HEARINGS BEFORE THE COMMITTEE ON RULES AND ADMINISTRATION UNITED STATES SENATE NINETY-FOURTH CONGRESS SECOND SESSION ON S. RES. 400 TO ESTABLISH A STANDING COMMITTEE OF THE SENATE ON INTELLIGENCE ACTIVITIES, AND FOR OTHER PURPOSES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00735R000200160003-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 236
• Document Creation Date: December 12, 2016
• Document Release Date: July 11, 2001
• Sequence Number: 3
• Publication Date: April 5, 1976
• Content Type: OPEN

pproved For PROPOSED / STANDING COMMITTEE SON
INTELLIGENCE ACTIVITIES
HEARINGS
COMMITTEE ON
RULES AND ADMINISTRATION
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
SECOND SESSION
ON
S. Res. 400
TO ESTABLISH A STANDING COMMITTEE OF THE SENATE ON
INTELLIGENCE ACTIVITIES, AND FOR OTHER PURPOSES
I?.
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COMMITTEE ON RULES AND ADMINISTRATION
HOWARD W. CANNON, Nevada, Chairman
CLAIBORNE PELL, Rhode Island MARK O. HATFIELD, Oregon
ROBERT C. BYRD, West Virginia HUGH SCOTT, Pennsylvania
JAMES B. ALLEN, Alabama ROBERT P. GRIFFIN, Michigan
HARRISON A. WILLIAMS, New Jersey
DICK CLARK, Iowa
WisLIAIt McWHORTF.R COCIIRANE, Staff Director
CHESTER H. SMITH, Chief Counsel
HUGH Q. ALEXANDER, Senior Counsel
LARRY E. SMITH, Minority Staff Director
JOHN P. CODER, Professional Staff Member
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CONTENTS
Opening statement of Hon. Howard W. Cannon, chairman of the Com-
mittee on Rules and Administration-------------------------------
1
Statement of-
Hon. John C. Stennis, chairman of the Committee on Armed Services-
44
Hon. Roman L. Hruska, ranking minority member of the Committee
on the Judiciary---------------------------------------------
63
Hon. Strom Thurmond, ranking minority member of the Committee
on Armed Services-------------------------------------------
68
George Bush, director of the Central Intelligence Agency;
accompanied by Mitchell Rogovin, special counsel to the director;
George Cary, legislative counsel; and Donald Massey, assistant
legislative counsel-------------------------------------------
71
Written statement of
Hon. John C. Stennis, chairman of the Committee on Armed Services-
44
Hon. Roman L. Hruska, ranking minority member of the Committee
on the Judiciary---------------------------------------------
64
Letters addressed to Chairman Cannon by-
Hon. James O. Eastland, chairman of the Committee on the Judiciary,
enclosing a Judiciary Committee print with recommended amend-
ments to S. Res. 400, and purpose of the amendments thereto-----
24
Hon. John C. Stennis, chairman of the Committee on Armed Services,
responding to questions posed by Chairman Cannon in his opening
statement--------------------------------------------------
61
Miscellaneous-
Text of S. Res. 400---------------------------------------------
3
Materials submitted to the committee by the CIA-
Committees and subcommittees, other than regular Central
Intelligence Agency oversight committees, which have made for-
mal or informal requests for information on Agency operations
during the 94th Congress---------------------------------
75
Memorandum relating to intelligence budget secrecy -----------
76
Briefings of Senate and House Appropriations Subcommittees on
intelligence budgets during the 94th Congress - - - - - - - - - - - - - - - -
78
Desirable principles of congressional oversight of the intelligence
community---------------------------------------------
82
THURSDAY, APRIL 1, 1976
Statement of-
Hon. Frank Church, chairman of the Select Committee To Study Gov-
ernmental Operations With Respect to Intelligence Activities-------
89
Hon. Walter F. Mondale, a U.S. Senator from the State of Minnesota--
92
Written statement of Hon. Walter F. Mondale, a U.S. Senator from the
State of Minnesota-----------------------------------------------
92
Letter addressed to Chairman Cannon by Donald H. Rumsfeld, Secretary
of Defense- ----------------------------------------
103
Miscellaneous-
Excerpts from testimony of Glen E. Pommerening, Assistant Attorney
General for Administration, U.S. Department of Justice, before the
Senate Select Committee on Intelligence, February 3, 1976---------
97
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IV
FRIDAY, APRIL 2, 1976
Statement of-
Hon. Barry Goldwater, ranking minority member of the Committee on
Aeronautical and Space Sciences-------------------------------
127
Hon. Walter D. Huddleston, a U.S. Senator from the State of Ken-
tucky------------------------------------------------------
138
Hon. Abraham Ribicoff, chairman of the Committee on Government
Operations--------------------------------------------------
150
Hon. Sam Nunn, a U S. Senator from the State of Georgia-----------
171
Written statement of Hon. Sam Nunn, a U.S. Senator from the State of
Georgia--------------------------------------------------------
174
Letters addressed to Chairman Cannon by Hon. Walter D. Huddleston,
a U.S. Senator from the State of Kentucky, relating to-
Reporting requirements of the proposed committee, enclosing his
statement before the Committee on Government Operations on
February 6, 1976--------------------------------------------
142
Rotating membership on the proposed committee-----------------
145
Miscellaneous-
Memorandum entitled "Senate Intelligence Committee or Joint
House-Senate Intelligence Committee", submitted by Senator
Ribicoff ------------------------------------------------------
162
MONDAY, APRIL 5, 1976
Statement of-
Hon. John Tower, vice chairman of the Select Committee To Study
Governmental Operations With Respect to Intelligence Activities;
accompanied by Curt Smothers, minority counsel- - - - - - - - - - - - - - -
177
Hon. Robert Taft, Jr., a U.S. Senator from the State of, Ohio --------
186
Written statement of Hon. William V. Roth, Jr., a U.S. Senator from the
State of Delaware------------------------------------------------
196
Letters addressed to Chairman Cannon by-
Hon. Abraham Ribicoff, chairman of the Committee on Government
Operations-------------------------------------------------
192
Hon. James Abourez:, chairman of the Subcommittee on Separation
of Powers, with enclosed recommended amendments-------------
193
Hon. Sam Nunn, a U.S. Senator from the State of Georgia, and
Hon. Charles H. Percy, ranking minority member of the Committee
on Government Operations, jointly ----------------------------
194
Hon. Charles H. Per,;y, ranking minority member of the Committee
on Government Operations -----------------------------------
194
Hon. Walter D. Huddleston, a U.S. Senator from the State of Ken-
tucky, and Hon. William V. Roth, Jr., a U.S. Senator from the
State of Delaware,jointly ------------------------------------
197
Hon. Edward M. Kennedy, Hon. Philip A. Hart, Hon. Birch. Bayh,
Hon. Quentin N. Burdick, Hon. John V. Tunney, Hon. Charles
McC. Mathias, Jr., and Hon. James Abourezk, jointly, all members
of the Committee on the Judiciary----------------------------
198
Elmer B. Staats, Comptroller General of the United States, with
enclosures -------------------------------------------
199
William A. Ridgely, Senate financial clerk------------------------
201
APPENDIX
EHXIBIT 1.-Statement of Mitchell Rogoviri, before the House Select
Committee on Intelligence, December 9, 1975----------- (203)
EXHIBIT 2.-Constitutional and statutory authority to conduct foreign
intelligence activities -------------------------------- (211)
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the Committee on Rules and Administration no later than March 29,
1976, and that the Committee on Rules and Administration file its
report on Senate Resolution 400 no later than April 5, 1976. By unani-
mous-consent agreement on March 25, 1976, those reporting dates were
extended 3 days, to April 1, 1.976, and April 8, 1.976, respectively.
There is no question that, in the light of recent disclosures of illegal
or improper actions by certain of our intelligence agencies, the Con-
gress should certainly review carefully its oversight vote on this most
vital area. The Committee on Government Operations has spent 8 days
of hearings and considerable additional time in arriving at the pro-
posal we are considering today.
f
ti
PROPOSED STANDING COMMITTEE ON INTELLIGENCE
ACTIVITIES
WEDNESDAY, MARCH 31, 1976
U.S. SENATE,
COMMITTEE ON RULES A-,-I) AI)MINISTRATION,
Washington, D.C.
The committee met in roori 301, Russell Senate Office Building, at
10:10 a.m., Hon. Howard W. Cannon (chairman), presiding.
Present: Senators Cannon, Pell, Robert C. Byrd, Allen, Clark,
Hugh Scott, and Griffin.
Staff present: William McWhorter Cochrane, staff director; Chester
H. Smith, chief counsel; Hugh Q. Alexander, senior counsel; John P.
Coder, professional staff member; Dr. Floyd M. Riddick, professional
staff member; Jack L. Sapp, professional staff member; Ray Nelson,
professional staff member; Larry E. Smith, minority staff director;
Andrew Gleason, minority counsel ; and Peggy Parrish, assistant chief
clerk.
OPENING STATEMENT OF HON. HOWARD W. CANNON, CHAIRMAN
OF THE COMMITTEE ON RULES AND ADMINISTRATION
The CHAIRMAN. The committee will come to order.
Today, the Committee on Rules and Administration is conducting a
hearing on Senate Resolution 400, to establish a standing Committee
of the Senate on Intelligence Activities, and for other purposes.
Senate Resolution 400 was reported by the Committee on Govern-
ment Operations on March 1, 1976, and on the same day was referred
to the Committee on Rules and Administration for a period extending
no later than March 20, 1976. Subsequently, on March 18, 1976, the
resolution was referred simultaneously to the Committee on the Judici-
ary and the Committee on Rules and Administration with instructions
41 that the Committee on the Judiciary make its recommendations to
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Briefly, that proposal-Senate Resolution 400-would establish a
new standing Commit tee of the Senate on Intelligence Activities to
oversee and make continuing studies of the intelligence activities and
programs of the U.S. Government, and to submit to the Senate appro-
priate proposals for legislation concerning such activities. The new
committee would have 11 members, 6 majority and 5 minority. Con-
tinuous service on the committee would be limited to 6 years. The
majority members would select the committee chairman, and the
minority members would select its vice chairman.
The proposed committee would have legislative jurisdiction over
the Central Intelligence Agency and the intelligence activities of all
other departments and agencies of the Government, including, but not
limited to, the intelligence activities of the Defense Intelligence
Agency, the National Security Agency, and other agencies of the
Department of Defense, the Department of State, the Department
of Justice, and the Department of the Treasury. Also, the proposed
committee would have authorization authority in respect to the strictly
intelligence agencies, and in respect to the intelligence activities of the
other departments and agencies I have just 1 isted.
The jurisdiction of the standing Committees on Armed Services,
Foreign Relations, Government Operations, and Judiciary would be
accordingly modified cr qualified.
Service by staff members of the proposed Committee on Intelligence
Activities would be, strictly limited to 6 years, and such employees
would require strict security clearance.
The resolution contains lengthy provisions relating to disclosure by
the committee of intelligence information it receives from the execu-
tive agencies, including procedures in case of objection by the Presi-
dent to any such disclosure.
The Select Committee on Standards and Conduct would investigate
any alleged unauthorized disclosure of intelligence information by a
Member or employee of the Senate, and recommend appropriate action
to the Senate.
The records of the Select Committee on Government Operations
With Respect to Intelligence Activities would be transferred to the
new standing committee.
In addition, the proposed standing committee would be directed to
engage in a study of a wide variety of subjects bearing on intelligence
information and report back to the Senate thereon no later than July 1,
1977.
Without objection, i[ will insert the text of Senate Resolution 400 in
the hearing record at this point.
[The text of S. Res. 400 follows:]
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NGREss
68ION
WON S. RES. 400
[Report No. 94-675]
IN THE SENATE OF THE UNITED STATES
MARCH 1, 1976
Mr. MANSFIELD (for Mr. RIBICOFF) (for himself, Mr. CHURCH, lkfr. PERCY, Mr.
BAKER, Mr. BROCK, Mr. CHILk:s, Mr. GLENN, Mr. HUDDLESTON, Mr. JACK-
soN, Mr. JAVITS, Mr. MATIIIAS, Mr. METCALF, Mr. MONDALE, Mr. MORGAN,
Mr. MUSKIE, Mr. NUNN, Mr. ROTH, Mr. SCHWEIKER, and Mr. WEICKER)
submitted the following resolution; which was referred to the Committee
on Government Operations
MARCH 1, 1976
Reported by Mr. MANSFIELD (for Mr. RIRIcoFF), without amendment
MARCH 1, 1976
Referred to the Committee on Rules and Administration for a period extending
no later than March 20, 1976
MARCH 18, 1976
Reported by Mr. MANSFIELD (for Mr. CANNON), without amendment
MARCH 18,1976
Referred simultaneously to the Committee on the Judiciary and the Committee
on Rules and Administration with instructions that the Committee on the
Judiciary make its recommendations to the Committee on Rules and
Administration no later than March 29, 1976, and that the Committee on
Rules and Administration files the report no later than April 5, 1976
RESOLUTION
94TH CO
E
2D S
To establish a Standing Committee of the Senate on Intelligence
Activities, and for other purposes.
1 Resolved, That it is the purpose of this resolution to
2 establish anew standing committee of the Senate, to be
3 known as the Committee on Intelligence Activities, to over-
4 see and make continuing studies of the intelligence activities
5 and programs of the United States Government, and to
6 submit to the Senate appropriate proposals for legislation
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concerning such intelligence activities and programs. In
carrying out this purpose, the Committee on Intelligence
Activities shall make every effort to assure that the appro-
priate departments and agencies of the United States provide
5 informed and timely intelligence necessary for the executive
6 and legislative branches to make sound decisions affecting the
7 security and vital interests of the Nation. It is further the
8 purpose of this resolution to provide vigilant legislative over-
9 sight over the intelligence activities of the United States to
10 assure that such activities are in conformity with the Con-
11 stitution and laws of the United States.
12 SEC. 2. Rule XXIV of the Standing Rules of the Senate
13 is amended by adding at the end thereof a new paragraph
14 as follows :
15 "3. (a) Six members of the Committee on Intelligence
16 Activities shall be from the majority party of the Senate and
.17 five members shall be from the minority party of the Senate.
18 " (b) No Senator may serve on the Committee on In-
19 telligence Activities for more than six years of continuous
20 service, exclusive of service by any Senator on such commit-
21 tee during the Ninety-fourth Congress. To the greatest extent
22 practicable, at least three but not more than four Members
23 of the Senate appointed to the Committee on Intelligence
24 Activities at the beginning of the Ninety-sixth Congress and
25 each Congress thereafter shall be Members of the Senate
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1 who did not serve on such committee during the preceding
2 Congress.
3 " (c) At the beginning of each Congress, the members
4 of the Committee, on Intelligence Activities who are mem-
5 hers of the majority party of the Senate shall select a chair=
6 man, and the members of such committee who are from the
7 minority party of the Senate "shall elect a vice chairman. The
S vice chairman shall act in the place and stead of the chair-
.9 man in the absence of the chairman. Neither the chairman
10 nor the vice chairman of the Committee on Intelligence
11 Activities shall at the same time serve as chairman or rank-
12 ing minority member of any other committee referred to in
13 paragraph 6 (f) of rule XXV of the Standing Rules of the
14 Senate.".
15 SEC. 3. (a) Paragraph 1 of rule XXV of the Standing
16 Rules of the Senate is amended by adding at the end thereof
17 the following new subparagraph
18 " (s) Committee on Intelligence Activities, to which
19 committee shall be referred all proposed legislation, messages,
20 petitions, memorials, and other matters relating to the
21 following :
22 " (A) The Central Intelligence Agency and the
23 Director of Central Intelligence.
24 " (B) Intelligence activities of all other departments
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1 and agencies of the Government, including, but not lim-
2 ited to, the intelligence activities of the Defense Intelli-
3 genre Agency, the National Security Agency, and other
4 agencies of the Department of Defense; the Department
5 of State; the Department of Justice; and the Department
6 of the Treasury.
7 " (C) The organization or reorganization of any
8 department or agency of the Government to the extent
9 that the organization or reorganization relates to a func-
10 lion or activity involving intelligence activities.
11 "(D) Authorizations for appropriations for the
12 following :
13 (i) The Central Intelligence Agency.
14 "(ii) The Defense Intelligence Agency.
15 " (iii) The National Security Agency.
16 " (iv) The intelligence activities of other agen-
17 ties and subdivisions of the Department of Defense.
18 " (v) The intelligence activities of the Depart-
19 ment of State.
20 " (vi) The intelligence activities of the Federal
21 Bureau. of Investigation, including all activities of
22 the Intelligence Division.
23 " (vii) Any department, agency, or subdivision
24 which is the successor to any agency named in item
25 (i), (ii), or (iii) ; and the activities of any depart-
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1 ment, agency, or subdivision which is the successor
2 to any department or bureau named in item (iv),
3 (v) , or (vi) to the extent that the activities of such
4 successor department, agency, or subdivision are
5 activities described in item (iv), (v), or (vi).".
6 (b) Paragraph 3 of rule XXV of the Standing Rules
7 of the Senate is amended by inserting:
"Intelligence Activities----------------------------------------- 11"
8 immediately below
"District of Columbia------------------------------------------ 71%
9 (c) (1) Subparagraph (d) of paragraph 1 of rule XXV
10 of the Standing Rules of the Senate is amended by insert-
11 ing " (except matters specified in subparagraph (s) " im-
12 mediately after the word "matters" in the language preced-
13 ing item 1.
14 (2) Subparagraph (i) of paragraph 1 of such rule
15 is amended by inserting " (except matters specified in sub,
16 paragraph (s) ) " immediately after the word "matters" in
17 the language preceding item 1.
18 (3) Subparagraph (j) (1) of paragraph 1 of such rule
19 is amended by inserting " (except matters specified in sub-
20 paragraph (s) )" immediately after the word "matters" in
21 the language preceding item (A).
22 (4) Subparagraph (1) of paragraph 1 of such rule is
23 amended by inserting " (except matters specified in sub-
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1 paragraph (s)) " immediately after the word "matters" in
.2 the language preceding item 1.
3 SEc. 4. (a) The Committee on Intelligence Activities
4 of the Senate, for the purposes of accountability to the Senate,
5 shall make regular and periodic reports to the Senate on the
6 nature and extent of the intelligence activities of the various
7 departments and agencies of the United States. Such com
8 mittee shall promptly call to the attention of the Senate or
9 to any other appropriate committee or committees of the
10 Senate any matters deemed by the Committee on Intelli-
11 gence Activities to require the immediate attention of the
12 Senate or such other committee or committees. In making
13 such reports, the committee shall proceed in a manner con-
14 sistent with paragraph 7 (c) (2) to protect national security.
15 (b) The Committee on Intelligence Activities of the
16 Senate shall obtain an annual report from the Director of the
17 Central Intelligence Agency, the Secretary of Defense, the
18 Secretary of State, and the- Director of the Federal Bureau
19 of Investigation. Such report shall review the intelligence
20 activities of the agency or department concerned and the in-
21 telligence activities of foreign countries directed at the United
22 States or its interests. Such report shall be unclassified and
23 shall be made available to the public by the Committee on
24 Intelligence Activities. Nothing herein shall be construed as
25 requiring the disclosure in such reports of the names of indi-
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1 viduals engaged in intelligence activities for the United States
2 or the sources of information on which such reports are
3 based.
4 Sre. 5. .(a) No person may be employed as a profes-
5 sional staff member of the Committee on Intelligence Activi-
6 ties of the Senate or be engaged by contract or otherwise to
7 perform professional services for or at the request of such
8 committee for a period totaling more than six years.
9 (b) No employee of such committee or any person en-
10 gaged by contract or otherwise to perform services for or at
11 the request of such committee shall be given access to any
12 classified information by such committee unless such employee
13 or person has (1) ' agreed in writing to be bound by the
14 rules of the Senate and of such committee as to the security
15 of such information during and after the period of his em-
16 ployment or contractual agreement with such committee; and
17 (2) received an appropriate security clearance as determined
18 by such committee in consultation with the Director of Cen-
19 tral Intelligence. The type of security clearance to be re-
20 quired in the case of any such employee or person shall,
21 within the determination of such committee in consultation
22 with the Director of Central Intelligence, be commensurate
23 with the sensitivity of the classified information to which
24 such employee or person will be given access by such com-
25 mittee.
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1 SEC. 6. The Committee on Intelligence Activities of the
2 Senate shall formulate and carry out such rules and pro-
3 cedures as it deems necessary to prevent the disclosure,
4 without the consent of the person or persons concerned, of
5 information in the possession of such committee which
6 unduly infringes upon the privacy or which violates the
7 constitutional rights of such person or persons. Nothing here-
8 in shall be construed to prevent such committee from publicly
9 disclosing any such information in any case in which such
10 committee determines the national interest in the disclosure
11 of such information clearly outweighs any infringement on
12 the privacy of any person or persons.
13 SEC. 7. (a) The Committee on Intelligence Activities of
14 the Senate may, subject to the provisions of this section, dis-
15 close publicly any information in the possession of such com
16 mittee after a determination by such committee that the
17 public interest would be, served by such disclosure. Whenever
18 committee action is. required to disclose. any information
19 under this section, the committee shall meet to vote on the
20 matter within five days after any member of the committee
21--requests such a vote.
22 (b) (1) In any case in which the Committee on Intel-
23 ligence Activities of, the Senate votes to. disclose publicly
24 am information submitted to it by the executive branch
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1 which the executive branch requests be kept "secret, sgch
committee shall notify.. the President of such -vote.
3 (2) The committee may disclose publicly such infVr-
4 mation after the expiration of a five-day period following
5 the day on which notice of such vote is transmitted to the
6 President, unless, prior to the expiration of such five-day
7 period, the President notifies the committee that he objects
9
10
11
12
13
14
15
16
17
18
19
20
to the disclosure of such information, provides his reasons
therefor, and certifies that the threat to the national interest
of the United States posed by such disclosure is vital and out-
weighs any public interest in the disclosure.-
(3) The Committee on Intelligence Activities may dis-
close publicly such information. at any time after the expira-
tion of three days following the day on which it receives an
objection from the President pursuant- to paragraph (2),
unless, prior to the expiration of such-three days, three or
more members of such committee file a request in -writing
with the chairman of the committee that the question of
public disclosure of such information be referred to the Senate
for decision.
(4) In any case, in which the Committee -on Intelligence
Activities votes not to disclose publicly any information sub-
mitted to it by the executive branch which the, executive
-branch requests be kept secret, such information shall not-be
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publicly disclosed unless three or more members of such
2 committee file, within three days after the vote, of such co m-
3 'mittee disapproving the public disclosure of such iltformation,
4 a request in writing with the chairman of such committee that
5 the question of public disclosure of such information be
6 referred to the Senate for decision, and public disclosure' of
7 such information is thereafter authorized as provided in
paragraph (5) or (6).
(5) Whenever three or more members of the Com-
mittee on Intelligence Activities file a request with the chair-
man of such committee pursuant to paragraph (3) or (4),
the chairman shall, not later than the first'day on. which the
Senate is in session following the day on which the request is
filed; report the matter to the Senate for its consideration.
(6) ' One hour after the Senate"cot-venes` on the first
day on which the Senate ' is in session following the day 'on
which any such matter is reported to the Senate, the Senate
shall go into closed session and the matter shall be the pend-
ing business. In considering the matter in- closed session the
Senate may-
(A) approve the public disclosure of the informa-
tion in question, in which case' the' committee shall pub-
licly disclose such information.
(B) disapprove the public disclosure of the infor.-
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1 mation in question, in whichi case the committee shall
2 not publicly disclose such. information, or
3 .... (C) refer the matter back to the committee, in
-A 4 'which case the comiiaittee shallmake the final determina-
tion with respect to the public disclosure, of the informa-
6 tion in question,
7 Upon conclusion of the consideration of such matter in closed
8 session, which may not extend beyond the.close of the fifth
9 day following the day on . which 'such matter Was reported
10 to the Senate, the Senate shall immediately vote on 'the
11 disposition of 'such matter in open session, without debate,
12. and without divulging the information with respect to which
13 the vote is being taken. The Senate shall vote to ' dispose
14 of: such matter 'by the means specified in clauses (A), (B),
15 and (C) of the second sentence of this paragraph.'
.16 ' (c) (1) No classified information in the possession of
17 the Committee on Intelligence Activities relating to the law-
18 . ful intelligence activities of any department or agency, of the
19 United States which the committee or the Senate, pursuant
.20- to subsection (a) or (h).' of this section, has determined
.21 should not be disclosed shall be made available to any per-
-22' son by. a Member, ,officer, or employee of the Senate 'except
23- in a closed session of the Senate or as provided in para.-
24 graph (2).
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1 (2) The Committee on Intelligence Activities, or any
2 member of such committee, may, under such regulations
3 as the committee shall prescribe to protect the, confidentiality
4 of such information, make any information described in Para-
5 graph (1) available to any other committee or any other
6 Member of the Senate. Whenever the Committee on Intelli-
7 gence Activities, or any member of such committee, makes
8 such information available,. the committee shall keep a writ-
9 ten record showing, in the case of any particular informa-
10 tion, which committee or which Members of the Senate re-
11 ceived.such information. No Member of the Senate who, and
12 no committee, which, receives any information under this
13 subsection, shaJ!1 make the information available to any other
.14 person, except that a Senator may make such information
15 available either in a closed session of the Senate, or to an-
16 other Member of the Senate; however, a Senator who coim-
.17 niunicates such information to another Senator not a member
18 of. the committee shall promptly inform the Committee on
19 Intelligence Activities.
20 (.d) The Select Committee on Standards and Conduct
21 may investigate any alleged disclosure.of intelligence informa-
.22 tion by a Member, of iicer,.or employee of the Senate in viola-
23 tion of subsection (c) . At the request of five of the members
24 of the Committee on Intelligence Activities or sixteen Mem-
25 bers of the Senate, the Select Committee on Standards and
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13
1 Conduct shall investigate any such alleged disclosure of
2 intelligence information and report its findings and recom-
3 mendations to the Senate.
4 (e) Upon the request of any person who is subject to
5 any such investigation, the Select Committee on Standards
6 and Conduct shall release to such individual at the con-
7 elusion of its investigation a summary of its investigation
8 together with its findings. If, at the conclusion of its investi-
9 gation, the Select Committee on Standards and Conduct
io determines that there has been a significant breach of con-
11 fidentiality or unauthorized disclosure by a Member, officer,
12 or employee of. the Senate, it shall report its findings to the
13 Senate and recommend appropriate action such as censure,
14 removal from committee membership, or expulsion from the
15 Senate, in the case of Member, or removal from office or
16 employment, in the case of an officer or employee.
17 SEC. 8. The Committee on Intelligence Activities of
18 the Senate is authorized to permit any personal representa-
19 tive of the President, designated by the President to serve as
20 a liaison to such committee, to attend any closed meeting of
21 such committee.
22 SEC. "9. Upon expiration of the Select Committee on
23 Governmental Operations With Respect to Intelligence Ac-
24 tivities, established by S. Res. 21, Ninety-fourth Oongresg,
25 all records, files, documents, and other materials in the pos-
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14
1 session, custody, or control of,such committee, under appro-
2 priate conditions established by it, shall be transferred to the
3 Committee on Intelligence Activities.
4 SEC. 10. (a) It is the sense of the Senate that the
5 head of each department and agency of the United States
6 should keep the Committee on Intelligence Activities of the
7 Senate fully and currently informed with respect to intelli-
8 gence activities, including any significant anticipated activi-
9 ties, which are the responsibility of or engaged in by such
10 department or agency.
11 (b) It is the sense of the Senate that the head of any
12 department or agency of the United States involved in any
13 intelligence activities should furnish any information or
14 document in the possession, custody, or control of the de-
15 partment or agency, or witness in its employ, whenever re-
16 quested by the Committee on Intelligence Activities of the
17 Senate with respect to any matter within such committee's
18 jurisdiction.
19 (c) It is the sense of the Senate that each department
20 and agency of the United States should report immediately
21 upon discovery to the Committee on Intelligence Activities
22 of the Senate any and all intelligence activities which con-
23 stitute violations of the constitutional rights of any person,
24 violations of law, or violations of Executive orders, Pres-
25 . idential directives, or departmental or agency rules or regula-
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17
1 tions; each department and agency should further report to
2 such committee what actions have been taken or are expected
3 to be taken by the departments or agencies with respect to
4 such violations.
5 Sc. E11. It shall not be in order in the Senate to con-
6 sider any bill or resolution, or amendment thereto, or eon-
7 ference report thereon, which appropriates funds for any
S fiscal year beginning after September 30, 1976, to, or for
9 the, use of, any department or agency of the United States-
10 to carry out any of the following activities, unless such funds
11 have been previously authorized by law to carry out such
12 activity for such fiscal year-
13 (1) The activities of the Central Intelligence
14 Agency.
15 (2) The activities of the Defense Intelligence
16 Agency.
17 (3) The activities of the National Security Agency.
18 (4) The intelligence activities of other agencies
19 and subdivisions of the Department of Defense.
20 (5) The intelligence activities of the Department
21 of State.'
22 (6) The intelligence activities of the Federal Bureau
23 of Investigation, including all activities of the Intelli-
24 Bence Division.
25 SEC. 12. (a) The Committee on Intelligence Activities
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16
1 shall make a study with respect to the following matters,
2 taking into consideration with respect to each such matter,
3 all relevant aspects of the effectiveness of planning, gathering,
4 use, security, and dissemination of intelligence-
5 (1) the quality of the analytical capabilities of
6 United States foreign intelligence agencies and means
7 for integrating more closely analytical intelligence and
8 policy formulation;
9 (2) the extent and nature of the authority of the
10 departments and agencies of the executive branch to
11 engage in intelligence activities and the desirability of
12 developing charters for each intelligence agency or
13 department;
14 (3) the organization of intelligence activities in
15 the executive branch to maximize the effectiveness of
16 the conduct, oversight, and accountability of intelligence
17 activities; to reduce duplication or overlap; and to im-
18 prove the morale of the personnel of the foreign intelli-
19 gence agencies;
20 (4) the conduct of covert and clandestine activities
21 and the procedures by which Congress is informed of
22 such activities;
23 (5) the desirability of changing any law, Senate
24 rule or procedure, or any Executive order, rule, or regu-
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17
1 lation to improve the protection of intelligence secrets
2 and provide for disclosure of information for which there
3 is no compelling reason for secrecy;
4 (6) the desirability of establishing a joint commit-
5 tee of the Senate and the House of Representatives on
6 intelligence activities in lieu of having separate com-
7 mittees in each House of Congress, or of establishing
8 procedures under which separate committees on intelli-
9 genre activities of the two Houses of Oongress would
10 receive joint briefings from the intelligence agencies and
11 coordinate their policies with respect to the safeguarding
12 of sensitive intelligence information;
13 (7) the authorization of funds for the intelligence
14 activities of the government and whether disclosure of
15 any of the amounts of such funds is in the public interest;
16 and
17 (8) the development of a uniform set of definitions
18 for terms to be used in policies or guidelines which may
19 be adopted by the executive or legislative branches
20 to govern, clarify, and strengthen the operation of in-
21 telligence activities.
22 (b) The Committee on Intelligence Activities of the
23 Senate shall report the results of the study provided for
24 under subsection (a) to the Senate, together with any
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18
1 recommendations for legislative or other actions it deems
2 appropriate, no later than July 1, 1977, and from time to
3 time thereafter as it deems appropriate.
4 SEC. 13. (a) As used in this resolution, the term "intel-
5 ligence activities" includes (1) the collection, analysis, pro-
6 duction, dissemination, or use of information which relates
7 to any foreign country, or any government, political group,
8 party, military :force, movement, or other association in such
9 foreign country, and which relates to the defense, foreign
10 policy, national. security, or related policies of the United
11 States, and other activity which is in support of such activ-
12 ities; (2) activities taken to counter similar activities directed
13 against the United States; (3) covert or. clandestine activ-
14 ities affecting the relations of the United States with any
15 foreign government, political group, party, military force,
16 movement or other association; (4) the collection, analysis,
17 production, dissemination, or use of information about activ-
18 ities of persons within the United States, its territories and
19 possessions, or nationals of the United States abroad whose
20 political and related activities pose, or may be considered by
21 any department, agency, bureau, office,' division, instrumen-
22 tality, or employee of the United States to pose, a threat to
23 the internal security of the United States, and covert or
24 clandestine activities directed against such persons: Such
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21
19
1 term does not include tactical foreign military intelligence
2 serving no national policy-making function.
3 (b) As used in this resolution, the term "department or
4 agency" includes any organization, committee, council, estab-
5 lishment, or office within the Federal Government.
6 (c) For purposes of this resolution, reference to any
7 department, agency, bureau, or subdivision shall include a
8 reference to any successor department, agency, bureau, or
9 subdivision to the extent that such successor engages in
10 intelligence activities now conducted by the department,
11 agency, bureau, or subdivision referred to in this resolution.
12 SEC. 14. Nothing in this resolution shall be construed
13 as constituting acquiescence by the Senate in any practice, or
14 in the conduct of any activity, not otherwise authorized by
15 law.
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22
The CHAIRMAN. I believe that this brief description of the purpose
of Senate Resolution 400 has included its most important features. I
would, however, in this opening statement like to pose rhetorically a
number of questions a;jout the proposal which have occurred to me
after a preliminary study of the resolution. Hopefully, satisfactory
answers to most of those questions will be found during the course of
these hearings.
QUESTIONS ON SENATE RESOLUTION 400
(1) Senate Resolution 400 would create a Standing Committee on
Intelligence Activities with a fixed membership of 11 members, 6 from
the majority party and 5 from the minority party.
Why should this committee be excepted from the procedure in re-
spect to all other standing committees that the number of majority
and minority members changes each Congress to reflect as nearly as
possible the ratio of majority and minority in the full Senate?
(2) Senate Resolution 400 would impose a 6-year limitation on serv-
ice on the Intelligence Committee.
What would this do to the natural process of members gaining
seniority on committees?
Would not the more experienced members with established senior-
ity on other committees as a result tend to shun service on this new
committee?
(3) Unlike the practice in respect to all other standing committees
of the Senate, the chairman of the Committee on Intelligence would be
chosen by the majority members of the committee.
Why Is it, necessary to choose this chairman by this method, which
is contrary to the established procedure set forth in rule XXIV of
the Standing Rules, under which all standing committee chairmen are
approved by the Senate itself ?
(4) The ranking minority member would be vice chairman of the
Intelligence Committee.
How would this square with the tradition on standing committees
that the next ranking majority member takes over in the absence of
the chairman?
(5) Senate Resolution 400 would grant the Intelligence Committee
authority over authorizations for the intelligence activities of the De-
partments of Defense, State, Justice, and Treasury.
Is there really any feasible method of extracting the authorizations
for the intelligence activities of those departments from their overall
authorizations, which would remain within the jurisdiction of other
committees?
For example, if the Committee on Armed Services were stripped of
its authorization authority over Defense Department intelligence ac-
tivities, how could it make sound judgments on overall authorizations
with one of the vital eleir._ents-intelligence-missing?
(6) Would not the 6-year limitation on staff service on the Intelli-
gence Committee make it difficult for the committee to locate and main-
tain competent staff, since they would know that just about the time
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they would become accustomed to and really familiar with their duties
the would have to seek other employment?
(7) Senate Resolution 400 would express the sense of the Senate that
the head of each department and agency of the United States should
keep the Senate Committee on Intelligence Activities fully and cur-
rently informed concerning intelligence activities of such department
or agency. If the Intelligence Committee is to serve its purpose, such
information is vital. Yet we have it here as a sense-of-the-Senate re-
quest in a simple Senate resolution, which does not have the force of
law, and which, the Senate Legislative Counsel advises, the depart-
ments and agencies may comply with or not as they choose.
Why should not this and possibly other proposals in the resolution
be deleted therefrom and be reintroduced in the form of a Senate bill
which ultimately would become a public law, binding upon the depart-
ments and agencies involved?
(8) Why was the joint committee approach, which has worked so
well in the sensitive atomic energy field, not utilized for this new sensi-
tive purpose?
Now, committee members, these are some of the questions which oc-
curred to me. I know there will be others as we go along and I hope
our witnesses, some of them, would take the opportunity to comment
on some of these.
Senator GRIFFIN. Could I add one question?
The CHAIRMAN. Senator Griffin.
Senator GRIFFIN. Could any of the witnesses comment on the fact
that the committee could disclose classified information and the pro-
cedure that would be provided in. the resolution for disclosure. Any
comments concerning that would be welcome as far as I am concerned.
The CHAIRMAN. That is a very good additional point.
Any other comments from the members?
Senator BYRD. Mr. Chairman, I think you have quite comprehen-
sively covered the field. Senator Griffin raises an additional question
with respect to the divulging or reporting of information and mak-
ing it public, and I will have some concerns in these various areas as
we go along and I hope as you do, Mr. Chairman, that those who
have written the legislation thus far will be able to answer the ques-
tions that would be directed toward them.
The CHAIRMAN. Senator Allen?
Senator ALLEN. No further comments.
The CHAIRMAN. As I indicated at the commencement of this state-
ment, the Committee on the Judiciary was directed to report Any rec-
ommendations it may have in respect to Senate Resolution 400 to
the Committee on Rules and Administration not later than April 1,
1976. That committee has so reported to this committee, and I will
read into the record a letter I have received from the Honorable James
0. Eastland, chairman of the Committee on the Judiciary, transmit-
ting that committee's recommended amendments to Senate Resolu-
tion 400. Also, without objection, I will insert into the record at this
point the text of those amendments and the Judiciary Committee's
explanation thereof.
[The material referred to above follows:]
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U.S. SENATE,
COMMITTEE ON THE JUDICIARY,
Washington, D.C., March 30, 1976.
Russell Senate Office Building, Washington, D.C.
DEAR MR. CHAIRMAN: Pursuant to the March 18, 1976 order of the Senate
referring S. Res. 400 to the Commitee on the Judiciary with instructions to make
recommendations to the Committee on Rules and Administration, I wish to advise
you that the Committee on the Judiciary met on March 30, 1976, and recommends
the resolution favorably with amendments.
The effect of the amendments approved by the Committee on the Judiciary
would be to delete from S. Res. 400 the grant of jurisdiction to the proposed
Committee on Intelligence Activities over the intelligence activities of the De-
partment of Justice, including the Federal Bureau of Investigation.
The amendments would retain in the Committee on the Judiciary its historic
jurisdiction over the Department of Justice, including the FBI.
A Judiciary Committee print of S. Res. 400, as amended, is attached.
With best wishes and kindest regards, I am
Sincerely yours,
Hon. HOWARD W. CANNON,
Chairnucn, Senate Rules Committee,
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[JUDICIARY COMMITTEE PRINT]
94TH CONGRESS
2D SESSION
S. RES. 400
[Report No. 94-675]
IN THE SENATE OF THE UNITED STATES
MARCH 1, 1976
Mr. MANSFIELD (for Mr. RIBICOFF) (for himmmself, Mr. CHURCH, Mr. PERCY, Mr.
BASER, Mr. BROCK, Mr. CnILES, Mr. GLENN, Mr. HUDDLESTON, Mr. JACK-
soN, Mr. JAVITS, Mr. INMATuIAS, Mr'. METCALF, Mr. MON-DALE, Mr. MORGAN,
Mr. Muslim, Mr. Nuns, Mr. ROTH, Mr. SCHWEISER, and Mr. WEICKER)
submitted the following resolution; which was referred to the Committee
on Government Operations
MARCH 1, 1976
Reported by Mr. MANSFIELD (for Mr. Rmicorr), without amendment
MARCH 1, 1976
Referred to the Committee on Rules and Administration for a period extending
no later than March 20, 1976
MARCH 18,1976
Reported by Mr. MANSFIELD (for Mr. CANNON), without amendment
MARCH 18,1976
Referred simultaneously to the Committee on the Judiciary and the Committee
on Rules and Administration with instructions that the Committee on the
Judiciary make its recommendations to the Committee on Rules and
Administration no later than March 29, 1976, and that the Committee on
Rules and Administration files the report no later than April 5, 1976
MARCH ,1976
Reported by Mr. ____________, from the Committee on the Judiciary
RESOLUTION
To establish a Standing Committee of the Senate on Intelligence
Activities, and for other purposes.
1 Resolved, That it is the purpose of this resolution to
2 establish a new standing committee of the Senate, to be
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1 known as the Committee on Intelligence Activities, to over-
2 see and make continuing studies of the intelligence activities
3 and programs of the United States Government, and to
4 submit to the Senate appropriate proposals for legislation
5 concerning such intelligence activities and programs. In
6 carrying out this purpose, the Committee on Intelligence
7 Activities shall make every effort to assure that the a.ppro-
8 priate departments and agencies of the United States provide
9 informed and timely intelligence necessary for the executive
10 and legislative l;?ranches to make sound decisions affecting the
11 security and viral interests of the Nation. It is further the
12 purpose of this resolution to provide vigilant legislative over-
13 sight over the intelligence activities of the United States to
assure that such activities are in conformity with the Con-
stitution and laws of the United States.
SDc. 2. Rule XXIV of the Standing Rules of the Senate
is amended by adding at the end thereof a new paragraph
"3. (a) Sig: members of the Committee on Intelligence
Activities shall be from the majority party of the Senate and
five members shall be from the minority party'of the Senate.
" ('b) No Senator may serve on the Committee on In-
telligence Activities for more than six years of continuous
service, exclusive of service by any Senator en' such commit-
25 tee during the Ninety-fourth Congress. To the greatest extent
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1 practicable, at least three but not more than four Members
2 of the Senate appointed to the Committee on Intelligence
3 Activities at the beginning of the Ninety-sixth Congress and
4 each Congress thereafter shall be Members of the 'Senate
5 who did not serve on such committee during the preceding
6 Congress.
7 " (c) At the beginning of each Congress, the members
8 of the Committee on Intelligence Activities who are mem-
9 hers of the majority party of the Senate shall select a chair-
10 man, and the members of such committee who are from the
11 minority party of the Senate shall select a vice chairman. The
12 vice chairman shall act in the place and stead of the chair-
13 man in the absence of the chairman. Neither the chairman
14 nor the vice chairman of the Committee on Intelligence
15 Activities shall at the same time serve as chairman or rank-
16 ing minority member of any other committee referred ? to in
17 paragraph 6 (f) of rule XXV of the Standing Rules of the
18 Senate.".
19 SEC. 3. (a) Paragraph 1 of rule XXV of the Standing
20 Rules of the Senate is amended by adding at the end thereof
21 the following new subparagraph :
22 " (s) Committee on Intelligence Activities, to which
23 committee shall be referred all proposed legislation, messages,
24 petitions, memorials, and other matters relating to the
25 following :
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28
4
1 " (A) The Central Intelligence Agency and the
2 Director of Central Intelligence.
3 " (B) 'Intelligence activities of all other departments
4 and agencies of the Government, including, but not lirn-
5 ited to, the intelligence activities of the Defense Intelli-
6 gence Agency, the National Security Agency, and other
7 agencies of the Department of Defense; the Department
8 of State; the Depart t of Ju tiee; and the Department
9 of the =sue Treasury; but not including the Depart-
10 ment of Justice.
11 " (C) The organization or reorganization of any
12 department or agency of the Government to the extent
13 that the organization or reorganization relates to a func-
14 tion or activity involving intelligence activities.
15 " (D) Authorizations for appropriations for the
16 following :
17 " (i.) The Central Intelligence Agency.
18 " (ii) The Defense Intelligence Agency.
19 " (iii) The National Security Agency.
20 " (i.v) The intelligence activities of other agen-
" (v) The intelligence activities of the Depart-
ment of State.
"(43 The intelligence aetivities of the Fedend
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cies and subdivisions of the Department of Defense.
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5
1 9tiFeatt of Tn c Lion including a aetivities of
2 he Intelligence Division.
3 "{1* (vi) Any department, agency, or sub-
4 division which is the successor to any agency named
5 in item (i), (ii), or (iii) ; and the activities of any
6 department, agency, or subdivision which is the
7 successor to any department ep bEffeaft named in
8 item -{iv}; -(F-}; of (iv) or (v) to the extent
9 that the activities of each successor department, ag-
10 ency, or subdivision are activities described in item
11 #+, -N}; of {'i} (iv) or (V).".
12 (b) Paragraph 3 of rule XXV of the Standing Rules
13 of the Senate is amended by inserting:
"Intelligence Activities_________________________________________ 11"
14 immediately below
"District of Columbia ------------------------------------------ 7".
15 (c) (1) Subparagraph (d) of paragraph 1 of rule XXV
16 of the Standing Rules of the Senate is amended by insert-
17 ing " (except matters specified in subparagraph (s) ) " im-
18 mediately after the word "matters" in the language preced-
19 ing item 1.
20 (2) Subparagraph (i), of paragraph 1 of such rule is
21 amended by inserting " (except matters specified in sub-
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6
1 paragraph (s)) " immediately after the word "matters" in
2 the language preceding item 1.
3 (3) Subparagraph (j) (1) of paragraph 1 of such rule
4 is amended by inserting " (except matters specified in sub-
5 paragraph (s) )" immediately after the word "matters" in
6 the language preceding item (A).
7 -(4} Su h )- of pafa"h -1 of stiek *le is
8 wnefi4ed by lose 3g " (eNeept matters speeified in sttb-
9 k " immediately after be i~ "--tea" in
a ~ -(~- iR
10 he }angle preeeding dent 4?:
11 SEC. 4. (a) The Committee on Intelligence Activities
12 of the Senate, for the purposes of accountability to the Sen-
13 ate, shall make regular and periodic reports to the Senate on
14 the nature and extent of the intelligence activities of the
15 various departments and agencies of the United States. Such
committee shalti promptly call to the attention of the Senate
or to any other appropriate committee or committees of the
Senate any matters deemed by the Committee on Intelli-
gence Activities to require the immediate attention of the
Senate or such other committee or committees. In making
such reports, the committee shall proceed in a manner con-
sistent with paragraph 7 (c) (2) to protect national security.
(b) The Committee on Intelligence Activities of the
Senate shall obtain an annual report from the'Director of the
Central Intelligence Agency, the Secretary of Defense, and
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31
7
1 the Secretary of State;- the Pireete e? the Fedentl Bureau
2 of . Such report shall review the intelligence
3 activities of the agency or department concerned and the in-
4 telligence activities of foreign countries directed at the United
5 States or its interests. Such report shall be unclassified and
6 shall be made available to the public by the Committee on
7 Intelligence Activities. Nothing herein shall be construed as
8 requiring the disclosure in such reports of the names of indi-
9 viduals engaged in intelligence activities for the United
10 States or the sources of information on which such reports
11 are based.
12 SEc. 5. (a) No person may be employed as a profes-
13 sional staff member of the Committee on Intelligence Activi-
14 ties of the Senate or be engaged by contract or otherwise to
15 perform professional services for or at the request of such
16 committee for a period totaling more than six years.
17 (b) No employee of such committee or any person en-
18 gaged by contract or otherwise to perform services for or at
19 the request of such committee shall be given access to any
20 classified information by such committee unless such em-
21 ployee or person has (1) agreed in writing to be bound by
22 the rules of the Senate and of such committee as to the
23 security of such information during and after the period of
24 his employment or contractual agreement with such com-
25 mittee; and (2) received an appropriate security clearance
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32
9
10
11
19
20
21
8
as determined 9y such committee in consultation with the
Director of Central Intelligence. The type of security clear-
ance to be required in the case of any such employee or
person shall, within the determination of such committee in
consultation with the Director of Central Intelligence, be
commensurate with the sensitivity of the classified informa-
tion to which such employee or person will be given access
by such committee.
SEC. 6. The Committee on Intelligence Activities of the
Senate shall formulate and carry out such rules and pro-
cedures as it deems necessary to prevent the disclosure,
without the consent of the person or persons concerned, of
information in the possession of such committee which
14 unduly infringes upon the privacy or which violates the
15 constitutional rights of such person or persons. Nothing here-
16 in shall lie construed to prevent such committee from publicly
17 disclosing any such information in any case in which such
committee determines the national interest in the disclosure
of such information clearly outweighs any infringement on
the privacy of any person or persons.
