security standards. The draft provides an
exemption similar to that in the SSCI draft.
d. DCI Position--Intelligence funds and activities,
necessarily involving as they do extremely sensitive intelligence
information, should be subject to statutorily-directed outside audit
and review only under directive of the intelligence oversight .
committees and subject to strict security standards as provided
by the Director. There should be a proviso that certain funds or
activities may be exempt from such review if necessary to protect
specially sensitive intelligence activities.
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10. ~: me i'ence re a ionshu s with oreian Prnvernrn(-nts
a. E. O. --The Director is directed to formulate intelligence
arrangements with foreign governments and to coordinate relation-
ships between the IC and foreign services.
b. SSCI--The Director is directed to "formulate, as
appropriate,'policies on intelligence arrangements with
foreign governments, and to "be responsible for all relation-
ships between" the IC and foreign services. The Director,
however, must transmit to the oversight committees of the
Congress texts of any proposed arrangements prior to their
being entered into.
c. DOD--Arrangements between the IC and foreign
intelligence or security services are subject to approval
by the Director.
d. DCI Position--The Director's responsibilities in.
the area of relationships with foreign governments and
services should be provided as in the E. O. ; in other words,
the Director should be charged with promoting and imple-
menting services of common concern with foreign entities,
and he should have a clear directive that he formulate and
coordinate such arrangements. Reporting to the congressional
oversight committees should not require, by statute, that
texts of all such arrangements be so transmitted. The charter
should provide that, in lieu of reporting to the Congress of
international agreements pursuant to the Case-Zablocki Act,
reporting of intelligence agreements should be only to the
intelligence oversight committees. Requiring, by statute,
reporting the texts of all arrangements, however, raises serious
questions concerning the prerogatives of the Executive in
this area, could have a serious negative impact on the
willingness of foreign services or governments to deal with
us, and, of course, would involve proliferation of sensitive
intelligence sources and methods.
11. ISSUE: Reporting of Violations.
a. E. 0. --The Intelligence Oversight Board is established
to receive and consider reports on intelligence and counterintelligence
activities that raise questions of legality of propriety. The Board's
primary reporting responsibility is to the President and the Attorney
General. Inspectors General and General Counsels of agencies
within the IC are assigned responsibilities to receive and. transmit
to the IOB reports on possible illegal or improper activities. The
Attorney General's responsibilities in this area run to receiving
reports from the IOB and reporting to the President and the IOB.
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b. SSCI--The principal Executive Branch entity
responsible for reviewing and reporting on possible viola-
tions is the IOB, with responsibility to report to the
President, the Attorney General, the Director and heads
of agencies within the IC. The Director, the Attorney
General and the heads of agencies within the Community
are assigned responsibilities for ensuring that violations
are discovered and reported on. Further, the Director is
required to regularly (but at least annually) notify IC
employees of their obligations to report on possible viola-
tions, and to report annually to the oversight committees
a certification as to the lawfulness of national intelligence
activities.
c. DOD--Establishes the IOB with general review and
reporting responsibilities to the President on activities it
finds to be violative of the Constitution or laws of the U. S.
or of Presidential directive or order.
d. DCI Position--Establish the IOB to receive and
review reports from the Attorney General, heads of agencies
within the IC and Inspectors General and General Counsels
of such agencies as to activities that may be unlawful or
improper. The Attorney General and the IOB should be
directed to inform the President of activities which they find
to be unlawful or improper. The Board should keep the
Director informed of its findings, and the Attorney General,
with due regard for his investigative and prosecutorial .
responsibilities, should be directed to keep the oversight
committees informed of findings reported to the President.
Care should be taken so that any reporting to the Congress
is not in conflict with Executive Branch investigative and
prosecutorial authorities and duties. Generally, the
mechanics whereby possible violations of law or Presidential
directive or order are reviewed and reported on should be
dealt with in Executive Order rather than statute. Moreover,
there is no need to require by statute, as the SSCI draft would
do, that the Director go through the motions of informing and.
reinforming IC employees of their duty to report violations.
Nor is there a need to provide by statute that the Director certify
each year that intelligence activities are lawful, since he and other
agency heads would be made statutorily responsible for ensuring
this, checked, of course, by the violations-reporting provisions.
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12. ISSUE: Reporting to the Congress.
a. E. 0. --The Director and heads of agencies within the
IC are tasked with keeping the intelligence oversight committees
fully and currently informed with respect to intelligence
activities, and with reporting to the committees in a timely
manner on violations. All reporting would be subject to the
provisos that such reporting is not a condition precedent to
implementation of intelligence activities, and that reporting
will be consistent with the respective authorities and duties
of the Executive and Legislative Branches.
b. SSCI--In addition to particular reporting requirements
contained, for example, in those sections dealing with the
Director's exercise of termination authority, with relation-
ships with foreign governments and services and with viola-
tions (see paragraphs 2, 10 and 11 above), the Director is
charged with keeping the oversight committees "fully and
currently informed of all national intelligence activities. "
This duty is subject only to the proviso that such reporting
does "not constitute a condition precedent ... " The Director
shall also provide annual reports to the Congress.
c. DOD--The Director's responsibility for keeping the
oversight committees fully and currently informed is similar
to that in the SSCI draft. The Director is required also to
notify the committees 72 hours in advance of undertaking any
special activity subject to Intelligence Coordination Committee
approval, and in advance of Contingency Reserve expenditures
(there is a "48-hour-after" exception based on Presidential.
certification). The Director is required further to notify
the committees 60 days in advance of concluding arrangements
with foreign services and in advance of destruction of records.
The Director reports annually to the oversight committees on
national intelligence activities so designated, on extraordinary
or emergency expenditures, on activities exempted from
Comptroller General audit or review, and on matters relating
to advisory committees.
d. DCI Position--The general provision on keeping the
Congress fully and currently informed on intelligence activities
should be consistent with that in the Executive Order. As to
reporting on particular exercises of authority, such as termina-
tion of employees, arrangements with foreign governments or
services, and violations, it is generally preferred that these
not be specified in statute. If they are, however, the provisions
should be such that they do not require notification or reporting
on a specified timetable. Moreover, such requirements should
be consistent with the respective authorities and prerogatives of
the two Branches of Government and with the practical needs of
the Government's intelligence capability (e.g., the willingness
of foreign governments and services to deal with the CIA in the
face of a statute requiring prior congressional approval of the
texts of any and all intelligence arrangements).
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