SEC. 7. (a) The Committee on Intelligence Activities of
the Senate may, subject to the provisions of this section, dis-
23 close publicly any information in the possession of such com-
24 mittee after a determination by such committee that the
25 public interest would be served by such disclosure. Whenever
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9
1 commttee action is required to disclose any information
2 under this section, the committee shall meet to vote on the
3 matter within five days after any member of the committee
4 requests such a vote.
5 (b) (1) In any case in which the Committee on Intel-
6 ligence Activities of the Senate votes to disclose publicly
7 any information submitted to it by the executive branch
8 which the executive branch requests be kept secret, such
9 committee shall notify the President of such vote.
10 (2) The committee may disclose publicly such infor-
11 mation after the expiration of a five-day period following
12 the day on which notice of such vote is transmitted to the
13 President, unless, prior to the expiration of such five-day
14 period, the President notifies the committee that he objects
15 to the disclosure of such information, provides his reasons
16 therefor, and certifies that the threat to the national interest
17 of the United States posed by such disclosure is vital and out-
18 weighs any public interest in the disclosure.
19 (3) The Committee on Intelligence Activities may dis-
20 close publicly such information at any time after the expira-
21 tion of three days following the day on which it receives an
22 objection from the President pursuant to paragraph (2),
23 unless, prior to the expiration of such three days, three or
24 more members of such committee file a request in writing
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10
1 with the chairman of the committee that the question of
2 public disclosure of such information be referred to the Senate
3 for decision.
4 (4) In any case in which the Committee on Intelligence
5 Activities votes not to disclose publicly any information sub-
6 witted to it by the executive branch which the executive
7 branch requests be kept secret, such information shall not be
8 publicly disclosed unless three or more members of such
9 committee file, within three days after the vote of such con-1-
10 mittee disapproving the public disclosure'of such information,
11 a request in writing with the chairman of such committee that
12 the question of public disclosure of such information be
13 referred to the Senate for decision, and public disclosure of
]4 such. information is thereafter authorized as provided in
15 paragraph (5). or (6) .
16 (5) Whenever three or more members of the Com-
17 mittee on Intelligence Activities file a request with the chair-
18 man of such committee pursuant to paragraph (3) or (4),
19 the chairman ,;hall, not later than the first day on which the
20 Senate is in session following the day on which the request is
21 filed, report the matter to the Senate for its consideration.
22 (6) One hour after the Senate convenes on the first
23 day on which the Senate is in session following the day on
24 which any such matter is reported to the Senate, the Senate
25 shall go into closed session and the matter shall be the pend-
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11
1 ing business. In considering the matter in closed session the.
2 Senate may-
3 (A) approve the public disclosure of the informa-
4 tion in question, in which case the committee shall pub-
5 liicly disclose such information.
6 (B) disapprove the public disclosure of the infor-
7 mation in question, in which case the committee shall
8 not publicly disclose such information, or
9 (C) refer the matter back to the committee, in
10 which case the committee shall make the final determina-
11 tion with respect to the public disclosure of the informa-
12 tion in question.
13 Upon conclusion of the consideration of such matter in closed
14 session, which may not extend beyond the close of the fifth
15 day following the day on which such matter was reported
16 to the Senate, the Senate shall immediately vote on the
17 disposition of such matter in open session, without debate,
18 and without'divulging the information with respect to which
19 the vote is being taken. The Senate shall vote . to dispose
20 of such matter by the means specified in clauses (A), (B),
21 and (C) of the second sentence of this paragraph.
22 (c) (1) *No classified information in the possession of
23 the Committee on Intelligence Activities relating to the law=
24 ful intelligence activities of any department or agency of the
25 United States which the committee or the Senate, pursuant
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36
12
to subsection (a) or (b) of this section, has determined
should not be disclosed shall be made available to any per-
son by a Member, officer, or employee of the Senate except
in a closed session of the Senate or as provided in para-
graph (2).
(2) The Committee on Intelligence Activities, or any
member of such committee, may, under such regulations as
the committee shall prescribe to protect the confidentiality
of such information, make any information described in para-
graph (1) available to any other committee or any other
Member of the Senate. Whenever the Committee on Intelli-
gence Activities, or any member of such committee, makes
such information available, the committee shall keep a written
record showing, in the case of any particular information,
which committee or which Members of the Senate received
such information. No Member of the Senate who, and no
committee, which, receives any information under this sub-
section, shall make the information available to any other
person, except that a Senator may make such information
available either in a closed session of the Senate, or to another
Member of the Senate; however, a Senator who communi-
cates such information to another Senator not a. member of
the committee shall promptly inform the Committee on Intel-
ligence Activities.
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1 (d) The Select Committee on Standards and Conduct
2 may investigate any alleged disclosure of intelligence informa-
3 tion by a. Member, officer, or employee of the Senate in viola-
4 tion of subsection (c) . At the request of five of the members
5 of the Committee on Intelligence Activities or sixteen Mem-
6 bers of the Senate, the Select Committee on Standards and
7 Conduct shall investigate any such alleged disclosure of
8 intelligence information and report its findings and recom-
9 mendations to the Senate.
10 (e) Upon the request of any person who is subject to
11 any such investigation, the Select Committee on Standards
12 and Conduct shall release to such individual at the con-
13 elusion of its investigation a summary of its investigation
14 together with its findings. If, at the conclusion of its investi-
15 gation, the Select Committee on Standards and Conduct
16 determines that there has been a significant breach of con-
17 fidentiality or unauthorized disclosure by a Member, officer,
18 or employee of the Senate, it shall report its findings to the
19 Senate and recommend appropriate action such as censure,
20 removal from committee membership, or expulsion from the
21 Senate, in the case of Member, or removal from office or
22 employment, in the case of an officer or employee.
23 SEC. 8. The Committee on Intelligence Activities of
24 the Senate is authorized to permit any personal representa-
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38
14
1 tive of the President, designated by the President to serve as
2 a liaison to such committee, to attend any closed meeting of
3 such committee.
4 SEC. 9. Upon expiration of the Select Committee on
5 Governmental Operations With Respect to Intelligence Ac-
6 tivities, established by S. Res. 21, Ninety-fourth Congress,
7 all records, files, documents, and other materials in the pos-
8 session, custody, or control of such committee, under appro-
9 priate conditions established by it, shall be transferred to the
10 Committee on Intelligence Activities.
11 SEc. 10. (a) It is the sense of the Senate that the
12 head of each department and agency of the United !States
13 should keep the Committee on Intelligence Activities of the
14 Senate fully and currently informed with respect to intelli-
15 gence activities, including any significant anticipated activi-
16 ties, which are the responsibility of "or engaged in by such
17 department or agency.
18 (b) It is the sense of the Senate that the head of any
19 department or agency of the United States involved in any
20 intelligence activities should furnish any information or
21 document in the possession, custody, or control of the de-
22 partment or agency, or witness in its employ, whenever re-
23 quested by the Committee on Intelligence Activities of the
24 Senate with respect to any matter within such committee's
25 jurisdiction.
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15
1 (c) It is the sense of the Senate that each department
2 and agency of the United States should report immediately
3 upon discovery. to the Committee on Intelligence Activities
4 of the Senate. any and all intelligence activities which con-
5 stitute violations of the constitutional rights of any person,
6 violations of law, or violations of Executive orders, Pres-
7 idential directives, or departmental or agency rules or regula-
8 tions; each department and agency should further report to
9 such committee what actions have been taken or are expected
10 to be taken by the departments or agencies with respect to
11 such violations.
12 SEC. 11. It shall not be in order in the Senate to con-
13 sider any bill or resolution, or amendment thereto, or con-
14 ference report thereon, which appropriates funds for any
15 fiscal year beginning after September 30, 1976, to, or for
16 the use of, any department or agency of the United States
17 to carry out any of the following activities, unless such funds
18 have been previously authorized by law to carry out such
19 activity for such fiscal year-
20 (1) The activities of the Central Intelligence
21 Agency.
22 (2) The activities of the Defense Intelligence
23 Agency.
24 (3) The activities of the National Security Agency.
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16
1 (4) The intelligence activities of other agencies
2 and subdivisions of the Department of Defense.
3 (5) The intelligence activities of the Department
4 of State.
5 -fe-)- The -ntelli nee fK4iv-ities of the F- ercrl tree +
6 of west i ati* i-aeluAig till ttc4ivi4es of the tt li-
7 gone vision
8 SEC. 12. (a.) The Committee on Intelligence Activities
9 shall make a study with respect to the following matters,
10 taking into consideration with respect to each such matter,
11 all relevant aspects of the effectiveness of planning, gathering,
12 use, security, and dissemination of intelligence-
13 (1) the quality of the analytical capabilities of
14 United States foreign intelligence agencies and means
15 for integrating more closely analytical intelligence and
16 policy formulation;
17 (2) the extent and nature of the authority of the
18 departments and agencies of the executive branch to
19 engage in intelligence activities and the desirability of
20 developing charters for each intelligence agency or
21 department;
22 (3) the organization of intelligence activities in
23 the executive branch to maximize the effectiveness of
24 the conduct., oversight, and accountability of intelligence
25 activities; to reduce duplication or overlap; and to im-
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1, prove the morale of the personnel of the foreign intelli-
2 gence agencies;
3 (4) the conduct of covert and clandestine activities
4 and the procedures by which Congress is informed of
5 such activities;
6 (5) the desirability of changing any law, Senate
7 rule or procedure, or any Executive order, rule, or regu-
8 lation to improve the protection of intelligence secrets
9 and provide for disclosure.of information for which there
10 is no compelling reason for secrecy;
11 (6) the desirability of establishing a joint commit-
12 tee of the Senate and the House of Representatives on
13 intelligence activities in lieu of having separate com-
14 mittees in each House of Congress, or of establishing
15 procedures under which separate committees on intelli-
16 gence activities of the two Houses of Congress would
17 receive joint briefings from the intelligence agencies and
18 coordinate their policies with respect to the safeguarding
19 of sensitive intelligence information;
20 (7) the authorization of funds for the intelligence
21 activities of the government and whether disclosure of
22 any of the amounts of such funds is in the public interest;
23 and
24 (8) the development of a uniform set of definitions
25 for terms to be used in policies or guidelines which may
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42
18
1 be adopted by the executive or legislative branches
2 to govern, clarify, and strengthen the operation of in-
3 telligence activities.
4 (b) The Committee on Intelligence Activities of the
5 Senate shall report the results of the study provided for
6 under subsection (a) to the Senate, together with any
7 recommendations for legislative or other actions it deems
8 appropriate, no later than July 1, 1977, and from time to
9 time thereafter as it deems appropriate.
10 SEC. 13. (a) As used in this resolution, the term "intel-
11 ligence activities" includes (1) the collection, analysis, pro-
12 duction, dissemination, or use of information which relates
13 to any foreign country, or any government, political group,
14 party, military force, movement, or other association in such
15 foreign country, and which relates to the defense, foreign
16 policy, national security, or related policies of the United
17 States, and other activity which is in support of such activ-
18 ities; (2) activities taken to counter similar activities directed
19 against the United States; (3) covert or clandestine activ-
20 ities affecting the relations of the United States with any
21 foreign government, political group, party, military force,
22 movement or other association; (4) the collection, analysis,
23 production, dissemination, or use of information about activ-
24 ities of persons within the United States, its territories and
25 possessions, or nationals of the United States abroad whose
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19
political and related activities pose, or may be considered by
any department, agency, bureau, office, division, instrumen-
tality, or employee of the United States to pose, a threat to
the internal security of the United States, and covert or
clandestine activities directed against such persons. Such
term does not include tactical foreign military intelligence
agency" includes any organization, committee, council, estab-
lishment, or office within the Federal C4overmnent.
(c) For purposes of this resolution, reference to any
department, agency, bureau, or subdivision shall include a
reference to any successor department, agency, bureau, or
subdivision to the extent that such successor engages in
intelligence activities now conducted by the department,
agency, bureau, or subdivision referred to in this resolution.
SEC. 14. Nothing in this resolution shall be construed
as constituting acquiescence by the Senate in any practice, or
in the conduct of any activity, not otherwise authorized by
law.
7 serving no national policymaking function-
8 (h) As used in this resolution, the term "department or
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44
PURPOSE OF AMENDMENTS TO S. RES. 400 CONTAINED IN COMMITTEE PRINT
NUMBER 1
The total effect of the various amendments contained in Committee print
number one is to retain the present jurisdiction of the Committee on the
Judiciary over all functions of the Federal Bureau of Investigation and to
strike from S. Res. 400 all grants of jurisdiction to the contemplated Commit.
tee on Intelligence Activities over the FBI.
The intelligence activities of the Department of Justice are exempted from
the grant of jurisdiction of the contemplated Committee on Intelligence Activi-
ties to be contained in proposed subparagraph(s) of rule XXV of the Standing
Rules of the Senate by striking out "the Department of Justice" on page 4,
line 8 of the bill.
Since the proposed subparagraph(s) of rule XXV states, in lines 4 and 5
on page 4 that the provisions are applicable not only to the enumerated depart-
ments and agencies, "but not limited to" those listed, the language of page 4,
lines 9 and 10 is amended by striking the period, inserting in lieu thereof a
semicolon and the words : "but not including the Department of Justice.".
The inclusion of jurisdiction in the proposed Committee on Intelligence
Activities over authorizing legislation concerning the intelligence activities
of the FBI is removed by striking line 24 on page 4 through line 2 on page 5.
The reference to "bureau" in line 7 of page 5 is removed since the Federal
Bureau of Investigation would not be included within the jurisdiction of the
proposed Committee.
The language of S. Res. 400 which takes away the jurisdiction of the Com-
mittee on the Judiciary over the intelligence activities of the Department
of Justice by amending subparagraph (1) of paragraph 1 of rule XXV of the
Standing Rules of the Senate is deleted by striking out lines 5 through 8 of
page 6 of the bill.
The intelligence activities of the FBI are exempted from the mandatory
authorizing language of Section 11 of S. Res. 400 by striking out lines 3
through 5 on page 16 of the bill.
Other technical amendments redesignate sections of the bill to conform
to the changes made by the amendments.
The CHAIRMAN. Senator Stennis, we are very happy to have you
here. to testify on this matter.
STATEMENT OF HON. JOHN C. STENNIS, CHAIRMAN OF THE
COMMITTEE ON ARMED SERVICES
Senator STENNIS. Thank you, Mr. Chairman, and members of the
committee. Anything 11 can discuss I feel I owe it to the committee,
and your questions are very timely. If I may just on my part say
this, I will attempt to answer any of those questions later after get-
ting a copy and file. them for the record.
[Responses to the questions, subsequently received for the hearing
record, may be found on p. 61 of these hearings.]
The, CHAIRMAN. Very good.
Senator STENNIS. Mr. Chairman, I have a prepared statement here.
T do not propose to read all of it by any means. I would ask that it
be. placed in the record and that I be permitted to summarize, and
emphasize such points therein or otherwise that I might see fit.
The Cr-IAIRMAx. Yes; the statement will be made a part of the
record in full and you may summarize. from it as you wish.
[The written statement of Senator Stennis follows:]
STATEMENT OF HON. JOHN C. STENNIS, CHAIRMAN OF THE COMMITTEE ON ARMED
SERVICES
Mr. Chairman, I am happy to appear before the Rules Committee to testify on
S. Res. 400. a resolution which would have far reaching effects on U.S. intel-
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45
ligence activities and national defense. The full Committee on Armed Services
has discussed thoroughly at two separate meetings S. Res. 400. No votes were
taken within the Committee on this resolution. I believe, however, that my re-
marks reflect the general consensus of the Committee.
'I respect the hard work and good faith of all those who labored on this resolu-
tion and now support it. There are certain fundamentals in this resolution, how-
ever, that I vigorously oppose.
SUMMARY OF POSITION
My position and recommendations on this resolution are as follows :
Retention of legislative jurisdiction over foreign intelligence by Armed Services
Committee
S. Res. 400 would amend the Senate rules to transfer legislative jurisdiction
over intelligence activities from the Senate Armed Services Committee to a pro-
posed Standing Committee on Intelligence Activities. I strongly oppose this
provision.
The foundation of the legislative responsibility of the Armed Services Com-
mittee in providing for the national defense lies in adequate intelligence judg-
ments about foreign nations. The Armed Services Committee will be unable to
meet properly its responsibility for the "common defense generally" if the Com-
mittee is deprived of its authority over one of the most crucial elements of na-
tional defense-foreign intelligence.
Elimination of requirement for legislative authorization of intelligence budgets
This resolution would rule out of order any annual appropriations for specified
intelligence functions unless they were previously authorized by law. Separate
authorization of various intelligence activities will result in making public and
therefore available to potential adversaries, sensitive data on U.S. intelligence
activities. I am firmly against such a procedure.
Abandonment of unilateral Senate approach
These two central features of S. Res. 400-changes in jurisdiction and the
authorization process-are inherently unsound. That they would be accomplished
by amending the Senate rules without comparable changes by the House of Rep-
resentatives, can result only in utter legislative confusion.
,Mr. Chairman, I would urge the Rules Committee to consider a change which
would make Congressional control and oversight over intelligence activities more
effective.
Creation of new permanent Armed Services Committee on Intelligence
A Permanent Intelligence Subcommittee of the Armed Services Committee can
be established and I would agree this Subcommittee should be separately funded
with a small, highly competent staff and would concentrate solely on foreign intel-
ligence activities.
A historical perspective is essential to appreciate fully the importance of
Armed Services Committee jurisdiction over U.S. foreign intelligence activity.
Background on present intelligence community
The U.S. intelligence community in its present form was established in 1947
as part of an overall reorganization of the U.S. national security structure. The
experience of World War II beginning with the attack on Pearl Harbor has
demonstrated the necessity of an integrated and centralized intelligence com-
munity. Prior to this time virtually all U.S. intelligence capability was spread
throughout the military services. The CIA was created to ensure that intelligence
would be available centrally to the President, the National Security Council and
those government departments dealing with U.S. national security. The CIA was
to be a civilian agency so that intelligence, to the greatest extent possible, would
be objective and free of any parochial bias.
It was recognized that the United States could no longer remain isolated
and ignorant of the capabilities and intentions of other nations. The overriding
purpose of the new intelligence community, headed by the CIA, was to support
the national defense.
Role of foreign intelligence in national defense
Throughout the years intelligence has been indispensable to national defense.
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Arms development as well as arms control have depended critically on intel-
ligence. Indeed, the size and content of the U.S. defense budget and the deploy-
ment of U.S. ~troops are directly related to intelligence estimates of foreign
nations.
Intelligence, however, is not an end in itself. Like airlift capability, research
and development, or anti-submarine forces, intelligence activities must be de-
signed to support the overall defense program.
Because the U.S. defense depends so vitally on intelligence; it has always been
necessary that the President, the Defense Department and the Armed Services
Committee ensure that intelligence activities appropriately serve the needs of
defense. Particularly in tines of crises, there must be the flexibility to, trade off
and balance intelligence activities with other defense activities.
Thus, it is essential that. the Armed Services Committee, like the Director of
CIA and the Secretary of Defense, be able to review and adjust the effectiveness
and scope of U.S. foreign intelligence activities. Were the Armed Services Com-
mittee to be deprived of this legislative authority, the intelligence community
could become a separate entity unresponsive to the needs of national defense.
Intelligence integral element of national defense
The necessity for Armed Services Committee jurisdiction over intelligence ac-
tivities is further underscored upon examination of the composition of the for-
eign intelligence community. Approximately 85 percent of the funds and 80 per-
cent of the personnel in all U.S. foreign intelligence activities are managed by the
Defense Department. The intelligence components remaining outside the Defense
Department-principally the CIA-are overwhelmingly devoted to providing in-
telligence in support of the national defense. In light of this close and inseparable
relationship, it would be unwise for the Senate to try to deal with foreign intelli-
gence apart from the Defense Department.
As I have said, the Rules Committee should reject the S. Res. 400 requirement
for separate legislative authorization of intelligence budgets.
Damaging disclosures
If there is to be separate legislative authorization as a requirement for annual
appropriations for each of the major intelligence activities, including CIA, DIA,
NSA, etc., all to be debated on the Senate floor, there is no doubt whatever that
crucial aspects of our U.S. intelligence activity will be disclosed and thereby
made available to the Russians. The argument will be made that no damage will
be done if only total figures are disclosed. Yet year-to-year trends will give hard
evidence to other countries as to the nature of some of our operations. You may
recall that the Senate rejected a floor amendment to the Defense Authorization
Bill in 1974 which would have required the disclosure of the aggregate CIA
budget.
In terms of congressional reality, however, there is no way debates on intelli-
gence can be limited to lump-sum figures. It is virtually impossible to debate the
whole of a subject without debating its parts.
Impracticalities of separating intelligence from defense
Let me refer to some of the problems that the separate authorization require-
ment would create in the Department of Defense. Again I emphasize that about
85 percent of the funds and 80 percent of the manpower of all U.S. intelligence
activity are utilized within the Department of Defense. The intelligence funds
within the Department of Defense are now carried in 23 separate appropriation
accounts such as the R&D, military construction, personnel, operations and main-
tenance; procurement, and'the like. These, of course, are carried here so that the
amounts of these funds will not be made public and disclosed to potential Ad-
versaries.
I am advised that there is literally no way from a budget standpoint that these
funds can be carved out with all the accounting restrictions of a separate budget.
For instance, there is an aircraft known as the KC-135, many of which are used
for refueling aerial tankers for the strategic air force. Other aircraft of this
identical type are used for reconnaissance and intelligence purposes.
If we are to have a separate intelligence budget those planes used for intelli-
gence, their spare parts, fuel, personnel, etc., must be handled separately even
though they are in fact identical. 'Moreover, the cost of overhead facilities, such
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as airports and ground equipment, must be separately broken out. This example
could be duplicated many times with respect to the budgetary chaos and ineffi-
ciency that a separate authorization requirement would create.
Lack of meaningful distinction between tactical and national intelligence
The resolution provides that tactical intelligence does not have to be included
within the required budget authorization as distinguished from the so-called
strategic intelligence affecting national policy. As a practical matter, it is almost
impossible to separate these activities in a budgetary sense. For example, the
U-2 reconnaissance aircraft were used for both purposes, tactical and strategic.
The same electronic intelligence source often provides useful information to a
field commander, a weapons designer, and a national policy maker. And, there
are many other examples such as anti-submarine devices, satellite activities, etc.,
all of which demonstrate the inseparability of intelligence activities from the
Defense functions as a whole.
DIFFICULTIES IN RELATIONSHIPS WITH THE HOUSE ON INTELLIGENCE ACTIVITIES
Mr. Chairman, I firmly believe that the proposals I have discussed are in-
herently unsound within themselves. I would emphasize, however, that these
changes nre in the form of amendments to. the Senate rules and hence would
apply only to the Senate. Such action by the Senate would seriously impede the
ability of the Congress as awhole to deal with intelligence legislation. For in-
stance, since the House is proposing no legislative changes in the way that in-
telligence functions are now authorized, the House Armed Services Committee
would report a military authorization bill containing sizable sums in the Research
and Development account for intelligence purposes. If S. Res. 400 becomes the
rule, these same funds would no longer be in the military authorization bill as
reported by the Senate Armed Services Committee. What would be the situation
in the conference with the House? Frankly, the situation would be a procedural
nightmare. And this example would be duplicated many times over.
Moreover, unless existing law is drastically amended, the management of for-
eign intelligence will remain spread throughout various departments and agen-
cies of the Executive Branch. Thus, an attempt by the Senate to bring all in-
telligence activities under one umbrella would be inconsistent with the practice of
the Executive Branch as well as the House of Representatives.
NO IMPROVEMENT IN U.S. INTELLIGENCE CAPABILITY RESULTING FROM S. RES 400
Mr. Chairman, it is only proper to ask ourselves, does this resolution result in
improving U.S. intelligence capability?
We should keep in mind that the criticism of intelligence activities in the past
months has not been directed toward the collection and analysis of defense in-
telligence. Rather it has been directed toward the alleged misuse of intelligence
capability at the highest executive levels, involving certain covert activities, sur-
veillance excesses against U.S. citizens, etc. These areas, which have been under
the direct control of the Office of the President, account for only a small sliver of
U.S. intelligence activity.
Unfortunately, there is nothing in this resolution which would establish safe-
guards against the improper use of intelligence authority for domestic purposes
as well as the various other alleged misuses. It is unrealistic to expect that the
mere creation of a new Committee will resolve any problems or improve the
product of U.S. intelligence. On the contrary, I firmly believe that great damage
may flow from the provisions I have discussed in this resolution.
At the same time, I believe that certain changes should be made in how the
Senate copes with its responsibility for intelligence and urge that you consider
the following approach.
NEW SUBCOMMITTEE AND NEW COMMITTEE
Mr. Chairman, although I urge that the Rules Committee not recommend
favorably on S. Res. 400, I do recommend that affirmative steps be taken :
Creation of a new Permanent Subcommittee of the Senate Committee on Armed
Services
The Rules Committee should recommend establishment of a Permanent In-
telligence Subcommittee of the Senate Armed Services Committee which would be
separately funded and concentrate solely on intelligence activities.
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lk
I would support the formation of such a Subcommittee. The Subcommittee
would have a small, competent and permanent staff. Procedures could be devised
whereby this Subcommittee would cooperate with the Committee on Foreign
Relations and regularly report its general oversight findings to the Senate.
I would emphasize that I have no objection to an added group to review the
administration of foreign intelligence. This group should include the elected
leadership of the Senate.
In view of its basic defects, I urge the Rules Committee to reject S. Res. 400
and seriously consider the proposals that I have outlined to strengthen the Con-
gressional role in intelligence.
Senator STENNIS. Thank you, Mr. Chairman.
Now, gentlemen, in the Armed Services Committee, we had two
around-the-table committee discussions by virtually all the member-
ship of the committee. We do not have a resolution to bring here to you,
but I am certain that I speak for the great majority, as a consensus,
on the points I make-:[ speak for a majority of the committee without
being nailed down to specific language. Some of the others will appear
also.
Gentlemen, I have the greatest respect for the workings of the In-
telligence Committee. I cooperated with them in any way that I could
and they desired. I commend them and the Government Operations
Committee for their work, all done in good faith and diligence, but
fundamentally I am compelled to respectfully disagree with their
conclusions, and the high point, main points pertain to jurisdiction.
The resolution takes away through a proposed Senate, rule the juris-
diction of the Armed Services Committee in connection with intelli-
gence and also requires a complete authorization by the new committee
of all the sums to be appropriated for military intelligence. I will
enlarge upon that. I am compelled-I don't like to talk about my-
self-but I am compelled to go somewhat into my background of my
experience with this, Mr. Chairman.
This is the most far-reaching proposal in this field since the enact-
ment, of the National Security Act which created the Department of
Defense in 1947.
Now, I wasn't here then, but as I have said before, I came in on the
next train after that bill passed. It was still rocking Capitol Hill. It
created a Department of Defense over the objection of the services. It
created this Secretary of Defense, at Cabinet level, really above the
services. It split away from the military, over their objection, this in-
telligence agency, and the final language provided that both its
Director and Deputy Director could not simultaneously be a military
man.
Now, Mr. Chairman,, over the years the CIA has done an excellent
job.
What is their job? Gathering and analyzing intelligence. Their
record is not all good by any means. For one reason or another, they
got into a local or domestic or home affairs. But by and large the
gathering of intelligence, particularly from foreign- areas in collabora-
tion with friendly foreign countries-the gathering and reporting and
interpretation-that is a matter of opinion, interpretation-but I think
they have done an excellent job. It has been at the cost of the lives of
many of these men, a good many of them, and it has been at the cost
of the lives of many men of other nationalities that were employed by
the CIA.
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49
Of course, Pearl Harbor was in the background of the creation of
this thing. The Nation had to decide whether to go international or
not; they created this Department of Defense, realized that they had
to have this foreign intelligence and set that up as I have already
said. Out of all that grew NATO, the-Marshall plan and other mat-
ters-some successful and some not. But as a whole, these intelligence
people have done an excellent job in their primary field, and there has
been more surveillance of them than appears on the surface. The
surveillance over the military part, the part that really counted and
with which the Armed Services Committee was concerned, has been
far more than appears on the surface, and I have been rather shut-
mouth about it myself. This course of action comes down through men
like Styles Bridges, Everett Salstonstal-they were both on Armed
Services-Margaret Smith, the late Senator Russell, the late Senator
Ellender and others. There was a rather involved, tedious difficult
oversight task and when they first drew me into it, I didn't like the
idea of so much secrecy. It is against the American concept-certainly,
it is against mine-so much secrecy in Government. But as I read on
deeper and deeper into this problem. I saw more and more the absolute
necessity of keeping the amounts of these expenditures largely secret
because of the inferences and conclusions that can be drawn by
adversaries as to what we are doing or what we are not doing. That is
a big part of this story.
Let me illustrate some of the things that were carried in the bosom
of this group, in which Appropriations and Armed Services had a
commonality of membership then, by chance. and they worked to-
gether a great deal. The most recent thing, this Russian submarine
that was sunk, and we tried to raise it-and did raise it-with what
would have been n wealth of material had not that cable broken. For
4 years, for 5 years we made appropriations for that project which
cost a good deal of money. It was on the verge of being successful.
At the last moment the cable broke and killed it. If we had fol-
lowed Senate Resolution 400 or the usual way of getting money au-
thorized and appropriated there would have been inferences, it would
have gotten out. From their suspicions-all The Russians have to have
is a suspicion-they would have been right on the spot. They are
guarding it now 25 hours a day. However, back to the original point :
That project was carried through 4 successive years of appropriation.
There were several of us that knew about it, discussed it. It lost on
the other front.
The U-2; there is no way to describe or estimate the value that we
got from the work of the TT-2. That goes way back as you recall. The
TT-2 was an airplane gathering information. From it, we found out-
this is an open session, I am not going to elaborate very much-but
we learned a lot of things we should not do, a lot of -weapons we should
not build, because it would be a waste of money, because they wouldn't
be needed. We learned, on the other hand, what would be needed from
what others were doing. Billions sand billions of dollars is my estimate
on the amount of money saved there. That project went through many
years of appropriation. They weren't gathering just the intelligence
I have been referring to, but there was intelligence used in other ways.
Now, those are fine illustrations, but just ,a few. We had informa-
tion, by the way, about Cuba. As you will recall, it was misinterpreted
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50
in part; but I mean we had information about the missile base in
Cuba that precipitated the crisis there. So the work, by and large,
has been carried out in 'a very skillful way. This military intelligence
beyond our shorelines has been interpreted as a whole mighty well,
and there has been a surveillance to 'a large degree on the military
part that has been effective from year to year. There are complaints
now, and l um. not blaming anybody. But to come along now and strip
the Armed Services Committee of responsibility for recommendations
over this vast worldwide military program, carrying now over $100
billion a year, with so much of it founded, bottomed on intelligence;
to call on a committee to handle just the hardware and personnel part
of this $100 billion budget, stripped of all jurisdiction by just a Senate
rule which goes to the foundation of this whole structure is not only
awkward, but it is impossible. It just won't work. It won't work.
If you change under S. Res. 400, which does not have the concur-
rence of the House of Representatives-how are we going to handle
here a $100 billion program? How can we handle it through a system
in which the other body does not conform and does not follow, where
we are requiring an authorization bill with all the processes that we
have to go through with to debate back and forth and everything that
goes with it-a system that the House is not concurring with.
Whatever improvement or whatever reform we need to get better
intelligence-and that is what it's all about-I would respectfully
say it should be something in which the House concurs. There would
have to be a united action, a united effort, and a similar jurisdiction
or similarity in committees that have jurisdiction. I am convinced that
the intricate, difficult -aa.rt. of authorizing these large programs is not
fully realized, except by those of its that have been through it year,
after year, after year. It is no bad commentary or criticism of any
group of men, but I a:m satisfied that there would be inferences-
they don't have to be outright leaks-and 'conclusions that could be
drawn from debating all of these 'ma'tters back and forth, and from
a right to appeal from the Chair and vote this and vote that. Time
after time in these yearly aut'horizations we would be giving away a
lot of the key matters and permit conclusions by our adversary which
would be highly beneficial to them. Those 'actions are not necessary.
If we are going to make a crucial change in this field, I would
strongly recommend that we go back and try to have some unified action
by the House. I wouldn't cringe from a properly 'set up joint com-
mittee, say. I have no aversion to some modification of this monitoring
of intelligence or surveillance. I had invited and had the consent and
acceptance of the two floor leaders-Mr. Mansfield for the majority and
Senator Scott of the minority, who are also members of the Foreign
Relations Committee--that they would join its in our Surveillance
Subcommittee when this matter arose, and a new intelligence inquiry
was adopted by the Senate. I took all this in full faith, and we didn't
have those planned meetings, but that shows my background, my
attitude, and my efforts along that line. So before I conclude, I would
like to say something more about a possible affirmative move here that
can help the situation and provide a better setup-a more acceptable
setup-to the membership of the Senate. I feel it is repetitious, but let
me just refer to a few :natters here about this authorization.
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Now, money for parts of these programs, gentlemen, shows up in
23 separate different places, 23 separate items, in the appropriation
bill. So there would be that many major programs that would have to
be authorized and debated, and then appropriated for. The bill pro-
vides, subject to a point of order, that any measure could be stopped
in its tracks on the floor if it had not been specifically authorized.
It would take a two-thirds vote to overrule that. It would be the par-
liamentarian's opinion as to whether a program was authorized.
All this would involve our satellite programs, the moneys for their
development. The satellite programs are in the bill now, in the re-
search and development program handled by the Senator from New
Hampshire, Mr. McIntyre, and his members in a skillful way. Some
of the satellite program supports intelligence, some of it supports
training, and some of it supports various other activities more into
the heart of the military program itself.
Take the KC-135, the tanker. It is not classified. Some of those
planes are used in intelligence activity. Some are used in many other
phases of our military activity-refueling B-52s, for instance. How
are you going to separate them.? You can't do it? How much of the cost
of my office is chargeable to Adams County, Miss., which is just one
of 82 counties in Mississippi? Could I make a calculation and an esti-
mate of how much of the office expense goes to taking care of the needs
and desires of the Adams County people? Of course not. These matters
just have to be taken in lump sum, gentlemen.
There is signal intelligence of all kinds that I can refer to in a broad
way-the interception of messages. They intercept ours too, you
needn't doubt it. It happens in hundreds of different ways in all parts
of the world. How can you separate this? How can you say this part is
intelligence and has to be authorized separately, and so forth and so on.
If you want to have an intelligence agency that does the job, the con-
structive part of the job, the good part of the job, but will not let it
operate under special rules, then we are not going to have the agency.
It just cannot be conformed to the regular rules of procedure and leg-
islation. We just have to make a choice between the two. It may be
that we don't need the intelligence agency at all. If we don't, that
would solve the problem; but if we need it, and I think we do-of course
we do-we are going to have to make some differences in handling it.
So I will go along, so to speak, with anything along the lines of house-
keeping, but not on jurisdiction, not on the jurisdiction of the Senate
Armed Services Committee, and not on this matter of authorization.
It is unsound fundamentally to try to have to take out these projects,
identify them in money figures, and let the adversaries know about it,
one way or another-and that is not making any accusations against
anyone.
Lest I be misunderstood, I am not advocating that we not have in-
telligence. I found out, members of the committee, that people have
a deep concern about this matter. They sense-they sense that we
might, in the confusion, I call it, over methods-that we might fail
to give intelligence the proper emphasis and security. I think we are on
our mettle and must do cur very best to come forth with some kind of
a remedy, but. I submit to you the fundamentals must put this juris-
diction where it is, at least where the House is going to leave it, and
the authorization-the same thing.
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52
On the matter of staff, in my years in the Senate, when I became
chairman, the man who had been handling intelligence oversight for
the Armed Services Ccmmittee retired. So I had to get someone to look
after it. I got an excellent man-excellent. I would put him up against
anyone on Capitol Hill, but he already had too much to do-Ed Bras-
well here, our chief of staff. Unfortunately, he already had too much
to do.
If you come up with an alternative plan, I approve the idea of
having someone from ,he Foreign Relations Committee, which I al-
ready mentioned, or a special subcommittee of Armed Services with
a special money resolution. I readily agree that there should be a
highly competent staff--not large in numbers, but a highly competent
staff-two or three exclusively to work on it, with a, chairman and
cochairman or subchairman, whatever you want to call it, being non-
partisan who could really have time to give it more attention.
I am ashamed of some of these things that happened here at home
that the CIA got into in one of their bad moments. Some of it was in-
dividuals. This domestic stuff, I am ashamed of it, and of course I knew
nothing about it. I remember I wasn't attending Senate sessions the
year that this wig stuff came out and it humiliated me. That doesn't
mean you have got to destroy the jurisdiction because of some of
those things being done. As a whole, they have done an excellent job.
Let me point out, I hold no brief for the military as such, but the
command of our military forces in all these years has not been mixed
up in all this bad stuff-not one bit. No chief of staff. No evidence
was brought out that showed any conniving by any chief of staff or
of any man in direct authority. Apparently the responsibility went far
beyond the services themselves.
The last time a Deputy Director of CIA was appointed, I also sug-
gested that he be a civilian. To show how I feel about it. I am not
waving a flag for the military. I suggested that we not even have a
military man for deputy. It turned out all right. I didn't know who
they were considering when I made that recommendation.
We have a situation where the military itself has come through'
generally with a clean bill of goods, so far as the proof I have heard,
though some military men may have been involved in some degree in
some of this stuff. That is the matter as I see it, gentlemen.
I want the privilege, as you already said, of looking later, Mr.
Chairman, at your various timely questions. I will require a little
time, but T have taken too much time now, I am sorry.
The CI-IAIRMA\. Thank you very much, Senator Stennis, for your
very fine presentation.
One of the questions that bothered me, and I posed it here earlier:
How could the Armed Services Committee carry out its responsi-
bility for the national defense if it were unable to exercise the jurisdic-
tion over what we were doing in the field of intelligence activities and
coordinating that wit:a our requirements for military systems and
hardware?
Is there any way that could be clone that you can see?
Senator STENtiis. There is just absolutely no way, and I base that
on years of effort I have made. The chairman of this committee has
been highly useful in this same work. I agree with the inferences of
his question. I tried to see if there was some way, Senator, you take
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53
the jurisdiction away, of all these intelligence agencies from that
committee, and you leave the Armed Services Committee stripped to
the bone, undressed in public, so to speak, so far as being effective in
this field.
In decisionmaking, I don't rely upon military intelligence alone. We
bring in the CIA-the civilian agency-and get the fundamentals from
them, and then we bring in the military intelligence, too, and com-
pare,_ but the CIA in these foreign countries is the one who has the
information. Without the authorization and jurisdiction, the District
of Columbia Committee of the Senate could have just about as much
chance to get at the thing as we would.
The CHAIRMAN. If I could refer to the proposed organizational
structure for a moment, the limitation in the resolution provided for
a 6-year limitation on staffing. Do you see any possible way that a com-
petent staff could be developed with expertise if they were limited to
a 6-year period?
Senator STENNIS. I don't think so. I would go at it another way. I
would appeal to the men : Now, if you make good and show your
qualifications in every way, this will be a life career for you perhaps,
if you want it. You have got to approach them in that way.
The CHAIRMAN. On the proposed limitation on membership to Mem-
bers of Congress, can you foresee any of the senior Members of the
Senate giving up a position of seniority on major committees to serve
on a committee such as this where their term would be limited to 6
years?
Senator STENNIS. No; I don't think it would work that way, Senator.
I am sure I don't fully understand just what the purpose of those
provisions are. I think it would be hurtful to put such limitations on
the plan to start with, severe limitations.
The CHAIRMAN. Senator Griffin?
Senator GRIFFIN. Senator Stennis, I don't know how close you were
to it, but one very important development that occurred long before
I came to Congress was the development of the atomic bomb which
ended the war with Japan. I happen to know the Congressman who
preceded me in Michigan's 9th district was one of the very few
Members who was familiar with the details of that particular item.
I wonder what would have happened if that vital secret had gotten
out?
Senator STENNIS. Well, that is an excellent illustration. Perhaps
that is the all time, big-league record, the way they kept all this secret,
't her
then
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.
ore my
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wasn
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was
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Senator GRIFFIN. I don't attach any particular implications or sug-
gestion in connection with this, but just as a matter of the record
and background, I want to read the English translation of the Tass
newsstory dateline Moscow, March 25:
Moscow, March 25, Tass-
The publication of the book "The CIA Through the Eyes of Americans" will
familiarize wide circles of Soviet readers with critical views of Americans them-
selves and public of other countries as regards the subversive activity of the
U.S. Central Intelligence Agency against peace and freedom of people, the
newspaper Pravda writes today.
The documentary book issued by the Soviet "Progress" publishers is a col-
lection of articles from the press of the United States and other countries
exposing the CIA's dirty machinations. It also contains excerpts from books by
former CIA agents.
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54
The opening chapters of the book are a story of the CIA's spying on U.S.
citizens in violation of the country's laws. In its unlawful operations at home,
this espionage organization closely cooperates with the Federal Bureau of In-
vestigation (FBI), which is the main tool of struggle against the progressive
forces of the United States. The reactionary leadership of the AFL-CIO has
also become an ally of the CIA, says the review.
The book carries findings of the report by the Special Senate Select Commit-
tee on Intelligence published late last year. They deal with the planned assassi-
nations of Cuban Prime Minister Fidel Castro, progressive Congolese political
figure Patrice Lumumba, commander in chief of the Chilean Armed Forces, Gen.
Rene Schneider.
The review notes that the book contains data about the CIA's subversive
actions against the Socialist countries in the cold war period, the staging of
various coups against progressive governments in the developing countries, in-
cluding the CIA's direct involvement in the overthrow of the legitimate popular
Unity Government in Chile. The book also contains the latest press reports
exposing the criminal operations of U.S. intelligence services in Angola, Por-
tugal and Italy.
If you think that is more appropriate at some other point in the
record, that wouldbe all right.
The CHAIRMAN. It is line.
Senator Pell.
Senator PELL. I apologize for not hearing your whole statement.
As I understand it, your view is that there should be an oversight
committee that would stay plugged in, but the actual authorizing of
funds would remain with the present standing committees, is that your
thought?
Senator STENNIS. M17 position is that the jurisdiction of the com-
mittee of the Senate which has responsibilities to make recommenda-
tions as to the whole military program including authorizations and
so forth, just has to have jurisdiction over intelligence-they just have
to. Further, the regular authorization processes, as a practical matter,
just would not and cannot effectively be made to apply to a great part
of this intelligence program. It just won't work. There would be
exposure-I am not accusing anyone of leaks, but inferences and con-
clusions-will be drawn against us-and to the advantage of the other
side if we have these authorizations with these line items identified.
Take submarines, for instance. They are used for intelligence pur-
poses. Of course, they are also used for training, for keeping the sea
lanes open, but they would be collecting intelligence currently and in
war time.
How would you separate that authorization? That intelligence part
of it? Who is going to authorize the engaging in intelligence? It is not
possible.
Senator PELL. The same argument would apply to the Foreign Re-
lations Committee, too. We have to have a picture of the whole. It is
important that we receive these briefings of what covert activities are
going on over the world to assess the decisions we should make. How do
you think this should be handled?
Senator STENNIS. Before the intelligence inquiry, I invited Senator
Scott and Senator Mansfield, members of the Foreign Relations Com-
mittee and leaders of the Senate to sit with us and confer with us. I
think we could work ou', something and perhaps have some of the mem-
bership of your commit ee.
Senator PELL. I am not sure that that would be satisfactory to the
majority of the Members of the Senate, because I think there is a feel-
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ing that the Members themselves want to participate as well as leaving
it to one or two trusted colleagues.
Senator STENNIS. If you are going to have a program where everyone
has to participate on every item, with all deference to everyone, there
is such a jumbled mass of matters, repetition and so on, year after year,
just enough will get out for the adversaries to form inferences or con-
clusions useful to them.
Everytime a new man is cut in on it, he thinks there ought to, be
more disclosed, but when he gets deeper into it, he sees where it
shouldn't be handled that way. It is embarrassing to talk to a col-
league-I have talked to many of them in the cloak room. It is a burden
you don't want to carry. You can't go to sleep at night.
Senator PELL. We have to get somewhere in between.
Senator STENNIS. I have a cooperative attitude about it, but not on
jurisdiction and authorization.
Senator PELL. Thank you.
The CHAIRMAN. Senator Scott?
Senator ScoTT. Senator Stennis, thank you very much for your pres-
entation. I want your opinion on these provisions of the bill designed
to guarantee leaks. Let us take the greatest secret of the World War II
perhaps, the breaking of the Japanese code.
I am not aware whether you knew that or not, whether some very
limited numbers of persons in Congress may have known it. The secret
was kept because an extraordinarily few people knew it. The secret was
in the force in which I served in the Navy, which was a landing force,
only the chief and the admiral of the intelligence section knew about
the breaking of the code. I was his executive officer. I didn't know
about the breaking of the code. It was wisely held. It led to the shooting
down of Admiral Yamamoto, Commander of the Japanese combined
fleet.
If we had broken the code of another nation in a state of belliger-
ency or the state of war, there are provisions here in this law that the
committee is entitled to that classified information. It could vote to
release it. The President would have 5 days in which to say, "Please,
don't release the fact that we have the enemies' code."
The committee would be authorized to disclose the information any
time after 3 days. The enemy would be kept in doubt for 3 full days of
our intentions. After that, the committee would have the right to dis-
close it. The President would be powerless. Our Armed Forces would be
at the mercy of the committee, which might well think that it was in
the national interest to disclose to the enemy under the Freedom of
Information or some other doctrine, the fact that we had broken their
code.
Now, does that give you any concern?
Senator STENNIS. The greatest kind of concern. I am so saturated
with this thing that it is inconceivable to me that, on second thought,
we could adopt the provisions to which you have referred. I think, too,
if we are going to go that route, gentlemen, we better be prepared to
double the appropriations for the Department of Defense because we
are giving away everything here and really helping them prepare for
whatever designs they may have. We would have to get ready in a far
better way.
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Senator ScoTT. I am wondering about the need for a single commit-
tee under the circumstances that are covered in another section of S.
Res. 400-that any member of the committee could disclose classified
material to any other Member of the Senate. I have heard the state-
ment made in the committees, "You know, anything we know, every-
body else in the Senate is entitled to know."
Senator STENNIS. Yes.
Senator Scorr. In point of fact, that has never been the case in the
handing of classified information.
Would you say that secret classified information once in the. hands
of 100 people is quite a secret as if it were in the. hands of a single
committee?
Senator STENNIS. Well, of course not, of course not. It is hard to
draw an exact line. It is unpleasant to have to: carry the load. It is
no reflection. I wouldn't feel it is any reflection on me if the chair-
man of this committee would tell me, "There is some stuff here, we
better handle the best we can and keep it pretty close and secret."
I would go down the hall myself and walk away. That is the nature
of it.
There is no criminal law to protect intelligence. We worry about
this on our committee. Generally, there is only the old Espionage. Act.
The Atomic Energy Art includes protection for that kind of intelli-
gence. This act needs some amendments, you know, the basic author-
ity for CIA. We have had bills here on it, but the atmosphere has
been such for the last " or 3 years that you just couldn't proceed too
well in the last part of the war. It is not. a perfect law.
Senator ScoTr. I have no other questions.
The CHAIRMAN. Thank you.
Senator Byrd?
Senator BYRD. Senator Stennis, first, I want to compliment you for
your statement. You have expressed concerns that each of us have.
We are working in an atmosphere, post 'Watergate and post of a good
many other revelations that have occurred which, to a considerable
degree. demands that some action be taken to correct. and prevent a
recurrence of such abuses as we have been exposed to.
I think that=this is my own personal opinion-I think that Con-
gress has to take some action. I feel that the public expects it, and if
we don't take some action, there will be a continuing clamor and urg-
ing on the part of members inside the. legislative branch and through
the various segments of the media and from the people themselves.
If we start from that premise, we also have to accept another
premise, one which has been very carefully explored by you and it is
somewhat multiheaded, one being the extreme. sensitivity of the in-
formation with which we are, dealing. Our country has to have intelli-
gence. We cannot fight a war without intelligence. We cannot prevent
a war without intelligence. Our country has to know what potential
adversaries are doing, what they are planning, so that we may act
counter thereto and be :prepared if conflict comes to defend adequately
our country, but more important perhaps, be prepared to prevent a
war from occurring.
Now, there is some. intelligence that just can't be made public in the
interest of our country and in the interest of people who are engaged
in securing intelligence.
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57
So, we have these two basic premises from which we have to start.
You have also pointed out the infeasibility of having a committee of
the Senate which would have the sole authority to authorize funding
which would have to deal with various committees in the House, that
body not having structured itself in conformity with the structure
that is contemplated by this resolution.
Now, we are troubled by these premises that I have attempted
briefly to articulate. Our job is to find a way, a way to assure the peo.
ple of this country that abuses will not recur if we can prevent them
from occurring-a way that will also assure the people of the country,
and I include myself among them, that sensitive information that is
vital to the security interests of this country is going to be adequately
protected, insofar as it can be protected-human beings and human
frailties being involved. So, it is in the spirit of this acceptance of
the need for both of these vital things that .I make my comment.
I take it from your statement that you would prefer a joint com-
mittee over the approach envisioned in this resolution of having a
Senate standing committee, and you make that point basically, I sup-
pose, because of the problems involved in the structuring-the differ-
ence in the structuring of the two Houses with respect to the
authorizing process.
If I read you correctly in this regard, would you have a suggestion
as to how such a joint committee could be structured by way of its
membership?
Senator STFxxis. Well, if we were going that route, it would require
a great deal of exploration, Senator, that I haven't done. You cor-
rectly said if we are going to have, a special authorization of identi-
fiable items, or a line item approach, that would drive you to the joint
concept, as you so well said, but I haven't conferred with any members
of the House about that. That would require exploration.
I think as a practical matter here in the Senate that we should get
some kind of a setup including members of the Armed Services Com-
mittee and Appropriations Committee, say, and the Foreign Rela-
tions Committee. This is just Stennis talking on this. If we could get
a group there to meet the situation and satisfy everyone-a group
with a kind of look-see surveillance, a coordination group. But basi-
cally, whoever is going to have responsibility for the overall military
program must have responsibility for intelligence. All the look-see and
look-over-the-shoulder that may be necessary to satisfy the member-
ship, I would cooperate to work out something along that line. But
basically, we can't perform our function that by law we must do unless
we have jurisdiction over intelligence.
Senator BYRD. May I ask a second question just in an attempt to
feel our way here?
Senator STFxxis. Yes.
Senator BYRD. Suppose a joint committee were to be established,
Senator Stennis, the reasoning back of the resolution in part that pro-
vides for a limitation on the term of service for members on that com-
mittee and the limitation on the term of service for the staff is the
idea-whether or not it is valid, and it may be in part valid, but not in
its totality-that too many years of service in this field hardens one
who serves the necessity of seeing the overall picture, and one gets
really to the point where he can't see the forest from the trees. He
takes the side of the intelligence community.
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58
I think that is the basic reason for this facet of this proposal. What
would you think of being able to meet this objection and having on
that joint committee thc; chairman and ranking members of the Armed
Services, the Foreign Relations, the Government Operations Com-
mittee, but in addition thereto that there be other members-not ap-
pointed by the steering committees, but appointed by the leadership
in both Houses, so tha - in addition to the persons who have served
years on these respective committees, there would be some fresh blood
and some fresh viewpoints and perhaps not make it as-well, what
do you think?
Senator STENNIS. My suggestion is a matter of surveillance, or look-
see or overlook. If that is enough, I would say all right, but not include
the jurisdiction in this joint committee that you describe.
Senator BYRD. Not including the authorizing jurisdiction?
Senator STENNIS. Nc, the authorizing jurisdiction and the general
jurisdiction as a whole to do the job, the Armed Services Committee
of each House must have that basic jurisdiction over intelligence.
Senator BYRD. This committee would have oversight and surveil-
lance.
Senator STENNIS. Some oversight and surveillance on a gentle-
manly basis, if that is the judgment of the Senate.
As one member, I think I could live with that, but there is always
that total reservation about the Armed Services Committee's jurisdic-
tion being retained.
Senator BYRD. I think you have answered my question.
The CHAIRMAN. Senator Allen?
Senator ALLEN. Thank you.
Senator Stennis, I regard you as a great patriot. Certainly, your
views in this area have great weight with me. I feel that this legisla-
tion is an over-reaction to the improper and illegal activities of the
intelligence agencies. I think it would be illogical to say because the
intelligence agencies have acted improperly in some areas that we need
to change the authorization process. I have heard little, if any, criticism
of the authorization process that we now have. I am wondering how
this separate committee could do a better job. I might say that I am
glad that this legislation has gone through more committees than
one. I feel that it has given the Congress and the committees more
time to have a more objective view of just what is involved here. It is
true that there was a certain area of hysteria throughout the country
as a result of some of the disclosures of the improper activities of the
intelligence agencies, but I believe that hysteria has subsided, and I
believe that the Congress is now taking a more objective view of what
is involved.
I am sorry to say that I believe there is a large body of public
opinion in this country that feels that the Congress is out to destroy
our intelligence agency. There is a strong feeling of that sort in many
responsible circles. I hate to see that, but it is there.
Do you feel that this change in the authorization process would
cripple the operation of the Armed Services Committee?
Senator STENNIS. Oh, yes. It would greatly cripple it. It would
leave us without the adequate tools of our trade, if I may use that
expression, Senator Allen. It would disarm us.
Senator ALLEN. As you decide what you need to do for this country,
you need to crank in intelligence.
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Senator STENNIS. We just have to have, not just as a matter of naked
information, but from the executive branch which is responsible to us,
a coordination of the effort and a continuing year-long contact-not at
social functions, I mean grim reality.
Senator ALLEN. If this resolution is passed as is, would you get your
intelligence information by going to the chairman of the committee
and saying : Frank, or George, or whoever, can you give me some in-
telligence information so that our committee can use that informa-
tion to carry out its function of authorizing appropriations for the
defense of our country?
Is that the way you would be reduced to getting this information?
Senator STENNIS. Well, not altogether reduced to that, but it would
be just about at that level. That would be about the level of our stand-
ing with reference to it. We could ask them to come in and tell us what
they told the others and we could cross-examine them, but that is as
far as we could go. That continuity of relationship that goes on day
and night, year after year would be gone, would be gone.
They would be looking to someone else on Capitol Hill for their
sustenance in a legislative way. I have an intimate contact with them
in that way, but no other contact with these people. I am not buddy of
them or anything like that. They know that.
Senator ALLEN. I certainly realize that.
Senator STENNIS. I just mention that in passing, but we need that
continuity of contact.
Senator ALLEN. Do you think there would be more likelihood of
the intelligence activities of our country becoming more a matter of
common knowledge and therefore available to our adversaries under
the process related to this resolution, or by leaving the jurisdiction in
the Armed Services Committee?
Senator STENNIS. Well, with all deference, there would be a greater
probability by far of information getting out one way or another, or
leist enough to make conclusions. It doesn't take much to interpret.
These Soviets are smart and anyone else could do so who is inter-
ested.
Senator ALLEN. You know, under our form of government, it is
not hard for our adversaries to know just what we are doing in the
defense area.
Senator STENNIS. Yes.
Senator ALLEN. Just by reading the Congressional Record, read-
ing the debates on the various defense bills, by studying the commit-
tee hearings, by reading what is written or hearing or seeing on the
national news media, anyone, an average citizen as well as our ad-
versaries can be pretty well briefed on just what our defense effort
consists of; isn't that correct?
Senator STENNrs. That is correct. That is so.
Senator ALLEN. Would there be more of an inclination on the part
of this select committee by the separate authorization-would that not
be more conducive to operating our intelligence agency and authori-
zation more in a fish bowl?
Senator STENNIS. I am compelled to say yes. That system would
bring it, not the individual Senator. but the system would produce it.
Senator ALLEN. This resolution. certainly in the areas you are talk-
ing about, the matter of jurisdiction and authorization, is this legisla-
tion, in your judgment, contrary to the national interests?
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Senator STENNIS. I think so; yes. The system is; yes.
The CHAIRMAN. Senator Clark?
Senator CLARK. Just a couple of questions, Mr. Chairman.
Senator Stennis, you obviously have many years 'of experience in
the area of defense, the Central Intelligence Agency, and so forth.
What, in your judgment, based on that experience, is the greatest
problem that we have with the system we have now, or the so-called
old system? What do you see as its greatest weaknesses?
Senator STENNIS. You couldn't have been here at the time I out-
lined my version of that in my opening remarks. Some things that
happened, that come out, were not characteristic of the CIA at all.
I think they have done. under very adverse conditions over the years,
really a good job, a good job. Most of the things involving domestic
affairs are really traceable directly to the President of the United
States, whoever he was at that time, or to someone who was speak-
ing directly for him or was believed to be.
I have already outlined here-as to additional surveillance-what
my recommendations would be on that.
Senator 'CLARK. I will read those remarks.
Senator STENNIS. I will go over them again.
I said, I would be cooperative on anything like that within our
committee, but I would fight to the end for the basic jurisdiction of
the committee in the authorization process.
Senator CLARK. The other question I have: Do you believe that the
passage of Senate Resolution 400 would encumber your committee's
ability to be fully informed of all of the intelligence information that
the CIA has available to it?
Senator STENNIS. Well, it would rob us, it would rob us of that
continuity, not alone of information, but of a relationship we have with
CIA.
I had no more to do with selecting the present Director than anyone.
You know, I wasn't in on that. But I am sure he feels a responsibility
to our committee. It appeals to him and it brings out his best, and if
you change the law, you are going to take it away from us and give it
to someone else.
Senator CLARK. I wasn't thinking so much, Mr. Chairman, of the
authority for the moment, but rather whether you feel-this is a ques-
tion we have been talking about in the Foreign Relations Committee
as well-whether you feel there is any section or line in this bill that
would, in any way, encumber your committee's ability to be fully
informed of all the information and analysis and operations of the
Central Intelligence Agency ?
Senator STENNIS. I can start by assuming we wouldn't be denied
any specific piece of information, but so far as formulating and plan-
ning ahead and wanting to, you know, discharge our duties of juris-
diction-if you take that away from us, we just don't have it. The
bare facts wouldn't replace it by any means. The intelligence agencies
are going to look to someone, naturally, with a sense of responsibility,
and it would no longer be the Senate Armed Services Committee if you
put that jurisdiction elsewhere.
Senator 'CLARK. So it is not the gathering of information or the
ability to be informed as a committee, but rather the other, the juris-
dictional question ?
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61
Senator STENNIS. I would say this; if you would transfer this juris-
diction elsewhere, it certainly is not going to increase the quality of
intelligence. It certainly is not going to improve the situation there,
and it might be that it would decrease the quality there.
Senator CLARK. Thank you very much.
Senator STENNIS. Better intelligence is what we are looking for,
Senator Clark.
The CHAIRMAN. Senator Stennis, in your prepared statement that
was made a part of the record, you recommend that affirmative steps
be taken to create a new permanent subcommittee of the Senate Com-
mittee on Armed Services, and that committee to be separately funded
and concentrated solely on intelligence activities and to develop a
small competent and permanent staff as contradistinguished from this
suggestion here, a 6-year staff.
That is your recommendation on this matter?
Senator STENNIS. Yes, trying to be on the affirmative, I make the
positive recommendation to-meet the situation that you are confronted
with, we all are. That is something that would fit right in. As I empha-
sized, I am thinking of that very seriously.
The CHAIRMAN. And you are suggesting that that subcommittee re-
port regularly on oversight to the Senate and cooperate with the
Foreign Relations Committee?
Senator STENNIS. Yes, sir. There is a continuity. I had ex officio
members, two from Foreign Relations-Senator Scott from Pennsyl-
vania and Senator Mansfield from Montana-but that didn't go. The
special committee began its work. I thought that would strengthen the
situation. For chairman of a new subcommittee I would try to pick out
someone that had time to do it, and would do it, and make a special
effort to do it. In the same way with the minority member, but in all
my deliberations in all these years, I never heard a partisan issue
raised among this oversight group.
The CHAIRMAN. Thank you very much, Senator Stennis, for your
helpful testimony.
[Senator Stennis subsequently responded to questions posed by
Chairman Cannon in his opening statement as follows:]
U.S. SENATE,
COMMITTEE ON ARMED SERVICES,
Washington, D.C., April 6, 1976.
HOD. HOWARD W. CANNON,
Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : I appreciated the opportunity to appear before the Rules
Committee on March 31. 1976 to express my strong opposition to enactment of
S. Res. 400.
In your statement opening that hearing you posed several important questions
regarding the provisions of S. Res. 400. Because some of your questions go to the
heart of my own reservations about this resolution, I am taking this opportunity
to respond for the record.
THE NECESSITY OF LEGISLATIVE JURISDICTION WITHIN THE ARMED SERVICES
COMMITTEE
You asked the question most telling of the fundamental unsoundness of S. Res.
400 when you inquired, "* * * if the Committee on Armed Services were stripped
of its authorization authority over Defense Department intelligence activities,
how could it make sound judgments on overall authorizations with one of the
vital elements (intelligence) missing?"
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62
Isolating foreign intelligence activities from the overall U.S. defense program
would severely limit and distort the work of the Armed Services Committee.
As I tried to underscore in my earlier testimony, it is essential that the Armed
Services Committee retain the legislative authority to shape and direct U.S.
foreign intelligence activities.
As you know. the Armed Services Committee is charged with responsibility
for the "common defense generally." It must therefore ensure that the separate
elements of the defense program support one another to provide the most effec-
tive national defense plan. The Committee must weigh needs and priorities across
the spectrum of defense activties, including intelligence, and make very difficult
decisions.
In making these decisions, the Committee must of course be acquainted with the
best and most current intelligence as it channels resources into defense programs.
It must also be fully acquainted with defense programs-war plans, strategic
weapons, anti-submarine capability, and the like-as it channels resources into
.intelligence activities. U.S. foreign intelligence activities can be effective only if
they are designed to support the national defense. It is the crucial interaction
between foreign intelligence and national defense that would be missing under
S. Res. 400.
A recent example of this interaction occurred when the Central Intelligence
Subcommittee of the Armed Services Committee in cooperation with the Appro-
priations Committee made sharp. reductions in one costly area of intelligence
activity. As reflected in the Appropriations Committee report, this savings was
achieved because, from the work of the relevant Committees, it had become clear
that the activity in this area was excessive given the value to the U.S. national
defense of the intelligence produced. Without the Committee background on
defense programs, I doubt this decision could have been made-or at least would
not have been made as soon as it was.
The Armed Services Committee is uniquely suited to make decisions regarding
the content of foreign intelligence programs. As I have already stated, the vast
majority of U.S. foreign intelligence resources are contained within the Defense
Department and are inseparable from the defense program. The Committee can
review the R & D, procurement, and construction for intelligence activities, just
as it does for airlift capability, command and control facilities and so forth.. The
Committee members have had experience with these matters and, with the Com-
mittee staff, have learned a good deal about what a potential enemy is doing and
what the United States is planning by way of response. It is this knowledge and
experience that is the basis for judgments about what U.S. foreign intelligence
programs should be authorized and what areas of intelligence should be pursued.
THE SECURITY OF VITAL FOREIGN INTELLIGENCE
Your question regarding the advisability of trying to estabilsh procedures
governing disclosures, congressional right to information, etc., is also of particu-
lar concern to the Armed Services Committee. I have long been convinced that
certain modification should be made to the National Security Act of 1947. Indeed,
in 1973 I introduced legislation to revise the National Security Act of 1947. Prior
to any congressional action in this area, however, the Select Committee on In-
telligence was established. The Committee on Armed Services is still waiting
the findings and recommendations of the Select Committee before consider
f
or
ing changes in law affecting U.S. intelligence activties. I still believe that legisla-
lli
i
t
gence
n
e
tion is required to solve many of the problems confronting U.S..
activties. I believe it would be unrealistic and unwise to try to solve these prob-
lems by Senate resolutions rather than by statute.
PROCEDURES CONCERNING NEW SELECT COMMITTEE ON INTELLIGENCE
The other questions which you posed focused on the operation and structure
of the new committee contemplated in S. Res. 400. Many of the provisions of
S. Res. 400-rotating membership, fixed terms, etc.-are inconsistent with Senate
practice. Other provisions such as designating the ranking minority member as
vice chairman, are inconsistent with the Legislative Reorganization Act and
hence. cannot be effected merely by Senate resolution. Although I have not
studied these provision;. in great detail, I believe such drastic departure from
regular Senate procedures should be required to meet a very heavy burden of
justification.
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Finally, I would like to bring to the attention of the Rules Committee other
aspects of S. Res. 400 which I find troublesome :
1. By bringing all U.S. intelligence activties including the domestic activities
of the FBI under the umbrella of a new select committee, S. Res. 400 would blur
the crucial and long-standing separation of foreign intelligence from domestic
intelligence. Undermining the distinction between foreign and domestic intelli-
gence could well result in greater opportunity, for infringements on the rights
of U.S. citizens than the creation of another Senate committee could prevent.
2. As set forth in S. Res. 400, the definition of intelligence activties, particu-
larly the presumed distinction between "tactical" and "national" intelligence, is
vague and unworkable.
3. All nominations for intelligence positions within the Department of Defense
should be considered by the Armed Services Committee rather than, as in S. Res.
400, a select committee.
4. The provision of S. Res. 400 requiring written records of an exchange of
intelligence information between Committee members and other members of
the Senate is awkward and ill advised.
In my view, however, the major deficiency of S. Res. 400 is that, in its under-
standable concern with intelligence oversight, the resolution would interfere
with the prudent and orderly consideration of defense budgets. It would do this
by improperly limiting the legislative jurisdiction of the Committee on Armed
Services.
Thank you for affording me the additional opportunity to respond to your
opening questions.
Sincerely,
JOHN C. STENNIS, Chairman.
The CHAIRMAN. Senator Hruska.
STATEMENT OF HON. ROMAN L. HRUSKA, RANKING MINORITY
MEMBER OF THE COMMITTEE ON THE JUDICIARY
Senator HRUSKA. Mr. Chairman and members of the committee, I
appear at the request and instance of Senator Eastland, chairman of
the Committee on the Judiciary. He asked that I present a report
written in part and oral in part as to the action taken by that committee
pursuant to the instructions that any recommendations that it have
be transmitted to your committee.
That was done formally yesterday by a letter of transmittal which
had attached to it a Judiciary Committee print of Senate Resolution
400, which incorporates and embodies the amendments which the
Judiciary Committee recommends be made a part of that resolution.
The thrust of the amendments is this : That the Department of
Justice and that the Federal Bureau of Investigation be' deleted in
toto from the language and the embrace of the Senate resolution.
The chairman wanted me to thank the Rules Committee for its
cooperation and its courtesy in extending us the opportunity to have
the hearings that we did on this subject, not only a day of"hearings
at which Attorney General Levi and Director of FBI Kelley appeared,
but also formal discussion in the full committee on two occasions, the
most recent of which was yesterday afternoon. My remarks will go
only to the amendments to Senate Resolution 400 as recommended by
the Judiciary Committee.
Each member of the committee reserved his individual right to
propose additional amendments to the resolution, or express a stand
on the merits of the resolution as a whole.
Now, Mr. Chairman, I have submitted a written statement which
I wish incorporated in the record, if that pleases the committee.
The CHAIRMAN. It will be made a part of the record.
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[The written statement of Senator Hruska follows:]
STATEMENT OF HON. ROMAN L. HRUSKA, RANKING MINORITY MEMBER OF THE
COMMITTEE ON THE JUDICIARY
Yesterday, the Judiciary Committee considered S. Res. 400 and voted to report
it to the Rules Committee as amended. The action of the Judiciary Committee
followed hearings last week and much consideration of this matter by the mem-
bers of the committee.
The effect of the amendments approved by the Judiciary Committee would be
to delete from S. Res. 400 the grant of jurisdiction to the proposed Committee on
Intelligence Activities over the intelligence activities of the Department of
Justice, including the Federal Bureau of Investigation.
The amendments would retain in the Judiciary Committee its historic juris-
diction over the Department of Justice and the FBI. The present exercise of jur-
isdiction over these activities is in accord with the purpose and spirit of the Leg-
islative Reorganization Act of 1946. Senate Report No. 1400, 79th Congress, 2nd
Session, "Legislative Reorganization Act of 1946," (May 31, 1946), set forth
the standards controlling committee jurisdiction, p. 2: "(the bill) would replace
our jerry-built committee structure with a simplified system of standing com-
mittees corresponding with the major areas of public policy and administra-
tion . . . and the coordination of the congressional committee system with the
pattern of the administrative branch of the National Government would improve
the performance by Congress of its legislative and supervisory functions. . .
Following this continuing guideline, the Judiciary Committee possesses over-
sight jurisdiction over the Department of Justice and its bureaus including the
Federal Bureau of Investigation. The full committee and at least three sub-
committees exercise jurisdiction over the Bureau and its functions, the Subcom-
mittee on Administrative Practice and Procedure, the Subcommittee on Con-
stitutional Rights and the Subcommittee on Criminal Laws.
The difficulty with S. Res. 400, prior to its being amended, is it proposed to split
the oversight jurisdiction of the FBI between the Judiciary Committee and the
proposed new intelligence committee, with the new committee to have jurisdiction
over intelligence activities of the Bureau and the Judiciary Committee to retain
jurisdiction over non-intelligence aspects of this agency.
Those who have studied the FBI's organization and mode of operation are well
aware that its intelligence activities are intertwined with its law enforcement
function. For the most part its intelligence activities are an investigatory tool
used in detecting crime.
There is a real potential that a splitting of the oversight jurisdiction of intelli-
gence and non-intelligence aspects of the FBI may create much confusion and re-
sult in conflicting congressional guidance to that agency. It should be noted that
the FBI, unlike other intelligence collecting agencies affected by S. Res. 400, is a
law enforcement agency. The intelligence activity of the FBI is simply a means
by which it detects and investigates violations of federal criminal laws. Because
this activity is so integrally related to the criminal investigatory function of the
FBI and the Department of Justice, it is our belief that oversight of the FBI
should be continued to be dealt with as a unit.
Mr. Chairman, during the hearings before the Judiciary Committee on S. Res.
400, both Attorney General Levi and FBI Director Kelley testified. Both stated
that vigorous oversight of the Department of Justice and the FBI was healthy
and productive in the betterment of the system. Both urged that this function
could be best served by retaining oversight in a single committee.
Mr. Levi well pointed out that "intelligence activities of the FBI should be
closely tied to the criminal law" and that "congressional oversight arrangements
that would split off the intelligence functions from the more ordinary law en-
forcement functions of the Bureau would tend to diminish the force of this
perception."
Mr. Chairman, we have heard much in recent years that the FBI should be
more accountable to the Department of Justice and the Attorney General. It
should be viewed as an integral part of the Department of Justice-not as a
separate law enforcement or intelligence agency. The effect of splitting of the
intelligence oversight of the Bureau and vesting it with a, separate committee
would tend to create the impression that it is somehow divorced from the rest of
the law enforcement branch of the federal government.
We should remember, Mr. Chairman, that the Bureau is under the supervision
of the Attorney General, the principal law enforcement office in the federal gov-
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65,
ernment, a subject over which the Judiciary Committee has long exercised
jurisdiction.
As stated by Director Kelley:
"While the FBI has many duties concerning the internal security of our country,
it is not alone in this responsibility. The entire criminal justice system is involved.
Observance of the law and the' preservation of public order are the foundations
for this country's domestic security. Without adequate and equitable enforcement
of the law, whatever the source or circumstance of its violation, a democratic
society cannot enjoy the stability it requires."
Stripping the Judiciary Committee of jurisdiction over law enforcement in the
area of internal security while leaving it with general jurisdiction over the re-
mainder would be to create a hybrid .wherein necessary general oversight over
law enforcement would be annulled and essential perspective destroyed.
The Judiciary Committee is at this moment considering the revision of Title 18
of the United States Code, the criminal laws including the provisions on espio-
nage. Should, it report a bill with amended espionage provisions subject to future
amendment by the Intelligence Committee? Should it report a bill with no change
in the existing provisions on espionage with the expectation that the bill will be
re-referred to the Intelligence Committee? Should the lengthy study that has gone
into the espionage provisions be put aside?
A further consideration which I believe should be borne in mind is that a sepa-
ration of intelligence oversight from the traditional law enforcement aspect of
the Department and the Bureau would very likely result that no one Senate
committee would have a general overview and knowledge of all the activities of
the Department of Justice. This could result in some information as to its opera-
tions to "fall between the cracks" and become known to no committee.
It is submitted that questions like these must be considered carefully and
thoughtfully before a decision is made to place exclusive legislative jurisdiction
over intelligence activities by the FBI in the proposed committee. We believe that
the reasonable and feasible conclusion is to leave that jurisdiction with the
Judiciary Committee where the elements of intelligence investigations by the FBI
in the field of internal security, legislative and oversight jurisdiction over internal
security, and general jurisdiction over law enforcement are now blended together
as the Reorganization Act intended.
Senator HRUSKA. I will make a few brief references just to get some
of the highlights before you.
In the main, Attorney General Levi spelled out, three or four reasons
why the FBI and the Department of Justice should be deleted from
this resolution.
First of all, it was his considered judgment that the domestic
security investigations of the Bureau should be tied closely to crim-
inal law. This is done not only by the inherent way in which the FBI
functions, but it is now being crystalized in the form of guidelines
which will shortly become effective and in which there will be author-
ized domestic security investigations only into conduct which involves,
or will involve, violence or violation of the Federal law.
A similar point can be made to the Bureau's counterintelligence
responsibility. These investigations into espionage and terrorist activi-
ties of foreign governments for 'a variety of reasons frequently do not
lead to prosecution, but rather they are essentially connected with
law enforcement and with particular reference to espionage and
terrorism.
The Bureau's longstanding discipline of perceiving its intelligence
functions as connected closely to the Federal criminal law is important
because it is a reminder of the need to carefully protect individual
rights. Congressional oversight arrangements that would split up the
intelligence functions from the more ordinary law enforcement func-
tions of the Bureau would tend to diminish the force of this perception.
It is an important perception, because in the law enforcement field
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66
there is a constant and careful monitoring by the Judiciary so we
are, as a Department of Justice, as a Committee on the Judiciary, and
the FBI are mindful of that factor constantly.
Mr. Chairman, in the field of foreign intelligence which would be
one of the spinoffs into the jurisdiction of the proposed committee,
insofar, as foreign intelligence activities are concerned, the FBI has
only derivative jurisdiction. It is only at the instance of other bureaus
and other agencies of the Government with primary responsibilities
in foreign intelligence that the FBI enters the picture. And because
of the derivative nature of this type of investigation, the Bureau
activities would come under the oversight of the new committee since
the original agencies making the reference and being the source of
derivation are scheduled to be under the jurisdiction of the proposed
committee.
So the first part is that there is a close connection between law
enforcement and criminal law and the activities of the FBI and of
the Department of Justice..
The second reason is that the Federal Bureau of Investigation
should perceive itself and be perceived as a single law enforcement
organization, but at the same time, should be viewed as an integral
part of the Department of Justice, with oversight of the totality of
this operation vested in the Judiciary Committee.
A third and related reason is that a single committee with oversight
jurisdiction will develop an expertise -about the Bureau and the De-
partment of which it is a part. The activities of the Bureau, even in
the intelligence area, are fundamentally interrelated with other parts
of the Department of Justice. The development and nurturing of an
expertise and underst.~,nding and concern by the Congress about one
part cannot be separated from a similar understanding and concern
with another part.
Finally, Mr. Chairman, there is always the risk that if there is a
multiplicity of committees with oversight responsibilities over a single
agency, each committee will learn something about the activities of
that agency, but no committee will learn enough about it.
These are four reasons and there are collateral reasons, which con-
stitute the basis for the Judiciary Committee recommendations to have
certain deletions and amendments made to Senate Resolution 400.
I might also say that the oversight of intelligence activity, the over-
sight which is directed, for example, solely to the intelligence activities
at the exclusion of the law enforcement function, would have a strong
tendency to generate conflicting congressional guidance. It is hard
enough for an agency to be. responsible to one or two committees. It
would he much more difficult for that agency to perform efficiently and
with any degree of assurance if there were conflicting rules and con-
flicting directives and guidelines coming from too many committees.
The CHAIRMAN. Would it also not be very important that the Judi-
ciary Committee had. the intelligence information concerning the
FBI in order to make its judgments as to what ought to be done
authorizati onwise ?
Senator HRUSKA. No question about it. The Judiciary Committee
has to know what is going on if it is going to legislate in the areas of
budget, jurisdiction, and the like. The committee would be hard-pressed
to make sound judgments as to budget levels, manpower, and other
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67
legal tools that the Department of Justice may need to enforce the
laws based on the intelligence gathering activities of the FBI.
The CHAIRMAN. Senator Pell?
Senator PELL. No.
Senator SCOTT. Could I ask one question before leaving.
Do you recall the vote in the Judiciary Committee on the deletion?
Senator HRUSKA. I don't know whether it was recorded.
Senator SCOTT. It was a voice vote.
Senator HRUSxn. The chairman informed me that all but two of
the committee members were in accord with the recommendation.
The CHAIRMAN. Thank you.
Senator Byrd?
Senator BYRD. No questions.
The CHAIRMAN. Senator Allen?
Senator ALLEN. Senator Hruska, I notice section 7 of the bill start-
ing on the middle of page 8 and going on down halfway on page 13,
about something over a fourth of the bill, seems to deal not with gain-
ing information and keeping secrets, but methods of disclosing in-
formation that is gained. It looks like part of the thrust of the bill is
to provide for the release of that information and not the retaining of
secrets.
Do you read the bill that way?
Senator HRUSKA. In a fashion, I do read it that way. There is a dis-
tinction between the Department of Justice and the FBI as a combined
entity and the other agencies that would be subject to this resolution.
The function of the Department and the FBI is law enforcement and
it would be an extraordinary procedure, indeed, if we opened the in-
vestigatory part, particularly to those who are under investigation,
and sometimes investigations last for years, as in the case of organized
crime. To have that type of information prematurely disclosed would
be tragic, indeed.
Senator ALLEN. It looks like any information that is gained would
have to be released to any Senator who requested it. If we release the
information to all 100 Senators, does that increase the risk of
disclosure?
Senator HRUSKA. Yes ; but not only that, from my experience on the
Judiciary Committee, I have noted with great gratification the re-
straint which has been exercised not to get into the business of manag-
ing the Department of Justice or FBI on a daily basis. Oversight; yes,
and how they function with regard to the laws on the books, but not
in an administrative way.
There may be individual instances where there is abuse or possibly
some violation of the law; yes. But, there are laws to remedy that
situation. As to my colleagues who receive sensitive information
through their work on other committees, I would have to say I trust
their judgment and discretion, and thus, would be happy to concede
access to such information rather than demand access in the name of
full disclosure and oversight.
Senator ALLEN. If the President of the executive branch furnishes
the committee with information and requests that it not be disclosed,
the committee can still disclose it if three members, I believe, do not
ask that an appeal be carried to the Senate. Then you have a session of
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68
the Senate to determine whether or not the information is to be re-
leased despite the request of the President.
I have noticed these secret sessions of the Senate over there, they
get permission for a .,-ouple of dozen staff people to be present there
and maybe some officers of the Senate, and by the time we get out of
the secret session, we either hear about it on the radio, or read it in the
newspapers, so that once you have a session of the Senate to determine
whether you are going to release anything or not, you have already
let the cat out of the bag, have you not?
Senator HRUSKA. I think that is an accurate statement.
Senator ALLEN. This is just about as much establishing a procedure
for disseminating intelligence information as it is gaining and hold-
ing secret intelligence information, is that not correct?
Senator HRUSKA. That is correct.
The CHAIRMAN. Thank you very much.
Senator HRUSKA. Thank you.
The CHAIRMAN. Senator Thurmond, Mr. Bush, Director of Central
Intelligence, is here and has a time problem.
Would you object if he proceeds?
Senator THURMOND. If he is catching a plane, OK; otherwise, I am
as busy as'he is.
I have two more committee meetings that I am going to.
The CHAIRMAN. Very well, Senator Thurmond, you may proceed.
STATEMENT OF HON. STROM THURMOND, RANKING MINORITY
MEMBER OF THE COMMITTEE ON ARMED SERVICES
Senator THURMOND. Mr. Chairman, I want to state in the begin-
ning that I heard the statement of Senator Stennis.
I approve of that position.
I also heard the statement of Senator Hruska, and I approve of that
position.
Mr. Chairman, thank you for the opportunity to appear before the
Rules Committee and offer these brief comments relative to Senate
Resolution 400.
My statement is not very long, and I think I could follow the state-
ment that I have here rather than try to summarize it.
I would like to focus my remarks in three main areas : (1) Proposed
changes in the authorization process; (2) general procedural issues;
and (3) meeting the challenge of past intelligence problems.
Under the first point, Senate Resolution 400 would strip the Armed
Services Committee of any authorization responsibility for intelli-
gence. This approach may be unworkable for the following reasons :
(1) In my view, intelligence and defense are inseparable, in that one
complements the other.
(2) The Armed Services Committee actions are predicated to a de-
gree on the findings of our intelligence agencies, especially the CIA
which as a nonmilitary agency, provides a different viewpoint com-
pared to the essential military intelligence gathering groups.
.(3) Over three-fourths of the intelligence resources are expended
through the Defense Department. For instance, Navy and Air Force
pilots are flying military aircraft on intelligence-gathering missions.
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Military personnel in foreign countries are trained to make intelli-
gence estimates. The Secretary of Defense is required to make trade-
offs between resources devoted to intelligence and those devoted to
other defense purposes. Intelligence is indispensable to all phases of
force planning, approval of which rests solely with the defense com-
mittees. Exorcising our committee of the authorization authority
would, in my opinion, make our common defense responsibility more
difficult.
(4) The quality of intelligence is a legitimate area of concern for
the Defense Committees if they are to provide properly for our na-
tional security. I doubt this quality could be maintained if we are
deprived of our authority to evaluate, control and authorize U.S. in-
telligence programs.
On procedural matters, I would like to make the following points :
1. The Senate is making a mockery of its own processes when Sen-
ate Resolution 400 is allowed to precede the report of the Select
Committee.
E 2. How are we to wisely address obvious problems in intelligence
areas when we are asked to approve a solution before receiving the
report on the problem we are attempting to rectify?
3. Senate Resolution 400 is so broad it strips authority from four
committees-Armed Services, Judiciary, Foreign Relations, and Gov-
ernment Operations. Each of those committees have able men capable
of exercising oversight in their respective areas of jurisdiction.
4. Based on 'my information, the alleged abuses through intelli-
gence agencies in the past three or four administrations resulted
from bad judgment by past Presidents and high executive officials.
Thus, once the select committee report is made, the Senate should first
consider drawing legislation to meet those abuses.
5. Shifting intelligence authorization to a separate committee means
disclosure in reporting to the Budget Committee and disclosure in
debate when seeking approval in the full Senate. This disclosure tells
our enemies what we are spending, how we are spending it, and how it
changes from year to year.
6. Present oversight can be strengthened if the defense committees
examine in more detail our intelligence programs.
7. Passage of Senate Resolution 400 would mean separate author-
ization of intelligence items, but we have no assurance there will be a
similar committee in the House. Thus, if the House fails to alter its
procedures, how do you go to conference, so that the will of the two
bodies might be brought together?
Mr. Chairman, my third point is that we must take some action to
meet the challenge of past problems in the intelligence community.
On this I would like to make the following points :
1. Without having the advantage of the select committee report,
it is still obvious that the responsible committees have not in the past
bored in enough to assure the necessary oversight.
2. The real abuses were not committed by the Congress or its Mem-
bers, but resulted from poor judgment in the executive branch, com-
pounded by the lack of closer scrutiny in the legislative oversight
area.
3. It would appear that the responsible committees should have an
opportunity to study the report of the select 'committee and recom-
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70
mend to the Senate such steps as each committee feels appropriate to
better exercise its intelligence responsibilities.
4. The Senate may wish to consider a joint intelligence watchdog
committee, empowered. to guard against future abuses and make
recommendations to the authorizing and appropriating committees.
5. There should be some consideration of establishing criminal
penalties for public disclosure of certain intelligence information, such
penalties applicable to any official of Government.
Mr. Chairman and :members of the Rules Committee, in closing,
allow me to express my appreciation for your attention and consid-
eration of my remarks. Senate Resolution 400 is a far-reaching pro-
posal and I urge you carefully consider its many ramifications.
In Senator Stennis' presentation, I am not too sure since he spoke
chiefly off the cuff, that he emphasized on page 4 the second paragraph.
It reads as follows :
Thus, it is essential that the Armed Services Committee, like the Director of
CIA and the Secretary of Defense, be able to review and adjust the effectiveness
and scope of U.S. foreign intelligence activities.
Were the Armed Services Committee to be deprived of this legislative author-
ity, the intelligence community could become a separate entity, unresponsive to
the needs of national defense.
.1 feel that is important and should be emphasized.
The CHAIRMAN. Thank you, very much, Senator Thurmond, for a
very fine statement.
There is one other point that we are aware of that you didn't
allude to.
You mentioned that the Select Committee on Intelligence Activities
has not made its report, and it would be premature to act before that
report is made to the Senate.
We just reported out a resolution yesterday from Senator Byrd's
subcommittee which would establish a select committee to study the
jurisdictional aspect of the organization of the Senate committees and
try to reduce overlaps and duplications of jurisdictions.
Do you think it would be wise to have that information as well in
hand before attempting to adopt a special resolution on this particular
subject?
Senator THURMOND. I think it would.
The CHAIRMAN. I note that in your item 5, you think there should
be some consideration of establishing criminal penalties for public
disclosure of certain intelligence information, such penalties applica-
ble to any official of Government.
Senator Allen pointed out Senate Resolution 400 would appear to
make it easier to disseminate and release classified information rather
than impose any penalties for that kind of activity.
Senator TI-iURMOND. It would appear to make it easier to disclose
information than it would to protect information.
I think Senator Allen is imminently correct on that.
The CHAIRMAN. Senator Allen?
Senator ALLEN. No; I will waive questions.
The CHAIRMAN. Senator Clark?
Senator CLARK. No questions.
The CHAIRMAN. Thank you, Senator Thurmond.
The Honorable George Bush, Director of the Central Intelligence
Agency.
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STATEMENT OF GEORGE BUSH, DIRECTOR OF THE CENTRAL
INTELLIGENCE AGENCY; ACCOMPANIED BY MITCHELL ROGOVIN,
SPECIAL COUNSEL TO THE DIRECTOR; GEORGE CARY, LEGISLA-
TIVE COUNSEL; AND DONALD MASSEY, ASSISTANT LEGISLATIVE
COUNSEL
Mr. Buses. I have with me Mr. George Cary, our Legislative Coun-
sel, and Mr. Mitchell Rogovin, my special legal counsel, and Mr. Don-
ald Massey, the Assistant Legislative Counsel in Mr. Cary's office.
I have a prepared statement which is eight pages long.
I would be happy to submit it for the record and summarize it.
The CHAIRMAN. It would be helpful if you would read it so we
would have the full benefit of your views.
Mr. Buses. It won't take very much time.
Mr. Chairman, I appreciate the opportunity to testify today on
Senate Resolution 400, which would establish a new standing Senate
Committee on Intelligence Activities. I will limit my comments to
those aspects of this resolution which directly affect the ability of the
Central Intelligence Agency or the Director of Central Intelligence
to fulfill our respective responsibilities.
Mr. Chairman, the Central Intelligence Agency welcomes strong
and effective congressional oversight. We have a great deal to gain
from it. We gain the advice and counsel of knowledgeable members.
Through it, we can maintain the trust and support of the American
people. We will retain the support only so long as the people remain
confident that the political structure provides clear accountability of
our intelligence services, through effective Executive and congres-
sional oversight. Good oversight will insure that the intelligence agen-
cies operate as the Government-and the Nation-wish them to. But
in establishing this accountability, I believe the Congress must also
insure that oversight enhances, rather than hinders, the vital opera-
tions of our intelligence agencies. Although there is much to be ad-
mired in Senate Resolution 400, I am concerned that certain sections
of this resolution would unnecessarily hinder our foreign intelligence
effort.
One of the principles which the President stated in his February 18,
1976, message to Congress was that Congress should seek to centralize
the responsibility for oversight of the foreign intelligence community.
The past year has witnessed the antithesis of this. While 8 Congres-
sional committees (including the select committees) were formally
involved in this oversight process, 11 other committees or subcommit-
tees made oversight claims and some were given access to sensitive in-
telligence information. This rapidly broadened access to sensitive ma-
terial has contributed substantially to the past year's unprecedented
number of leaks of sensitive foreign intelligence information, in addi-
tion to placing a heavy burden on senior foreign intelligence offlicals
in carrying out their regular duties.
As Director of Central Intelligence, I want to assure you that I seek
to cooperate to the maximum extent possible with the Congress. I want
Congress to be a consumer of intelligence. CIA provides a daily report
on foreign developments to the congressional committees directly con-
cerned with our national defense and foreign policy. Intelligence com-
munity members provide background intelligence information on
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specific events to any Member of Congress who requests it and to com-
mittees on matters within their jurisdiction. In this way, Congress
shares in the fruits of our intelligence effort, and is better able to
exercise its responsibilities to provide for the common defense and
share in the formulation of American foreign policy. However, I do
not believe that details, of intelligence operations can be spread this
widely, for guaranteed. secrecy remains -a prerequisite to success in
many of our activities. Chinks in our adversaries' armor are rapidly
repaired when made public. Our technical capabilities are nullified,
and our own officers as well as foreign human sources are senselessly
endangered. And so I urge concentrated oversight.
I am not alone in advancing this position. The Government Opera-
tions Committee report on Senate Resolution 400 states:
The Committee was ... very aware of the need to reduce the proliferation
of committees [involved in oversight of CIA]. This resolution has been drafted
with this concern in mind.
While Senate Resolution 400 makes significant strides toward con-
centrating oversight by altering the charters of other relevant com-
mittees to exclude intelligence activities, it does not, by itself, accom-
plish this objective. While the Senate Select Committee is winding
up its affairs, reducing by one the number of committees involved in
intelligence oversight, the Senate Budget Committee has established
an intelligence unit and has begun requesting access to sensitive in-
formation. It is my hope that the interests of the Budget Committee
can somehow be satisfied through the essential role of the Appropria-
tions Committee, which has traditionally involved oversight of CIA.
In addition, under section 662 of the Foreign Assistance Act of 1961
(the Hughes-Ryan amendment), information regarding convert ac-
tion is reported to three committees of the Senate-Appropriations,
Armed'Services, and Foreign Relations. Reports are also made to the
corresponding committees of the House. Senate Resolution 400 will
not affect these reporting requirements. In his message the President
recommended that section 662 be modified.
Section 7(c) (2) of Senate Resolution 400 further diminishes the
effect of the proposed Senate Rule XXV changes on consolidated
oversight. This section expressly permits the proposed committee and
its members to disclose any committee information to any other Sen-
ate committee or individual Senator. Furthermore, any member who
learns information in this manner may also disclose it to any other
Senator. While such a provision is arguably necessary for substan-
tive intelligence, I can see no justification for unlimited dissemination
of information about this Agency's sources and methods. Section 7
(c) (2) negates a major advantage of consolidated oversight-halting
the proliferation of sensitive operational information throughout the
Congress-and in my opinion must be tightened up considerably.
I do not intend to become involved in any committee debates over
the jurisdiction of various intelligence programs or activities. That is
a matter for you to resolve. My concern is over the proliferation of
sensitive intelligence operational information-information concern-
ing intelligence sources and methods-throughout the Congress.
I strongly urge the Senate, in considering the oversight issue, to
concentrate oversight of foreign intelligence activities. If a new com-
mittee is established, perhaps the interests of other committees might
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73
be accommodated by reserving seats in the intelligence committees for
members of other relevant Senate committees, but again that is clearly
a matter for the Senate to resolve.
Mr. Chairman, the second of my major concerns regarding Senate
Resolution 400 relates to sections 7 (a) and (b) which assert the au-
thority of the proposed committee to disclose information provided
by the executive branch, even over the objections of the President.
The President addressed this point in his February 18, 1976, message
on foreign intelligence activities to the Congress. The President stated :
Any foreign intelligence information transmitted by the Executive Branch
to the Oversight Committee, under an injunction of secrecy, should not be uni-
laterally disclosed without my agreement. Respect for the integrity of the
Constitution requires adherence to the principle that no individual member nor
Committee, nor single House of Congress can overrule an act of the Executive.
Unilateral publication of classified information over the objection of the Presi-
dent, by one Committee or one House of Congress, not only violates the doctrine
of separation, of powers, but also effectively overrules the actions of the other
House of Congress, and perhaps even the majority of both Houses.
Aside from the constitutional aspects, section 7(a) and (b) create
other serious problems. Much information the,executive branch would
furnish the proposed committee is protected from disclosure by statute.
Disclosure of this material by the committee or the Senate might in
some circumstances risk a violation of these laws. These sections would
also create a serious conflict in responsibilities for the Director of
Central Intelligence. The DCI must cooperate with the Congress, but
if he provided intelligence sources and methods information with no
assurance in return that it will be protected, he would be violating
his statutory responsibility-imposed on him by Congress-to protect
this information from unauthorized disclosure. Moreover, on a practi-
cal level, acceptance of this section would significantly reduce the
chances that the Executive and Congress could work together construc-
tively in the intelligence field. I believe this section would immediately
place the executive branch and the committee in an adversary relation-
ship, and could impede the flow of sensitive information to the.com-
mittee. Such a relationship would detract from good oversight and
would not contribute to good intelligence.
I believe what the Senate and this country want is good oversight.
Public disclosure is not synonymous with good oversight. The pro-
posed committee can do its job responsibly and conscientiously, giving
maximum protection to the, rights of American citizens, and yet not
disclose sensitive information to the public-and hostile foreign
intelligence services-in the process. It is my recommendation that the
sections permitting the Senate to disclose executive branch information
over the objection of the President be deleted from Senate Resolution
400. I am confident that this problem can be solved informally to the
mutual satisfaction of the, Agency and committee concerned.
My third major concern .with Senate Resolution 400 lies in section
11. This section would establish a Senate procedure which would
compel the passage of a periodic authorization bill for funds for the
activities of this Agency, despite section 8 of the Central Intelligence
Agency Act of 1949, which provides continuing authorization author-
ity for .CIA. One purpose of section 8 was to protect against the dis-
closure of the CIA budget, in recognition of the danger inherent in
budget disclosure to our foreign intelligence effort. An annual authori-
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74
zation bill reported from the new committee would reveal at least the
budget total. Both the Senate and the House have in the past 2 years
voted, by substantial margins, to keep intelligence budgets secret. I
will provide the committee a memorandum on disclosure of our
budget.
It is my belief that this problem can be solved to the satisfaction of
both the Senate and the intelligence agencies. The Congress now,
through the Appropriations Committees, annually subjects the CIA
budget to thorough and total examination and determines the level and
nature of our expend:;tures. No budget information is withheld in
this process. The purpose sought to be advanced by an authorization
requirement is to give the proposed oversight committee a means to
influence the size and program content of the intelligence budgets.
According to the Government Operations Committee report on Senate
Resolution 400, an authorization requirement "should assure a regular
review of each agency's intelligence activities, its efficiency and its
priorities." This Agency would welcome such a review, but does not
believe that an authorization requirement is necessary. We now brief
the CIA subcommittees of the House and Senate Armed Services
Committees on our budget. We would not oppose a requirement to brief
the proposed committee on the CIA budget, and a requirement that
the intelligence committee file a classified letter containing its CIA
budget recommendations with the Appropriations Committee. Such it
plan would insure that the committee was briefed on the Agency
budget, that it considered it carefully and that the Appropriations
Committee received its recommendations, thus satisfying the objec-
tive of an annual authorization without disclosing the budget.
Finally, I would like to comment on the wisdom of combining in
one committee jurisdiction of both domestic and foreign intelligence
activities. I believe it inadvisable to 'add jurisdiction of the FBI's in-
telligence activities to the otherwise solely foreign intelligence juris-
diction of the proposed committee. As Attorney General Levi testified
before the Government Operations Committee, the FBI's intelligence
activities relate to law enforcement. The counterintelligence activities
of the Bureau relate to enforcement of the espionage and related laws.
Although certain intelligence activities of the FBI and foreign intelli-
gence agencies may be similar, the constitutional bases, standards, and
problems involved are so different that it would appear more suitable
that all FBI activities be overseen by a committee other than the one
concerned with foreign intelligence activities. Much has been said
about keeping foreign intelligence and law enforcement activities
separated within the executive branch. I believe the same principle
should apply to the Congress in the exercise of its oversight
responsibilities.
As a former Member of Congress, Mr. Chairman, I am particularly
anxious that the relations between. the Congress and the intelligence
agencies proceed in r, cooperative and harmonious spirit which will
contribute to increased efficiency of our foreign intelligence effort.
while yielding complete protection to the rights of American citizens.
It will be my privilege as the Director of Central Intelligence to serve
the Congress by providing intelligence on substantive developments
which will aid Congressional decisionmaking, and to be totally ac-
countable to our designated oversight committees.
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75
What we seek in return is that oversight. be concentrated and
that sensitive information be protected, thus facilitating our total
cooperation.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you, Mr. Bush.
I think you have made some very good points here.
It seems to me from the proliferation of the jurisdictional areas of
the various committees and subcommittees, you are probably spending
a great deal of your time in reporting to those units rather than con-
centrating on -intelligence activities.
Mr. BusH. It has becomes a problem.
The CHAIRMAN. You indicated 11 in addition to the regular com-
mittees involved, 8 congressional committees, including the Select
Committee, and 11 other committees which made oversight claims.
I presume that you had to appear or your Agency had to appear and
make presentations to those committees?
Mr. BUSH. Yes, sir, we have, and we will be glad to submit a listing
of these committees for the record.
The CHAIRMAN. It would be helpful if you would attach a list to be
included in the record.
[The material referred to, subsequently submitted to the committee
by Director Bush, is as follows:]
COMMITTEES AND SUBCOMMITTEES, OTHER THAN REGULAR CENTRAL INTELLIGENCE
AGENCY OVERSIGHT COMMITTEES, WHICH HAVE MADE FORMAL OR INFORMAL RE-
QUESTS FOR INFORMATION ON AGENCY OPERATIONS DURING THE 94TH CONGRESS
1. Senate Judiciary Committee :
Subcommittee on Administrative Practice and Procedure (electronic
surveillance)
2. Senate Judiciary Committee :
Subcommittee on Constitutional Rights joint request with Senate Com-
merce Committee
Subcommittee on Science, Technology, and Commerce (electronic sur-
veillance)
3. Senate Labor and Public Welfare Committee :
Subcommittee on Health joint request with Senate Judiciary Committee
Subcommittee on Administrative Practice and Procedure (tests on
human subjects)
4. Senate Banking, Housing, and Urban Affairs Committee (securities trans-
actions problems)
5. House Government Operations Committee (securities transaction problems)
6. House Government Operations Committee :
Subcommittee on Legislation and National Security (assertion of gen-
eral oversight)
7. House Government Operations Committee :
Subcommittee on Government Operations and Individual Rights (Rocke-
feller Commission Report, use of computers, and relationship with
Department of Justice)
8. House Government Operations Committee :
Subcommittee on Consumer and Monetary Affairs (banking)
9. House Judiciary Committee :
Subcommittee on Courts, Civil Liberties, and the Administration of
Justice (technical surveillance)
10. House Post Office and Civil Service Committee:
Subcommittee on Postal Facilities, Mail and Labor Management (mail
survey program)
11. House Internal Relations Committee :
Subcommittee on International Political and Military Affairs (relating
to Mayaguez)
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76
The CHAIRMAN. You made the point there is no justification for un-
limited dissemination of the agency's sources and methods.
If this resolution were approved, it would contribute to that result
rather than attempt to limit that result.
On page 6 you said you would provide a memorandum for the
committee.
Do you have it?
Mr. BusH. I believe we have it with us today, and it will be made a
part of the record.
The CHAIRMAN. If not, we will make it a part.of the record when
we do receive it.
Mr. BusH. We have that document here.
[The memorandum referred to follows:]
Memorandum.
Subject : Intelligence Budget: Secrecy.
CIA is strongly opposed to the disclosure of either the intelligence community
or CIA budgets, for the following reasons.
1. Disclosure of intelligence budgets would provide potential adversaries with
significant insight into the nature and scope of our national foreign intelligence
effort. Year-to-year changes in budget levels (particularly if they are sizeable as
they sometimes have been in the past), taken together with other information.
will make possible much better conclusions about the future direction of major
Intelligence Community programs. The U.S. Government, would benefit consider-
ably from access to this same information with respect to the Soviet intelligence
effort.
2. Once an intelligence budget figure is made public, it will be impossible to
prevent the disclosure of ninny sensitive and critically important intelligence
programs and activities. Ar., immediate requirement would be levied to explain
precisely which of our intelligence activities were covered and which were not.
Definitional questions over where "intelligence" expenditures stop and opera-
tional expenditures begin would necessarily lead to public discussion of sensitive
programs and techniques.
Publication of intelligence budget figures would result in debate on changes or
trends developed in succeeding year figures, and,fluctuations in the figure would
generate demands for explanations which in turn would reveal the component
parts of the figure and the programs supported by it. The history of disclosure of
Atomic Energy Commission budget materials and related information by both the
Executive branch and the Congress indicates that publication of any figure with
respect to intelligence would quickly stimulate pressures for further disclosure
and probes by various sectors into the nature of the figure and.its component
elements.
3. It has been asserted that CIA budgetary secrecy is unconstitutional, in
light of Article I, Section 9. Clause 7 of the Constitution, which states :
"No Money shall be drawn from the Treasury, but in Consequence of Appro-
priations made by Law ; and a regular Statement and Account of the Receipts
and Expenditures of all public Money shall be published from time to time."
Though there has been no effective judicial test of the procedures which have
been in effect since the passage of the 1947 and 1949 Acts establishing CIA,
CIA believes that present procedures are fully in accord with the Constitution.
Agency appropriations are an integral part of appropriations made by law
and are reflected in the Treasury's Statement and Account of Receipts and Ex-
penditures in compliance with Article I. Section 9. Clause 7 of the Constitution.
In addition, the history of the adoption of this clause of the Constitution indi-
cates that considerable flexibility was to be left the legislature in meeting
its requirements. Moreover, there is considerable historical precedent for budget-
ary secrecy, going back to a secret fund used by Washington and successive
Presidents, and a secret appropriations act in 1811.
The CHAIRMAN. The point you make where you say that counter-
intelligence relates to espionage and not domestic activities, I think,
is a very good point.
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77
Do you have something, Mr. Pell?
Senator PELL. Thank you.
In connection with the list of committees to which you report, to
how many do you report to the chairman and ranking member alone,
and to how many do you make a report to the whole committee or
subcommittee?
Mr. Buses. Our legislative counsel can address himself to that.
Mr. CARY. It .varies with the committee. We can provide that in-
formation to you.
[The information referred to was subsequently submitted to the
committee as follows:]
Our four regular oversight committees-the Armed Services and Appropria-
tions Committees of the House and Senate-have subcommittees to handle in-
telligence matters. We report to these subcommittees. We also have reporting
responsibilities to the Senate Foreign Relations and House International Rela-
tions Committees, pursuant to Section 662 of the Foreign Assistance Act. The
International Relations Committee has created a subcommittee to receive these
briefings. Pursuant to a Committee agreement, we brief only the Chairman
and ranking minority member of the Foreign Relations Committee.
Senator PELL. Congratulations on the way you have taken the job
and the freshness and the vigor with which you approached it.
It has an effect on the morale. We are very delighted.
I notice also in your statement that you mentioned you were sub-
ject now to a thorough examination in the appropriations process.
Mr. Busx. Yes.
Senator PELL. My impression is that the agency is to be congratu-
lated on the lack of abuses that have occurred in the light of the
dereliction of the Congress in subjecting you to a pretty thorough
examination, and my impression is that this is a process that is rather
pro forma.
About how many meetings would you say that you have had in
the course of a year that constituted a thorough examination?
Mr. BusH. I can't give you a total in the last year, but we will sub-
mit it.
I have been in this job for about 8 or 9 weeks, Senator Pell, and in
that time, I have presented extensive briefings on both the CIA and
intelligence community budgets to the Senate Appropriations Sub-
committee and the House Appropriations Subcommittee. There were
four presentations to these committees. Although I can't address my-
self in detail to past procedures. I can guarantee you that the informa-
tion that was submitted in addition to our testimony was extensive.
Nothing was held back.
The questions were penetrating, and it was certainly more than a
pro forma look at the CIA and the intelligence community budgets.
This was true in the Senate, and it was true in the House. I will be
happy to submit for the record, if it would be agreeable, Mr. Chair-
man, a list of briefings over the past year on our budget. But I am
sneaking from my own experience, the four presentations just since
I have been in this job have certainly been extensive and thorough.
Some have charged that the budget is not, fully disclosed to our
oversight committees.
I can tell this committee that it is fully disclosed to these commit-
tees, and that we have not held back.
If there is additional information requested, these committees sub-
mit extensive lists of questions, so I can assure the Senator that we
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78
are doing a thorough job of responding to proper and thorough over-
sight in the appropriations field.
Senator PELL. In the report which you will submit backing up the
statement, will you also submit it for the previous year, which is long
before you came aboard ~'
I am not indicating any dereliction on the part of CIA.
I think the fault probably rested with us in Congress, that we
didn't exercise our responsibility. One of the beneficial effects of the
Church committee and the excellent work that Senator Church did in
leading that committee was, perhaps, to make us more conscious of our
own responsibility.
Thank you.
[Information, subsequently submitted, pertaining to budget ap-
pearances of the CIA before Appropriation Committees during the
94th Congress is as follows:]
BRIEFINGS OF SENATE AND HOUSE APPROPRIATIONS SUBCOMMITTEES ON
INTELLIGENCE BUDGETS DURING THE 94TH CONGRESS
There were numerous other briefings of these Subcommittees on other topics.
Senate Appropriations Subcommittee :
April 30, 1975-Intelligence Community budget
May 1, 1975-CIA budget
March 9, 1976-Intelligence Community budget
March 10, 1976-CIA budget
House Appropriations Subcommittee :
February 21, 1975-Intelligence Community budget
April 17, 1975-Intelligence Community budget
April 18, 1975-CIA budget
May 6, 1975-Intelligence Community budget
June 11, 1975-CIA budget
March 16, 1976 (morning session) -Intelligence Community budget
March 16, 1976 (afternoon session)-CIA budget
The CHAIRMAN. Senator Byrd?
Senator BYRD. Mr. Bush, on page 6 of the resolution, paragraph (b)
of section 4, the second sentence refers to the annual report which is
mentioned in the preceding sentence by the Committee on Intelligence
Activities from the Director of the Central Intelligence Agency.
Mr. Busri. Right.
Senator BYRD. And I quote verbatim from the second sentence and
the following sentences :in that paragraph :
Such report shall review the intelligence activities of the agency or depart-
ment concerned and the intelligence activities of foreign countries directed at
the United States or its interests. Such report shall be unclassified and shall be
made available to the public by the Committee on Intelligence Activities. Noth-
ing herein shall be construed as requiring the disclosure in such reports of the
names of individuals engaged in intelligence activities for the United States
or the sources of information on which such reports are based.
Now, what are the problems that will confront your Agency in com-
plying with this requirement?
Mr. Busx. Senator Byrd, if such a report. is submitted in accordance
with this section-an unclassified. report-it would not be particularly
meaningful.
It would be difficult to discuss, on an unclassified basis, our in-
telligence activities and the intelligence activities of foreign coun-
tries. How we know what they are doing gets into methodology.
I believe the requirement of . such a report would cause serious
problems. I think it would stir up agitation that we are withholding
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79
information, which we indeed would have to do, if the report were
to be made public.
Senator BYRD. Well, you are not given any discretion as to the
thoroughness of the report?
Mr. Busx. No, sir.
Senator BYRD [reading].
Such report shall review the intelligence activities of the agency or depart-
ment concerned, and the intelligence activities of foreign countries directed at
the United States or its interests.
You are not given any discretion as to what you may or may not
provide in such report.
It is all encompassing in that it shall review the intelligence activi-
ties of your agency and the activities of the foreign countries which
are directed at the United States or its interests.
Now, you would be bound by that not to withhold any information,
that, in the judgment of your Agency, you would feel ought to be
classified?
Mr. Busx. I agree with the Senator. The problem I run into is that
on the one hand we are instructed to submit an unclassified report,
and on the other hand, we cannot divulge intelligence sources and
methods.
The idea has appeal. I would like to be able to -fulfill this require-
ment. There are activities which would take some of the onus off the
back of the CIA if we could talk about accomplishments as well as
face up to things that have gone wrong. However, my statutory obliga-
tions would prohibit me from submitting a meaningful report.
The sources and method argument is not a contrived argument. It is
not a specious argument to withhold information. I have had contact
with some abroad with whom we work. I believe strongly that I should
keep and faithfully fulfill the obligation to protect intelligence sources
and methods.
The idea is a good one, but it is impractical, given my other
responsibilities.
Senator BYxv. Do you feel that you could responsibly perform to
this mandate contained in the second or third sentence?
Mr. Busx. No, sir, I don't believe so.
It is too all-encompassing-too widespread.
We would be asked to do something that would be almost rendered
meaningless by my other responsibilities.
Senator BYRD. If your report omitted any information which in the
judgment of your Agency ought to remain classified, you would not be
complying with the mandate of this second sentence?
Mr. Busx. That is true.
Senator BYRD. Would that lead to adversary relations with the
Congress?
Mr. Busx. I am afraid it would.
Senator BYRD. Would it lead to contention and charges that you
were failing to cooperate?
Mr. Busx. Yes, sir, I believe it would.
Senator BYRD. On page 14 of the resolution, there are three para-
graphs which begin with the words "It is the sense of the Senate."
That carries no mandate and no agency is required to comply with
those paragraphs-no agency or person is under any legal respon-
sibility to comply with those three paragraphs.
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80
What would be your reaction now if this bill were passed with these
three paragraphs in section 10?
How far would you go toward complying with the requirements
which are contained in, "It is the sense of the Senate" paragraphs?
Mr. BUSH. I would endeavor, Senator, to comply by keeping the
Senate, this committee, informed on intelligence activities, anticipated
activities which are the responsibility of or engaged in by intelligence
community members.
We could go a long way to comply with that.
There could be some matters of such heightened sensitivity that
we want to be very careful about disclosing them.
The next paragraph relates to providing further information or
documents.
We have done an awful lot of that in the past and we will continue
to do it in the future.
The third paragraph relates to the violation of constitutional rights.
I think there we certainly would come forward with this infor-
mation-Mr. Rogovin reminds me, subject to sending information to
the Attorney General for criminal investigation, we would find it easy
to more fully comply with the last paragraph.
Senator BYRD. Thank you.
The CHAIRMAN. Senator Allen.
Senator ALLEN. Mr. Bush, I certainly feel you have the support of
Congress and of the public outside of the Congress, especially, because
of your character and ability and your dedication.
Certainly, this legislation was not aimed at doing anything other
than seeing that the intelligence agencies do and perform the tasks
that are in the public interest and are within their charter.
I feel that your statement is a very fine and discreet statement.
In general, you seem to approve of the idea of oversight and the
establishment of the committee; yet, you make so many what I con-
sider valid criticisms, that I am just wondering to what extent you
really feel that a committee of this sort is necessary.
Mr. BUSH. There are certain particulars in this resolution that
cause us enormous problems. However, the principle of consolidated
oversight and, at the same time, protection against the release of
legitimately secret information has enormous appeal.
I said to my colleagues : Look, we are not going to go up there and
get in the middle of the Senate's business in terms o how the Senate
or the House of Representatives orders its oversight.
We should make clear to this committee that we favor consolidated
oversight.
We don't want to get crosswise jurisdictionally with existing over-
sight committees.
We have made suggestions that would make this resolution more
palatable to us. As written, we have problems with it.
Senator ALLEN. As it now stands, the administration could not
support it?
Mr. Busx. We could not, speaking for the administration.
Senator ALLEN. You feel the present setup is better than the com-
mittee as set up by the :resolution and given the powers of this reso-
lution to this committee?
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Mr. BUSH. I hate to be against everything, but we are not happy
with the present proliferation of the numbers of committees exer-
cising oversight.
Again, it is not an unwillingness to spend time on the Hill or have
the staff spend time up here.
We indicated what we do favor is more consolidated oversight.
That may or may not be possible for the Senate to implement.
Senator ALLEN. Would you give us then your idea of a bare bones
bill that would accomplish desirable objectives in the national inter-
ests, but that would not have the matters that you criticize in your
statement ?
Mr. BUSH. We could submit something appropriate for considera-
tion, Senator Allen. The concept of a joint oversight committee, which
I think many Members of the Senate and House favored at one time
or another, certainly has enormous appeal to us.
Senator ALLEN. You would submit a suggested bill that would be an
improvement over the status quo, but yet would not have the objection-
able features that Senate Resolution 400 has?
Mr. BUSH. We would set out certain principles which I have indi-
cated would be something that the whole intelligence community, and
I am confident the administration, could support.
We would not have thought it out carefully from the jurisdictional
aspects in the Senate and the existing jurisdiction in the House.
Such principles will address our problems : an authorization re-
quirement leading to disclosure, proliferation of the committees in-
volved in oversight, and so on.
Senator ALLEN. It would be helpful to the committee if you would
furnish a suggested draft of legislation that would be in the national
interest in your judgment, but would not be subject to the criticisms
that you have made of Senate Resolution 400.
Mr. BUSH. If the Senator would accept a suggestion, what we might
be able to do more promptly is submit a list of general principles, and
then if you would like us to follow through and do some drafting on
the general legislation, we will be glad to do that.
The submission of draft legislation would quite obviously take
longer.
Senator ALLEN. I want to cooperate and make it easy.
Mr. BUSH. All right, sir, we will submit some oversight principles.
After that, if the committee would like full legislation drafted, we will
go to work on that.
Senator BYRD. Mr. Chairman, I, for one, would not think it wise to
have any agency of Government that is envisioned in this resolution
submit to this committee'a proposed draft.
I certainly understand the desire on the part of the distinguished
Senator from Alabama to arrive at some workable, feasible proposal
to get at this.
I would think that it would be perfectly proper for any witness
representing any of the agencies involved here, to submit to the com=
inittee, in addition to his statement, a refinement of the criticisms of
the resolution, any suggestions, but I doubt if it would be wise for the
Director of the Central Intelligence Agency to submit to this com-
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mittee a proposed draft of a resolution on which the Congress could
work its will.
Senator ALLEN. Would Senator Byrd yield?
He said he would prefer to submit a statement of desirable princi-
ples, and I accepted that revised suggestion. I think the distinguished
Senator from West V'i.rginia would agree that that would be a better
thing.
Senator BYRD. Yes; I do.
The CHAIRMAN. We will be happy to have you submit that.
[The oversight principles, subsequently submitted by the CIA, is as
follows:1
DESIRABLE PRINCIPLES OF CONGRESSIONAL OVERSIGHT OF THE INTELLIGENCE
COMMUNITY
1. Oversight should be concentrated exclusively in the minimum number of
committees required to effectively conduct it. Existing law should be'modified to
conform to this principle.
2. Oversight should inc::ude strict and enforceable rules against unauthorized
disclosure by committee members and staff.
3. Procedures for authorized disclosures should not provide for disclosure over
the President's objections.
4. Oversight should not include a formal authorization procedure which would
bring about the disclosure of the intelligence budget or its components, or frag-
ment the budget authorization responsibility for one department or agency to
more than one Senate committee.
5. Oversight of the foreign intelligence community should notbe combined with
jurisdiction of FBI intelligence activities.
6. Requirements that the CIA or other intelligence community members notify
Congress or obtain Congress' approval before the initiation of covert actions or
other activities are neither desirable nor necessary. Presently notification of
covert action is provided within a very short time after a decision has been
reached. In certain circumstances a prior notification or approval requirement
may be constitutionally su; pect or impractical.
The CHAIRMAN. Senator Clark.
Senator CLARK. I would like to ask you, both as a Director of the
Central Intelligence Agency and, as you said, having served in the
Congress yourself : As you read the laws which authorize the estab-
lishment of the CIA, the laws under which you operate, is it your be-
lief that the information which the CIA collects and analyzes is to be
made available equally to the legislative branch of Government and
the executive branch?
Mr. BUSH. The law, Senator Clark, is not clear on that.
Senator CLARK. Do you operate on the assumption that the Congress
is equal in its ability to receive information on operations, or do you
believe that one branch is put above the other?
Mr. BUSH. I believe we will try to operate, and are now, on the
assumption that Congress should be a consumer of intelligence and we
welcome proper oversight to go into full detail.
We view the Congress as full partners.
I would have to say to the Senator that on certain time-sensitive
issues, it would be proper that the President of the United States,
given his responsibilities, receives perhaps the most highly sensitive
information before the Congress might, or in certain depths that the
Congress might not need it, at the outset. But it is my intention and
belief, and my colleagues will tell you that I have told them that CIA
is to consider Congress a legitimate and equal partner as far as intel-
ligence goes.
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It is hard to define it more clearly.
Senator CLARK. I appreciate that, particularly if it is unclear in the
law.
I suppose that is a good warning to this committee and the Senate,
that if they want to be full partners, they better specify it in the law.
If it is that unclear, it is an area that we ought to address ourselves
to. It seems to me that what you are really saying is that one of the
partners is more equal than the other.
If certain sensitive information is to be made available to the Pres-
ident and not to the Congress on a totally and completely equal basis,
then it seems to me that they are not really equal partners.
Mr. Busx. Perhaps under the way the law is written now, that
observation is correct.
Mr. Rogovin could address himself to that in a legal sense.
Though we recognize our responsibilities to keep Congress informed,
the CIA is still part of the executive branch of Government.
Would it be appropriate for our special counsel to make a comment?
The CHAIRMAN. Certainly.
Mr. Rorovix. I will pick up with what the Director said.
The Agency remains an executive branch agency under the control
of the President.
The issue becomes more clear when you talk about operational intel-
ligence and the opportunity for the executive to reach the conclusion
that he wishes.
This is in the area where the Senate resolution is the-same as the
sense that portion of the Foreign Assistance Act that refers to timely
and fully advising the Congress. I think that is a significant feature
in response to your question.
Senator CLARK. In what way is that related ?
Would you be more specific?
I don't mean the section in the resolution, but why that is relevant
to what we are talking about, Mr. Rogovin ?
Mr. RoGOVix. Because it is a question of timing.
I don't believe the Agency would decline to give information to
any jurisdictionally appropriate committee regarding any foreign
intelligence.
I think the question of timing, however, becomes important when
the information relates to operations. This goes to the debate as to
whether section 662 requires prior notification or, as it seems to read,
timely notification.
Senator CLARK. Let me ask it another way.
Are there any highly sensitive areas of operation which the execu-
tive branch is entitled to know about and which the Congress is not
entitled to know about?
Mr. BusH. Not in totality.
Senator CLARK. I am speaking in any respect.
I am speaking under the law, not the proposed legislation.
Mr. BUSH. I better turn 'to legal counsel to address himself to the
law.
Mr. RO00VIN. Senator Clark, I think the issue arises where the DCI
or the President cannot be assured by the rules of the Senate or the
House that disclosure might not be made, and I think that becomes a
troublesome concern.
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The willingness to turn over the information is unfettered.
The concern is whether the information then will be publicly dis-
closed and disclosed to our adversaries. I think that is the single most
abrasive issue in the determination of a free flow of information.
Senator CLARK. Of course, that assumes that the administration
has the full right to make the decision, the final decisions, as to what
should be classified 'and what should not be classified.
It assures that that branch of the Government has a higher authority
with the Government with regard to classification, doesn't it?
Mr. ROGOVIN. I wouldn't quibble over the term "classification."
I think it is clear that the executive branch has sole responsibility
for classification and declassification. 'That, however, has nothing to
do with the appropriateness of Congress disclosing the information
it has.
It is conceivable that the President, through the exercise of executive
privilege, may decline to turn over certain information unless he can
be assured that that information will notbe disclosed.
It may simply relate to an ongoing sensitive situation that could be
made public at a later date.
'Senator CLARK. All right.
Then I have just one other area of questioning.
Insofar as we are all in agreement that Congress is entitled to
certain information, whether that be operational, however sensitive,
would it not ,be entirely up to the Congress to decide who receives that
information-what committee, what group of committees, and what
individual Senators?
Mr. Roaovix. Yes, sir, it would.
Senator CLARK. In that sense, no committees of the Congress, whether
it be the House or the Senate, and, in that sense, no one Senator and
no one Congressman is superior or inferior to any one Congressman
or any one Senator-would you not agree to that?
Mr. Busx. I think that is true, sir, but we are getting into the 'area
of responsibilities also under the law for protection of sources and
methods.
One Senator might say in judgment any piece of information I get
relating to the CIA budget, out of my conscience I will make public,
and another Senator might suggest: Anything I learn about what is
happening on the 'Czechslovakian border, I feel, because of my heritage,
I should make public. 'So if I as the Director would recognize the
equality of each Member of the Senate in this narrow sense of giving
sensitive information to all others, I would be in a horrendous bind.
Senator CLARK. I understand the problem.
Mr. Busx. I would not be fulfilling my obligations to protect sources
and methods if I handed out a piece of information which I know
would inevitably become a disclosure.
'Senator CLARK. I understand the problem.
I am wondering as we write a law and are sensitive to oversight,
how do we write a law which says one Senator is entitled to certain
information from our our Government, but another Senator is not, or
one Congressman is entitled and one is not?
Even under the strongest rules of the seniority system, I never heard
that one Senator was superior to another in terms of 'availability of
information or right to vote or right to know.
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If we are going to argue, as your statement does for understand-
able reasons, what is in the first sentence on the fourth page of your
paper, I am sure that that causes a problem.
Furthermore, any member who learns information in this manner
may also disclose it to any other 'Senator. While such a provision is
arguably necessary for substantive intelligence, 'I can see no justifica-
tion for unlimited dissemination of information about this agency's
sources and methods.
We can't say one -Senator is entitled to information that another
Senator is not entitled to. I don't see how that can be viewed consti-
tutional, whatever practical problems it may create.
Mr. RocovIN. With respect to operational intelligence-a narrow
slice of information-if the Senate were to set up an Oversight Com-
mittee with consolidated jurisdiction and determine that such a com-
mittee should be the recipient of not only general foreign intelligence
information, but also of operational intelligence, and that committee
agreed with the executive branch to an injunction of secrecy, then,
as to that narrow slice of information, I think that it would be turned
over to the committee since it would be accepted by the committee
under such rules.
As to other types of foreign intelligence information, I could see
a different rule where it didn't come to the committee under such an
injunction of secrecy. That would obviate the problem, but it doesn't
resolve the totality of the problem.
Senator CLARK. I wouldn't think so.
It puts one Senator above the other in terms of information that
is available to them to operate on.
Lastly, this is tied to all of these points.
The thing I would be concerned about, and I am sure a number of
other Members of the Congress are, too, is if our Government is un-
dertaking certain operations-perhaps Angola is a good example-
that directly reflect on the welfare of our country, for better or for
worse, as one might judge it, then certainly the Members of the Senate
or the Members of the House would have the right to know that the
Government was doing these things.
And based on that right, they have the right to take any action in
terms of cutting off funds or taking any other step necessary to coun-
teract that operation if, in their judgment, it is not in the Nation's
best- interest.
You may make it impossible for them to carry out their responsibil-
ities under the Constitution, which includes taking such action.
Mr. Busx. We will comply with the law.
We don't have a foot-dragging approach to the law, but the law
in this very sensitive field instructs us to do certain things, and we
are complying with this law.
The other problem that I have with this discussion is that we do
not want to be drawn into the real jurisdictional problems of the
Senate.
As my testimony indicates, we were trying to express broad prin-
ciples, but whatever you come up with, which is compatible with
all the Director's responsibilities under the law will certainly be
complied with.
Senator CLARK. I understand that.
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Mr. BusH. I was afraid we might be leaving the wrong impression.
We have enough problems without being misunderstood on this
point.
Senator CLARK. The only problem is that, to this one Member of
the Senate, it seems that I have a responsibility and a right to know
what our Government is doing so that I can, at least, act on my own
best judgment, for better or worse, on that information and presently,
under the Hughes amendment, we are doing that. But it seems to me
if you do set up a system-and perhaps the Hughes amendment does
the same thing: Sets up three committees that have access to other
information that other Members of the Senate do not have access to,
and, therefore, could not act on, not having the information-it is
carrying out a new area of responsibility that I find difficult to believe
is consistent with the Constitution.
The CHAIRMAN. If the Senator will yield, we do have to recognize
the fact that the executive branch does have authority to classify
information.
The President is Commander in Chief. Some of it is on -a need-to-
know basis only.
Even though an individual may have a complete clearance to receive
complete information, there are many people in this country who have
that kind of clearance, that are not entitled to receive sensitive infor-
mation which is not released to many.
I presume you have that sensitive classification on the need-to-
know basis.
Mr. Busx. We certainly do.
The CHAIRMAN. That is a problem.
Senator CLARK. It iS.
n those areas of classification that are clearly within the jurisdic-
tion of the Congress to act on, without having all the information avail-
able as to what our Government is already doing, it is almost impossible
to act with any intelligence.
I yield.
The CHAIRMAN. I was just going to point out that under the act
itself, the principle that, seems to me as certainly an important prin-
ciple comes under "Powers and duties."
It reads:
It shall be the duty of the Agency, tinder the direction of the National
Security Council-
(1) to advise the National Security Council in matters concerning such in-
telligence activities of the government departments and agencies as relate to
national security ;
And that is its No. 1 direction and authorization in its charter.
(2) to make recommendations to the National Security Council for the coor-
dination of such intelligence activities of the departments and agencies of the
government as relate to the national security ;
(3) to correlate and evaluate intelligence relating to the national security, and
provide for the appropriate dissemination of such intelligence within the govern-
ment using where appropriate existing agencies and facilities : Provided, That the
Agency shall have no police, subpoena, law-enforcement powers, or internal-
security functions : Provided further. That the departments and other agencies
of the Government shall continue to collect, evaluate, correlate, and disseminate
departmental intelligence: And Provided further. That the Director of Central
Intelligence shall be responsible for protecting intelligence sources and methods
from unauthorized disclosure ;
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There are other duties.
It would seem to me that he has. a responsibilty to protect intelli-
gence sources from unauthorized disclosure, whatever that may be, and
if that classification involved a need-to-know basis in his judgment,
I would think probably that would be the rule to be followed.
Senator CLARK. Would it be the chairman's interpretation that cer-
tain Members of the Senate would be superior to others in the single
sense of the receiving of information?
The CHAIRMAN. I don't know that I would conclude that, because I
don't know that there are any Members of the Senate, per se, that
would have to know the intelligence source and method.
I think they would have to know what we are doing, but to know
the intelligence source and the method, I would certainly say that
should be on the need-to-know basis and I can't conceive how I, as a'
Senator, would need to know what his intelligence was and what his
method was in relation to a particular activity, even though we ought
to know generally about the activity.
For instance, in Angola, we ought to have been advised, and we
were, that money was being spent in Angola on the intelligence route.
Senator CLARK. That raises the question on page 4 as to methods.
You are talking about this at the bottom of page 3 of your statement
and on page 4.
Section 7(c) (2) of S. Res. 400 further diminishes the effect of the proposed
Senate Rule XXV changes on consolidated oversight. This section expressly
permits the proposed Committee and its members to disclose any Committee in-
formation to any other Senate Committee or individual Senator. Furthermore,
any member who learns information in this manner may also disclose it to any
other Senator. While such a provision is arguably necessary for substantive
intelligence, I can ,see no justification for unlimited dissemination of information
about this agency's sources and methods.
It is your interpretation that !Senate Resolution 400 would require
you to reveal your sources and methods then?
Mr. BUSH. We are concerned that that interpretation would be
placed on it, and it throws me into a very complicated position be-
cause of the language that Senator Cannon just read.
Senator CLARK. It is not my understanding that you reveal your
sources and the method to committees you report to.
Mr. Buser. We do on some aspects.
We are very careful, but we do to oversight committees.
There are names of certain agents that I am sure they don't have,
they haven't asked for, and it would cause me great problems under
the act to give them. But in terms of other intelligence sources and
methods, we brief our oversight committee in considerable detail.
That is a dilemma in itself.
is The CHAIRMAN. Senator Stennis emphasized that point when he
brought up the question of U-2.
That was a source and method of acquiring information. It had
to be authorized and appropriated for, and it was for the construction
of those particular airplanes, so that information did, of course, have
to be released, and it was released to the Intelligence Subcommittee.
Senator CLARK. Thank you.
The CHAIRMAN. Thank you very much.
Senator RoTH. Senator Huddleston and I are appearing together.
You want us to come back?
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88
The CHAIRMAN. If you will, please.
We have got permission to sit until 1 o'clock.
It is 5 minutes to 1, so we will recess until 10 o'clock in the morning,
and have you bath return then.
The committee will stand in recess until 10 o'clock.
[Whereupon, the committee recessed, to reconvene at 10 a.m., Thurs-
day, April 1, 1976.]
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PROPOSED STANDING COMMITTEE ON INTELLIGENCE
ACTIVITIES
THURSDAY, APRIL 1, 1976
U.S. SENATE,
COMMITTEE ON RULES AND ADMINISTRATION,
Washington, D.C.
The committee met at 10:05 a.m., in room 301, Russell Senate Office
Building, Hon. Howard W. Cannon (chairman) presiding.
Present : Senators Cannon, Pell, Robert C. Byrd, Allen, Williams,
Clark, Hatfield, Hugh Scott, and Griffin.
Staff present : William McWhorter Cochrane, staff director; Chester
H. Smith, chief counsel; Hugh Q. Alexander, senior counsel; John P.
Coder, professional staff member; Dr. Floyd M. Riddick, professional
staff member; Jack L. Sapp, professional staff member; Ray Nelson,
professional staff member; Larry E. Smith, minority staff director;
Andrew Gleason, minority counsel ; and Peggy Parrish, assistant chief
clerk.
The CHAIRMAN. The committee will come to order.
Senator Church, we will be glad to hear from you.
STATEMENT OF HON. FRANK CHURCH, CHAIRMAN OF THE SELECT
COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH
RESPECT TO INTELLIGENCE ACTIVITIES
Senator CHURCH. Thank you, Mr. Chairman, and members of the
Rules Committee.
Since 1950, there have been over 200 proposals introduced into the
Congress which. would have created some form of an intelligence over-
sight committee. The need for effective legislative oversight over the
intelligence community has been evident for a long time. The existing
standing committees clearly have not been able to meet the total need.
A new standing committee with jurisdiction over the national-intelli-
gence community is the. correct answer to a problem that has been evi-
dent for at least 25 years.
Since February of last year, the Senate Select Committee on Gov-
ernmental Operations with Respect to Intelligence Activities, of which
I am chairman, has been working on legislation to create such a new
standing committee of the Senate on intelligence activities.
As a result on January 29, 1976, I introduced S. 2893, on behalf of
myself and seven of my colleagues on the select committee. The bill
was referred to the Government Operations Committee, which made
certain improvements, including reintroducing the measure as a reso-
lution. Senate Resolution 400.
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Senate Resolution 400 is similar in most respects to S. 2893. It re-
tains those elements of the select committee bill which I believe are
crucial to the success of an oversight committee on intelligence.
I therefore joined in sponsoring Senate Resolution 400, and I am
here today to urge that, this committee report the resolution with its
essential elements intact,:
In order to serve as an effective instrument of congressional oversight
over the intelligence community, as it is now organized and directed in
the executive branch, a standing committee must have the following
characteristics :
It must have jurisdiction over the entire intelligence community
as it affects national intelligence. National intelligence includes the
CIA, the National Security Agency, the Defense Intelligence Agency,
the Bureau of Intelligence and Research and the Department of State,
and the Intelligence Division of the FBI.
The committee must also have jurisdiction over the national intelli-
gence budget. That budget must be authorized on an annual basis so
that, each year, Senators who have acquired expertise in the intelli-
gence field have an opportunity to examine with care the programs
which Congress is being asked to fund.
Finally,. the committee must have access to information necessary
to make wise legislative judgments. Congress cannot legislate without
information. Access to such information will be assured by a system
of annual authorization of appropriations for intelligence activities.
By centralizing jurisdiction over such authorization legislation in the
standing intelligence committee, the Senate will assure that the Execu-
tive will cooperate with that committee in providing the information
necessary to carry out all of its oversight responsibilities.
Mr. Chairman, I have listed the essential elements of intelligence
oversight. Senate Resolution 400 includes a number of additional
provisions which I believe will contribute significantly to the pro-
posed committee's effectiveness.
Under the resolution the committee membership is to rotate on a
staggered basis, a provision which will permit the committee to
benefit from fresh perspectives, as well as the expertise of seasoned
members. The committee is to have six majority and five minority
members. A vice chairman is to be selected by the minority mem-
bers. These arrangements reflect the necessity for a bipartisan ap-
proach to a most sensitive element in the national security structure.
Incidently, Mr. Chairman, that kind of arrangement serves the
select committee in seating them well and avoiding the partisan divi-
sions which were confidently predicted but which ;did not occur.
Unauthorized disclosure of sensitive information by Senators or
staff is explicitly prohibited, while procedures are outlined for the
disclosure of information where appropriate. Procedures for im-
posing sanctions for unauthorized disclosure are described in some
detail.
Standing rule 36 now provides generally for the protection of
confidential Senate business, but it has been suggested that a more
explicit rule may be necessary with respect to sensitive intelligence
information.
It has been brought to my attention that Senate Resolution 400
includes certain provisions which may cause problems for other com-
mittees whose jurisdiction touches upon elements of the intelligence
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91
community in some way. Although the intelligence community has
never been overseen by one committee whose jurisdiction permits it
the authority, time and expertise to provide effective oversight over
all national intelligence activities, a number of committees have had
jurisdiction over parts of the intelligence community or over certain
activities performed by intelligence agencies.
It is my view that to the extent that intelligence activities may
affect matters at the heart of the jurisdictions of these committees,
their jurisdictions will not be diminished by the creation of a new
committee.
For example, according to the standing Senate rules, the Armed
Services Committee has jurisdiction over "the defense generally."
Obviously, the national defense is affected in critical ways by national.
intelligence activities. The Armed Services Committee must have an
overview of all of the Defense Establishment, including, in par-
ticular, the intelligence units of the Department of Defense. But
neither the Armed Services Committee nor any other committee has
the time, because of its other duties, or the necessary overall juris-
diction to attend to the Nation's national intelligence system. That
is why the new committee is necessary.
I can hardly overstate the obvious necessity for the Senate to
recognize and reflect the way the executive branch has organized the
national intelligence community. And unless we do, then the failure,
which has been so evident in the past to adequately supervise these
activities is bound to continue in the future.
The Executive budgets for and organizes and directs the national
intelligence effort in a way that draws together the various com-
ponents, and unless the Congress establishes a committee that can
do the same, it will continue to fail in its oversight responsibilities.
And, Mr. Chairman, the extent of the abuses which have been
brought to light and which have been, in part, disclosed through the
public hearings of our committee, and which will be disclosed in de-
tail when the committee issues its report constitutes the most telling
evidence of the need for adequate oversight in the future if we are to
preserve a free society.
Similarly, the Judiciary Committee has jurisdiction over the FBI
as part of the Department of Justice. The Judiciary Committee
should not be restricted from obtaining an overview of the activities
of the Bureau. Most emphatically it should not be restricted from
obtaining information and reporting legislation related to the in-
telligence activities of any agency insofar as those activities may
have an impact upon the constitutional rights of the American
people.
Finally, the Foreign Relations Committee, as a consumer of in-
telligence, must be apprised of information in the possession of the
intelligence community which may be related to our relations with
foreign countries.
In short, there will be instances where committees other than the
Standing Committee on Intelligence will have an interest in legis-
lation affecting the intelligence community. This is not an unusual
situation in the Senate. I do not believe that it is possible to create
a system of committee jurisdiction that is so well defined that some
overlap will not occur.
The Senate has traditionally resolved this overlap by referring pro-
posed legislation to that committee with jurisdiction over the matter
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92
to which the bill principally relates. Where the interest of two com-
mittees in the measure is strong,. joint or sequential referrals have
occurred.
I believe that these traditional solutions will be effective with respect
to intelligence matters which may be of interest to committees other
than the Standing Committee on Intelligence Activities.
The members of this committee, the Rules Committee, are best
qualified to choose language which is sufficiently flexible to permit the
traditions of the Senate to be carried out with respect to the juris-
diction of a new Intelligence Committee. At the heart of those tradi-
tions is the courtesy which the members of this body have heretofore
extended to each other, and the spirit of cooperation with which juris-
dictional conflicts have been received.
I would like to repeat, however, that it is imperative that the new
committee, in order to serve the Senate, have jurisdiction over all leg-
islation directly affecting the national intelligence community and
over all bills to authorize appropriations for national intelligence
purposes.
Without the power of the purse, the committee cannot acquire the
knowledge and the authority necessary to exercise effective oversight
which has been lacking for 30 years.
Senator Mondale has now joined me at the table.
The CHAIRMAN. Senator Mondale, do you want to make your state-
ment now and then we can go to the questions?
STATEMENT OF HON. WALTER F. MONDALE, A U.S. SENATOR FROM
THE STATE OF MINNESOTA
Senator MoNDALE. Mr. Chairman, I have a longer statement that
I would ask to be placed in the record. I would just like to make a few
points in support of the position taken by our distinguished chairman
who has performed so ably and effectively as chairman in this unique
and historic effort to investigate for the first time the operations of
our intelligence agencies.
The CHAIRMAN. Your statement will be made a part of the record.
[The written statement of Senator Mondale follows:]
STATEMENT OF HON. WALTER F. MONDALE, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Mr. Chairman and Members of the Committee : I am grateful for the oppor-
tunity to appear here today and to give you the benefit of my views on some
of the jurisdictional questions raised by Senate Resolution 400.
I would first like to associate myself with the remarks of our distinguished
chairman, Senator Church, ,and to commend him for his dedication and his leader-
ship during the past year.
These have been truly historic months. For over a year, a select committee
of the Senate, on which I have been privileged to serve, has conducted an in-
depth, exhaustive examination of the entire intelligence community of this
country. Some of what we learned was not pleasant. Some of what we learned was
even shocking and painful. But a lot of what we discovered gives us reason for
great pride.
I believe that this nation can take a great deal of comfort in knowing that
we have a national intelligence apparatus which is truly second to none. The
dedicated intelligence officers who daily risk their lives in the service of this
country deserve our respect, our esteem, and our thanks. We must give these
people our support, and we must never let them down.
It seems to me that the best kind of support that we can give our intelligence
community is a mechanism that will ensure that the good works of the many
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93
will not again be undermined by the mistakes or the excesses of the few. The
past year has not been a pleasant experience for these agencies. Our focus has
been on the negative side-on the wrongs, the abuses, and even on some illegal
activities which went on. But-unfortunate though it might have been-it) was
a problem whose time had come. It had to be examined, it had to be faced, and
it has to be exposed. And it was all necessary because that is the way this
nation has survived as a democracy for 200 years. We have confronted our mis-
takes, admitted them, and then-together-we have moved on.
The task before us now, it seems to me, is to make sure that this situation
never arises again. I unequivocally support the creation of a new standing com-
mittee on intelligence as the mechanism to achieve that goal. If this past year
has taught us anything, it is that continuing, sustained and objective vigilance,
is the only system which will work. We cannot now close our eyes and make be-
lieve these things did not happen. They did! And we in the Senate must now
create a new and special machinery to make sure that these abuses never ever
happen again.
For the past several months, I have served as chairman of the select commit-
tee's subcommittee on domestic intelligence operations. Our focus has been pri-
marily upon the intelligence and counterintelligence operations of the FBI, and
I would like to spend a short time here this morning addressing the question of
oversight jurisdiction as it relates to the FBI.
Let me say first that :
I believe the Judiciary Committee should continue to exercise oversight over
the Department of Justice, including the FBI.
Second, the new Committee on Intelligence should have jurisdiction over all
the so-called "national security" and foreign intelligence operations of the Fed-
eral Government, no matter which agency is conducting them.
Third, the new Committee on Intelligence should not have jurisdiction to ex-
amine any of the FBI's operations which relate to traditional law enforcement,
such as organized crime.
Fourth, wherever there is overlap between the jurisdiction of the new com-
mittee and the Judiciary Committee, I think the oversight should be concurrent.
I am confident, as Senator Church said, that any questions which overlapping
jurisdiction might present can be resolved by such traditional solutions as joint
referral and the usual spirit of mutual cooperation.
I would like to respond briefly to an argument which I understand has been
made that the FBI does not engage in intelligence activities, or, conversely, that
the FBI only engages in law enforcement activities, and that therefore there are
no FBI intelligence operations which a new standing Committee on Intelligence
would oversee. Let me say, first of all, that I wish that were so. As a matter of
fact, our subcommittee for a time carefully considered the possibility of recom-
mending that the Bureau be restricted only to traditional law enforcement. What
we discovered, however, was that in doing so, we would have had to transfer
many of the FBI's foreign and national security intelligence operations to either
the CIA or some other agency of the Federal Government. And that would have
meant that those operations would no longer have been supervised by the Attor-
ney General. It was our conclusion that because those operations are sometimes
directed against, or affect, the rights of American citizens, they. must remain
under the control of the Department of Justice and the Office of the Attorney
General to insure that the rights of our citizens will not be abridged.
So the FBI is not just a law enforcement agency.
Their intelligence activities, which are both foreign and domestic, are exten-
sive, and are an integral part of the entire national intelligence, apparatus.
They actually have a separate division at their Washington headquarters
which is called an intelligence division.
The President's recent Executive order on intelligence covered the intelligence
activities of the FBI as well as the CIA.
The Bureau's intelligence operations are separately examined by the Justice
Department for budget purposes.
Agents receive special training in intelligence operations and techniques.
The FBI not only conducts intelligence programs, but counterintelligence op-
erations as well, in order to counter, and protect this country from, threats from
abroad. These activities include a whole range of techniques designed to keep
our own intelligence operations secure, and also to find out what the other side
is up to. These activities have included not only the protection and acquisition
of defense intelligence, but the collection of economic intelligence as well. Many
of the targets of these operations are foreigners, but we have also discovered
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that in many cases they '.nvolve the use of similar techniques against our own
citizens as well.
Foreign and domestic ir..telligence operations are often closely intertwined, and
I think it might be useful to spend just a few minutes recalling some of the FBI
activities that were the subject of our own committee's public hearings.
Most of the FBI abuses we discovered in our investigations occurred not dur-
ing the FBI's law enforcement operations, but as a result of what the Bureau
actually perceived to have been their mission to go out and collect pure intelli-
gence. For instance, for years the FBI conducted an operation called "Cominfil"-
that stands for "Communist infiltration"-and investigated virtually every as-
pect of American life-schools, colleges, women's groups, youth groups, and even
churches and other religious institutions. The FBI's theory was that the FBI
had a mission to determine whether any of these institutions were being in-
fluenced by communism, or by the Communist Party, or by a foreign power.
The investigations were designed purely and simply to collect intelligence-not
evidence for use in criminal prosecutions, but information to enable the Bureau
to assess what was going, on in the country at a given time. I might add that
"Cominfil" investigations are still permitted by the FBI's manual today.
"Cominfil" was the theory for the Bureau's 51/2-year investigation of Martin
Luther King. It was the theory for the investigations of dozens of women's lib
groups, antiwar groups, and many. many more organizations which were not
violent, were not so-called subversive, and which merely advocated peaceful
change in this country. The FBI's theory was that maybe-just maybe-those
groups or institutions were being influenced by Communists or by a foreign power
and that the FBI had a responsibility to find out if that was so.
Another theory was that the FBI had to infiltrate and gather intelligence in-
formation about peaceful groups and individuals who might become nonviolent
at some time in the future..
We also examined the FBI's so-called Cointelpro operations. Those were the
programs which were actually designed to disrupt groups, destroy family rela-
tionships (husbands and wives, parents and children), get people fired from
their jobs, and try to get. one group fighting with another group. What we dis-
covered was that one of the reasons these operations came into being was because
the FBI was frustrated that they had been unable to obtain prosecutions and
convictions under the existing Federal criminal laws. As a result, they decided
to use an alternative means and go outside the traditional legal process to ac-
complish their own disruption of groups and individuals they perceived to be
"threats" to the national. order. Of course, it was under this theory that the
FBI actually designed and implemented a program to destroy Martin Luther
King as a civil rights leader, and then put together a plan to actually cultivate
and promote someone else of their own choosing as a new leader to take Dr.
King's place. '
I think it is useful to recall some of these abuses because most of them occurred,
not during FBI law enforcement operations, but as a part of intelligence oper-
ations. designed and operated by an FBI intelligence division which still exists
today.
We have seen the bugs in the bedrooms, the opening of thousands of letters,
and the warrantless wiretaps, and all the other techniques which intelligence
investigations include, and we must make sure that these situations never arise
again. To that end, our committee is now completing work on a whole series of
recommendations for legislation. It will, in effect, constitute-for the first time
in history-a legal charter for FBI intelligence. That charter must be con-
sidered here in Congress by a committee whose jurisdiction involves the entire
national intelligence community, for it is in the context of that community that
the charter must be examined.
In conclusion, I urge you not to exclude the FBI's extensive intelligence and
counterintelligence operations from oversight by the new committee. It would be
a strange anomaly indeed to create a new Committee on Intelligence with over-
sight responsibilities where intelligence affects people from other countries, but
no responsibility to guard against abuses against our own citizens. That is the
danger of unrestricted, unsupervised. intelligence power, and we must act now
to keep it in check. In my judgment, that is a role to be exercised by the new
standing Committee on Intelligence. In the long run, it will strengthen all of our
intelligence agencies and enable us to give them our unwavering support.
Thank you very much.
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Senator MONDALE. Mr. Chairman and members of the committee, I
think we must be very clear about what we are dealing with here,
because the record shows that, contrary to the Constitution, contrary
to the laws, contrary to the authority of Congress, for many years and
in many different ways, our intelligence agencies in the foreign field
started wars without our knowledge and without authority, and sub-
verted foreign governments without our knowledge. Indeed, there was
evidence that we received that they decided to assassinate foreign
leaders without our knowledge and without our approval, and, indeed,
in some instances, without the knowledge of some people high in
Government.
They pursued a course really of a private foreign policy, often based
on violence, without the authority or knowledge of Congress.
If that can happen, then it seems to me that we have fundamentally
undermined the accountability provisions of the Constitution. If un-
corrected, then we will have conceded a vast area of authority to the
Executive in a way that would have been abhorrent to the framers
of our Constitution.
Similarly, at home, there has been a pattern of conduct by our intelli-
gence agencies who illegally and often unconstitutionally infringed
upon the rights of the American people, once again without the knowl-
edge of the Congress, and also without the knowledge of persons higher
up in the executive.
Since I have been chairman of the Domestic Task Force of the
Senate Select Committee, I would just like to give a few examples of
what was going on.
Practically every telegram that Americans sent overseas was picked
up in the sweep and was reported to many agencies of the Government.
Mail was read illegally.
The statute on mail reading is very, very clear. You must have a
warrant, according to Supreme Court decisions.
Nevertheless, knowing that it was illegal, for years thousands of
letters were read-I mean everybody's letters-Richard Nixon, Leon-
ard Bernstein, Arthur Burns, Frank Church-no one's mail was free
from reading. And all of it was illegal.
Thousands of tax returns were reviewed in circumstances where
there was no tax-related investigation whatsoever. Tax investigations
were started against Americans who were guilty of nothing, but it was
thought if they were intimidated that way, maybe it would chill them
from political conduct someone did not like.
It not only involved tax investigations. It was also through activities
such as COMINFIL, which stands for "Communist infiltration," and
also through COINTELPRO, the counterintelligence program where
the Bureau decided, for whatever reason, that they had the authority
to seek out and punish Americans to neutralize, or to "knock them off
their pedestal," outside the law, and outside the courts, simply because
the FBI thought they had the authority to play God in American
society. The program was directed against Americans who had not
violated the law, who were not thought to be violatinm the law, but who
were considered to he dancerous by someone in the Bureau.
The classic case is Dr. Martin Luther King. He was visited with a
host of intrusive and often illegal and unwarranted surveillance tech-
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niques. Fifteen hotel rooms he went into were bugged. Telephone calls
he made were tapped. And that was not all.
When it was heard that he was going to be seen by the Pope, efforts
were made to try to stop that visit.
When he was goingto get doctorate degrees from some universities
in our country, efforts were made to stop him from receiving those.
Senator GRIFFIN. May I interrupt?
Could you put a time frame around this?
You mentioned Mr. Nixon. Are you talking just about the Nixon
administration?
Senator MONDALE. No, no, no.
I want to make that very clear-if you let the police secretly play
God, I think it is inevitable that every administration, regardless of
political party, will use it.
Our report will make the time frame clear. The blame for some of
these abuses runs over many administrations and both political parties.
I want to make it clear that this is not a partisan thing.
The thing that, above all, the constitutional framers feared was
abuse of governmental power and secret police. That is the thing that
they were afraid of above all.
The CHAIRMAN. Senator Mondale, I think everyone agrees that
abuses have taken place.
Now, the question is, .now do you correct it?
Senator MONDALE. That is correct.
The CHAIRMAN. It seems to me it is sort of a knee-jerk reaction to
say : "OK. Let us forma new committee to do this."
We have a lot of committees. We have committees that have juris-
diction in these areas and have expertise in these areas.
Is not the way we normally proceed if we find abuses in the welfare
program or Internal Revenue Service or the Department of Agricul-
ture, that we go to the established committees and tighten up when
the abuses exist rather than immediately have a knee-jerk reaction
and say let us go back and form a new committee to get back into the
same area?
Senator MONDALE. The reason I recite this history is that it is an
exceedingly grievous one that occurred over many years and under
many different administrations. It occurred while sitting committees
had jurisdiction to oversee and prevent this from happening.
I am not visiting blame on anyone, because I was in the Congress
during a good part of this time. But I think the risk of abuse of con-
stitutional power, and ,;be risk of the abuse of the rights of the Ameri-
can people, and the risk that is -attendant upon chilling, uninhibited
political conduct and debate in this society is such that it makes sense
to have a doubly protective system in the Congress. In addition to
establishing new guidelines by law, which we must, it seems to me that
we must also correct. what has been the lack of oversight by the
Congress.
The best way we can do that, in my opinion, is to establish an over-
sight committee which, in the domestic area, has concurrent jurisdic-
tion. It should not be exclusive-I would not take that power from the
Judiciary Committee--but this committee must have concurrent legis-
lative authority over domestic functions.
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I understand the key argument made by those who oppose it is
that there is no way of separating domestic intelligence from law
enforcement. In fact, it would be far more difficult to try to combine
them than to keep them separate.
The record shows domestic intelligence can be separated out for
budget purposes.
I ask that there be placed in the record the organizational chart of
the FBI, which shows a separate Intelligence Division, and also a part
of our subcommittee's transcript which shows that they can separate
the budget.
[The excerpts from the transcript follow. But because of technical
difficulty of reproducing the FBI organization chart in the printed
hearing, it has not been included here. It has been made a part of the
committee files on S. Res. 400.]
EXCERPTS FROM TESTIMONY OF GLEN E. POMMERENING, ASSISTANT ATTORNEY
GENERAL FOR ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE, BEFORE THE SENATE
SELECT COMMITTEE ON INTELLIGENCE, FEBRUARY 3, 1976
Answer. In developing the 1976 fiscal year budget, it was necessary that we
return to individual organizations, including such law enforcement organizations
as the FBI, DEA, and the Immigration Service, and ask them . . . [for] further
information and data . . . as to the resources which they would require to
achieve certain objectives which they identified in the budget process.
Question. Could you give us some examples of how that would have worked
with respect to the Bureau's intelligence division?
Answer. Yes, I can. For instance, in 1976, the way the Federal Bureau of
Investigation broke down-we're talking fiscal years-their intelligence opera-
tion, they had devoted or were planning to devote 3,470 man-years and $90,031,000,
and this was one of their programmed areas.
Question. Which was what, intelligence?
Answer. Intelligence. As sub-elements of that program, they further broke
down those expenditures into six categories : internal security investigations,
counterintelligence investigations, internal security intelligence, counterintelli-
gence intelligence, organized crime intelligence, and general crimes intelligence,
and in each of those categories separated out the man-years of effort and the
dollars to be expended.
Answer. I think that the four initial elements largely comprise the total
activity of the Intelligence Division of the FBI. .
Question. You would get roughly $77 million or $78 million or thereabouts for
the internal security and counterintelligence related programs.
Answer. It would be about $79 million is roughly, looking at these figures.
Senator MONDALE. The issuance of guidelines reflects that domestic
intelligence is a separate function and that it is outside the normal
criminal law process.
People are trained to deal with it, and to say that it cannot be sepa-
rated is to ignore, that it has been separated from the beginning, and
that it would be more difficult to unseparate it, to put it back together.
And, for all of these reasons, and because the potential for abuse is so
profound and the need for effective oversight so clear, I think the
creation of a Select Committee with oversight jurisdiction is essential.
Senator CHURCH. May I also address your question, because it is
a very central question?
The CHAIRMAN. Yes.
Senator CHURCH. I agree with what Senator Mondale has said.
I have tried to conduct an investigation that would reflect credit
on the Senate. We have done it without leaks. We have demonstrated
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98
it can be done in a responsible way. So I think I am at least in a
position here to argue the case that the Committee concluded was
necessary, the case that underlies and underscores the need for a
special 'permanent oversight committee.
The problem is, Mr. Chairman, that there are several committees,
depending on how you want to count them-quite a few that have a
little bit of the action.
That is not the way the executive department organizes and runs
the intelligence community as it relates to strategic or national intel-
ligence. We are not attempting to reach tactical military intelligence
directly related to the uninformed services or anything of that kind.
There is such a thing as the national intelligence community, and
it is composed of a number of different agencies. The Congress has
no unified place to look at that community the way the executive looks
at it and controls it. And that is the reason why the present arrange-
ment has so conspicuously failed in the past, and thus permitted abuses
which, if they had ever been brought to the knowledge of any one of
these committees, would have been strenuously objected to.
Let me say one other thing.
The present law is chaos if you want to keep secrets and you want to
conduct covert operations. It cannot be done.
If this information is to be scattered among six or eight different
committees of the Congress, composing half of the membership of the
Congress, now, if that is the purpose, then it will be better served
through the establishment of a permanent oversight committee which
would be the principal depository of information of that kind. And
unless such a committee is formed, I see no prospect that the Hughes-
Ryan amendment would be amended.
Therefore, we have proceeded, in collaboration with the executive
branch, in what we thought was a responsible manner to determine
how this present chaotic condition could be regularized and how we
might deal with a twin problem which is: one, how to keep legitimate
secrets secret; and, two, how to reveal to the public abuses of power
and illegal actions which must -be revealed if they are to be corrected.
We think this can be best accomplished through the establishment
of this oversight committee.
We think the status; quo, based upon 25 years of history, will not
work. And every one of the Directors of the CIA came before our
committee and testified, approved in principle, the establishment of an
oversight committee that would have sufficient reach and expertise and
time to do this job.
The CHAIRMAN. I think you were here yesterday during part of the
testimony; I am not sure you were here when Senator Stennis pointed
out the fact that the Armed Services cannot operate in a vacuum,
cannot make the determination on the budgets and their requirements
without having the proper input from the intelligence side of the arena,
and so when you say that this committee would be able to hold tightly
the information, I think you are just saying that one more committee
should be in on the act, and the Director of Central Intelligence pointed
out yesterday that they have been having to respond to 11 different
subcommittees and/or committees or agencies in addition to the 8 that
normally assert some jurisdiction in this area.
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Senator CHURCH. Mr. Chairman, first of all we recognize and have
tried to take into full account the legitimate need of other committees
for intelligence activity.
The Foreign Relations Committee gets a full briefing from the CIA.
Obviously the Armed Services has received that kind of information
in the past as well and would get it in the future.
It is possible that in the wisdom of the members of the Rules Com-
mittee, a provision could be worked out that would assure such com-
mittees as the Judiciary, Armed Services, and Foreign Relations of the
necessary access to intelligence information in order for them to ade-
quately perform their own principal tasks, but if you are going to
endeavor to find a solution to the present dilemma, even the executive,
even the Directors of the CIA have said this, that it can only be found
.ir through the establishment of a permanent oversight committee that
can handle the extremely sensitive matters to which there would be an
affirmative duty laid out to make disclosures in a sufficiently timely
way and where the budget would come through the CIA and the other
elements that compose the national intelligence community.
I am sure the jurisdictional problems can be worked out, but I know
that without this permanent oversight committee, Mr. Chairman, the
status quo, the existing chaotic condition of the law cannot be cor-
rected and it is that which has produced the problems concerning the
leaking -not from our committee, but in the Congress as a whole, the
leaking of highly sensitive information.
I cite to you that the Joint Committee on Atomic Energy has a re-
markable record of maintaining secure sensitive information in the
nuclear field. I know that an intelligence committee, properly com-
posed, could do likewise.
This, resolution also sets out a means for dealing with the problem
of how to disclose information when it is the judgment of the majority
of the committee that such information should be disclosed.
We are not talking about identifying agents in the field or sources
or methods. Everybody recognizes those are legitimate secrets and
must be kept. We are talking about quite a different matter-improper
conduct of the kind we have revealed. Wait until you see the full report
of the extent of the abuse that has gone on. When that kind of informa-
tion comes to the attention of the committee, the committee under the
proposed resolution has the authority by a majority vote to make a
public disclosure. If we were to accept Mr. Bush's argument that clas-
sified information may not be disclosed by the Congress without
the consent of the President, then of course we have taken the fateful
step of subordinating the Congress to the Presidency. Classified in-
formation is not classified by the President in the first place, but by
thousands of executive agents. If Congress cannot disclose wrongful
conduct because it has been classified without the President's consent,
then it is subservient to the executive branch.
Senator GRIFFIN. You said the resolution would give the committee
the power to make public classified information by majority vote. Do
you recognize now, that the committee under the present rules of the
Senate does not have that authority, or do you contend thit a commit-
tee does have that authority?
Senator CHURCH. It is my understanding that the committees nor-
mally do have that authority under our present rules. That is the inter-
pretation that I place on Rule XXXVI.
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1
Senator GRIFFIN. Then you do not need to put that in the resolution,
I take it ?
Senator CHURCH. No; but I think the resolution tries to add some
additional safeguards, For instance, it says if the President takes
strong exception, then it gives the President the opportunity, 'which
the normal practices of the Senate do not, to impose an objection and
also to take the matter ro the Senate for a vote.
Senator GRIFFIN. I will not argue this. We argued it on the Senate
floor in executive session. The record has been made public.
However, I will read into the record section 5, Rule XXXVI of
the Senate which reads as follows :
"Whenever, by the request of the Senate or any committee thereof,
any documents or papers shall be communicated to the Senate by the
President or the head of any department relating to any matter pend-
ing in the Senate the proceedings in regard to which are secret or con-
fidential under the rules, said documents and papers shall be con-
sidered as confidential, and shall not be disclosed without leave of the
Senate."
I regard that report from your committee having to do with assas-
sinations was made public, even though it included classified informa-
tion, without the authority of the Senate. The Senate had not voted on
it. I say most respectfully that you have said several times there. have
been no leaks from your committee.
I have no doubt in my mind that your report was made available to
the press and had been in the hands of the press at the very time the
Senate was debating the question.
Senator CHURCH. I take issue with that, Senator. Besides, I take
issue with several things that you have said.
In the first place, Rule XXXVI refers to matters communicated to
the Senate. The Parliamentarian ruled that it was not applicable in the
case to which you refer. The select committee did bring and did report
its principal findings with respect to the assassination matter to the
full Senate. We did our best to comply with our understanding of the
rule and, indeed, our conduct was in conformity with the Parliamen-
tarian's interpretation of the rule. We have tried to draft the provi-
sions and I know the Government Operations Committee tried to draft
provisions that were consonant to the rule, that were consonant with
disclosure.
Senator GRIFFIN. I do not want to argue. I just wanted to keep the
record straight.
Senator CHURCH. I am happy to participate in the effort to keep the
record straight.
The CHAIRMAN. You heard the CIA's concerns expressed here about
the procedure that has been recommended. I also have a letter here
from the Secretary of Defense. He makes two points. I am going to
make this letter a part of the record. He says :
,For example, Sections 3(D) and 11 would place authorization for appropria-
tions jurisdiction in the new Senate Committee on Intelligence Activities. This
creates two problems :
From the standpoint of maintaining the overall confidentiality of our sensitive,
important and expensive military and defense intelligence sources and methods,
particularly our most modern collection systems, the visibility created by a sepa-
rate budget formulation process would entail grave risks ;
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101
That was a point that Senator Stennis also made yesterday.
In addition, our Department would still be required to maintain a budget for-
mulation process for the House of Representatives which would continue to be
conformed to appropriation accounts. The two separate processes would require
double accounting, additional expense, additional staff, and additional automa-
tion equipment.
Thus, I would hope the Committee would consider deleting Sections 3(D) and
11, leaving the important and worthwhile oversight function for the new Com-
mittee to provide the country with a more effective intelligence production.
Second,
and this is a point you discussed earlier-
the last sentence of Section 13(a) attempts to draw a distinction between tactical
foreign military intelligence, on the one hand, and all other intelligence activities,
on the other hand. Distinctions between tactical intelligence activities and other
kinds of intelligence are extremely difficult to draw, and as our technological col-
lection and processing capabilities improve, such distinctions will be even more
difficult.
The Secretary then goes on to point out that the President recently
assigned to the Committee on Foreign Intelligence, created by the
President, in Executive Order 11905, the responsibility for working out
useful and appropriate definitions of national and tactical intelligence,
but it seems to me that he raises some very good points there as well as
those raised by Senator Stennis and the Director of the Central Intelli-
gency Agency, that would lead me to believe that what we are going to
get here is a greater visibility in an area that can only be helpful to for-
eign countries that may be interested in what we are doing.
Senator CHURCH. Mr. Chairman, I really have to take issue with
that because I think based upon our year's study, it is not really a
valid argument.
In the first place, the President in his own executive orders has rec-
ognized that the distinction between national strategic intelligence
and tactical intelligence. I do not know how the executive can argue
they can make the distinction, but the Congress cannot.
Second, as to a matter of exposure, I think that there is a long like-
lihood that the select committee in its final recommendations may very
well include the recommendation that an aggregate figure relating to
intelligence activities be disclosed because the Constitution requires it,
and we have for 25 years not been proceeding in a way that is consti-
tutional.
Furthermore, we have listened to many arguments about this mat-
ter, and no persuasive argument has been attempted that such an ag-
gregate figure would really impair the security of the United States.
Now, the Congress does not even know how much it is appropriat-
ing. It is not only an undignified posture, it is an unconstitutional
posture. I do not see how it can be justified, particularly the. accept-
ance of arguments that are not sufficiently scrutinized.
The Atomic Energy Commission has made an aggregate figure
available. That has not greatly impaired our sensitive nuclear secrets.
We argued the military defense budget including every kind of new
weapons system on the floor of the House and on the floor of the Senate
and that has not impaired our Government. The Senate must rec-
ognize its mandate. We have not for 25 years. It should and can be
corrected without any serious problem to the national security of this
country.
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102
The CHAIRMAN. You are not suggesting that the Constitution pro-
vides a right for the general public to know all sensitive and classi-
fied information, are yo a?
Senator CHURCH. No, of course not, Mr. Chairman. Nothing I
have said should imply that. I have said that the Constitution re-
quires that, from time to time, the appropriations of public money
and the purposes for which they are appropriated must be made
public. We are not doing that. We are not complying with that pro-
vision of the Constitution. We have the best constitutional experts
studying this question for the committee and they are all in agree-
ment, and even the former Directors of the Central Intelligence
Agency, four of them, in testifying before us have said that they see
no real security problem in the use of an aggregate figure. I really
think that we ought to bring our processes back into conformity with
the Constitution. That does not mean at all that I think every detail
should be made public. Of course I do not, but the Atomic Energy
Committee has found a way to deal with this within the framework
of the Constitution, and I think we can in the intelligence field as
well.
The CHAIRMAN. The problem, it seems to me, is not whether there is
any aggregate, but what you are suggesting is that this issue ought to
be debated on the Senate floor, and there is no way you can come out
with an aggregate figure for intelligence without getting into the
specifics for debating it, as I see it, and I think that is where the very
real and serious problems lie and where the dangers lie. I am as much
concerned as you are about the mishandling of the problem at the pres-
ent time and the way things have been done which should never have
been done, but I don't think the way to get at that is to come out and
debate the whole appropriation process for all the nuts and bolts.
I think we used the example yesterday of the U-2. 'You can see
what would have happened had the debate on the U-2 gone forward,
whether it should be authorized and appropriated for on the Senate
floor to develop that airplane.
Most of the Senators did not even know there was such a thing
until we ran into the situation of having it shot down over Russia, and
that is the type of thing that gives me a lot of concern when we talk
about visibility in the budgetary process.
Senator CHURCH. I think a reasonable balance can be drawn between
the constitutional requirement and our common sense about legitimate
security interests of the country. I again cite the example of the
Joint Committee on Atomic Energy.
They have managed to handle it with an aggregate figure and they
have managed to have the bill handled in such a way that legitimate,
sensitive matters were withheld from debate. I really believe it can
be done. I do not thank we can any longer justify disregarding the
expressed provisions of the Constitution, and I see no compelling na-
tional security argument for doing so.
The CHAIRMAN. I just do not want my silence to indicate that I
agree with you that we are disregarding the provisions of the Con-
stitution. I completely disagree with you on that because the figures
are in the budget and we approve the budget.
Senator CHURCH. Nobody knows what they are. They cannot be
in compliance.
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The CHAIRMAN. Somebody knows, and it is possible to find out.
You are saying that everybody does not know. With that I agree..
Senator CHURCH. The Congress does not make it public in a form
intelligible, or even on the appropriation. I cannot regard that as a
compliance with the constitutional provision.
Senator MoNDALE. Mr. Chairman, may I make just one comment?
The CHAIRMAN. Certainly.
Before you do, without objection, I will insert in the record the
two-page letter from the Secretary of Defense dated March 31, 1976.
[The letter referred to follows:]
THE SECRETARY OF DEFENSE,
Washington, D.C., March 31, 1975.
HOD. HOWARD W. CANNON,
Chairman, Rules and Administration Committee,
U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN : While I recognize and fully respect the distinct respon-
sibilities and prerogatives of the Senate to organize its various committees and
their jurisdictions, I would like to share with you some concerns I have with
regard to the impact of S. Res. 400 on my ability to discharge my responsibilities
as Secretary of Defense.
For example, Sections 3(D) and 11 would place authorization for appropria-
tions jurisdiction in the new Senate Committee on Intelligence Activities. This
creates two problems :
From the standpoint of maintaining the overall confidentiality of our sensitive,
important and expensive military and defense intelligence sources and methods,
particularly our most modern collection systems, the visibility created by a sep-
arate budget formulation process would entail grave risks ;
In addition, our Department would still be required to maintain a budget
formulation process for the House of Representatives which would continue to
be conformed to appropriation accounts. The two separate processes would
require double accounting, additional expense, additional staff, and additional
automation equipment.
Thus, I would hope the Committee would consider deleting Sections 3(D)
and 11, leaving the important and worthwhile oversight function for the new
Committee to provide the country with a more effective intelligence production.
Second, the last sentence of Section 13(a) attempts to draw a distinction
between tactical foreign military intelligence, on the one hand, and all other
intelligence activities, on the other hand. Distinctions between tactical intelli-
gence and other kinds of intelligence are extremely difficult to draw, and as our
technological collection and processing capabilities improve, such distinctions
will be even more difficult.
It was in the light of these difficulties and realities that the President recently
assigned to the Committee on Foreign Intelligence (created by the President
in Executive Order 11905) the responsibility for working out useful and appro-
priate definitions of national and tactical intelligence. It is anticipated that
the Committee on Foreign Intelligence will have these complex questions under
continuing review. I would hope, and expect, that the Executive Branch would,
over the years, work closely with the Senate so that both branches could retain
flexibility to respond realistically to changes in the information collection, proc-
essing and production of our nation's foreign intelligence. In this spirit, it might
be well to consider simply dropping the last sentence of Section 13(a), rather
than attempting to distinguish in a single document or in a single sentence
between different kinds of intelligence production.
With warm regards.
Sincerely,
DONALD H. RUMSFELD.
Senator MoNDALE. The laws in the Constitution are at times incon-
venient, and they were intended to be because they were intended to
restrain the unlimited exercise of power by Government. As I hear
the Secretary of the Defense's letter, he seems to find it inconvenient to
come up and report to a newly created committee charged with the
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oversight of intelligence operations. Sure, it is inconvenient, but in the
face of the abuses we have seen, certainly we are warned that that "in-
convenience" argument is puny compared to the risks to American
democracy and the need for accountability under the Constitution of
the United States and the laws of this land. The record is there. It can-
not be denied, and the record does not have to be repeated in order
to draw the conclusion that we must demand an accountable foreign
policy in the future.
Similarly in domestic affairs. There, they do not even have argu-
ments about international security, or other arguments of that nature.
They just do not want to come up and report to an Intelligence Over-
sight Committee and reveal what they are doing. Even though inter-
nally that is exactly how they are structured, they still argue there
is no way of separating law enforcement from the domestic intelli-
gence function. It is a strained argument that collapses after a mo-
ment's analysis; nevertheless, here they come repeating it again. They
present an argument that they do not want to report because it is
inconvenient, but in actuality they do not want to tell us what is
going on. That is wrong. It is unconstitutional, in my opinion.
Similarly, with respect to the public reporting of appropriations, it
is not what Senator Church might want, and it is not what I want, but
it happens to be that the Constitution of the United States requires
that no money can be spent except by appropriation from the Treasury,
and it cannot be spent without a public report because the Founders
of this Nation were scared to death that money would be spent secretly
and illegally.
And as for the term.. itself where the Constitution. says "public re-
port." That does not mean they have to publicly report every detail.
Many of the details are classified and would be dangerous to reveal.
But I do not see how they can be permitted to get around the responsi-
bility of filing an aggregate report unless they are allowed to violate
the Constitution. We have not heard an argument to the contrary.
Four successive Directors said they had no objection to it.
The CHAIRMAN. Senator Griffin?
Senator GRIFFIN. Since it has been referred to, let me read into the
record the provision from the Constitution which I am sure is the
one. being discussed, it is section 7 of article I :
No money shallbe drawn from the Treasury but in consequence of appropria-
tions made by law and a ?egul,ar statement and account of the receipts and expen-
ditures of all public money shall be published from time to time.
Senator Church, you have made several references to the Joint
Committee on Atomic EnerLyv and their success in performing their
functions without leaks, and I wonder why you do not carry the anal-
ogy to this situation. What is your objection, if you have any, to a
joint committee to perform this function as far as intelligence over-
sight is concerned? Would it not provide some safeguards'in that per-
haps the numbers, the overall numbers, would be reduced as between
two different committees, and would we not avoid the possibility that
we would get into rivalries and competition of sorts between com-
mittees of the two Houses?
Without asking you to comment on it, I was just observing as an
observer what you have recently gone through. It is my evaluation,
that there seems to have been a rivalry between the House committee
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105
and your committee investigating intelligence, not that you are promot-
ing that kind of competition, but it seems to me that it was apparent.
Senator CHURCH. Well, Senator Griffin, if through resolution we
were to establish a Senate permanent oversight committee and, follow-
ing that, it was possible to enact a law that would establish a joint
committee with the concurrence of the House and the concurrence of
the President, I have never taken a position against the establishment
of a joint committee. I only see a very real need in the face of the
magnitude of the abuses that we have uncovered to set into place some
responsible committee of the Congress, and I see the best way of doing
that, the surest way of doing that, is to act now. We can always later,
when the House is disposed, when other wrinkles have been worked out
with the administration, we can always later go to a joint committee.
I do not oppose that on principle.
I know now we need to act and it is within our power through the
rulemaking power to establish a Senate committee now which may be
subsequently replaced by a joint committee if a suitable law can be
enacted. I am not opposing the joint committee.
Senator GRIFFIN. You are not opposing that possibility?
Senator CHURCH. If it is possible later to establish a joint committee,
it could replace the Senate committee. I do not take issue on principle
with that concept.
Senator GRIFFIN. Thank you.
The CHAIRMAN. Senator Pell.
Senator PELL. Thank you.
In facing up to this problem, we are all aware of the excesses that
have been carried out in the past. I do not think we are fully aware
of the previous oversight practices and procedures. I was wondering
if you will give us a brief overview of what the actual oversight was
and how often the CIA Oversight Committee actually met, for how
long, and in what detail? Do you have any knowledge to that effect
so that we know what we are replacing?
Senator CHURCH. Our review of that matter shows that the oversight
that was exercised in the past was very, very limited. Oftentimes the
so-called watchdog committees never met at all for long periods at all,
for long periods of time. When they did meet, they were not informed.
They did not press for the information. I do not fault them for this
because I recognized for a long period of time there was an attitude
in the Congress that the Executive could be trusted in these matters
and that the Congress ought not to inquire. I remember when I first
came to Congress, some members of the Oversight Committee made the
statement that they did not know, they did not know and they did not
want to know because there were things gentlemen ought not to know.
Well, obviously that day'there was a trust in the Executive to handle
these matters within the law, not to trespass on the constitutional
rights of American citizens, and there was no great compulsion in the
Congress to exercise a proper oversight. I believe we all recognize that.
The attitude changed once we discovered that even at the highest
levels of Government, even in the White House itself, the laws were
not being obeyed, and thus it became possible for the creation of the
committee that I have headed up. The atmosphere, the political
climate was never such that there were ever the votes, even though
some 200 proposals were made during the years to establish an adequate
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oversight committee with competent jurisdiction to do the job. Now
we have the opportunity.
To fail to do so would be a fateful error.
Senator PELL. Do you have the information regarding this past
year, Senator Church? The attitude has changed because we became
aware of some of these abuses more than a year ago. I am thinking of
calendar year 1975. How many times did the watchdog committee
meet and for what period of time?
Senator CHURCH. I do not know that because I was too busy with
my own committee investigation. Perhaps Senator Cannon knows,
I do not.
The CHAIRMAN. I could not say the exact number of times, but I do
recall that the CIA appeared before the Armed Services Committee
and briefed a number of the committee members on many, many
occasions throughout the year. Now, Senator Tower is here and he
sat in on many of these meetings, not the oversight committee pre-
cisely. That is limited to a smaller group. Other members of the
Armed Services Committee were invited.
Senator PELL. Maybe you could submit that for the record, Senator
Church.
Senator CHURCH. I would like to respond to your question in this
way, Senator Pell. When you take the entire national intelligence
community, it is astonishing how large it is. It consists of the CIA,
NSA, DIA, the Intelligence Division of the State Department and
the other side of the intelligence coin is counterintelligence, espionage.
That has nothing to do with enforcement law. That is CIA.
If you are going to watch over these various agencies and watch the
community and permit so much power and permit them to operate in
so much secrecy, you have got to have a committee that is up to the
task. It cannot be a subcommittee with one, two, or three staff members
that is a part of the bigger committee which 95 percent of the time
deals with other matters. It will not work.
We have 25 years that demonstrate that it will not work, so if we
are going to assume our responsibility, we must establish a committee
that has a jurisdictional reach sufficient to cover the national intelli-
gence community in t:ae executive branch, and we have to have it full
time operating with a, competent staff. That is our only chance.
Senator PELL. I would agree with you, but I also think there may be
it mood to drag things out and say let us leave things alone. For the
record, could you submit the number of times the watchdog committee
met in the previous calendar year, also the length of time and how
many votes took place?
Senator CHURCH. We will attempt to obtain that information.
Senator PELL. Thank you.
[The information referred to, subsequently received by the Commit-
tee, is as follows:]
According to information available to the Select Committee, the Intelligence
Subcommittee of the Armed Services Committee met twenty-six times between
January 1966 and December 1975. It met five times in 1975, twice in 1974, once
in 1973 and once in 1972 and not at all in 1971. In the same ten years the full
Armed Services Committee met approximately thirty-five times for intelligence
briefings or in regard to intelligence agency nominations, and other subcom-
mittees of the Armed Services Committee met for specific intelligence briefings
approximately twenty-five times. The length of time of the meetings and the
number of votes is not available to us.
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107
Senator PELL. One thing that has always concerned me is the differ-
ence between operations and intelligence, and I am sure in your study,
you would have come to the conclusion that about 90 percent of our
effective intelligence is derived from either overt means or from what-
ever is called mechanical means-satellites, et cetera.
Senator CHURCH.'That is correct.
Senator PELL. The cloak-and-dagger portion of the budget is opera-
tionally minimum. I became particularly conscious of this in Cuba
where I went shortly before the Bay of Pigs and advised against the
operation. It was done anyway. The reason for it, in my view, is that
the operational people were under the same roof as the intelligence
people. They wanted to cut the cloth of the intelligence appraisal to
suit their operational plans. I was curious why in your report you
have not touched on the importance of separating operations and
intelligence collection?
Senator CHURCH. We will do that in our final report.
Senator PELL. But you have not done it in this bill?
Senator CHURCH. In this bill we have not done it because we were
dealing with the existing executive arrangement. We have a provision
in this resolution which says any changes in that executive arrange-
ment would be accommodated. Of course, covert. operations have noth-
ing whatever to do with intelligence. It is part of the obfuscation of our
times to lump them 'together, the fact is that covert operations have
tended to be the tail that has wagged the intelligence dog, and those
engaged in the cloak-and-dagger aspects of the CIA have tended to
be those that have controlled the entire Agency, and thus undue
emphasis has been given to covert operations, and I think that our
intelligence has suffered as a result.
Senator PELL. I would agree with you and I think our foreign rela-
tions have suffered.
Senator CHURCH. Yes; I would do that.
Senator PELL. I remember in talking with Mr. Castro a year and half
ago, I didn't know that a contract had been issued and it had failed.
It obviously makes many a little sensitive about his relations with us.
I think we should have-at any rate, another question here. I notice
that you require that no professionals or anyone on the staff remain
more than 6 years. Isn't that an error because to really grasp the nuts
and bolts of the intelligence operations, it will take many, many years
and you need some dedicated professionals to remain on?
Senator CHURCH. We have learned a great deal in 1 year of intensive
review of all these intelligence agencies, and we really think that we
ought to try-here is an opportunity to experiment with something
new that I think will work, at least we ought to see if it will work,
and that is rotation of members and staffs to award the co-option.
It is true you can get staff members who become extremely expert in
every detail, but they tend to fall in love with the programs and then
they have a great influence upon the Senators whose time is limited,
who tend to lean upon the staff, so the co-option of the committee and
the co-option of the staff is to be avoided if the committee is to preserve
its independence. We think we have a formula here which accomplishes
that. It is a 6-year period. That is a long period of time. As for
members, two-thirds of the members will be seasoned, experienced
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108
all the while. One-third will be coming in each year so that you have a
fresh perspective and that can operate with the staff, too. We think' it
will work both for the staff and for the members.
Senator PELL. Finally, I am a little bit skeptical of the portions of
the bill that deal with the release of information. Could you give me
and enlarge on your reason why you feel that this is important, why
there should be so much emphasis in the bill, in the resolution, for the
release of information?
Senator CHURCH. The only reason there is so much attention given
to it was because of the executive branch's concern. I think we get
very myopic on these matters. The worst leak I can remember didn't
come out of any committee of the Congress, it came out of the CIA
a week or two ago at a cocktail party where it was revealed that Israel
had 10 or 20 nuclear weapons. I can't imagine a greater breach of
security. I haven't even heard a word of reprimand. We include a
good deal of language partly to accommodate the expressed concern
of the Executive and, under the present rules, you not only have the
chaotic situation where six or eight different committees of the Con-
gress must be informed with respect to every new covert action which
is inherently insecure and which the creation of the committee of the
kind we recommend, would tend to correct by paving the way toward
a repeal or modification of the Hughes Act, but under the present
rules of the Senate-and I must defer to Senator Byrd who is the
real expert on the rules--it is my understanding that the committees
of the Congress presently have authority to make disclosures which
they believe to be in the public interest. They are not bound by the
President's determination of what we may or may not do, otherwise
we become subservient to the presidency.
The CHAIRMAN. That is not entirely correct. The criminal code has
some very strict limitations that are independent and apart from the
classifications that may be imposed. by the executive branch by Execu-
tive order so, frankly, I would think that there would be some modifi-
cations in the law if this resolution were adopted, some changes in the
law.
Senator CHURCH. I don't mean to argue, details with the chairman,
but from my examination of criminal laws, they refer to unauthorized
disclosure. This is an attempt to regularize the procedure by which dis-
closures could be made. Under the law and Constitution, an individual
Senator under the debate clause, can go to the floor of the Senate and
make such disclosures as he pleases. He is not accountable to any court
of the land. He is only subject to the discipline that may be applied
to him by the Senate itself. We are trying to work out a method which
will accomplish two objectives, taking into account everybody's con-
cern. One objective is to keep legitimate objectives secret. The other
objective is to disclose wrongdoing, whether or not the President ap-
proved. because we can't give him a shield that is impervious to the
right of the Congress to :reveal unlawful conduct or improper conduct.
Senator PELL. Thank you, Mr. Chairman. I congratulate Senator
Church and his cochairn:_an and vice chairman and Senator Tower for
the really responsive and disciplined way in which you have conducted
this inquiry, and I applaud you both for it.
Senator CHURCH. Thank yoll, sir.
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Senator BYa. Senator Church, I congratulate you on your state-
ment and beyond that, I congratulate you on the work that you and
your committee have done. It has been a very difficult assignment and
I think one could make some criticisms here and there, but on the
whole, I think that your committee and you have justified the con-
fidence of the Senate and have performed a very difficult task in an
admirable way. As I indicated yesterday, the experiences that we have
been exposed to, which have indicated excesses and abuses by various
intelligence-gathering agencies require a tightening up of the over-
sight procedures. The political atmosphere throughout the country,
I think, as of now at least, would appear to me to demand some kind
of intelligence oversight committee.
I can't say that other means are not available or cannot be found by
which the excesses and abuses could be guarded against and the public
could be assured that due diligence would prevent such excessive abuses
in the future. I cannot say that such procedures and means cannot be
found without the establishment of an oversight committee, but I have
the impression that as of now, at least, the political climate would in-
dictate the necessity for the establishment of some kind of committee.
That is my own personal viewpoint.
Now, given that situation as I see it, there is also a growing concern
among the people, myself included, that we must, as we correct these
abuses and move to prevent them in the future, that we also guard
carefully against the unauthorized disclosure of sensitive information
that would not only endanger the lives of persons who are employed in
the gathering of intelligence, but even more importantly, jeopardize
the security interest of our country.
How do we find the difficult path by which we serve both of these
necessary interests?
Senator CHURCH. Senator
Senator BYRD. No.
Senator CHURCH. I wanted to respond to that. It wasn't a question.
I agree with everything you say.
Senator BYRD. I am just feeling my way. This is one of the most dif-
ficult assignments that the Rules Committee of the Senate has had, and
we have had our share in recent years. The measure before us, S. Res.
400 would establish a new standing committee of the Senate. It would
give that committee the oversight responsibilities as well as the respon-
sibility of authorizing the funding of intelligence activities. Now, if
we are merely talking about oversight, it seems to me that is the crux
of the issue. It seems to me that is the thing that we have to come to
grips with.
If we are merely talking about, and I use the word "merely" not in
a way which might be interpreted by some, if we are seeking to estab-
lish an oversight committee without authorization responsibility, that
oversight committee could be a standing committee of the Senate. It
could be a select committee of the Senate, in which case, a Senate re-
solution would suffice. It could also be a joint committee of the Con-
gress, and I can see certain advantages to having a joint oversight com-
mittee. That would require a.concurrent resolution. It would not re-
quire the President's signature.
Now, if we go that route, I have to say to you that I, as of today,
think our prospects for,accomplishing the objectives are greatly - en-
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hanced over the route which would give such committee the authoriza-
tion authority.
If we are talking about authorization, I think that here, if this is
what we want, we are going to have to go the joint route because if we
set up a standing committee in the Senate or a select committee and we
could give it legislative authority. If we do that, we are going to have
structures in the two Houses that are not parallel as to the authoriza-
tion process. The Senate Select or Standing Committee would have
authorization authority. In the House, the authorization authority
would rest with a multitude of committees. In going to conference, we
would have problems, entirely aside from the problems that have been
enumerated by Senator Stennis and others who feel that their respec-
tive committees should retain the authorization jurisdiction. Now, if we
establish a joint committee that would have authority to authorize
funding of intelligence activities, this too would be a very difficult path
because not only would we have a great deal of opposition in the Senate,
but we would also run into considerable opposition in the House, I
would suspect.
There the various committees would feel that their jurisdiction to
authorize funding was being impinged upon or taken away from them,
so I should think that at this late date in this year and with the many
days of recess ahead of us, it would be extremely difficult, if not im-
possible, to overcome such a formidable task of getting a measure
passed or agreed to that would provide for a joint committee which
would have authorization authority, so I think what I am getting at
here is that, first of all, in our efforts to find a way, we need your assist-
ance and we need the assistance of Senator Ribicoff and Senator Tower
and Senator MIondale and the assistance of Senator Stennis and Sen-
ator Sparkman and others who are chairmen and members, ranking
members of committees :hat presently have oversight jurisdiction and
authorization jurisdiction, so what I say is not to be interpreted as an
attack on the procedure that you recommend. It is merely an attempt
to evaluate the dangers, the difficulties as well as the prospects for ulti-
mate fruition of our efforts in the form of an establishment of some
kind of committee. I do think authorization requires a parallel struc-
ture between the two Houses, so going this route will not attain that
parallel structure. Going,; the joint committee approach would achieve
the parallel structure. but we double the prospect for, obstruction op-
position by virtue of the fact that the other body would have its views
which, in many instances, would be opposed to the approach.
Let me talk a little about the resolution itself
Senator CHURCH. Senator, may I just interject because I listened
very attentively to what you have said.
Senator BYRD. Yes, Senator Church.
Senator CHURCH. The reason, of course, that these provisions have
been included in the resolution giving the oversight committee author-
ization authority over the national intelligence community, is our evi-
dence to you shows it would greatly increase the committee's authority
if we had that power. The power of the purse is the ultimate power.
As it is exercised, it gives access to everything else ultimately, so I
think that a committee adequate. to the task in the long run needs the
power of the purse battered up. I understand how the committees feel
about their own jurisdiction and 'how they wish to retain it. I have
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111
looked at the language that would give a certain concurrent jurisdic-
tion which would protect the essential interest of the established com-
mittees of the Senate. I would hope that we could go that route. But I
cannot envision an effective oversight committee that did not have
jurisdiction, including the power of the purse,'with respect to the Cen-
tral Intelligence Agency-that is correct. I know what you are stress-
ing, you were stressing political difficulties. I know our time con-
straints. If we do not cease the opportunity, we may lose it again for
25 years. I am conscious of those things and I know how aware you
are of the difficulties, the political difficulties, the, time problems that
we have in this particular session of the Congress, but there is an aw-
fully strong case to be made for giving the oversight committee purse-
strings power if it is really exercised with complete effectiveness.
Senator BYRD. I can understand the strength of your argument with
reference to the power of the purse. There is no doubt but that that is
the ultimate power. But there is a power that is almost as ultimate
here and that is the power of subpena, and the oversight committee, if
it has the power of subpena, can get whatever 'information it needs. It
seems to me, I may be wrong, if we find that road is going to be so
formidable, so difficult to travel, that we may achieve the desired
objectives by creating an oversight committee and giving it su'bpena
powers and leaving the authorization jurisdiction where it presently
lies for the reasons that I have suggested.
What I want us to do is to find a way. Now, very frankly, I cannot
vote for this resolution as it is written. There are many reasons for
that. And the only reason I take the time of the committee and your
time now to enumerate those reasons is so that you and Senator Ribi-
coff and others may be fully apprised of the concerns we have so that
in the final analysis maybe we can come out with the working product.
In the first place, I have already alluded to the conflict in structure as
between the power of the Senate and the authorizing committees. Sec-
ond, I have difficulty with this resolution because I think it not only
provides insufficient protection against unauthorized disclosures of
sensitive information but in my judgment, it actually opens up the
possibilities and makes easier and even invites disclosure of sensitive
information. Now, why do I say that?
Why do I say that? First, rule XXXVI which was mentioned today
says, I will read it in part only because it is part of my exposition of
my personal views :
Whenever, by request of the Senate or any committee thereof, any documents
or papers shall be communicated to the Senate by the President or the head of
any department relating to any matter pending in the Senate the proceedings in
regard to which are secret or confidential under the rules, said documents and
papers shall be considered as confidential, and shall not be disclosed without
leave of the Senate.
Now, a moment ago, reference was made to this rule by Senator
Griffin himself. Of course, the explanation for what happened on the
occasion to which he alluded was simply the Senate in the judgment of
myself and a good many Senators, the Senate had waived this rule as
to the disclosure of documents and papers. The rule says "shall not be
disclosed without leave of the Senate."
I took the position and argued it in the closed session that the Senate
in creating the committee of which you are the chairman, gave the
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112
authority to your committee in the organic creating resolution for the
committee to make its decision as to the disclosure of information. I
think I am right and I would argue that case again.
Senator CHURCH. I recall that very vividly.
Senator BYRD. Of course, there are those who would not agree with
me. We can do that again. If we enact this resolution, that is what we
are doing. We are waiving that paragraph of rule XXXVI. The Sen-
ate can do that. I don't want to do it again. ,
Now, the resolution in paragraph (b) of section 5, on page 7 reads
as follows :
No employee of such committee or any person engaged by contract or otherwise
to perform services for or at the request of such committee, shall be given ac-
cess to any classified information by such committee unless such employee or
person has (1) agreed in writing to be bound by the rules of the Senate and of
such committee as to the security of such information during and after the period
of his employment or contractual agreement for employment with this committee.
There is no sanction. He simply agrees in writing, not under oath, he
agrees in writing to be bound by the rules of the Senate and of such
committee. Those rules are going to be in conflict. The rules of the Sen-
ate are going to be in conflict with the rules of this committee by virtue
of the language in this resolution, so we don't require much of such
an employee. There is a second subparagraph.
Senator CHURCH. May I come in on your first observation?
Senator BYRD. May I just complete what I am saying here? There is
no sanction against such employee. Many people would not suffer any
pangs of conscience and would have few compunctions or anything
to agreeing in writing to be bound by the rules of the Senate during
and after their employment, they would be employed for 6 years and
it was just a piece of paper that was signed. That gives me some dif-
ficulty then, continuing; with the employee who may make such dis-
closures-on page 13, paragraph (e), I quote:
If at the conclusion of its investigation, the Select Committee on Standards and
Conduct determines that there has been a significant breach of confidentiality
or unauthorized disclosure by a member, officer, or employee of the Senate,
it shall report its finding:; to the Senate and recommend appropriate action
such as censure, removal from committee membership, or expulsion from the
Senate, in the case of a member, or removal from office or employment, in the case
of an officer or employee.
Now that is a much looser and softer sanction against unauthorized
disclosure by an employee of the Senate than is provided for in para-
graph 4 of rule XXXVI which says in part : "Any officer of the Senate
who shall disclose the secret or confidential business or proceedings of }
the Senate shall' be liable, if a Senator, to suffer dismissal from the
service of the Senate and to punishment for contempt," so the present
standing rule provides a much stronger and more persuasive and in-
hibiting stand against the divulgence of confidential information by
an employee of the Senate than would this resolution. So much for
the employees.
Senator CHURCH. I agree with you. The sanction you suggested
in the present rule is the proper section. I am not wedded to the present
language in that regard and I share with you the feeling that there
ought,to be an adequate sanction against those who reveal confidential
or classified information in an unauthorized manner, so I have no
problem with the argument you make in that regard.
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The agreement in writing that is provided for in section 5 (b) simply
corresponds with the practice that is now followed by the CIA. They
enter into such an agreement. We were simply conforming the practice
of the committee with the practice of the CIA in this regard. There
are proposals that a criminal sanction be imposed against those who
breach this agreement but I suggest to you that we should look very
carefully at any criminal laws to be sure we specify what kinds of
secrets shall be protected, otherwise we might find ourselves inter-
fering with the free press and free speech amendments when we start
to write criminal law. I will work to conform the present sections to the
rules of the Senate. It is a very valid point.
The CHAIRMAN. I was just going to ask, Senator Church, in the final
report of your committee, are there likely to be findings there that this
committee ought to know about that would be helpful in drafting
whatever we decide to come out with?
Senator CHURCH. Well, Senator, it is my view that all of the recom-
mendations the committee had to make that are relevant to the need
for such a standing committee were made at the time that we in-
troduced our bill for that purpose and made our arguments for the
standing committee. The final report will be very extensive. We are
working closely with the executive to avoid any problems with respect
to classified information, but I think we have already said what we
had to say with respect to the need for a permanent committee.
Senator BYRD. Other areas of the resolution that trouble me are
with respect to the unauthorized disclosure of information. I think
that could be corrected and would have to be corrected.
For example, the committee or a Senator on the committee, could
divulge classified information to another Senator who in turn could
divulge such information to another Senator, who in turn could divulge
such information to another Senator or to staff people. Of course, the
requirement is here that if the Senator on the committee divulges such
information to another Senator, lie is supposed to report to the com-
mittee, identifying the Senator and the date and so on. But there is
no requirement that the Senator who hears this second hand, or third
hand or fourth hand do that and it would be unendorsable in any event.
But I think it would have,to be greatly tightened up there.
The procedures whereby the committee would make public, informa-
tion, it seems to me requires a great deal of tightening up also, and also,
the procedures for taking the matter to the Senate, require considerable
study-at least eight rules, at least eight of the standing rules of the
Senate will be changed, not for all times, but for purposes of implemen-
tation of this committee's work, beginning with rule XII, paragraph
3, which has to do with the ordering of a final vote on a matter. The
resolution provides for a final vote at the expiration of 5 days or during
that time after the Senate has debated the matter and, of course, there
is no request for unanimous consent which is required under para-
graph 3, rule XII, to be followed by a' quorum, et cetera. That is not
too bothersome, but that is one of the rules.
Now, rule XIII, which provides for a motion to reconsider is
abrogated by this resolution; at least in some circumstances, it would
be abrogated because at the expiration of the fifth day, if the Senate
votes to disclose the information and the information is immediately
disclosed, any Senator who might within two days of the legislative
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session thereafter, upo:l the securing of additional information, want
to change his mind on the vote, would be prohibited therefrom. There
is no provision for such a contingency. One of the rules that would
be vitiated by this measure, not vitiated as a standing rule, but viti-
ated in its purposes and functions in connection with the carrying out
of this legislation would be rule XVI. This measure on page 15,
section 11, requires authorization by law of any appropriation. It
says :
It shall not be in order in the Senate to consider any bill or resolution, or
amendment thereto, or conference report thereon, which appropriates funds for
any fiscal year beginning after September 30, 1976, to, or for the use of, any
department or agency of the United States to carry out any of the following ac-
tivities, unless such funds have been previously authorized by law to carry out
such activity for such fiscal year.
This would rule out appropriations by continuing resolutions, so
if we ran into a snag in the Senate with respect to authorization of
appropriations for certain intelligence activities, such funding could
not go forward under such continuing resolution. Moreover, rule XVT
provide that new items of appropriations may be added to any gen-
eral appropriations bill "if the same- be moved by direction of a stand-
ing or select committee of the Senate or proposed in pursuance of an
estimate submitted in pursuance of the law."
At the present time, it is not necessary that an appropriation be
authorized by law. It is sufficient if such an appropriation, if such
authorization has been moved by direction of a standing or select
committee of the Senate, so that would no longer be possible.
Now, continuing, Rule XXII would be inoperative. The only ac-
tions that the Senate may take under this resolution are three: (1)
to approve the publicizing of information; (2) to disprove the public
disclosure of information; and (3) to commit the matter back to the
committee. There is no provision to amend. There is no provision to
postpone to a day certain. Rule XXIV as to appointment of commit-
tees would not be adhered to in the establishment of this committee
and the designation of its committee members or its committee
chairman.
Rule XXV would be amended in three or four places.
Rule XXIX, as to the printing of the papers, would give the Sen-
ate Committee on Rules and Administration jurisdiction over any
motion to print documents, reports and other matters transmitted by
either of the Executive departments, so what you not only have is
the oversight committee taking a look at these papers, but this rule
is not being changed by the resolution and, therefore, unless the Sen-
ator would otherwise order, any such order would be referred to the
Committee on Rules and Administration so you have broadened the
authorities for unauthorized disclosure of public information. We
have talked about Senate rule XXXIII. I would call your attention
to the Legislative Reorganization Act and in subparagraph (f), sec-
tion 133 dealing with committee procedures, we find the following
language:
A measure or matter reported by any standing committee of the Senate
[including the Committee on Appropriations] shall not be considered in the
Senate unless the report of that committee upon that measure or matter has been
available to the Members of the Senate for at least three calendar days [ex-
cluding Saturdays, Sundays, and legal holidays] prior to the consideration
of that measure or matter in the Senate.
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115
That provision may be waived by joint agreement by the majority
or minority leader of the Senate, but in the event that they don't waive
it, I think you would be in trouble because the resolution provides for
only 5 days of consideration by the Senate beginning immediately
upon the day subsequent to the day that that matter is reported to
the Senate, so there would be a clamor for the execution of that re-
quirement under the law which could not be waived simply by the
majority leader alone, or by the minority leader alone.
Section 133('b) of the Legislative Reorganization Act of 1946 pro-
vides in part : "Each standing, select, or special committee of the Sen-
ate shall adopt rules not inconsistent with the standing rules of the
Senate."
We are going to be adopting a good many rules here, this committee
will, I assume it would be inconsistent with the standing rules of the
Senate governing the procedure of such committee. I can see some prob-
lems with the new sunshine rule that the Senate has adopted.
Now, finally, under the Legislative Reorganization Act of 1946 as
amended on page 98 of the manual, section 137, I read : "In any case in
which a controversy arises as to the jurisdiction of any standing com-
mittee of the Senate with respect to any proposed legislation, the ques-
tion of jurisdiction shall be decided by the presiding officer of the
Senate, without debate, in favor of that committee which has jurisdic-
tion over the subject matter which predominates. in such proposed leg-
islation; but such decision shall be subject to an appeal."
Now, I contemplate a good many jurisdictional questions and issues
and debates arising if this legislation is passed as it is written. I think
there will be challenges to the jurisdiction of this committee because
the subject matter predominating in the proposed legislation would be
claimed by your respective authorizing committees and thus precipi-
tate controversy which, if not settled by the presiding officer, would be
open to appeal. and debate.
Now, these are but a few of the problems that we on the Rules Com-
mittee are going to have to grapple with. They are not insignificant
ones. They are significant problems. When we bring this measure to the
floor, all of these questions are going to be raised-unless they have
been resolved beforehand-and the resolution will be subject to un-
limited debate, and inasmuch as it proposes to change certain stand-
ing rules of the Senate, as now written, it would require two-thirds to
invoke cloture. In any event, it is going to be difficult. Now, these are
our problems. They bring me back Ito the point at which I started and
that is, having had the opportunity to lay in the record some of our
concerns, and some of the difficulties as I see them. I would hope that
this transcript would be read by the members of your committee and
the staffs so that perhaps a way can be found to circumvent these prob-
lem areas and approve some kind of a resolution that will meet the
need for action.
Senator CHURCH. Senator, you can be assured of the members of the
select committee staff, and I think also reflect the general view of
the Senators on the select committee. I want to work together. You
have pointed out various complications that are introduced by the es-
tablishment of a committee of this character. We want to work with
you. We invite your suggestions in finding solutions to the various
problems. I appreciate what you have said.
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Senator BYRD. Thiank you.
The CHAIRMAN. Senator Allen.
Senator ALLEN. Thank you. I believe Senator Byrd has made a real
contribution in pointin a out the problems that this resolution will cre-
ate when we get to the :1oor to consider this resolution as it now stands
or as the committee may possibly amend it.
Senator Church, I might inquire if we are not presented here with
not only a national problem, of course, but a congressional problem,
for Congress as a whole, and not just a senatorial problem. Is that not,
recognized in providing for congressional oversight of intelligence
agencies' activities?
Senator CHURCH. Yes, Senator, it is a congressional problem, yet
however inadequately designed and empowered, an oversight commit
tee could be, established by the Senate itself and it could accomplish the
oversight purpose. I think you would see that the Senate could act in
its own capacity to establish such, and I would hope that we would do
so. It may well be that afterward there will come n, time when we will
want to move from the Senate committee to a joint' committee based
upon 'a statute giving it definite powers. That is always open to us for
the future.
Senator ALLEN. Wouldn't it be well to solve the problem in the first
instance?
Senator CHURCH. I think now, it would not be possible to do it with-
out putting the whole matter in serious jeopardy. If you let time pass
and you do not seize the moment, I think we will fail the country.
Senator ALLEN. Yor, think it might work so well in the Senate that
the House would see the wisdom of the Senate procedure and follow
suit ; is that what you believe?
Senator CHURCH. Possibly, or following upon the proof of the merit
of this proposal, a joint committee might be established rather than
two committees, one in each House.
Senator ALLEN. Yes, I prefer the joint committee approach, but even
if that is not the prevailing thought in the Congress, a concurrent res-
olution could provide for separate committees if that. is the wish of the
authors of the bill.
Senator CHURCH. Yes.
Senator ALLEN. So I just question if we ought to create these com-
plications by setting up a single oversight committee in one body and
still allow proliferation of committees over in the other body which
would be conducive to the possibility of divided authority jurisdiction,
with increased possibility of leaks of information?
Senator CHURCH-I. Senator, I think this is a case in which the Senate
can lead the way. The present situation is chaotic.
Senator ALLEN. You say the present situation is chaotic, and you
testified on your direct testimony that under the present situation, as
many as half of the Members of Congress could get this information,
but under this resolution, as Senator Byrd pointed out, the information
that the committee has voted should not be disclosed. Yet, that same
information could be imparted to any Senator who drops by the com-
mittee and asks for a, briefing on intelligence and then that can be
passed on ad infinitum on down to the 100th degree.
Senator CHURCH. Senator, I don't believe that there is any perfect
solution to the question of keeping secrets. I do think the arrangement
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we propose here would be a great improvement over the present law-
I don't think that it guarantees that no secret will ever be divulged in
the future, but then neither can the executive branch make such a
guarantee. I have already pointed to what I think is by far the worse
breach of security in my recollection. It came right out of the CIA
itself at a cocktail party, I don't, know which way we can give ourselves
actual protection as far as secrets. I suggest this is a, real improvement.
Senator ALLEN. Where a Senator can pass information on to any
other Senator, that ought to be tied up.
Senator CHURCH. I think that the Senators are ultimately respon-
sible to their own conscience for what they do in their effort to repre-
sent the people in their State and in their capacity as U.S. Senators.
The speech and debate clause of the Constitution clearly allows any
Senator to do what he thinks serves the national interest, and he isn't
accountable in the courts for what he does. He may be censored by his
own body for what he does, but I don't know how you get away from
the proposition that ultimately each Senator has to make his own deci-
sion of what best serves his country and then take such consequences as
his peers mete out to him if he violates the rules of the body.
Senator ALLEN. Well, with the proclivity of many Senators to pass
information on, you don't think there is any danger to the national
interest that sensitive matters that the committee voted not to disclose,
could be tossed out to 100 Senators? You don't see any danger in that?
Senator CHURCH. I can only say that I have confidence in Members
of the Senate, and I have particular confidence in members who would
serve on this kind of committee. The members who have served on my
committee and Senator Tower is the vice chairman, both on the Repub-
lican side and Democratic side, have demonstrated that such a com-
mittee would be highly responsible.
Senator ALLEN. Yes, I believe that is true, but what about other
persons who might not be quite as sensitive to the need to keep this
secret?
Senator CHURCH. The first obligation would fall on members of the
committee to be careful about disseminating highly sensitive informa-
tion that could injure the national security, making it the subject of
gossip, I just don't think they would.
Senator ALLEN. I see. Now, your Select Committee on the Investiga-
tion of Intelligence Agencies which did truly an outstanding job, and
for which I commend you, in a sense was carrying out an oversight
function?
Senator CHURCH. Yes.
Senator ALLEN. How would you have felt if Senators had approached
you and inquired of you as to what you 'have found out? Would you
have imparted that information to them, or would you have been afraid
of premature disclosure of that information?
Senator CHURCH. We follow a rule at our committee that any request
for information from whatever source would be taken up by the com-
mittee and decided by the. committee, -so that individual members
would not, on their own, make disclosures. That rule worked very well.
It is consonant, incidentally, with the rule contained in Senate Resolu-
tion 400.
Senator ALLEN. I didn't, understand what you said.
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Senator CHUROH. A similar rule applies in Senate Resolution 400,
where the right to disclose information or to make public information
has to be decided by the majority.
Senator ALLEN. But they can disclose it to Senators, even though
there has been a vote that it shall not be disclosed publicly, Senator
Church?
Senator Cxuxcx. Senator Allen, the Joint Committee on Atomic
Energy, recognizing t1 at all Senators are equal and have a right to
know, has a session from time to time to which Senators are invited
and they are briefed with respect to information that the committee
may have.
At times, it might be very appropriate for an oversight committee
to call to the attention of the Armed Services Committee something
that they have discovered that deals directly with the military in a
way that the Armed Services Committee should know about. The same
is true with foreign relations. I don't see this overnight committee as
a vault that other committees cannot penetrate or other Senators can-
not penetrate, but I do see it as the most regularized way I know of for
a singular depository for highly sensitive information which now is
being broadcast to any number of committees in, the Congress.
Senator BYRD. Will you yield?
Senator ALLEN. Yes.
Senator BYRD. I would address my question not only to Senator
Church. but Senator Ribicoff and Senator Huddleston it they care to
comment. Our time is running short, so I will be very brief.
Why would it not be better to have language restricting or pro-
hibiting disclosure by a Senator on that committee of information that
the committee has decided not to make a disclosure, prohibiting any
member from disclosing it, rather than writing into the law a specific
authorization for members of the committee to tell other Members of
the Senate when such information has been voted by the committee
should not be disclosed? It would be difficult to enforce the sanctions in
the proposed resolution. If the committee members are specifically au-
thorized to tell other members who then in turn may tell other members,
there would be no way to apply any sanctions, the committee member
could say : "I told Senator Byrd and Senator Randolph was sitting
with him and, you know, I have great confidence in those two West
Virginians, and I also told Senator Allen from Alabama and I acted
under the authorization of the resolution. It said that I could do this."
Senator CHURCH. I can only answer the question this way, and then I
will defer to the other Senators present. It was our practice on the
select committee to make no disclosures except upon vote of the com-
mittee and we received many requests and, to my knowledge, I. think
they were all denied.
Senator BYRD. I am talking about writing it into the legislation.
Senator CHURCH. This is the practice we followed.
Senator HuDDLESTON. I would like to make one-comment. It seems
like we are overlooking one provision which is found starting with
line 2 on page 12. This type of disclosure shall be made only under
such situation as the committee shall prescribe to protect the confiden-
tiality of such information.
I can assure you, having served on the select committee, that the
regulations that would be written by this committee would be such that
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this type of information wouldn't be passed along in the Senate dining
room and so forth.
Senator ALLEN. Of course. It ought not to be so wide open.
Senator HuDDLESTON. What we need to do is to balance out the needs
of Members of the Senate is entitled to know something about intelli-
gence, and to have information on matters that he is supposed to vote
on, as Senator Clark brought out, in the operation of our Government
against the need to protect certain information. It may be that the
provision ought to be stricter, but it is a problem of balance.
Senator BYRD. The problem is that you have a conflict. On page 12
you say the committee may under such regulation prescribe to protect
the confidentiality of such information and, in the committee they say
well, we will have a regulation that says no member of this committee
may tell any other Senator. That is not what the law was.
Senator RIBIcoFF. If the Senator would yield, this is how that came
up. What is in there now was not in the original bill presented by
Senator Church. During the markup of the resolution, Senator Javits
pointed out that we had one problem. Suppose the Senate went into
secret session to determine whether there should be a disclosure of con-
fidential information. Now, if you go into a secret session, where there
will be a vote whether you do or do not disclose, shouldn't a Senator
on one side or another, at the request of a colleague, be able to explain
to him what the issue is?
A Senator would come up to one of the proponents or opponents of a
position and say why is this, and you would have to give him the back-
ground because under rule XXXV, you can go into t?losed session, and
then you can have a disclosure of what the facts are and what the is-
sues are. That is why this provision was put in.
I have been listening very carefully, Senator Byrd, to your col-
loquy with Senator Church. If I may, I will comment for a few
moments.
There are many points raised by Senator Byrd and other members
of the committee that are very well taken. We have got a very complex
situation and I think it would be most unfortunate if this session of
the Congress, rather this session of the Senate for I cannot speak for
the House, adjourned without establishing an intelligence oversight
committee. It is obvious that there are' many gray matters. It is obvious
that the intelligence committee cannot foreclose the Armed Services
Committee from doing its work and performing its functions. It is
obvious that the Foreign Relations Committee must have information.
It is obvious that the Judiciary Committee to handle its work with the
FBI must have information.
There are gray areas here. As I listened to your colloquy with Sen-
ator Church, there isn't a single point that you made, in my opinion,
that cannot be reconciled with the objectives of Senator Church, with
the objectives of this resolution. If I may be so bold as to suggest,
there should be a meeting of the respective staffs-including the
majority and minority of the Rules Committee, the Church committee
and Government Operations-to discuss these differences. I would as-
sume that the members of the staff would be made aware of the think-
ing of the Rules Committee, the thinking of the Church committee
and the thinking of Government Operations Committee, both major-
ity and minority members. I know Senator Mansfield feels very
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strongly about this. My feeling is that I have thoughts in my own mind
that I would communicate to the staff. I think this could be worked out.
I am pleased that you raised these points, but if you are going to have
an intelligence committee that is going to work, its original charter
should be a correct charier.
Senator ALLEN. I took exception to this provision in the Govern-
ment Operations Committee. I pointed out where I thought it was a
problem.
Senator Risico. Yes. Senator Mansfield said time and time again
there are no such things as unequal Senators. Every Senator is equal.
There is this question of confidentiality and the time of disclosure.
There is a time a Senator has to know confidential information, espe-
cially if you are on the floor in a closed session. If this intelligence com-
mittee works, and it is going to work, there will be very few instances
that you will have a confrontation between the executive branch and
the legislative branch requiring closed sessions.
The testimony of practically everyone that came before the Gov-
ernment Operations Committee, and that included Mr. Colby, Mr.
McCone, Mr. Helms, and Mr. Kissinger and also David Phillips, the
president of the Association of Retired Intelligence Officers indicated
that almost all feel that there should be one oversight committee on
intelligence. It was practically unanimous. There was a question raised
about a joint committee. Originally, I started out being in favor of a
joint committee, but without casting any slights on the House at all,
the difference between the Church committee and how it handled its
inquiry and the other House becomes very obvious. Suppose this in-
telligence committee had authorizing power. The Senate and House
handles this legislative business differently, and it is going to be very
hard to have a joint committee make a determination on legislative
business. The Senate has a constitutional responsibility to advice and
consent. In order to get this intelligence committee going, it was my
suggestion that we try to establish this Senate committee and set out
that there were certain gray areas. We tried to settle all the problems
that we could, but we request the new intelligence committee to report
back to the Senate by July 1, 1977, its basic recommendations in many
of the gray areas. Those of you who were at the White House at the
time President Ford related what he had in mind with the intelligence
committee might recall that I suggested to the President that he was
going to run into a problem because of differences that I sensed in the
Senate, the Church committee and Government Operations and that
it would be wise to have a meeting between the executive branch and
a representative of the Government Operations Committee, and the
President agreed. The next morning, Mr. Marsh, Mr. Buchen, Mr.
Kendall and Mr. Rogovin, who had been retained by the CIA, spent
time with the staff and myself and Senator Percy to try to reconcile
many of these problems.
What became obvious from the testimony our committees received
from most everybody, people who had been involved in the CIA in
the past and the present., was that the standing of our intelligence
community in the Nation has been really shattered. This is tragic.
There isn't a member of the Government Operations Committee that
doesn't feel that we need a strong intelligence community, and Senator
Church agrees with this. Practically everyone who appeared before
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our committee, it was almost unanimous, felt it was very important
to establish an oversight committee to restore the confidence of the
Nation and the Congress and the intelligence community.
This was what was important. It became important as we started
to consider this, that it not become a question of jurisdiction, a question
of committee power, a question of committee prestige. After all, there
isn't anything in here that gives any additional powers to the Govern-
ment Operations Committee. We were given a charter by the Senate to
report back by March 1. The committee worked continuously, we had
9 days of hearings, and ordered the resolution reported February 24.
The attendance at the hearings and markup was excellent.
The Government 'Operations has members of the Armed Services,
Foreign Relations and Judiciary Committees, although in all fairness,
Senator McClellan was busy with his Appropriations Committee and
he did not attend, I don't believe, many of the hearings or markup. The
action of the committee was by a unanimous vote. I have yet to see a
perfect bill come on the floor of the U.S. Senate. It would be unfortu-
nate to have this a long, drawn out, drag out fight which would frus-
trate the establishment of a committee. It would reflect on the Senate
and it would reflect upon the Intelligence Committee which would be
hanging in mid-air. It would not be in the best interests of the Nation.
I would hope, Mr. Chairman, that within the next few days you could
designate someone from your staff to meet with someone from Senator
Church's staff and someone from the Government Operations Commit-
tee staff to work out the questions in your mind.
The CHAIRMAN. I think that is a very good suggestion. I don't see
how we can do it in the next few days. We can only go for a limited
time for our hearings. We have to recess in 15 minutes. I am not sure
we will be able to finish with Senator Church. We haven't been able to
get to Senator Clark and Senator Allen didn't finish. We will have to
recess until tomorrow and then recess to hear more witnesses on Mon-
day. It will take several more days. Until that time, it would be prema-
ture to try to pull everyone together with ideas when we don't know
ourselves precisely what we want to do based on the benefit of the
people who are appearing before us. I appreciate what you are sug-
gesting, though.
Senator ALLEN. In line with your general statement, I shall be
brief, if there is not any more discussion during the questioning.
Senator Church, if this committee becomes the sole committee that
has jurisdiction over the authorization process for the Intelligence
Agency, how would you manage to give the committees who have
been carrying out the authorization function and who need that infor-
mation in preparing their bill for their programs, particularly the
Armed Services preparing a defense program, how would you go about
imparting the information that you have learned as to intelligence?
Senator CHURCH. Well, Senator, 'I think that could be handled by an
appropriate amendment to this resolution in two ways : First, if the
subject had to do with the authorization or the amount to be authorized
for any given department or agency, that information could be trans-
mitted to the Armed Services Committee, so that it would have avail-
able that piece of information to fill in with the other parts of the
general authorization for military expenditures.
And I can see cases where it might be advisable to give such amend-
ment an opportunity for the Armed Services Committee or the Judici-
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ary Committee or even the Foreign Relations Committee in appropri-
ate cases to assert current jurisdiction, that is to say, to review. There
would be some cases of that character, I don't think many, for the
30-day period to review the bill that was reported out by the Intelli-
gence Committee. There are ways of accommodation, I am sure, be-
cause we do that all the time.
Senator ALLEN. Isn't that a splintering of authority and jurisdic-
tion-to put them back in the picture?
Senator CauxcII. No, Senator Allen, I would think we have excep-
tions in Senate Resolution 400 in the application, with the exception of
the right of the many to pass judgment and right of authorization leg-
islation, and with the exception of its jurisdiction over the CIA, which
would be exclusive to the committee, that if other bills that it reports
out, happen to be of interest to some standing committee that otherwise
exercises jurisdiction, then this concurrent arrangement, I should
think, would acconunod ate their need.
Senator ALLEN. Would you anticipate in your oversight responsi-
bility that the intelligence agencies would submit to the committee
general information as to projects or programs that they would like
to institute and then have the committee say yes, you can do this one,
and this one, but we do not approve of this one. Is that what you
consider oversight would consist of in one phase?
Senator CHURCH. Senator, in most instances, established programs
would be routinely approved, the only question being
Senator ALLEN. It does take approval?
Senator CHuxci-i. I mean in this respect, the only question being
how much money will be appropriated like every other committee when
it determines how much money is to be authorized, it establishes a ceil-
ing for the operation of this agency.
Senator ALLEN. I ant not talking about money, T .am talking about
the propriety of the project.
Senator CHURCH. Where covert operations are concerned, which
have to do not with the gathering of intelligence, but with secret inter-
vention in the affairs of other countries to secure particular objectives,
we think that this resolution is right in requiring that the Intelligence
Committee be. fully and promptly informed-not for the purpose of
exercising in detail, but for the purpose of expressing its disagreement
if indeed it disagrees.
As to the wisdom of such an operation so the President may be ad-
vised of the committee's views, we think that falls entirely within the
scope of the constitutional provision that the Senate should exercise
its proper role in foreign affairs.
Senator ALLEN. Would it be possible for intelligence agencies to go
,ihead, contrary to the expressed wishes-of the committee?
Senator CHURCH. Well, the Constitution provides that the Senate
gives its advice and consent. In order for this committee to give advice
in the onestion of covert operations which relate to the foreign policy
of this country and to our reputation in world affairs, to our moral in-
fluence in many, many cases, the committee would have to know what
is P-oing on.
Senator ALLEN. Would it be possible for it to go on with a program
that many disagree with?
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Senator CHURCH. Oh, sure. Surely. The President-if the money is
available.
Senator ALLEN. That is the power of the purse. But you can't very
well go on with it, if you cut off the funds?
Senator CHURCH. Senator, you know and I know from long experi-
ence in the Senate that it is only in extreme cases where there is a
very profound disagreement between the Presidency and the Senate
on an extreme course of action that we cut off the money. Only in such
extreme cases would the committee so act and that would have to be
decided by the Senate as a whole and indeed the Congress as a whole,
so it is only a beginning process in the committee. Our major objective
is to enable the committee to play a consultative role. The President
would have been much better served if he had some political advice
in the past, rather than relying on cloak-and-dagger men who love
their work and who think exclusively in terms of how they can accom-
plish a given objective through the use of highly technical means in
which they are infatuated. Good commonsense, political judgment
s could have kept us out of trouble in the past. The President is a very
busy man and he might very well heed the political advice of a com-
mittee of this kind, but he would not be bound to it.
Senator ALLEN. Wouldn't it be possible this might be an extreme
example, wouldn't it be possible for intelligence agencies to submit a
plan to the committee, and the committee approve it, but one member
felt so strongly that that was not the thing to do, that that informa-
tion might be made available to the point where it would be public
knowledge which would ruin the chance of carrying on such a covert
operation?
Senator CHURCH. The present law requires that all significant new
covert operations be reported to seven different committees of the Sen-
ate-six or eight different committees of the Congress, depending on
how you count them, and your question could just as well be directed
toward the present arrangement in which far more Senators and Rep-
resentatives share these secrets and any one of them could go to the
floor of the House and Senate and under the speech-and-debate clause
make his disclosure.
Senator ALLEN. This thought occurs to me as to the thrust of the
resolution, that in a sense, it makes a hybrid group out of the commit-
tee. I note that something over one-fourth of the space of the lines in
the bill are devoted to the method of disclosing information and less
space is devoted to methods of retaining and protecting the secrecy of
information. I am wondering if we haven't combined here really an
oversight committee plus the continued operation of the Select Com-
mittee on Investigation? I don't mean your particular committee, I
mean that function.
Senator CHURCH. Senator, I think you are unduly suspicious of the
language regarding disclosure. I think it operates both ways. It sets up
limitations on disclosure, but I, for one, must admit that I am more
concerned about the commission of the crimes that I have seen than
about their exposure because I want to see this country stay free and
from what I see in the abyss in which I looked this last year, we are
in a serious problem if we are keeping secrets that ought not to be
kept. There are legitimate secrets that ought to be kept. We are trying
to strike a method for accomplishing both objectives. The oversight
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committee would be charged with investigating and doing as the
select committee was charged. That would be part of its oversight.
If it finds wrongdoing, it is going to investigate and have subpena
power to get at the facts and it must have the power to disclose the
facts if in the judgment of the committee that best serves the public
interest.
Senator ALLEN. Even if the disclosure of that information might
give aid and comfort to potential adversaries?
Senator CHURCH. That is a judgment that reposes not exclusively
with the President and his hierarchy. Under the Constitution, that
also reposes in the Congress. It, too, is thought to have patriotic
intention.
The CHAIRMAN. May I interrupt.
Senator ALLEN. One more question.
The CHAIRMAN. The Democratic caucus is meeting now, I am re-
minded. And if we finish that, could you be back in the morning be-
cause Senator Clark has some questions.
Senator CLARK. I will not take more than 3 minutes. S
Senator ALLEN. Information is made available to Senators here as
to these procedures. What about if a House Member came knocking
at your door asking for a little briefing? Would that be made avail-
able to him?
Senator CHURCH. The practice of my committee has been not to pass
information to the other body. The other body is competent to estab-
lish a committee of its own. It has the same basic authority.
Senator ALLEN. I have no other questions.
Senator CHURCH. It may keep its own house in such order as it
chooses.
The CHAIRMAN. You don't mean to imply they are not a coequal
body.
Senator CHURCH. No,
The CHAIRMAN. Senator Clark.
Senator CLARK. I want to join the others in complimenting you
on the excellent job that your committee has done. I will be very brief.
I just want to make one comment based on the observations here this
morning and generally, and ask for your response.
As a result of your committee's investigation, we have learned of
foreign assassination attempts, foreign assassination attempts that
were unrelated to our central national security interests-we have
learned that people at the very highest levels of the Government
violated the law, in some cases people in the law enforcement agencies
themselves.
We have learned through your investigation that the congressional
oversight process has -Failed for 25 years. It seems to me that based
on all that information, most of which has not been discussed here
this morning, the choice before this committee and indeed before the
whole Senate is whether, having gained that knowledge, we are pre-
pared to do anything effective about it. It seems to me that is where
we are at. And I suppose it is as apparent to you as it is to me, that
there is a very good chance that we are not doing anything effective
about it. Not that we are not going to do anything about it, but I
think there is a good chance that we are not going to do anything
effective about it. If that is the case, it will be very, very difficult for
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people throughout this country who know that their representatives
in Congress are aware of these inequities and illegalities, to learn that
we are not prepared to take action. I wonder if our own constituents
are really going to understand that we are not going to do anything
effective here because of what we call jurisdictional problems or rules
of the Senate?
I might say if the barnacles on our own institution have become so
thick that even when we see illegalities and injustices we are not pre-
pared to act, there is no doubt our citizens will lack confidence in us
and with good reason.
Our rules are our creations of the Senate. They are not written
in stone. They can be changed.
I would appreciate having your comments about what you think
this country's attitude is going to be, having gained this information,
if this body simply sits by and takes no action; no effective action?
Senator CHURCH. I concur wholeheartedly in everything that you
have said, Senator Clark. I think it would be a national tragedy if
this body were to fail to take effective action in the light of the tre-
mendous numbers of abuses that we have uncovered in our investiga-
tion, a systematic disregard for the law, and arrogance of power that
is enhanced by the secrecy which leaves those involved unaccountable.
Despite all the violations of the law, I see the Executive taking no
action, bringing no cases to court, issuing no indictments and hold-
ing no one responsible. This is the corruption of a lawful society that
ultimately needs a commentary of Government. It is the Congress
which must protect the constitutional system if the President can't
lead. If Congress fails in that responsibility, then I think the outlook
is bleak to this Republic.
Senator CLARK. Thank you. No other questions.
The CHAIRMAN. Thank you very much, Senator Church. You have
been very helpful to the committee. We will stand in recess until 10
o'clock tomorrow morning and hopefully proceed with some of our
colleagues who have been so patient as to sit here and wait.
[The committee recessed at 12:35 p.m. to reconvene at 10 a.m., Fri-
day, April 2, 1976.]
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PROPOSED STANDING COMMITTEE ON INTELLIGENCE
ACTIVITIES
FRIDAY, APRIL 2, 1976
U.S. SENATE,
COMMITTEE ON RULES AND ADMINISTRATION,
Washington, D.C.
The committee met in room 301, Russell Senate Office Building, at
10:05 a.m., Hon. Howard W. Cannon (chairman) presiding.
Present : Senators Cannon. Pell. Allen. and Griffin.
Staff present: William McWhorter' Cochrane, staff director;
Chester H. Smith, chief counsel; Hugh Q. Alexander, senior counsel;
John P. Coder, professional staff member; Dr. Floyd M. Riddick, ppro-
fessional staff member; Jack L. Sapp, professional staff member;
Ray Nelson, professional staff member; Larry E. Smith, minority
staff director; Andrew Gleason, minority counsel; Peggy Parrish,
assistant chief clerk.
The CHAIRMAN. The committee will come to order.
We will have as our first witness this morning Senator Barry Gold-
water.
Senator Goldwater, we are happy to hear from you today.
STATEMENT OF HON. BARRY GOLDWATER, RANKING MINORITY
MEMBER OF THE COMMITTEE ON AERONAUTICAL AND SPACE
SCIENCES
Senator GOLDWATER. Mr. Chairman, my statement is not long.
Thank you for granting me the opportunity to testify before your
committee.
Before going into the details of Senate Resolution 400, I would like
to make some brief general comments.
In the last few years, the Congress has attempted to exert greater
influence on the nature and conduct of our foreign policy.
What are the results?
Two good allies, Greece and Turkey, have been alienated.
Jewish immigration from Russia has been reduced.
The hands of our President have been tied in the day-to-day con-
duct of foreign policy.
U.S. intelligence is demoralized and its effectiveness greatly
diminished.
Our allies seriously question America's reliability, if not our collec-
tive sanity.
Our adversaries take comfort in watching us tear ourselves apart.
And just in the interest of the committee, I have the front page of
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128
the Washington Post, of January 7, 1976. Three headlines paint a
picture of American foreign policy today.
The left-hand column is entitled, "CIA Giving $6 Million to Italian
Centrists."
In the middle, below the picture, "CIA Agent Welch Buried" with
the subtitle, "Ford, Kissinger Among Mourners at Arlington."
On the right, the headline reads, "Two Soviet Ships Head for
Angola."
Taken together the headlines describe an impotent giant-our Na-
tion.
Disclosure of covert aid to Italy is the direct result of the Hughes
amendment to the foreign aid bill adopted by the Senate on October 2,
1974.
Under its provisions, six committees of the Congress are required to
be informed of any covert action. This means approximately 50 Sen-
ators and over 120 Congressmen may receive highly sensitive informa-
tion on a covert action. It also means public disclosure is almost in-
evitable.
Worst of all, it gives a personal veto to any Member who disagrees
with a covert action--with the veto coming in the form of subrosa re-
lease to the Washington Post or the New York Times.
Mr. Chairman, I shall oppose any general legislation dealing with
the intelligence community which fails to provide for :
One, a repeal or severe modification of the Hughes amendment.
Two, criminal sanctions against any member of the intelligence com-
munity who releases classified information having voluntarily entered
into a secrecy agreement.
Three, the same sanctions against any Member of Congress or staff
who releases classified information.
And four, a flat prohibition against any intelligence agency reveal-
ing the name or identity of any foreign agent employed by the United
States to the Congress or any of its committees or Members.
These vital matters need attention now, if we are to restore confi-
dence in our intelligence services.
Here are my specific reasons for opposing Senate Resolution 400:
(1) The Senate needs one more standing committee about as much as
the Nation needs more inflation. We are merely adding another layer
on the cake.
Let me state that 11 rechecked the figures on "Hill" employment I
had been using as late,as yesterday. Instead of 17,000 staff members on
the Hill, there are now 22,500 and we are not turning out any more
work than when I first came here.
(2) The ratio of committee membership is 6 to 5. By longstanding
precedent the majority party is entitled to a ratio on the standing
committees equivalent to its ratio in the entire Senate. Moreover, re-
quiring five minority members put an added burden on the minority
party when the total number of slots is considered.
(3) Limiting the tenure of Senators to 6 years on the proposed com-
mitee is an assault on the seniority system and, more important to me,
inhibits the development of expertise.
(4) At variance with the practice of other standing committees, the
proposed committee would have a chairman and a vice chairman. Also,
unlike other standing committees, the chairman would be appointed
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by the proposed committee instead of the entire Senate. The vice chair-
man, a member of the minority party, would have the authority to act
for the chairman in his absence. This is contrary to Senate precedent
where the ranking majority member acts for the chairman in his
absence, or whoever is senior on the majority side. I believe the major-
ity party should maintain control of any standing committee.
(5) No single committee of the Senate should be given legislative
jurisdiction over all the intelligence activities of the U.S. Govern-
ment. There is too much concentration of power. Moreover, this func-
tional approach to jurisdiction tends to fragment the activities of the
departments and agencies involved. The proposed committee would
also have the authority to reorganize the intelligence activities of the
U.S. Government and might do so without regard to departmental
needs such as military R. & D.
(6) The requirement that the proposed committee "shall make
periodic and regular reports to the Senate on the nature and extent of
the intelligence activities of the various departments and agencies of
the United States" strikes me as being open ended. The Senate as a
whole has a poor track record of being able to maintain secrecy.
(7) Limiting the tenure of professional staff members to 6 years is
contrary to the Legislative Reorganization Act of 1970, .which is quoted
in section 271.1 of the Senate Manual as follows :
Professional staff members authorized by this subsection shall be appointed
on a permanent basis, without regard to political affiliation, and solely on the
basis of fitness to perform the duties of their respective positions.
Moreover, the best Senate staffs have at least a few persons of long
service thereby providing continuity and reducing the possibility of
legislative error.
(8) The proposed new committee would have ultimate authority
to disclose any intelligence secrets by majority vote. No matter how
strongly a Senator may feel about a foreign policy issue to overturn a
policy through the disclosure of secrets can only 'lead to peril for the
Nation. Such a provision may raise constitutional questions; ques-
tions I shall leave to those who are experts in constitutional law.
(9) Senate Resolution 400 states the following :
The Committee on Intelligence Activities of the Senate, for the purposes of
accountability to the [Senate, shall make regular and periodic reports to the
Senate on the nature and extent of the Intelligence activities of the various
departments and agencies of the United States.
I submit that such regular and periodic reports will either be vailue-
less or will compromise the Nation's security. If such reports are ever
issued, inevitably there will be demands for greater and greater detail.
(10) On March 31 the Senate adopted Senate Resolution 109, creat-
ing a temporary select committee to study the Senate committee sys-
tem in its entirety. I submit it would be folly for the Senate to create
any new committees until the Select Committee on Jurisdiction has
had a chance to do its work. If for no other reason, Senate Resolution
400 should be deferred during this session of the Congress.
(11) The Senate Select Committee on Intelligence Operations has
yet to submit its final report. Under these circumstances, it seems
strange to me that we should be creating a new standing committee
before we have been provided with any justification.
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I might say, Mr. Chairman, that the select committee is headed for
a gigantic job in producing the final report. It will be a voluminous
document and the problem of clearing information for security is
great. I anticipate that a number of Senators on the committee will
have individual views. Moreover, there may be a minority report. I
believe it will be some time before we will see publication of the final
report in its entirety.
Mr. Chairman, in appearing before your committee on a matter con-
cerning the intelligence operations of our Nation, I would feel remiss
if I did not state how proud I am of the men and women who con-
stitute the intelligence community. Overall, their dedication and
loyalty- is of the highest order.
And, Mr. Chairman, I will repeat what I have said before. In my
attending the meetings of the Select Committee on Intelligence, I
cannot find the CIA at fault. When the chairman announced he would
investigate the assassinations, I said it is going to wind up in one place :
the White House. If there is fault to be found that is exactly where
it is. There has been no indication that we need any more oversight
of the CIA than we already have on the committee on which you and
I serve. I am, frankly, opposed to any more Senate probing in this
whole field.
Finally, I would like to urge this committee to proceed with the
utmost deliberation in considering any changes involving the intel-
ligence community. Through the actions of the media and some Mem-
bers of the Congress, great damage has been done to the Nation's first
line of defense : our intelligence services. Let us not compound the
problem through any hasty actions.
Mr. Chairman, I want to thank you for the opportunity to appear.
The CHAIRMAN. Thank you, Senator Goldwater, I must say that
I agree with a very substantial amount of the statement which you
have read. On your point No. 2, the ratio of Committee membership,
and limiting the tenure, in my own judgment would destroy the effec-
tiveness of such a committee if we were to limit the tenure, because
the Senators with expertise and experience would not be inclined to
give up a position on some other committee if they were to be limited
in their time of service on this committee. Therefore, you would have
on that committee Senators who were not on the committees that need
so much the basic information such as the Committees on Armed Serv-
ices, Foreign Relations, Appropriations, and the Judiciary-if the
FBI is to be left a part of this.
I agree with your suggestion on the ratio; that the traditional ratio
ought to be maintained if we are going to establish a standing com-
mittee. That would likewise carry over to the staff. I think we would
not be able to get staff with the expertise that should be built up if we
were to have the staff limited to a 6-year tenure. Furthermore, we do
point out, this would: be contrary to the provisions of the Legislative
Reorganization Act, and I don't think we could do that by simple
resolution which is contrary to law.
Senator GOLDWATER. I agree with you. I would point out something
that you are, no doubt, very well aware of, that it is almost impossible
to find people who are experts in this field. They are working or
retired. Very few Members of the Congress have ever had any exposure
at all to the need of intelligence and the use of intelligence. Frankly,
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with all due respects to my colleagues, I would hate to see a com-
mittee made up of people who had never been exposed to intelligence
operations and methods and the need for maintaining confidential
and secret material. That really bothers me.
The CHAIRMAN. One of the suggestions that has been voiced is
the establishment of a select committee, much on the order of the Select
Committee on Small Business, which was organized without legisla-
tive jurisdiction, but did have oversight responsibility. It had sub-
pena power and was able to go in and exercise oversight responsibility,
but the legislative authority still lay with the respective committees,
and that, again, was a committee that cut across the jurisdictional lines
of several other committees.
That suggestion went further along the lines of membership made
up of three members from the Armed Services Committee, three
members from the Foreign Relations Committee, and three members
from the Appropriations Committee, and three members from the
Judiciary-the latter retaining its jurisdiction over the FBI. Such
select committee would have a customary ratio of two from the ma-
jority and one from the minority, which would provide the basic
expertise from the authorizing committees, and which would make
information available to them from the oversight activities. Have.
you given any thought to that sort of approach?
Senator GOLDWATER. Yes; I have, but the danger is that it would
become a standing committee probably overly staffed. I would like to
see us keep on the way we are. I found nothing that would indicate
to me that we have to drastically change our Senate jurisdiction on
intelligence, whether it be domestic or foreign.
The subcommittee of the Armed Services Committee, I feel, has
given adequate attention to this. Frankly, as a member of it, I don't
like to be briefed on material that is very sensitive. I don't care how
careful you are, it is pretty hard to remember what is in the public
domain and what is not. I think we have done a good job on the Armed
Services Committee. Maybe we could have more meetings. The thing
that I am afraid of, it happened in the House and it happened to
some extent in the Senate, the leaking of very highly classified ma-
terial that has done damage to us. During my last visit to NATO a
few months ago, that was the top subject of conversation. They would
ask, "What has gone wrong with you people?" Why are you destroy-
ing the intelligence-gathering organization which frankly they felt
was approaching the best in the world.
The CHAIRMAN. It seems to me that part of the proposed resolution
in Senate Resolution 400 is directed toward how you could make
information available, rather than how you could keep classified infor=
mation from being made readily available.
Senator Stennis made the suggestion that what we ought to have is
perhaps the funding of a subcommittee within the respective com-
mittees, particularly the Armed Services Committee, to exercise over-
sight and provide for a permanent staff with expertise in that area.
Senator GOLDWATER. I urged Senator Stennis to do that about 6
months ago. I know that he has been considering it. I think that would
be a logical and much better approach to any Senate oversight that
would result from the creation of a whole new committee.
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We have the additional problem, and I don't have to tell you, you
are a member of the majority and you have far more responsibility
on committees and subcommittees than I do as a member of the minor-
ity, but in the Armed services alone on which we both serve, I am on
four subcommittees and they meet practically every day and you can't
get your job done. We spend all our time walking to the floor to vote
on things that usually don't mean a damn thing to the country, so we
are not getting our committee work done. One more committee isn't
going to help a thing.
The CHAIRMAN. I think the hearings and the investigation of the
Select Committee on Intelligence, of which you 'are a member, cer-
tainly has pointed up that there have been many abuses, and the
question arises, how do you go about correcting them. Is the way to
correct them to create another committee, which increases the pro-
liferation of committees? I have generally opposed that procedure,
and additional staffing, and adding to the committees over and above
those recommended by the Legislative Reorganization Act. That act
was to limit the committees and get them down to a manageable pro-
portion. Since that act, was passed, we have had a lot of pressure to
increase the number of committees. We have increased them to some
extent since that time.
You suggested that, this matter should be deferred during this
session. We made a commitment to report out something to the Senate
by the 130th of April. I note that Senator Mansfield has gotten the
unanimous consent agreement that they would bring up whatever is
reported out for consideration on the Senate floor, whether it is Senate
Resolution 400 or whatever it happens to be, on the 6th of May. So it
looks like the matter will be brought up at that time. But, of course,
we don't know, yet, the form in which it will actually be reported out
of this committee. That is what we are trying to arrive at.
Senator GOLDWATER. The more the people see of this Senate Resolu-
tion 400, the more opposition there is considering it in its present form
or in any other imaginable form. I would hope a group of us would
approach Senator Mansfield with the idea of attempting a unanimous
consent request to give you 30 more days or whatever you might need,
if we fail in unanimous consent to try to do it by vote. I think this is
far too important a matter to have anybody in the Senate feel that we
have to legislate. I am completely convinced that we need no new legis-
lation in this field.
The CHAIRMAN. We did get, the added time requested. When our
time was extended to April 8 because Judiciary asked for an exten-
sion, and because we are still going with our hearings and won't con-
clude them until next week, I took up with the leadership the need for
a 30-day extension from the other day, so we could properly do our
work, or else our work will be meaningless. Last night a unanimous
consent was agreed to which would give us until the 30th of April to
report back, which is the first Friday after we come back from the
Easter recess. That would be our reporting date. It is my hope that
we would be able to conclude our hearings next week. That would give
us a period of time to try to arrive at an agreement in the committee
as to what we can recommend.
I must say that I myself cannot recommend that we go along with
Senate Resolution 400 as it is proposed here. While I do think we
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need something, I certainly can't go for Senate Resolution 400 as now
drafted and presented.
Senator Allen.
Senator ALLEN. Thank you, Mr. Chairman.
Senator Goldwater, apparently because of your expertise and your
background in your field and your patriotism, I have a very high re-
spect for your views.
You have pointed a number of criticisms and objections to fea-
tures of the resolution which I, in general, certainly agree with.
You do not feel that it would be possible for this committee or any
committee to draft a resolution setting up an oversight committee with
which you would agree or that you could support?
Senator GOLDWATER. I wouldn't make that flat statement. I haven't
seen what you gentlemen are going to propose. My basic opposition is
based on the fact that there is no reason for the Senate or the House
to know in detail what the intelligence community is engaged in. I
would much rather be engaged in covert actions than watch my
= grandchildren march off to war, and I think that is the alternative. The
action that we took in Angola was made hopeless by the Hughes-Ryan
amendment. It would not result in our going to war. Instead, it has re-
sulted in a very embarrassing time for the United States. This is a field
where too much congressional interference can be dangerous. I am go-
ing to lean against any general legislation, but I am not saying I won't
support the resolution that you gentlemen report.
Senator ALLEN. You don't think another committee is necessary
at this time?
Senator GOLDWATER. Not only do I think it isn't necessary, but
I think it would be dangerous.
Senator ALLEN. Do you sense that there is a large body of public
opinion in the country that feels that the Congress is out to destroy
our Intelligence Agency?
Senator GOLDWATER. Well, that is an interesting question because
we discussed this yesterday. I have had few letters on this whole sub-
ject in 1 year. I think the highest indication I have ever seen in my
poll showed 7 percent of the American people had an interest in what
we were doing relative to the intelligence community.
I believe the American people support the CIA.. They are in support
of the FBI and the DIA and all the other intelligence-gathering agen-
cies. The average American can see just as much danger in a supposed
American citizen spying on its own country as a Soviet spy in our mid-
street and they should be ferreted out.
Senator ALLEN. You served on the Intelligence Committee?
Senator GOLDWATER. Yes.
Senator ALLEN. I sensed at the time the committee started this oper-
ation, there was a considerable hysteria abroad in the land that some-
thing needed to be done about our intelligence activity, but I must say
the longer the select committee operated, the less support there seemed
to be for making further disclosures and taking actions against, you
might say, our intelligence agencies.
Do you feel that my sense of the situation has some validity?
Senator GOLDWATER. I think you are exactly accurate. Now, you re-
call the words of the resolution creating the select committee. Sub-
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134
stantially, we were directed to look into reports that American citi-
zens had been unduly spied on. This came out of a story in the New
York Times. I think that was a perfectly proper resolution. But, the
first thing we did was to get into the subject of foreign assassinations,
and the minute we did that, I think we began to lose the interest of the
American people. I don't say that Americans want to see people assassi-
nated, but you remember the time that supposed attempts were made
against Castro, we were nearly at war with Cuba. I was on duty my-
self. If we had put on one more airplane in Florida, it would have
sunk. What would the Americans rather have, 1 dead dictator or 60,000
dead Americans?
Covert action is a necessary and powerful tool in averting war.
Senator ALLEN. I pointed out in the hearing yesterday to Senator
Church that more than one-fourth of the resolution has to do not with
keeping information secret, but with the methods by which informa-
tion can be disclosed, and I suggested to him-it seemed to me that
what we were setting up here would be a hybrid organization that on
the one hand was seeking to ferret out information that it would
promptly disclose and, at the same time, supposedly give oversight to
the intelligence agencies.
I called his attention to the fact that even after the committee
acted not to disclose information, a Senator could come and get secret
information and have the power to pass it on to other Senators on
down the line, and that this hardly seemed the way to keep sensitive
information a secret.
Do you feel that national security is going to be protected if we have
a committee of this sort abroad in the land?
Senator GOLDWATER. I don't see any way we can maintain any
secrets. There is no way we can keep any secrets on the Hill as hard
as we try. Of course, it is going to effect our national security if our
enemies know what we are up to. The first thing a commander in the
field wants is an estimate of the situation. What is the opponent
going to do to me next. I am going to try to keep him from doing that.
If he knows what'1 am going to do, I am dead before I start.
Senator ALLEN. There seems to be a strong push to ram this resolu-
tion on through. I am certainly delighted that the chairman has asked
for more time in order for the committee to eliminate some of these
bugs, or, as he points out, we are going to have to report out some-
thing under the mandate of the Senate, but I am hopeful that it will
be a far different bill than the bill that has come to us. I was prepared to
go along with your suggestion that we let this matter lie over until
the next Congress and then, as a result of further consideration of the
problem and then the possibly more efficient operation of the present
oversight committees, based on past experience-I think they recognize
they can improve their present oversight-and following your sugges-
tion that the matter not be acted on in this Congress, we can really take
a more objective view of it during the next Congress.
Senator GoLDWAT1:R. Well. T am very hopeful that this committee
will take the proper action. I have great confidence in the committee.
I don't feel that there is any great sense of urgency that is going to
require us to pass a bill before a date certain. This is too important to
our country at a time-we have probably never been in as much peril
as we are now.
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Senator ALLEN. When do.you think the report of the Select Com-
mittee on Intelligence Activity will be available?
Senator GOLDWATER. That is a good question. I can only tell you that
I don't know. We have had meetings scheduled almost daily that are
canceled. There will probably be three sections of the report : one
containing staff reports, one on domestic activities, one on foreign
military activities. We were supposed to have completed this report
about a month ago. I see no possibility of publishing the entire report
in the next 2 or 3 weeks.
Senator ALLEN. Has it been turned over to the printer? Has it been
finally edited?
Senator GOLDWATER. Some of it has. The total amounts to about
2,500 typewritten pages. It will be a massive publication. It will prob-
ably rot in the basement of the Old Senate Office Building.
Senator ALLEN. You suggest that we ought to wait until this report
is made available and also until after the committee studying the
jurisdiction of committees has an opportunity to make some sort of
recommendation, because this does certainly take away the jurisdic-
tion of at least three standing committees in the Senate now.
Senator GOLDWATER. That is true.
Senator ALLEN. The fact that this bill has had to go not only to the
Judiciary Committee and the Rules Committee and legitimate criti-
cisms have been made of the bill would certainly indicate that if we
just turn this jurisdiction over to one committee and concentrate it in
one committee, we might find them recommending action that pos-
sibly might need more consideration.
Senator GOLDWATER. I would agree with that.
Senator ALLEN. I notice, too, from your statement the veto power
that could be exercised by this committee, not only direct veto power
over activities, but the one-man veto of the release of information
which, of course, would torpedo any effort that the intelligence agen-
cies would want to perform. That would certainly, it seems to me, be
a legitimate "criticism.
So you see no reason based on your service on the select committee,
you see nothing in the present situation involving our intelligence
agencies that demands this accelerated action with regard to this res-
olution? You don't think, the national security will be jeopardized by
the failure to act promptly on this resolution?
Senator GOLDWATER. I think we would be much better off without
any action. If the subcommittee of the Armed Services Committee
charged with oversight on the CIA is at fault, then we can call on
the Armed Services Committee to correct that. I don't know who
can be the judge of whether we are at fault or not. 'I am one member
of that subcommittee who frankly-I don't want to know what the
CIA is up to. The only way the CIA will get into trouble is through
the White House, because when ordered they have to salute and go and
do the job. That is where all the criticism of the CIA stems from.
Then you ask yourself : What would I have done if I were President
at that time? It is a pretty interesting thing as to what you might
have to do to overthrow a foreign government which might be a threat
to our freedom and security. You don't talk to the editor of the New
York Times, Newsweek, the Washington Post, Time, and Harpers.
You talk to the National Security Council and your staff and the
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136
Senate, which you are charged to do in the Constitution, and you
make up your mind. If at any time during the discussion word gets out,
then you abandon the whole thing. It can't be done unless there is
secrecy.
Senator ALLEN. This bill would make it possible for every Member
of the Senate to get sensitive information, information which the
committees said should not be made public, information which
shouldn't be published. I asked Senator Church of the select com-
mittee whether he thought any Senator could properly come and ask
for information, but lie did not seem to feel that any Senator would
have that right, that the committee would decide whether or not it
should be released, but it looked like you all had a much tighter re-
striction on the work of your committee than is provided for in this
proposed oversight committee.
Senator GOLDWATER. I will say this for the committee : The Senate
committee has done a pretty good job of keeping secrets. Of course,
the House just blew it wide open. But I will remind you of the action
that took place on the floor the morning we had the executive session
to discuss the assassination. Through some very clever parliamentary
maneuvering the report was issued in spite of the fact that the CIA
objected to it because it did contain secret material. And, the President
objected to the release., but we, in effect, violated a rule of the Senate
and that document was published despite the Senate rules.
A committee cannot publish willy-nilly anything it wants to. It
has to get permission of the Senate, and we didn't give it. That is a
very interesting thing to read sometime and realize that by just get-
ting the floor, we were prevented from stopping action on that report.
Senator GRIFFIN. Would the Senator yield?
Senator ALLEN. Yes.
Senator GRIFFIN. Before the Senator leaves that point, I would like
to inquire about the provision to give the committee the power to, by
majority vote, make public classified information. Yesterday when
Senator Church was here, I asked him why was it necessary since he
took the position that the committees already had that power-and
that is his position, incidentally
Senator GOLDWATER. Yes.
Senator GRIFFIN. He makes that assertion under the rules-of- -the
Senate even though the language is clearly to the contrary, so I can't
understand how he-or the Parliamentarian-could arrive at that in-
terpretation. They claim under the rules of the Senate, the committees
have authority to make public information.
Senator GOLDWATER. That was a subject of long and hard debate.
There were Members of both parties opposed to the release of the in-
formation. The chairman maintained we did have that power. I think
the rules of the Senate are just as-clear as print.
Senator GRIFFIN. Didn't the press have that assassination report be-
fore the Senate got through with its debate?
Senator GOLDWATER. Didn't the press?
Senator GRIFFIN. Yea.
Senator GOLDWATER. Yes; it. was released immediately. The Senate
under the rule, and Doc, back there, probably wrote it, the Senate sit-
ting in a closed session to hear secret material has to vote whether or
not that material can be released, and a vote was never taken. In fact.
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a proposal was never made because we couldn't get the floor to make
it. The leadership took care of that. The report was available almost as
soon as the session closed. I think it was in the Press Gallery shortly
after it closed.
Senator GRIFFIN. My impression is that they had it before the ses-
sion was closed, but I don't think I could prove it.
Senator GOLDWATER. It could be.
Senator ALLEN. I think it was handed to the press, but it was em-
bargoed.
Senator Goldwater, I know that you don't favor setting up an over-
sight committee, but assuming that one should be set up, should it not
be a joint committee, joint with the House?
Senator GOLDWATER. I don't feel that I can comment on that. The
way the House has abused this whole affair-I have got great confi-
dence in the House. But there are more of them than there are of us, so
they have more troublemakers than we have.
Senator ALLEN. What about the ratio situation?.'
Senator GOLDWATER. I would say it is about the same.
Senator ALLEN. What about those who see some defects legislative-
wise in not having parallel committees?
Senator GOLDWATER. I don't think you will ever get away with one
committee, and if you are going to wind up with two, I think you are
safer with a joint committee.
Senator ALLEN. Thank you very much.
The CHAIRMAN. Senator Griffin.
Senator GRIFFIN. Senator Goldwater, you made one statement that
bothers me. I think you said something along the line as a member of
the Armed Services Oversight committee, you didn't want to know
some of the things that the CIA was doing. I really think in all defer-
ence, and with respect for your viewpoint, that that is not a posture
that the Senate can accept. I would like to think that there is a small
group of very responsible colleagues who do know what is going on
and I am willing to repose some trust in them, but if nobody in the
Senate knows what the CIA is doing, then I really think we are in
a position where we have to do something about it.
Senator GOLDWATER. We know generally what is going on. 'I am talk-
ing about the details of a clandestine or covert operation. I can think
of one that I can't discuss that I had to be overseas in a battlefield to
see and it is still not known. I don't think it should be.
I don't mean we shouldn't know how much money they spend. We
know that every year, but getting into the details of agent operations-
this doesn't take place in any country that I know of.
KGB is not'held responsible to anybody except maybe the politburo,
and I don't think intelligence should be bandied about and it would be.
Senator GRIFFIN. It is hard to accept the idea with the constitutional
responsibility that the Congress has that we would accept the proposi-
tion that only people in the executive branch are able to handle intel-
ligence. or be conscious of it.
Senator GOLDWATER. I said before you came in that I am very pleased
with what we have now, and if the Senate feels that the Armed Serv-
ices Committee should be brought up to date on it, if they don't feel
we are doing the job, then I think we should be talked to. As far as
I am concerned, I think the subcommittee of the Armed Services Com-
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138
mittee does the job it is supposed to do. As far as the Constitution,
the intelligence problems we have could not have been foreseen by the
Founding Fathers.
Senator GRIFFIN. This resolution goes so far that this constitutes
the entire membership of the Senate : "The Committee on Intelligence
Activity or any such member of such committee may make any infor-
mation available to any other Member of the Senate."
Senator GOLDWATER. Or the public. It doesn't say that.
Senator GRIFFIN. I suppose a Senator is supposed to be slapped on
the wrist if he makes it public, and the Committee on Standards and
Conduct can find out about it-but to take the position that all 100
Senators know it and it can't get out is naive in the very extreme.
Senator GOLDWATER. It is a very dangerous resolution.
Senator GRIFFIN. Very dangerous.
The CHAIRMAN. The Senate has just approved Senate Resolution
109, which would establish a select committee to study the jurisdiction
of committees, and report back to the Senate recommended revisions
therein. Do you believe that that committee ought to take a look at
this particular problem as well?
Senator GOLDWATER. I sure do. I talked to a member of the Foreign
Relations Committee yesterday on that subject. You know, serving on
the Armed Services Committee, they are slowly moving into our
field. There are many other committees moving into the Armed Serv-
ices Committee's jurisdiction. I would hate to think that other com-
mittees would undertake oversight over the intelligence community,
but I think the purview and purpose of Senate Resolution 109 should
certainly include a good hard look at this.
Senator GRIFFIN. Do yo think the Armed Services Committee could
carry out its basic responsibility for defense and deciding on weapons
systems if they weren't concurrently exercising jurisdiction over the
CIA, and foreign intelligence to make a determination as to what was
actually required?
Senator GOLDWATER. No ; we couldn't. As you know, our rather
regular CIA briefings on weapons and other matters are very impor-
tant to us in our making decisions. There is some of that information
that I think could be made public to the advantage of the United
States. We have had long arguments on that. On the other hand there
is much that we have to keep secret.
The CHAIRMAN. Senator Pell, do you have a question?
Senator PELL. No.
The CHAIRMAN. Thank you very much, Senator Goldwater. We
appreciate you being here.
Senator GOLDWATER. Thank you.
The CHAIRMAN. Senator Huddleston.
STATEMENT OF HON. WALTER D. HUDDLESTON, A U.S. SENATOR
FROM THE STATE OF KENTUCKY
Senator HuDDLESTON.. Mr. Chairman and members of the committee,
while I principally want to address one specific section of the proposed
Senate Resolution 400, I would like at the beginning to assert my
strong belief that the formation of a separate intelligence oversight
committee is essential.
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I recognize the difficulties that formation of such a committee pro-
poses. I recognize the conflicting jurisdictions that are involved. I think
the manner in which the Chairman has detailed these conflicts has
been very helpful. I recognize the questions regarding Senate rules
which Senator Byrd delineated yesterday and the various problems
that would have to be resolved before this committee could be formed.
I know there are other problems, too. What is being proposed in Sen-
ate Resolution 400 is not the formation of an ordinary committee for
an ordinary job. Oversight of the intelligence community of this Na-
tion is vastly different from oversight of the Agriculture Depart-
ment or HEW, or any other agency of the Government that operates
in the open and operates pursuant to specific legislation and well
within accepted constitutional bounds.
If one thing has been learned during the course of our investigation
into the intelligence community, it is that this Nation does need a very
strong and effective intelligence operation. This operation has to per-
form to a great extent in secrecy and to carry on activities that are
contrary to some of the normal precepts of what democratic systems
ought to carry on.
As a matter of fact, the entire operation of a secret agency is almost
anathema to our Government, but in the intelligence area, secrecy is
necessary and we have to recognize that.
Everybody in the Congress and certainly everybody in the Senate
ought to understand that oversight of this type of operation is neces-
sary. Indeed, those who are engaged in these services-nearly all of
the agencies have indicated to us on the Select Committee that they
would welcome better oversight, they would welcome better rules and
regulations and laws to operate under. It is my judgment that the
way to get better rules and better regulation and better laws is
through a separate committee that, has primary responsibility for that
task, a committee that has the tools to complete its task, that has juris-
diction over the operations and can make proper recommendations to
the Senate and to the Congress as to what ought to be done.
Moreover, I am particularly interested in one section of Senate
Resolution 400, that which is sometimes referred to as the Roth-
Huddleston amendment and which appears in section 7(c), (d) and
(e) of the 'resolution as reported from the Committee on Govern-
ment Operations.
As a member of the Senate. Select Committee on Intelligence Activ-
ities, I have become more keenly aware than ever of the need for a
strong and effective U.S. intelligence community, responsive to the
needs of both national security and the Constitution. I am also, how-
ever, convinced that Congress must take upon its shoulders a larger
responsibility for overseeing the activities of the various intelligence
agencies through the creation of an effective oversight mechanism
such as that proposed in Senate Resolution 400. This, in turn, requires
that the Senate be advised of the general nature and extent of
intelligence matters. And, that in turn, requires that the Senate keep
secrets and control itself internally, which is what our amendment
seeks to insure.
Basically, the Roth-Huddleston amendment is designed to provide
a practical, workable system of sanctions which could be utilized
should we have the unfortunate experience of an unauthorized dis-
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140
closure of intelligence information which either the proposed Senate
Intelligence Committee or the full Senate has determined should be
kept secret pursuant to procedures recognized in Senate Resolution
400. Under our amendment, any unauthorized disclosure of informa-
tion which the committee or the Senate had determined should be
kept secret would have, to be kept secret. It could not be publicly dis-
closed. Should there be a disclosure either by a member or by a staff
aide, that person would be subject to sanctions. The authority to
recommend sanctions would be placed in the Senate Select Committee
on Standards and Conduct. In the case of an unauthorized disclosure,
we would expect that the Select Committee would usually initiate an
investigation of its own. In case it did not, however, either 5 members
of the Intelligence Committee or 16 Members of the Senate could
require such an investigation. The Committee on Standards and
Conduct would, of course, be free to recommend a range of sanc-
tions-or even no sanctions-depending upon what its investigation
indicated was appropriate. In order for sanctions to be imposed, they
would have to be approved by the full Senate.
Senator ALLEN. Excuse me for interrupting. What do you mean by
"sanctions"? Give me two or three. examples as to a Senator and staff
member.
Senator HUDDLESTON. Sanctions, as to a Senator, could mean remov-
ing him from the committee, excluding access to certain information
all the way to expulsion from the Senate.
Senator ALLEN. What about a staff member?
Senator HUDDLESTO:c. A staff member could be fired. He then, of
course, would be subject to any other provision of the law that would
apply to the situation.
Senator ALLEN. It could not go to the extent of a fine or imprison-
ment?
Senator HUDDLESTO:N. I am not sure that the Senate has the au-
thority to provide for that in a resolution unless it is under its con-
tempt authority.
I believe that our amendment is important for several reasons. As
a member of the Select Committee To Study Governmental Operations
With Respect to Intelligence Activities, I have been extremely sensitive
to the need to make more of our intelligence information available
and yet at the same time to protect our sources, methods, means, and
other very sensitive data.
Certainly our jobs as legislators and policymakers in a number of
areas would be easier if we had access to the tremendous amount of
information which our intelligence agencies collect from a variety of
sources about a wide scope of subjects. There is no doubt in my mind
that more of the information-more of the material which informs,
evaluates and assesses--could be made available to Members of Con-
gress and to the public. For that reason, I also recommended language
which appears in section 4(a.) of Senate Resolution 400 and which re-
quires periodic reports by the Intelligence Committee to the full
Senate.
On the other hand, it seems to me obvious that it is not only counter-
productive but irresponsible to release information which could en-
danger the lives of those who collect and assemble our intelligence
information, which could alert unfriendly nations to our methods of
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collecting information so that they could render those methods ineffec-
tive, which could reveal certain technological capabilities which we
have, or which could seriously harm our security. To determine when
such information would have these results is not an easy task. A cursory
reading of material may not reveal the implications which one with
expertise in the field could glean. The way material is presented or the
perspective can often give hints as to where the information was
obtained. The proposed committee will have to deal with this matter.
Indeed, along with oversight, the distinguishing between what in-
formation should be released and what should be closely held, will cer-
tainly be one of its prime concerns.
Thus, if we in Congress are to prove that we are capable of handling
this information in a responsible manner, if we are to demonstrate
that we can release that which should be released and protect that
which must be protected, we must have viable and effective processes.
Our amendment seeks to provide such a process with regard to
sanctions.
In reading it, one must recall that it goes hand in hand with the
other provisions of the bill Those provisions provide for sharing of
information among Senators under supervised situations, and I think
that ought to be stressed, for sharing among appropriate committees,
for reference to the full Senate for resolution those cases where a small
minority of Members believe that information should be released.
But, it seems of paramount importance to nip, that when the proposed
intelligence committee or the full Senate determines that information
is so sensitive that our Nation's security and public good demand it
should be closely held, then to disregard this determination cannot
go unnoticed.
Unfortunately. many of our citizens see Congress as a sieve for
headline-grabbing data which adversely affects our Nation's interest
and security. Unfortunately, our intelligence agencies are often re-
luctant to cooperate with Congress because they do not believe we
either understand that certain secret information must be just that-
secret-or that we are capable of containing it.
This is not to say that there is not an unnecessary degree of classi-
fication or to deny that there are instances of classification to protect
mistakes and policy misjudgments. The whole matter of proper classi-
fication procedures is another issue that should be addressed by the
Congress.
But our basic responsibility in this legislation is to balance the
needs of legislators for information in order to perform their tasks and
the needs of the people in a free and open society to know and under-
stand the policies which their Government takes in their name against
the need to protect that information upon which our Nation's security
depends.
Mr. Chairman, I believe the ability of the Senate to exercise proper
and responsible oversight of the Nation's intelligence activities will
depend to a large extent on the degree to which we can discipline our-
selves in the handling of sensitive information. The sanctions pro-
visions of Senate Resolution 400 will go a long way toward assuring
that discipline.
Mr. Chairman, I have, as you are aware, addressed letters to you
relating to the reporting requirements of this bill and the membership
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requirements for the proposed committee. I will, with your permission,
submit those for the record at this time, rather than comment on
them.
[The letters referred to above follow:]
U.S. SENATE,
Washington, D.C., March 16, 1976.
Hon. HOWARD W. CANNON,
Chairman, Committee on Rui!es sand Administration,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : This letter is in regard to section 6 of S. 2893 which, in
slightly modified form, became section 4(a) of Senate Resolution 400.
This section requires the Committee on Intelligence Activities to make regular
and periodic reports to the Senate on the nature and extent of the intelligence
activities of the various departments and agencies and to call to the attention
of the Senate or any appropriate committee or committees of the Senate any mat-
ters which might require their attention.
I am enclosing a copy of my testimony before the Government Operations
Committee in which I explained my reasons for proposing the section. I believe
reports such as those required by the section could not only contribute to an
understanding of the role of intelligence activities but also, in doing so, help
restore confidence in these agencies.
I would, however, like to call your committee's attention to a particular para-
graph on page three of my testimony in which I discussed what I thought the
guidelines or parameters of the report should be. That paragraph reads as
follows :
"Secondly, I think it' mportant to note that the provision does not envision
a wholesale release of classified or sensitive information. The section itself
directs that national security be protected.' It does not contemplate the
naming of agents, the revealing of specific details of on-going operations,
which can only lead to undesirable results. Instead, it refers to reports on
the `nature and extent' of intelligence activities. Thus, it does contemplate
the provision of general information on the total range of activities to all
Senators. For those instances where classified materials night be involved,
section 6 should be read in conjunction with section 11."
Should your committee decide to include section 4(a) in your version of the
legislation, and I certainly hope you will, you might also want to consider in-
clusion of report language along the lines of the above paragraph, suggesting
the parameters which are envisioned for the report.
Finally, I would like to refer to two statements in the Govenment Operations
Committee report on this section (page 17 of Senate Report 94-675) which I
believe are important. One :indicates that the Government Operations Committee
expects a minimum of one such report a year, with which I would certainly
agree. The other notes that the section is to he read in conjunction with the
sanctions provision, i.e., it is not to be read as a way of making disclosures which
either should not be made or should be made in another manner. Furthermore,
the report must he prepared and released in such a way as to protect national
security.
Should you have any questions concerning the above, please do not hesitate to
contact me.
Sincerely,
STATEMENT OF HON. WALTER D. HUDDLESTON BEFORE THE SENATE COMMITTEE ON
GOVERNMENT OPERATIONS. FEBRUARY 6, 1976
Mr. Chairman, I am pleased to appear before the Committee on Government
Operations this morning to testify on proposed legislation to establish a new
Standing Committee of the Senate on Intelligence Activities.
My service on the Senate Select Committee on Intelligence Activities has
served only to reinforce my commitment to a strong and effective intelligence
community, responsive to the needs of both national security and the Constitu-
tion. That service has, however, convinced me that the Congress must take
upon its shoulders a larger responsibility for overseeing the activities of the
various. intelligence agencies. This, in turn, requires that the Senate be advised
of the general nature and extent of intelligence matters. And, that in turn, re-
quires that the Senate keep secrets and control itself internally.
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Section 6 of the legislation introduced by certain members of the Select Com-
mittee provides that :
"The Committee on Intelligence Activities of the Senate, for the purposes of
accountability to the Senate, shall make regular and periodic reports to the
Senate on the nature and extent of the intelligence activities of the various de-
partments and agencies of the United States. Such committee shall promptly call
to the attention of the committees or to other appropriate committee or comp
mittees of the Senate any matters deemed by the Committee on Intelligence
Activities ,to require the immediate attention of the Senate or such other com-
mittee or committees. In making such reports, the committee shall proceed in
such manner as will protect national security."
Within the Select Committee, this section has sometimes been referred to as
the Huddleston amendment. As a result, I would like to make a few comments
concerning it.
First, it is important, I believe, to note that the section is modeled on similar
language pertaining to the Joint Committee on Atomic Energy, which deals with
the very sensitive matter of development, use and control of atomic energy.
Section 2252 of Title 42 of the U.S. Code established a Joint Committee on Atomic
Energy. That section provides in pertinent part :
"The [Atomic Energy] Commission shall keep the Joint Committee fully and
currently informed with respect to all of the commission's activities. The De-
partment of Defense shall keep the Joint Committee fully and currently in-
formed with respect to all matters within the Department of Defense relating
to the development, utilization, or application of atomic energy. Any Govern-
ment agency shall furnish any information requested by the Joint Committee
with respect to the activities or responsibilities of that agency in the field of
atomic energy."
That part of the Atomic Energy Act funnels the information to the Commit-
tee. Perhaps more important for our purposes, however, is a latter portion of
that same section which provides that :
"The members of the Joint Committee who are Members of the Senate shall
from time to time report to the' Senate.. .
Second, I think it important to note that the provision does not envision a
wholesale release of classified or sensitive information. The section itself di-
rects that national security be protected. It does not contemplate the naming of
agents, the revealing of specific details of on-going operations, which can only
lead to undesirable results. Instead, it refers to reports on the "nature and
extent" of intelligence activities. Thus, it does contemplate the provision of
general information on the total range of activities to all Senators. For those
instances where classified materials might be involved, Section 6 should be
read in conjunction with Section 11.
Perhaps the Angola situation best illustrates the need for Section 6. Some
time ago, the Select Committee learned of the United States interest in Angola.
We, of course, as we did throughout our investigation, kept this information
in the strictest confidence, even to the point of not informing our fellow
Senators. As the situation developed and information came from other sources,
I saw conclusions being drawn on the basis of partial information and became
increasingly aware of the real need of the Senate to know what was transpiring
in Angola. Certainly, the U.S. Senate could have been provided more complete
information on the situation-without naming contacts, sources of information,
etc.
Third, I think it important to note that the reporting provision should not
be read in a vacuum. Instead, Section 6 must be read in conjunction with Sec-
tions 7, 9 and 10, which involve the disclosure of information. Section 10, for
example. seeks to create a process for the release of information, which the Presi-
dent and other specified members of the Executive Branch have objected to hav-
ing disclosed. I believe your committee will want to examine this proposed process
closely and perhaps strengthen it. And, for my own part, I would like to see it
operate in conjunction with some type of sanctions for those who fail to honor
and respect the responsibility which knowledge of sensitive matters of national
security carries with it.
Certainly, it is reasonable to ask, "How will Congress act once it has received
sensitive information?" I am deeply concerned about this issue. Indeed, it shares
equally in importance with my desire to have the Senate fully informed so that it
may intelligently decide questions of grave national importance. As one com-
mentator so aptly put it recently, if Congress is to be taken seriously in exercising
its oversight function, then it will have to devise ways for securing information
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and for the orderly declassification and disclosure of information. I firmly be-
lieve that the task of dignifying and solemnizing this process falls squarely upon
the shoulders of the Senate and that it must not flinch from this responsibility.
Recently, I have at times had the feeling that we were all riding a "runaway
horse"-with information galloping forth and no one able to pull in the reins.
That must be eliminated and replaced with understanding and acceptance of the
fact that some secrets have to be just that-secret.
That is why I urge that the Senate consider the Section 6 reporting provision in
conjunction with its consideration of provisions dealing with disclosure. Such
provisions are designed not only to accord more sanctity to the process of dis-
closure but also to delineate a method for dealing with this' complex issue. I
personally believe that once individual Senators become exposed to the problems
of intelligence that the full burden of responsibility will be felt and appre-
ciated. But, that cannot be left to chance or hope or wishful thinking.
Consequently, I believe it is incumbent upon the Senate to develop the internal
sanctions it deems appropriate for unauthorized disclosure by its Members.
Whether these should be fines, denial of access to classified materials, automatic
expulsion from an intelligence committee should the person be a member, cen-
sure or even expulsion are matters of such grave import that they should re-
ceive the most studied and thoughtful consideration by the Senate. But, what-
ever the specifics decided upon, I believe it is imperative that the Senate adopt
some standard which it believes in and will enforce with wisdom.
During most of the Select Committee's deliberations on proposed legislation, the
draft contained the following provision regarding sanctions for Members who
fail to comply with secrecy requirements :
"No. Member of the Senate and no member of the staff of the Senate shall
disclose outside the Senate any information conveyed to the Senate in closed
session or otherwise made available to Members of the Senate in confidence by
the Committee on Intelligence Activities, unless authorized by the Senate.
"The Committee on Intelligence Activities of the Senate shall refer to the
Select Committee on Standards and Conduct of the Senate for investigation and
other action (1) any disclosure outside the Committee on Intelligence Activities
of the Senate, not authorized by such committee, of any information in the
possession of or obtained by such committee relating to the activities of the
Central Intelligence Agency or any other department or agency of the United
States engaged in intelligence activities, or otherwise held in confidence by such
committee; and (2) any disclosure outside the Senate, not authorized by the
Senate, of any information conveyed to the Senate in closed session or other-
wise made available to Members of the Senate in confidence by the Committee
on Intelligence Activities. The Select Committee on Standards and Conduct shall
investigate any breach of confidentiality referred to it pursuant to this subsection
and shall recommend appropriate action, such as censure, or removal from office."
I regret that this language was dropped from S. 2893 as introduced, and I am
recommending comparable language be included in any bill reported to the
full Senate. With the Committee's permission, I will in the next few days offer
some specific suggestions regarding the original language as well as some recom-
mendations on my own, which will include a broader range of sanctions. If com-
parable language is not added within committee, it is my intention at this time
to offer such language as an amendment when the bill reaches the floor. If we
are serious about being responsible, we will impose on ourselves sanctions suffi-
cient to guarantee that responsibility.
In addition, it is my intention to offer separate legislation which will provide
criminal penalties for ex-employees of the intelligence agencies and the proposed
intelligence committee who reveal classified information subsequent to their
employment by the agency or committee. As you know, ex-employees of intelli-
gence agencies are now sworn to secrecy through an employment contract. I do
not believe this contractural arrangement is sufficient, as evidenced by the
unhappy episodes of late in which ex-employees have revealed. the names of pres-
ent C.I.A. undercover agents. I would like to strengthen the bond of secrecy by
providing criminal penalties for such unauthorized revelations of national secu-
rity information.
The experiences of recent years have taught us that our institutions are strong
and worthy of the confidence of the people. During this period, conflicts on policy
issues have often taken the form of attacks on individual institutions. Many have
been unmercifully buffeted. Yet, they have borne well the brunt of each sally.
What is desperately needed now is a method of conciliation and mediation which
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145
would turn the focus away from these entities themselves and on to the issues
involved. If we in the Senate wish to enter a new era of sharing the burden in the
foreign policy arena, part of our task is to show the American people by both
word and deed that we understand the role we wish to fulfill and that we take our
responsibility with the profound seriousness it demands. That will require knowl-
edge-and it will require an appreciation for the manner in which that knowl-
edge must be used.
U.S. SENATE,
Hon. HOWARD W. CANNON, Washington, D.C., March 17,1976.
,
Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: While I co-sponsored the legislation recommended by
the Select Committee on Intelligence Activities and co-sponsored Senate Resolu-
tion 400 as reported by the Committee on Government Operations, I have contin-
uously been concerned about the proposal for rotating membership.
I recognize the desire for increased oversight of our intelligence operations and
the fears of some that members of such a committee can, through long tenure,
become captives of the agencies they are supposed to oversee. These are under-
standable reactions.
But, I also have some very deep concerns regarding the result of rotating mem-
berships. Such a procedure is unusual in the Senate, and for obvious reasons. No
matter what one may say, as a member of the Select Committee, I can assure you
that it takes time and effort to understand the mechanisms and operations of
the intelligence community and to evaluate the role the agencies are playing or
should play in the wide-ranging defense and foreign policy fields. It is no secret
that our intelligence agencies furnish vital information on an expansive number
of subjects from analyses of Soviet military strength, background for SALT and
other negotiations, materials on the intentions of various nations whose interests
conflict with ours, to data on agricultural production and other resources. To
understand not only how these agencies work but also to evaluate their contri-
butions in these other fields is a time-consuming job. Yet, these are the activities
which the members of the new committee are to oversee. And, as a result, the ordi-
nary workload, if the committee is to carry out its duties in a comprehensive
manner, must be viewed as a substantial one.
Furthermore, it should be remembered that this workload will be compounded
by the fact that much of the material with which the committee must deal will be
extremely sensitive and the utmost care and consideration will have to be given
to determining what can be disclosed and what must remain secret. This could
require protracted negotiations with the agencies and departments involved and
could, under section 7 of S. Res. 400, result in new Senate proceedings.
In view of the workload, the fact that the proposed committee would be a "B"
committee, which means that each member would continue to serve on two "A"',
or major committees, and the fact that each member would go on the committee
knowing that his time was limited and possibly wondering if, in view of that, it
might not be better to concentrate on other activities or to seek another "B"
committee where he could begin to accumulate seniority, I have serious ques-
tions as to whether or not consistent and effective oversight will result, espe-
cially several years down the road when intelligence activities might not com-
mand quite the attention which they do today.
Consequently, after the Government Operations Committee raised the member-
ship from nine to eleven, it occurred to me that a comprise position might be
possible. Such a compromise is included in the attached amendment. Basically,
it provides that five seats on the committee would be permanent. Six of the seats
would rotate, two at the beginning of each Congress, with one new member of
the majority and one new member of the minority coming on every two years.
The result would be some consistency and continuity through the minority of
permanent seats, together with an infusion of new representatives every two
years.
I believe such a procedure would satisfy a number of concerns both among
those who fear a lack of continuity and expertise on the proposed committee
and those who fear that the members will become too closely associated with the
agencies involved. Membership would continue to be determined through normal
committee assignment practices which should allow both parties to see that
various interests are adequately represented.
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146
I would, of course, be pleased to discuss this matter with you at your
convenience.
Sincerely,
The Ci-IAIRMAN. I don't know whether you were here when I posed
the question to Senator Goldwater about some suggestions that had
been made, one of those being in the nature of a select committee with
the basic membership to be made with three members from Armed
Services, three from Foreign Relations, three from Appropriations,
and if the FBI were to be kept in, three from the Judiciary and pos-
sibly others at large, so that the committees that are involved essen-
tially with intelligence information would have a ready source of in-
formation available. .
Do you see any problem with that?
way or another without doing any harm to the overall purpose.
entire Senate, both the minority side and the majority side. There,
again, I don't think that is a major issue that couldn't be resolved one
,
a special kind of committee that would enjoy the confidence of the
WALTER D. HUDDLESTON.
The CHAIRMAN. You had in your letter expressed reservations with
a rotating membership on the Intelligence Committee and recom-
mending that some seats would be permanent and some rotated. What
did you have in mind there?
Senator HUDDLESTON. This was not one of the areas in which I was
in total agreement with the recommending committee, that the mem-
bership of the proposed committee should be rotated. I recognize the
problem that they are trying to avoid. They are seeking to prevent com-
mittee members from being so-called taken over by the agencies that
they are supposed to supervise, but I think it has some disadvantage,
too, as I outlined in my letter.
I was simply suggesting the possibility of considering a compromise.
If you have an 11-merr..ber committee, you could have five permanent
and six rotating seats, which would provide an opportunity to have
a buildup of expertise and knowledge and at the same time assure of
new and fresh people coming on the committee. I just suggested that
as one way you might resolve that problem.
The CHAIRMAN. Do you believe it would be possible for the commit-
tee to build up a staff expertise if they were to limit the staff member-
ship to 6 years?
Senator HUDDLESTOX . I think it would be more difficult than the
other way. That is not, a provision I am strongly wedded to by any
means. Certainly, there are some arguments both ways, because staff,
also, can, of course, be pretty well captured.
Senator ALLEN. You may have been here when Senator Goldwater
and I were discussing that. That proposal is in violation of existing
law and we can't change existing law by resolution. It is contrary to
the Legislative Reorganization Act.
Senator HUDDLESTON. I don't see that provision as being a key fea-
ture of the proposal.
Senator ALLEN. What about the proportion of the membership being
different than that between the majority and minority parties in the
Senate which is the traditional membership on the committee? Do you
see any problem with that? What is the reason, the rationale?
Senator HUDDLESTON. The only reason I can see for it, as I mentioned
is that we are trying to establish a special kind of independence,
earlier
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 Senator HuDDLESTON. No, I see nothing wrong with that approach
at all. I think committee membership ought to include membership
from among those committees as has been the case with the select
committee, if it were to be made into the law or the rule that it be
made that way, I see nothing wrong with that so long as those chosen
reflected a variety of views.
The CHAIRMAN. Senator Griffin?
Senator GRr x. I don't have any questions. I want to thank our
colleague for taking the time and coming and giving us the benefit of
his background and recommendations.
The CHAIRMAN. Senator Allen.
Senator ALLEN. Thank you, Mr. Chairman.
Senator Huddleston, I supported your sanction amendment in the
Government Operations Committee. I feel it is a constructive amend-
ment. It, of course, would not take the place, I assume, of criminal
prosecution for disclosing information?
Senator HuDDLESTON. No, I think that is another question that has
to do with our criminal law. There are those, including myself, who
think there should be some movement in that direction. But, I think
that has to be done in another vehicle.
Senator ALLEN. Now, on the one hand, you are providing for the
security and the secrecy of information and then provide that this
committee shall make periodic reports to the Senate. I assume that
would not be of any sensitive or secret information, but just what sort
of reports would you envision?
Senator HUDDLESTON. What I envision is that the committee, first
of all, 'would establish a method under which these reports would be
made, and this method, as the result, as the resolution says, would be
"Consistent with the national security." But I think periodically, at
least once a year, or even more often, the full Senate ought to be
advised as to the general nature and extent of our intelligence opera-
tions, certainly not as to details regarding methods and sources, but
on the scope of what we are doing in that field which is proper to
reveal to the full body. This is part of what I think is necessary in
order to have the confidence of the Senate that these agencies are
being supervised and that oversight is on record.
Senator ALLEN. One thing that disturbs me is the fact that so much
of the bill is devoted to the manner in which information can be
disclosed, not the manner in Which it can be kept secret. Over one-
fourth of the bill has to do with the manner and method of disclosing
information.
Do you feel that these provisions are constructed so that would
allow this sensitive information, information that the committee has
voted not to disclose-that despite that, it could be made available to
any Senator on request?
Senator HUDDLESTON. First of all, as to the amount of space used
on disclosure, I would just say to you that the establishment of proce-
dures for disclosure requires more space. It requires more space and
I think it is important that it be spelled out in greater detail and
that the proper restrictions be included. As to that problem, you know
that was debated quite a bit in the Government Operations Committee
and what came out was somewhat different than what we proposed
in the very beginning.
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On the sanctions part, we had thought and had expected that the
committee would establish a procedure under which any Member of
the Senate could corne for a briefing or could receive information
under a very controlled situation and the information given would
be consistent with what the committee felt was in the national interest
and within protection of the national security to give. It was not antic-
ipated that this would, permit members of the committee in any other
way to communicate with another Member. It was not anticipated
that he would convey information over lunch or at a cocktail party
or whatever. That is ray judgment of the way it would still work.
Senator ALLEN. The bill says that it discloses, too.
Senator HUDDLESTav. That is correct, it changed what we
Senator ALLEN. And that a Member could disclose it to another
Senator, provided he told the committee he disclosed it, but as Senator
Byrd pointed out yesterday, that second.or third man would not have
to make any report.
Senator HuDDLESTON. I would suggest that the provisions in the
bill that authorize the committee to prescribe a system of protecting
the confidentiality of information can work, I think the intent is to
protect information at one point and yet to be prepared should there
be a closed Senate session on this. As you know, such sessions have been
somewhat rare, and usually held in connection with legislation.
What I would foresee is the committee would set up a procedure
whereby a Senator could come to the committee and be briefed on
the situations in such a way he would have the information needed.
Senator ALLEN. Well now, on the matter of jurisdiction of the com-
mittee, and,the fact that the jurisdiction of the authorization of
appropriation would be vested in the new committee, members of the
Armed Services Committee have appeared before this committee and
have argued that as they plan a defense program for our national
security that they need as a factor in their deliberations to be on top
of all of the intelligence information that is available.
How then, if all of this power is concentrated in a new committee,
how would the committee-I assume you are advocating this-but how
would that committee get around to imparting this information, sha.11
I say, to the Armed Services Committee?
Senator HuDDLESTON.' I do not think that this committee would
interfere in any way with the requirements of the Armed Services
Committee to be briefed on intelligence information when the CIA
or DOD, or any other intelligence agency has information relating to
weaponry, or potential strength of the adversary, or anything of this
nature.
I do not think the proposed committee is to be a great repository of
all of the intelligence information that is gathered by our agencies,
and then dole it out. I do not see that at all. I think the proposed
committee is designed to supervise the mechanics, the operation of the
intelligence collecting process.
Senator ALLEN. In other words, the existing committees would
keep what they have, and then we would create another committee
with overall jurisdiction, is that right?
Senator HUDDLESTON. .1 would not say exactly keep what they have
got. This resolution envisions an oversight committee having the
authorization authority, but what is left for the Armed Forces Com-
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mittee and other committees is certainly the ability to obtain infor-
mation they need. There is simply no reason they cannot get that from
the
Senator ALLEN. But the Armed Service Committee would just get
briefings; they would no longer have the oversight function?
Senator HuDDLESTON. As to the intelligence community?
Senator ALLEN. Yes.
Senator HUDDLESTON. Yes, sir.
Senator ALLEN. They could pick up a little information as they
went along?
Senator HuDDLESTON. Pick up all of the information to perform
their responsibilities. There would be now
Senator ALLEN. Now, you foresee no problems with the fact that the
House does not have any comparable committee to handle the author-
ization bills?
Senator HUDDLESTON. I would not say it does not present a problem,
and as you know, most of us started out with the idea of a joint
committee.
Senator ALLEN. Why was that abandoned?
Senator HuDDLESTON. Well, in the first place, a joint committee
would not be a legislative committee. It cannot draft legislation and
present it, and there are no authorities for funds whatever.
Second, I think Senator Goldwater pointed out that it is a little
questionable now as to what cooperation you might get out of the
House. Third,.I think many of us decided the Senate itself, even if
the House does nothing, can exercise this oversight responsibility
through this type of committee.
Senator ALLEN. Do you feel as strongly today that there is need for
a separate oversight committee such as envisioned by Senate Resolu-
tion 400, as you did 6 days ago?
Senator HuDDLESTON. Yes, sir.
Senator ALLEN. Thank you very much.
The CHAIRMAN. Senator Hudaleston, do you think there needs to
be some distinction made on the classification of information? For
example, on a need-to-know basis, or information of a particular
sensitive nature?
For example, members of the Armed Services Committee frequently
receive briefings of a military classified nature, as well as intelligence
classified nature which is on a sensitive basis, so that it is not even
made a part of the classified record.
Senator HuDDLESTON. First of all, the whole matter of classification
has to be dealt with somehow, that is, to make sure that material that
is classified should be classified.
We all know the potential problem there, and the difficulties that
have arisen over classification.
Second, there is a great deal of what you are saying going on now in
all of the intelligence agencies. It presents some problems.
For instance, the so-called departmentalizing is one of the things
that has made accountability so difficult to trace on many of these
activities, because certain officials see only such a small part of the
overall action.
I can certainly see that in some areas that there are those who do
not want to know beyond what they need to know, and it does go on.
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There is some justification for it, I think, but I would just say there is
in it that inherent danger of blurring the whole line, of accountability
when you are trying to find out who is responsible for some action that
ma nth b
o
150
The CHAIRMAN. Thank you very much, Senators Huddleston. We
a reciat h
p
e
ave een proper.
J
The CHAIRMAN. Senator Griffin.
Senator GRIFFIN. No questions
p
avmg your views.
Senator Ribicoff.
STATEMENT OF HON. ABRAHAM RIBICOFF, CHAIRMAN OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
Senator RIBICOFF. Thank you very much, Mr. Chairman, and mem-
bers of this committee, for giving me the opportunity to discuss Senate
Resolution 400 with the membership.
Mr. Chairman, earlier this year the Government Operations Com-
mittee held 9 days of hearings on the issue of congressional oversight
of the intelligence community. And, on the basis of these hearings, we
came to the following conclusions which were in turn embodied in
Senate Resolution 400, as reported by a unanimous vote of the
committee :
First. There is a need for vigorous congressional 'oversight of the
intelligence agencies. The disclosure of abuses in the intelligence com-
munity over the last few years has dramatized the need for vigorous
congressional oversight to protect civil liberties at home and to insure
that the Government's intelligence program is responsive to the will
of the people. Congress; cannot simply proceed in the future as if
nothing has happened.
Second. A new standing Senate committee must be established to
provide effective oversight of the intelligence agencies. The present
committees have too many other important responsibilities to permit
them to devote the time and resources necessary for' really effective
oversight.
Third. Oversight and legislative authority over the intelligence
community should be centered in this new Senate committee.
If a new committee is forced to share legislative jurisdiction with a
number of other committees it will not be able to do an effective job.
There are now three committees in the Senate sharing legislative re-
sponsibility for oversight of the intelligence program;.
Simply adding a fourth committee on top of these three would lead
to a confusion of responsibility within the Senate, distrust between
the executive branch and Congress, the possibility of unauthorized
disclosure of sensitive information, and ultimately ineffectual congres-
sional oversight.
It was the opinion of an overwhelming majority of the expert wit-
nesses that testified before our committee that for national security
and practical reasons, jurisdiction should be centered in as few com-
mittees as possible.
Fourth. Because the Government's intelligence activities both here
and abroad are so interrelated, the new committee's jurisdiction must
cover all agencies that engage in intelligence activities, including the
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 Departments of State, Defense, and Justice, and the Central Intelli-
gence Agency.
It is very important that the new committee's jurisdiction include
the intelligence activities of the FBI. The FBI is considered by the
executive branch to be part of the intelligence community.
The FBI's conduct of counterintelligence is an integral part of the
Government's overall national intelligence program.
They both involve the United States in important ways in foreign
policy matters. Many of the abuses which the Church committee
explored in its investigations involved the domestic intelligence activ-
ities of the FBI, including burglaries, mail openings, the counterintel-
ligence program (Cointelpro), and the actions against Dr. Martin
Luther King, Jr. More vigorous congressional oversight by a new
committee would help prevent such abuses in the future.
The Government Operations Committee received testimony from
members of the select committee that the FBI's domestic and foreign
intelligence activities are frequently linked and that as a practical
matter the Bureau's entire intelligence division and its budget may be
separated from the remainder of the FBI's activities. Without juris-
diction over the FBI, the new committee's jurisdiction would be incom-
plete in a crucial respect.
Mr. Chairman, I believe that if the Senate is really serious about
effective congressional oversight over the intelligence community it
must create a new standing committee with primary responsibility for
Senate oversight over the intelligence community.
I do not believe any less will work. I do not believe the public would
understand why the Senate did any less.
It is for these reasons that the Government Operations Committee
unanimously reported Senate Resolution 400 in its present form.
As chairman of the committee I strongly support this resolution.
Mr. Chairman, in my view it is absolutely essential that the new
committee, if it is to be able to effectively oversee the intelligence
community, have exclusive authorization authority over the intelli-
gence activities within its jurisdiction.
In the area of legislative authority, however, there may be some
cases where the jurisdiction of the new committee will overlap with the
legislative interests of other committees, such as the area of defense,
foreign relations, or the Nation's traditional law enforcement func-
tions.
In these areas of overlap there can be somewhat greater latitude, as
there is now where two committees share common interest in legisla-
tion.
With this in mind, the following changes in Senate Resolution 400,
I believe would go a long way toward alleviating the concerns which
have been expressed here in the last 2 days.
Mr. Chairman, I have the highest respect for every Member of the
U.S. Senate, and I have the highest respect for this committee. I have
been listening for the last 2 days to your questions, your thoughts and
your concerns, and many of them have caused me concern as I have
listened to the points that you have brought out, and were not brought
out before our hearings by witnesses, or were not brought out in the
markup session by other members of the committee.
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So with that in mind, the last few days I have worked up this sug-
gestion, which I would like to give to you for your consideration.
Strike section 3 (c) of the bill.
The CHAIRMAN. Do you have a copy of that so that we could have it
to follow you?
Senator RIBIcoFF. Yes, I will read it, and this is sort of rough.
The CHAIRMAN. All :right. '
Senator RIBICOFF. Strike section 3(c). This is a provision that spe-
cifically defines the jurisdiction of the Armed Services, Foreign Rela-
tions, Judiciary, Government Operations Committee, by removing
from these four committees all matters under the jurisdiction of the
new Intelligence Committee.
Senator PELL. Excuse me, 3 (c) ?
Senator RiBicoFF. 3 (c).
Senator PELL. Page 4, line 7?
Senator RIBICOFF. Page 5.
Senator PELL. It is not 3 (c)
Senator RIBICOFF. Page 5, line 9, Senator Pell.
Page 5, line 9.
The CHAIRMAN. I think we have two prints, and that is causing this
difficulty. We have the Judiciary Committee print, which was reported
to us from the-
Senator RiBicoFF. I see.
I do not know-do you know that the
Senator GEIFFIN. Page 5, line 15, amending rule 25.
Senator RIBICOFF. Yes, paragraph 3 of rule 25.
Senator ALLEN. I .believe I have got the draft you have. You said
section 3(c) ?
Senator RisicoFF. 3 (c), page 5, line 9.
Senator ALLEN. How far down would that go?
Senator RIBIcoFF. I would say strike the whole 3(c), Senator Allen.
Senator PELL. All the way over through line 2 on page
Senator RIBIcoFF. Excuse me?
Senator PELL. I just cannot follow. What page are you on, page 5?
Senator RIiucoFF. I think as I go along you will see the consequence.
Striking this provision which would give the Senate greater flexi-
bility in working out the matters which fall in gray areas between the
jurisdiction of the Intelligence Committee and other committees. It
would remove any suggestion that the four other committees would
have no opportunity to look at matters that affect the substantive areas
under the jurisdiction of these committees.
Then I would add language to make it clear that no; committee will
be denied access to the product of the intelligence agencies. The
Foreign Relations Committee especially has been disturbed, that they
will no longer be obtaining briefings from the CIA on political
developments of certain countries.
I was listening to your inquiry this morning, Senator Cannon, about
sensitive information for the Armed Services Committee.
Three, remove from the new Intelligence Committee legislation or
authorization jurisdiction, the FBI's domestic intelligence activities.
These activities are conducted by the Internal Security Section of the
Intelligence Division. They concern purely internal threats to the
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 Government. It is part of the FBI's intelligence operations most
closely related to traditional law enforcement functions.
The Intelligence Committee would have jurisdiction over the Coun-
ter-Intelligence Section of the Intelligence Division, activity against
agencies of foreign countries or U.S. citizens under the influence of
foreign countries.
Four, add language specifically providing that in the area of intelli-
gence, the committee with present jurisdiction in the area would
continue to have concurrent oversight jurisdiction in the new
committee.
For example, Armed Services could investigate the extent to which
the DOD intelligence arm is providing the intelligence needed by that
,; Department when shaping overall defense policy. That is just the ques-
tion that you addressed yourself to 5 minutes ago, Mr. Chairman. Leg-
islative, including authorization jurisdiction would remain in the new
committee.
Also, provide for automatic referral of legislation whenever the
chairman of any other committee feels that any legislation reported by
the new Intelligence Committee falls within the gray area between the
Intelligence Committee's jurisdiction and its own committee's jurisdic-
tion, as amended by Senate Resolution 400.
Referral would be for a period of 30 days. The chairman of the In-
telligence Committee would have the same right of referral. For ex-
ample, if the Intelligence Committee reports legislation on the FBI's
counterintelligence activities which will also affect the way-the Depart-
ment conducts its law enforcement activities, the bill would be auto-
matically referred to the Judiciary Committee.
If the Judiciary Committee reports legislation involving national
security wiretaps, the Intelligence Committee would get 30 days to
look at the legislation, if it wishes.
Authorization legislation, and legislation affecting just the CIA,
would be specifically exempted from this automatic referral provision.
Just one thought, Mr. Chairman. I was impressed with the witnesses
that we had before us. I came to these hearings with a completely open
mind. I had no preconceived ideas what should or should not be done.
I followed, as all of us did, the Church committee's findings, what-
ever was made public in the press. I followed very closely the discus-
sion in the closed session of the Senate. I have been always convinced,
and am convinced now, and always will be convinced that it is absolute-
ly essential for the United States of America to have a strong and ef-
fective intelligence community.
There is no way a great power can operate in the world today with-
out a strong intelligence community. Also, we have to be realistic that
what transpired rightfully or wrongfully, before the Church and the
Pike committees shattered the structure and confidence of the intel-
ligence community in itself, and raised great doubts in the Congress
and the American people.
I believe it is absolutely essential for us, as Senators, to do every-
thing we can to reconstitute those agencies, and see that that confidence
is restored.
What came through in testimony from men like Dean Rusk, former
Attorney General Katzenbach, Mr. Philips, who represents an orga-
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154
nization of some 600 former members of the CIA, Mr. Colby, Mr.
Bundy, Clark Clifford, Mr. Helms, Mr. McCone, Secretary Kissinger,
was that they all felt it was very important to have an oversight intel-
ligence committee.
Their feeling, I think, was about unanimous, with the possible ex-
ception of a few witr..esses including Senator Goldwater.
There was a wide feeling that you should not have four or five in-
telligence committees. I think that there is great concern about what
has happened with the Hughes-Ryan bill, where so many committees,
and so many people are briefed.
I think that Senator Allen was in the committee the morning that
Secretary Kissinger testified how important it was to establish one
committee.
Personally, I am convinced that the greatest problem we find our-
selves in, as a nation, in international affairs today, is division and
suspicion between the executive branch and the legislative branch.
You can say anything you want about the problems of America all
over the world, but if there was ever a time that we; had to have some
understanding, and some sense of unity between the executive and leg-
islative branch, it is now. There are those who recognize this and it is a
majority. And listening to Mr. Colby, Mr. Helms, Mr. McCone and
Mr. Phillips about the great uncertainties in the intelligence field, and
how important it was to have the feeling and sense that the legislative
branch was seeing eye to eye, and has established a relationship with
the executive branch. For example, take Angola.
In discussion with representatives of the White House, the President
asked Mr. Marsh, Mr. Rogovin, Mr. Buchen, and Mr. Kendall to come
and talk with me, and we spent a good part of a morning and a good
part of an afternoon to try to reconcile some of the differences and
thinking of the executive branch, and the thinking of the legislative
branch. I was anxious to get their point of view and talk about the
nature of bureaucracy, and how it works, and how it was standing in
the way between the President and the Congress and the Senate. I
said then, and I say it again, now. I have always been amazed, from
experience as a Governor, Member of Congress, a Secretary, and a
Senator, what happens to a President who has been a Member of
Congress.
Now, from my own close experience, I have seen President Kennedy,
President Johnson, President Nixon, and President Ford, all of whom
have come out of Congress. They start off with a desire and intention
to have a close relationship with the men that they have known all of
their years and worked with, but it is a strange thing. Within a short
period of time after they become President of the United States, a
chasm opens up between Congress and these men who know us per-
sonally and have worked with us personally, and know how the con-
gressional system works.
And I think the only exception for these four men was a short period
of time after President Kennedy's assassination and the Lyndon John-
son election in 1964.
Watching Lyndon Johnson work, he worked very closely, har-
moniously, but once the 1964 election passed, the chasm opened up.
And I said, you know, having been a Secretary and watching what
happens with the President, having been a Senator, it is the staff-it is
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the men who surround a President. They become bureaucratic and they
have their own piece of turf themselves.
Every President is so busy, it is impossible for him to pay attention
to all of the problems of 100 of us, and the 435 Members of the House.
And before you know it, everybody- each man around him, everybody
takes a little piece of turf and he guards it with his life. And before
you know it, he separates the President and Congress. Tragically, I
would say, only 1 percent of policy in the executive branch is ever
made by a President of the United States.
It comes up, and everybody puts their initials on it, from the lowest
all the way up to the Members of the Cabinet. And it is put on the
President's desk and he sees 12 initials or 15 initials from people down
the line. And he says, "My God, 15 people signed it, signed off on it.
It must be OK." He says yes, too.
So the President often never gets the message of what is going on.
You start getting into a situation with the President, and the men
with whom he should be getting along with where they are at cross-
purposes to each other. Sometimes it does not make any difference,
but when it comes to foreign policy, it becomes a tragedy.
Take Angola as a key case. Since the Congress voted against Angola,
it would have been better off if we had never started Angola. It leaves
the Secretary of State, the President, and the people of this country
in a very bad position.
How do we conceive this Intelligence Committee working out?
We would conceive, in a case like Angola, that the head of CIA, if
he was contemplating such an operation, would ask for a meeting
with the Intelligence Committee, and he would tell them what he had
in mind.
I would hope that the members of that Intelligence Committee who
are selected would be as broad based and as cool a group of heads as
we have in the U.S. Senate, and also reflect every point of view of the
U.S. Senators. The head of CIA would tell them that this is what we
intend to do in Angola, and then he would start getting the vibra-
tions from this committee, either for or against.
If the vibrations and the discussion indicate to him that this group
of men on an important operation felt it was a bad operation that would
not get support, he would report back to his boss, the President of
the United States, and tell him of the discussion. And in the case
of an important matter-it would not happen too frequently-I can
conceive of him calling this group of men to the White House for a
discussion very privately. And if it was a matter like Angola that
could not have either congressional support or public support, any
President would be foolhardy to undertake it.
I think the men who have been engaged in the intelligence commu-
nity section of the United States have said that they would not then
engage in this type of an operation under such circumstances.
This is how I conceive of this working. I see this Intelligence Com-
mittee, as properly appointed and properly constituted and working,
being a means and a method of really drawing together the Senate and
the House-if the House has a comparable committee, which I would
hope they would eventually have-with the executive branch, so we
would again have a unified approach to world problems.
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As long as the legislative and executive branch are divided on for-
eign policy, we are going to suffer one defeat after another. We are
going to look bad in one place or another.
So it becomes very important to have an intelligence community.
It is also important for us to have an Intelligence Oversight Com-
mittee, and I would hope that this Rules Committee would see it in that
light. There is an obligation for us to establish an Oversight Committee
and shunt aside the question of legislative jealousy where one commit-
tee feels it is set aside.
I think, and may I say, Mr. Chairman, I do not think that Senate
Resolution 400 really solves all the problems.
As a matter of fact, if you will, look at section 12, section 12 on page
15. When we were marking up this resolution, it became very obvious
to me that there is no way that in Senate Resolution 400 we can solve all
of the problems in intelligence.
So I thought priority should be given at this time to establishing a
committee to let it get its feet wet
to let it start working
B
the time
,
.
y
this resolution passed and the committee was established, we would be
a
th
rough the July recess, the August recess, and there would not be very
much work. And then we would have a new Senate in January.
I thought that this resolution would give an opportunity within the
next few months for this committee to establish itself, to get a staff.
There were many problems that remained open for clarification. And
it was my suggestion that by July 1, 1977, the committee should report
back to the Senate with some recommendations, along the lines of sec-
tion 12, concerning the different problems that I saw in this whole field.
This subject is very complex. And the questions that you and Senator
Byrd and Senator Allen and Senator Griffin and Senator Clark are
asking are legitimate questions. There has to be an awful lot of work
in the next 6 months or 1 year to try to find out where we are going.
To the extent that you can clarify the questions in the Rules Committee,
all very well and good'.. But whatever you came up with here, there
would still be an awful lot of work for this Intelligence Committee to
do to bring back to the Senate by July 1, 1977, recommendations. I am
under no illusion, and I am not saying to you or' the public, that.
we have sent you a perfect resolution that solves all of the problems of
intelligence.
What I am asking this committee is to help in making sure that we
do establish a meaningful Intelligence Committee in'the Senate of the
United States. We then are going to have to do a lot of work to im
rove
p
the committee and make its oversight meaningful.
Th
C
e
HAIRMAN. Thank you, Senator Ribicoff, fora very fine state-
ment. i
This has been really helpful to the committee. I have reviewed your
section 12, and I think it is very good. I think it is something that needs
doing-the items outlined there. But then the question arises in my
mind, and I posed this earlier, as to whether or not these things could
not be done by a select committee without legislative jurisdiction.
This is directed entirely toward recommendations. And what I am
thinking of now, and I am interested as you are in trying to simplify
the process, and I think we have far too many groups that the intelli-
gence community has to be accountable to, as Director Bush pointed
out the other day.
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Senator RISICOFF. This was a very practical approach, that we do it
with a resolution, and I will tell you why.
I said to the representatives of the White House that we are in a situa-
tion where no one knows where we are going, and we are really going
into new ground.
The resolution route is not binding on the President of the United
States.
If we pass legislation that he signs, it would be binding on the Presi-
dent of the United States. If the President is unhappy with what this
committee asks him to do under this resolution, he can refuse to under-
take it.
I looked at this now as a shakedown cruise. I looked on the establish-
ment of this committee and the period until July 1, 1977, as an oppor-
tunity for the Senate and the President, the Secretary of State, the
intelligence community, to restore confidence in one another and the
United States of America.
A resolution that is not binding on the President will help stop the
confrontation. This resolution will help establish comity over the
short-run between the executive branch and the U.S. Senate.
I would prefer a joint committee, but we are not ready for a joint
committee. Because of what happened in the Pike committee, and
the followup on the Pike committee, I do not know what the House
is for, but we have got a responsibility as Senators, and the Senate
is ready for the type of committee established in this resolution.
I would hope you would notice subsection 12 (6), requires the com-
mittee to study the desirability of establishing a joint committee of
the Senate and the House of Representatives. Eventually I would look
forward to that happening, I would hope that by next July 1 there
would be recommendations on this, and that before 1977 is up we
then pass full legislation, Mr. Chairman, establishing a joint commit-
tee, and filling in all these gaps. But I think what would be tragic
is if we went home and adjourned without passing Senate Resolution
400 establishing this oversight committee.
The CHAIRMAN. I was not relating my remarks of a few moments
ago to an establishment of a joint committee, because I recognize the
same problems that you do, that there is no way we can get a joint
committee established this year.
I do think that perhaps in the long run, that perhaps a committee-
joint committee, such as the Committee on Atomic Energy, might
be the way to proceed, but what I was directing my remarks to, is
that these things can be done by a select committee, and a select com-
mittee without legislative authority, and I think one of the big prob-
lems that we have here, if we could draw. from the membership of
the committees with jurisdiction in these respective areas to put on
this oversight committee, give them oversight authority, and then
through that authority they can furnish all information that is neces-
sary for the authorizing committees, we would have a situation similar
to that with the Select Committee on Small Business, which has over-
sight authority, but does not have legislative jurisdiction, and does
not get into the problem with the cross jurisdictional aspect that other
committees have with relation to small business.
Senator RIBICOFF. On that, Mr. Chairman, I was debating myself,
for some time, spelling out in the resolution seats for members of the
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Armed Services, Foreign Relations, and Judiciary, but then it was
thought we would put it in the report. Page 12 of the report says the
resolution reserves no scats on the committee on intelligence activities,
for members of particular existing committees, such as Armed Serv-
ices, Foreign RelationE., and Judiciary that will continue, of course,
to have an interest in the work of the Intelligence Committee. The
report states, however, that it is expected some members of those
committees will be choeen to serve on the new Intelligence Committee.
As far as I am concerned, I would have no objection personally-I
cannot talk for the entire committee-to spell out that there would
be representation from these committees.
The thought that I have is that if it is a committee of 11, there
ought to be at least 5 members of those 11 that come from Foreign
Relations, Armed Serv:ces,.and Judiciary
The CHAIRMAN. And Appropriations.
Senator RIBICOFF. Appropriations, all right.
You could include Appropriations, but you must enlarge the com-
mittee, or you could do this, without enlarging the committee if the
leadership could be thoughtful enough to designate somebody, so the
committee would not be too large, who was on two committees, such
as Appropriations and on Armed Services. You have got a lot of
overlapping there.
I would hope that the committee would not be too big. I think
this ought to be a small, tight committee. I would hope that the
majority of that committee would come from other than those four
committees, but I think this could be worked out. I think it becomes
important that the members of this oversight committee not just be
the chairmen of other committees.
I would try to do the selection not only on seniority and experience.
There is wisdom in the leadership on both sides on these matters.
I think they understand the problem. This would be a really top-
notch committee that could call upon a lot of wisdom in the Senate,
a lot of experience, in manning it with the membership and the staff.
But, as I say, if you want to take this idea on membership out of the
report, and put it in the legislation that you report out, by saying
how many Senators should come from other committees, personally, I
would have no objection to that.
The CHAIRMAN. In light of the fact that you charged the committee
with studying the desirability of changing any law, Senate rule, pro-
cedure, or any executive order, or so on, do you see any necessity .for
the requirement for the committee to have legislative jurisdiction,
per se?
Senator RrBICOFF. If it does not have legislative jurisdiction not
much is going to happen. The, intelligence community should know
that this committee is going to have some clout; that this is a com-
mittee that has got some authority; that this is a committee which it
basically goes to. If you look at this proposed amendment, series of
amendments, that I have suggested to you, I think you get some
comity between it and the other committees. But I think that if it is
just going to be a discussion group, where the intelligence community
is going to come up and talk with them, not much is going to happen.
The committee is going to have to get right into the intelligence
community to know how it works, and what it is made up of.
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The CHAIRMAN. Give it subpena power.
Senator RIBICOFF. Yes.
The CHAIRMAN. They certainly can do that, and using again the
example of the Select Committee on Small Business, they have con-
tributed a very valuable service by subpenaing witnesses and holding
extensive hearings.
Senator RIBIcoFF. They have, but if you are going to restore the
intelligence community's confidence in itself, and restore the status of
the intelligence community, after what has passed, then I would hope
that we would recognize the importance of the intelligence community
to American society, and give this committee legislative jurisdiction.
Where there is an overlap I have read from these notes what I would
do. I will leave these notes with you. I do not think Mr. Riddick would
have very much trouble putting it in better form.
The CHAIRMAN. Of course, I think, in fairness to the intelligence
community, the remarks of Senator Goldwater were very pertinent,
that the abuses that have been disclosed here really came out of the
executive branch, and were not basically initiated by the intelligence
community, as such.
I remember that during the earlier days of Watergate, some of the
information that we discovered of improper activities by both the
FBI and the CIA was through hearings that we were having with
representatives present to testify, and we did discover the improper
uses that were being made, and that information was relayed on to
Senator Ervin.
Senator RIBICOFF. That is right.
Now, I think that Mr. Phillips, in testifying, said that as an agent
out in the field for many years, he would like to feel that there was an
intelligence committee, so that they would know what they were doing
was always legal, or not legal.
I think there is something in here requiring all illegal actions to be
reported to the committee. The provision in section 10(c), on page 14,
says it is the sense of the Senate that each department, agency of the
Government of the United States should report immediately upon
discovery to the Committee on Intelligence Activities of the Senate
any and all intelligence activities which constitute violations of the
Constitution, and the rights of any person, any violation of law, or
any violation of an Executive order, Presidential directive, or depart-
ment or agency rule or regulation. Each department or agency should
further report to such committee what actions have been taken, or are
expected to be taken by the departments or agencies, with respect to
such violations.
What you say is correct. What Senator Goldwater says is correct.
It is a tough spot for a man to be in, to get an order from a Member
of the Cabinet, or the President of the United States to do something
that he knows is wrong.
That is a tough position for one to be in and, you know, you can feel
for these men. That is why we think that once a proper oversight
committee is established, members of the Executive branch would not
be giving illegal orders.
We sat down after the Church committee was finished, and as a
matter of fact, we went ahead before the Church committee was
finished, since last fall Senator Mansfield indicated that the Church
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committee would be finished by December 1, and that our committee
should then come up with its recommendations by March 1.
Well, as the year went by, the Church committee had not finished.
I did feel that there was an obligation on our part to go ahead any way,
and we started our hearings before the Church committee finished. We
had 9 days of hearings, and the committee then met in executive ses-
sions, for markup. We went right along until we finished this. We
finished by February 41,4, and we reported to the Senate by March 1.
But again, I want to try to be constructive here, just as you are in
your committee.
I am not involved in any other of these committees. I am not a mem-
ber of the Armed Services Committee. I am not a member of the
Judiciary Committee, and I am not a member of the Foreign Relations
Committee.
So I do not have any personal axe to grind in this, at all. I think we
are all trying to do a job here.
The CHAIRMAN. Do you think there is any likelihood for there to be
any information in the committee report from Senator Church's com-
mittee that ought to be available to the Senate before we act in this
area?
Senator RIBIcoFF. I do not know. Senator Church testified that he
knew what was being done. Senator Church put in a bill of his own.
We then exchanged views to a considerable extent on that bill.
I have told Senator Church what my thinking was as we went along.
I told Senator Church of the changes we were making in the bill, and
asked how he reacted to these changes.
We had discussions, and I said this was what we' were thinking of,
how does it strike you, and this is what the administration would like,
how does it strike you, and as we went along Senator Church approved
what we were doing, and the changes we were making.
Now, I assume that if there is something additional in the report
of the select committee he would have said something to us, but he did
not, and I was alert for it throughout his testimony, so I do not think
there is anything additional.
The CHAIRMAN. I asked that question or someone did. But Senator
Goldwater, who is a member of the committee, thought we ought to
wait until we get the information out of the Select Committee, and
both Senator Tower and Senator Goldwater indicate that it may be
some time before the committee is able to finally agree on what they
are going to report.
Senator RIBICOFF. The staff tells me that Senator Church testified
yesterday that his testimony before the Government Operations re-
flects his thinking on the new committee. I was not here, so you will have
to recall that yourself.
The CHAIRMAN. I am sure it reflected his thinking but, as I say, we
know two members of the Select Committee do not agree with that,
because one so testified, and we have the written statement of one who
will testify on Monday. I do not know whether there are any others in
the committee who feel the same.
Senator RnucoFF. Senator Goldwater, I think, testified before our
committee-Senator Tower did, too. They both made their positions
known.
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Now, naturally, if there is something new that the Senate ought to
know, or this committee ought to know, then I think the Select Com-
mittee ought to tell you before you report back by April 30.
The CHAIRMAN. We are committed to report something.
Senator RIRICOFF. If there is something that you should know, I
would hope the Church committee, long before the 30th of April,
would make it available to this committee, even though they do not
have completed the actual full report. They must know what they stand
on at this time.
The CHAIRMAN. Senator Griffin.
Senator GRIFFIN. Senator Ribicoff, it has been said over and over
again here that there would be no hope to the establishment of a joint
committee, and why is that?
If a joint committee is the more appropriate route or approach to
deal with this problem, why are we not trying that?
Senator RIBICOFr. I find little interest in the House in establishing a
joint committee. There is great division.
Again I know, and you all know, by reading the papers, there is a
great schism over the Pike committee's report, its procedures, its
statements, and I do not think that his report has even been accepted.
There is great uncertainty.
I think that when you come to the authorizing or legislative process
the Senate and the House should be authorizing, legislating for its own
body.
I do not think that there should come out of a joint committee a piece
of legislation to be submitted to the Senate or to the House. Each
House should do its own legislating, and then if there is a difference,
we should reconcile them. Furthermore, I think the Senate has a
greater obligation, under the advise and consent responsibilities, in a
matter of foreign policy and foreign relations.
So while I was originally for a joint committee, I am not now. I
would hope that if the House followed our lead and appointed a com-
mittee of its own, I would contemplate that we would work out an ar-
rangement where the two committees could meet jointly, especially to
be briefed on sensitive matters. And this could be done even though
they would have separate authorizing and legislative authority.
Senator GRIFFIN. Yesterday, when Senator Church appeared, he
said it may be afterwards there will come a time when we want to move
from the Senate committee to a joint committee.
It seems that in his previous statement and his testimony before
the committee, he also talked about the possibility of going to a joint
committee.
Having been a Member of the House and having tried to think how
they might view this situation, it would seem to me that after their
experience with the Pike committee, they might be more likely to go
the route of joint committee than to set up another committee. We are
just displacing that out of hand, and yet everybody thinks that what
we should ultimately end up with the concept of a joint committee.
Senator RIBICOFF. Mr. Chairman, I ask unanimous consent to submit
at this time a memo on the advantages of a separate subcommittee
rather than a joint Senate-House committee.
The CHAIRMAN. That may be made part of the record.
Senator RIBIcoFF. This just gives the headings.
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"Preserving Traditional Bicameral Structure;"
"Increased Opportunity for Independence Oversight;"
"Better Coordination With Other Committees."
You are talking now of coordinating the work of the Armed Serv-
ices, Judiciary, Foreign Relations with the new committee. My propo-
sition suggests an amendment along these lines. I think it would be
a lot easier to have a separate Senate committee doing this coordination
than a joint committee.
The Senate's unique role in foreign policy; the Senate committee can
be established now : the Senate committee will still reduce prolifera-
tion of the committees, and the witnesses support separate committees.
I would like to submit this memorandum for the record.
The CHAIRMAN. So ordered.
[The memorandum referred to follows:]
SENATE INTELLIGENCE COMMITTEE OR JOINT HOUSE-SENATE INTELLIGENCE
COMMITTEE
The following are advantages of creating a separate Senate committee rather
than a joint House-Senate committee on intelligence :
Preserving Senate's independence
A separate Senate committee would preserve the traditional prerogatives of
the Senate. It would not deprive the Senate-as a joint committee would-of its
own independent decisionmaking powers. For example, the Senate Select Com-
mittee on Intelligence set different priorities and different procedures than the
House Select Committee on Intelligence. One house may want to adopt different
policies toward the treatment of secret information than the other. The Senate
should not be put in the poe>ition of having to submerge its interests and priorities
to the possibly predominant will of the House members serving on a joint
committee.
Preserving traditional bicameral structure
A separate Senate committee preserves the traditional way in which the Senate
operates. It would avoid having a single committee write legislation for both
Houses. Only once in our history-with the JCAE-did the Senate agree to a
joint legislative committee with the House. It did so then because of the need for
secrecy, because of the highly complex nature of our nuclear program, and be-
cause of the tightly circumscribed nature of the subject matter. Although the
need for secrecy is also present here, neither of the other considerations applies
here-intelligence activities are not exceptionally technical, and they have ex-
tremely broad policy implications. (And secrecy is a matter which other Senate
committees, such as Armed Services and Foreign Relations, have handled suc-
cessfully for many years.)
Increased opportunity for independent oversight
By assuring involvement of at least one House and one Senate committee, sepa-
rate committees reduce the danger that the entire Congressional oversight mecha-
nism will be co-opted.
Better coordination with other Senate committees
A Senate committee enables the Senate to exercise complete internal control
over how it wishes to exercise oversight, rather than being subject to the wishes
or actions of the House or individual Congressmen. A Senate committee will be
free to coordinate with other Senate committees, and individual Senators, as it
deems best. If a joint committee were established, the ability of the Senators on
the committee to coordinate with the rest of the Senate would be subject to the
wishes of a joint committee, half of whose members are Congressmen. This prob-
lem could be especially acute when a Congressman is Chairman.
Senate's unique role in foreign policy
The Senate has unique responsibilities in the area of foreign relations not
shared by the House. The Constitution places these special responsibilities on the
Senate partly because the six year terms of its members gives it a unique per-
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spective not shared by the House. A joint committee on intelligence would blur
this special role of the Senate by placing it, as far as intelligence matters go, in
a joint House-Senate committee.
Senate committee can be established now
As a practical matter the Senate could act quickly to create a Senate commit-
tee by resolution. A joint committee would require approval of the House with
the chance of either delay or defeat of the bill. If the idea of a joint committee
is rejected by the House, the momentum for change in the Senate may be lost and
nothing will be done.
Senate committee will still reduce proliferation of committees
Part of the impetus for a joint committee has been a desire to reduce the num-
ber of committees dealing directly with sensitive intelligence information. Crea-
tion of separate Senate and House committees, though, will also significantly
reduce the proliferation of committees ; instead of 8 oversight committees, in-
cluding the two select committees, there would be only 2.
Similarly, having separate committees does not necessarily mean that more
members of Congress will have access to sensitive intelligence information.
S. 2893 suggests a Senate committee composed of 9 members. If the House were
to establish a committee with the same number of members, the total (18) would
be the same as the present Joint Committee on Atomic Energy. Thus, it is pos-
sible to keep the number of legislators who deal with intelligence information
small, while still maintaining separate committees.
Witnesses support for separate committees
Support for separate committees came from a number of sources. Senators
Cranston, Church, and Baker expressed support for separate committees. Said
Senator Baker: "I rather suspect, in the long term, that the Congress would be
happier with and would have a better experience with the traditional system of
House and Senate committees." (R.T. 103).
The CHAIRMAN. Senator Pell.
Senator PELL. Thank you, Mr. Chairman.
In connection with your testimony, you mentioned there were three
committees sharing legislative responsibility-Appropriations also
shares the responsibility.
Senator RIBicorF. Yes; you never take away Appropriations in any-
thing. They should know everything. That is right.
Senator GRIFFIN. So there are really four committees that you are
discussing in sharing legislative responsibility?
Senator Rsnlcorr. That is right.
Senator GRIFFIN. In connection with your thought about Angola, I
question whether we could have voted on the Angola situation. We
really could not, depending on who the people were on the commit-
tee, the members of the Intelligence Committee, the senior Senators
in general and presumably who they would be.
Senator RIBICOrF. I would hope so.
Senator PELL. They would be supportive.
'Senator RIBIOOrF. I would hope that the new Intelligence Commit-
tee would take into account the full range of Senate thinking and
philosophy. In order for this committee to work, it should have that
type of membership and makeup. Of course, it is up to the leadership
to understand that, and I think they understand, that in setting up the
committee the differences in seniority, philosophy, and such between
all of its should be rejected. This would be so if this is going to work,
if, as I indicated before, we are going to get back again to a sense of
comity in foreign policy between executive, and legislative branches. I
think this committee probably is as important as any committee in the
Congress to try to make that work.
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Senator PELL. Shou:.d, presumably, and with the views of some of
our members, with emphasis to have a close lip with respect to this
review?
Senator RiBicoFF. That is right. I would say, Senator Pell, that
there is not one of us, you know, even though we do not talk about it
publicly, who does not know who would keep their mouth closed. We
do not have to get back to the FBI. You have got a pretty good idea
who you can trust, and who can keep a secret, and who cannot.
It is up to the leadership to do the selection.
They have got the responsibility to pick those 11 men, or whatever
number, Democrats and Republicans, and to make sure you have got
the type of men that are competent.
Senator PELL. As de facto representation from the Standards Com-
mittee, if it was like the previous Oversight Committee, it would likely
be the senior men
Senator R]BicoFF. I would hope it would not be the senior men.
Senator PELL. S'hould you spell that out in the report language?
Senator RiBrco r. I f you want to; yes, I have no objection to it. I
asked Senator Mansfield, how he saw the makeup of this Intelligence
Committee, and if I recall his testimony, he said he would like to see
it made up of a complete spectrum of philosophies and thinkings and
seniority. Young men, older men, and so it would really be representa-
tive of the Senate, as a whole. That was the majority leader speaking
how he would view the makeup.
I would say the problem that all of us have is to try, when we get a
piece of legislation, to think not only principles, but of what kind of
bill can you get together to get 51 votes.
Everyone after a while tries to find out what kind of a bill can you
get together to get two-thirds, and this is a problem that we all face.
But I would say that you could get 11 men on that committee, so that
when the Director of CIA, the Secretary of State talks about a matter,
you get the thinking of how that Senate is going .to divide. That is
why I would much rather have a separate committee, for I think that
we are a lot more sensitive to one another in this body of 100 than a
committee would if it were trying to deal with 535.
Senator PELL. One other area here is this question about the eventual
division of the CIA from other operational activities. We have not had
the intelligence collection, the overt, which is a majority of the efforts
now, and also the use of satellites as opposed to the rather small segment
of the budget devoted to covert activities, which I believe, according
to testimony of Senator Church, would be probably recommended to
separate in their final recommendation, I was wondering if your com-
mittee had focused on that?
Senator RiBicoFr. We did, and I personally stated that the one
thing that we did not want to do was reorganize the entire intelligence
community.
There was no question that in the future that would have to be taken.
I think, if you look on page 16, paragraph 3 refers to the organization
of intelligence activities, within the executive branch to maximize the
effectiveness of the conduct, oversight, and the accountability of intel-
ligence activities; to reduce duplication or overlap; and to improve
the morale of the personnel of the foreign intelligence agencies, I was
under no illusion, Senator Pell, and I did not think the Government
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Operations Committee was, that after 9 days of hearings we could
reorganize the whole intelligence establishment.
I think there has to be a reorganization, but that is going to be a
tough job, and if we are going to do it, we ought to do it right.
I would say it is going to take you a whole year of the committee's
work to try to do it, and I was not going to personally try to undertake
for the Government Operations Committee to reorganizing the intelli-
gence community, just to set up an oversight committee.
Senator PELL. You would have no objection to insertion of these
things?
Senator RIBICOFF. Not at all ; no.
Senator PELL. To consideration of the separation of operational
activities in the intelligence collection?
Senator RIBicoFF. I do not have an objection at all, Senator Pell.
You could, when you get your resolution out, put this in the study
section. If your thinking goes that way, and the committee backs you
up, I would welcome it.
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The CHAIRMAN. Senator Allen.
Senator ALLEN. Thank you, Mr. Chairman.
Senator Ribicoff, I have the honor to serve on the Government
Operations Committee, and under your able chairmanship, and I cer-
tainly want to commend you for the work of your committee, and
the in-depth investigations and hearings that you held, and the dedi-
cated fashion with which you held the hearings.
It has always been my observation that you are an extremely fair
man, and that you lean over backwards to accommodate; opposing
views. You are a most able and dedicated man, and I sincerely enjoyed
your conduct of these hearings by the Government Operations
Committee.
Senator RrBicorr. Thank you very much.
Senator ALLEN. This has been an outstanding job.
You did mention the fact that Secretary Kissinger testified, and I
asked him this question : "Do you think then-on page 426 of the hear-
ing-do you think that the creation of an oversight committee will
be in the interests of national security ?"
Partly on the recommendation of Secretary Kissinger, and the other
witnesses that have experience background and expertise in this field,
I did vote in the committee for this resolution, reserving, of course,
the right to try to accommodate the resolution to my views of what
would be in the national interest and
Senator RIBICOFF. I think you may recall, Senator Allen, that during
the. discussion I made the same statement, if there were a few things
that you were unhappy with, you would have another crack in the
Rules Committee.
Senator ALLEN. Well, there are some things I am unhappy with,
and I feel that I could outline them, but it would take considerable
time.
One thing I would like to inquire about is your testimony about
section 12, calling for the study.
Certainly, that is a constructive suggestion, but what occurs to me
is that what is being suggested is that we set up this committee, give
it all the power the resolution provides, including exclusive jurisdic-
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tion in the authorization process, and then say well, now, let us study
and see what it is all about, and what we are supposed to do, and how
we are supposed to do it. It seems to me to be running the risk of get-
ting the cart before the horse.
If the committee has to conduct in-depth investigations to find out
what it is all about, how it is going to operate, and how it is going to be
measured with the present process, legislative process and, its conduct,
oversight of the intelligence agencies, would it not be best to make
this study before the committee is set up, to determine-and you might
also put an item there to study whether or not a separate oversight
committee should in fact be established-whether it not be best to
make the study beforethe setting up of the committee?
Senator RIBIcoFF. No, because right now I do not think that we have
got a committee in the Congress that has that capability.
I would say if Government Operations were to reorganize the intel-
ligence community, we could do nothing else for a couple of years.
I do not look at that as an ongoing problem to be done. My thought
was that you were going to get this committee established. It is going to
be in an advisory position for about 6 to 9 months before anything
takes place.
We are going to get a staff, and I am assuming a good staff, 'and then
they are going to have to find out, with their rules and regulations,
what this is all about, and they should be in a better position than any
other group in the Senate to come up with recommendations as to
what should be done.
They will be living with all of the intelligence community, with the
CIA, Department of Defense, FBI, and they will know these people.
They will be coordinated, and it will not be a question that each com-
mittee will have a different part of the intelligence community with a
responsibility to determine how best to operate a portion of the intel-
ligence community. It would be just for that reason that I did not feel
that Government Operations should go into all this. I did not think
that we were competent at this time, and I also felt that this is going to
take 'a considerable period of time. But in the meanwhile I do believe
for the sake of our Nation that there should be established a rapport
between the committees of the United States Senate and the executive
branch in this field.
I think this is the most important thing that we can do for the
future of our country. It certainly does not exist now. There is suspi-
cion, the question of going public on everything, tearing ourselves
down.
I just have finished reading Hendrick Smith, "The Russians," and
it is a fascinating book, and the problems they have and how they oper-
ate. They are not 10 feet at all, but whatever they do outwardly, they
do outwardly as one, and they present themselves to the world as a
juggernaut. They have plenty of problems technologically, agricul-
turally. You realize through Hendrick Smith's book that there is no
comparison between the United States' overall capability and capac-
ities and the Soviet Union's.
But, yet, as far as policy to the entire world is concerned, there is
always one Soviet policy. Theare always impressive because they
always act as one, in unison and-in harmony.
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We, however, have lost that, and it is tragic. It is tragic because I
do not think that a nation can keep itself tied together if it is clawing
at its own entrails, and we are clawing at each other's entrails. Every
country makes mistakes. Every organization makes mistakes. Every
political system may be making mistakes. And we are going to con-
tinue to make mistakes.
Senator PELL. Each time we make a mistake, ought it be advertised
to the world?
Senator RIBICOFF. No, but you are not going to be able, in an open
society, to be able to sweep all of it under the rug. However, I would
hope that that intelligence committee would prevent mistakes from
being made, would get this esprit and the sense of confidence that
basically we have impact on American policy in the Senate of the
United States and are taken into account by the executive branch.
Arthur Vandenberg said to President Truman, that if it is to be true
bipartisanship, we have to be in on the takeoff as well as the landing.
It is my feeling at the present time that once we have had a sense of
confidence that these were 11 men in whom we all had confidence and
who were in on these things we have been discussing, I think you will
find that a different spirit exists today in this way.
I think the establishment of this committee is more important for
that than anything else. You may say it is not substantive, but it is
the frame of mind. And I think what this country wants-I think if
there is anything this country wants at the present time is a sense of
unity. We want to have that, and I would hope after the elections
are over, whoever the President of the United States is, that we can
find a way to end discord between the Congress and the President.
Not that we have to agree with each other, but that we have a sense
of unity on important matters. And I happen to think personally the
establishment of this Intelligence Oversight Committee is one of the
methods that we have to do this. I am saying it is only one, but I would
think it would go a long way.
The CHAIRMAN. Well, now, do you feel that it is absolutely essen-
tial to the proper function of the committee in the performance of
its desired role that it have the authorization jurisdiction over that?
Senator RIBIcoFF. Yes, I do.
As I listened to the discussion within the last 2 days, there are
some things such as the suggestion that I have submitted to this com-
mittee, that should be considered. I am sure that you have considered
this, and you will change it, you will revise it, I think if you will do
this, you will eliminate the frictions that would exist between many
important committees.
I mean, it is absolutely essential that the Armed Services Committee
have access to intelligence, and there is no question about it; abso-
lutely essential for Foreign Relations to have access to intelligence,
and it is absolutely essential for the Judiciary to have access to the
FBI. And I think that along the lines of the suggestion I made this
morning you can bridge that problem. I just chatted with Senator
Stennis a few minutes after our caucus yesterday, and I told him what
my thinking was. And he was rather pleased that I was thinking
that way. I have not had a chance to talk with Senator Eastland or
Senator Sparkman
The CHAIRMAN. Unquestionably, the national problem is present.
Dropping on down from that congressional problem presented,
would it not be the best to have legislation if it did not exempt a com-
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both Houses and to handle the senatorial approach only without han-
dling the same problem in the House at the same time, would not that
fall short of really the desirable goals of concentrating the oversight
of the intelligence activities in the committee of each House, or one
committee serving both Houses?
Senator RIBrco. I would say that it would be desirable, but it
would not work at the present time.
The present state of the Congress, the legislative calendar, what
we have to do with the national elections coming up, if we follow
that route, Senator Allen, it would be hard to do in this session of
Congress. And I think it would be very unfortunate, with the Church
committee completing its work, for us as Senators not to follow
through. And, unfortunately, for this country, and also for the
executive branch, I think the executive branch welcomes.it. As I said
before, we are doing all this in a resolution instead of legislation,
and also eliminating suspicion by the executive branch, because the
President and the executive branch is going to have to find its way-
the way we do. And if there is something the President does not like,
he can say, "I am not for that at the present time."
In this period of time to work out a relationship, I would just as
soon not try to bind the President's hands in this field, and the Presi-
dent could say, "I am not bound." And I can say, "Yes, you are not
bound."
I pointed that out to the Advisory Board of the White House.
Before, they came to discuss this, and they said they liked this and
they welcomed this because, as I said, this is going to be a period
where we are going to be in a trial marriage, finding out whether we
can live with one another. If you are concerned about something that
is being done, as some of the questions that were raised around the
room suggest, the President will know about that concern. And,
secondly, he can say no if he finds the arrangement to be unsuitable.
But my feeling is that we will learn how to live together during
this period. And by July 1, 1977, we will know whether we can do it
or not. And if you cannot do it, the thing is going to fall of its own
weight.
If it cannot work, 1_ would hope the House would move to create
a joint committee. And then we go to the legislative route, as you
suggested, Senator Allen.
Senator ALLEN. Well, I was truly fascinated by your portrayal of
how you envisioned this committee would operate and how it would
be advising the President and the visit of the committee to the White
House and discuss the matter with the President, but also have to
call on the various House committees, as well, and would not be
such a close-knit small group as represented by one Senate committee.
Would it not also have a multitude of people representing three or
four House committees?
Senator RIBIcovv. As a matter of fact, unfortunately, you do know
this has been a consideration under the Hughes-Ryan bill.
I think Secretary Kissinger told me, as I recall a figure, of briefing
about 120 different Senators or Congressmen dealing with this Angola
problem under the Hughes-Ryan bill.
You have to tell so many people. But I have always had a piece
of philosophy, Senator Allen, that 50 percent of something is better
than 100 percent of nothing, you know.
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Maybe I have been in Government too long and realize you cannot
get everything at one time. And my thought is that I would like to
see the Senate take the lead. I respect this body.
When it has to do something, it does it. I think that we have to
do something, and I would like to see us try.
It is my feeling if we do act, the House will follow us. My hope is
that the people on this committee will come up with a lot of solid
recommendations and in the meanwhile, the executive branch is not
bound. Again, I want to emphasize that because we went the resolu-
tion route, this is a trial marriage.
Senator ALLEN. I expressed my concern in the Government Opera-
tions Committee about the way I felt about the methods that were
set up for disclosing information, and I still feel it is not advisable
to have a system whereby information that the committee has ruled
should not be made public, yet conceivably can be perfectly legally
made available to every Member of the Senate, I mean, that just seems
like it is going to be going way beyond
Senator RisrcoFF. Any one Member of the Senate can answer this
discretion, and we have got this.
Senator ALLEN. That is true. It is passed down by chain, or talked
over the dining room table, or something of that sort.
Senator RIBIcoF.F. I think it takes three members of that 11-member
committee body, and then, of course, there are always rules and
regulations.
Senator ALLEN. It would not take but one Senator to make n dis-
closure to another Senator, and you are talking about the Presidential
disclosure here, where he obtains this.
Senator RIBICOFF. This is a question whether you should confine it to
11 Senators, or are 100 of us qualified. I mean, this isa problem. There
are different opinions.
Senator ALLEN. Well, I really look forward, and I would prefer the
delegation of that authority to the committee-Jthat would be my
thought. I think if 100 Members of the Senate, and then-of course,
the Senator is talking with the top staff man, or something of that sort,
pretty soon it becomes common knowledge. It is sensitive information,
and it seems it ought to'be kept within the Committee, and that is what
occurs to me. Are you not disturbed by this method of policing
information?
Senator RisrcoFF. Well, not disturbed, but I am bothered about
everything in this area.
I do not know all the answers. Again, I would like to see how this
works.
Again, it is a resolution, and if it does not work, we can make
changes. I do not know if you were at the markup, and know the way
it was adopted, I think it was put in by Senator Javits, who made the
statement that suppose we have a closed session, and a Senator wants
to know what it is all about, such as whether we should disclose or not
disclose information. Is not that Senator entitled to know what the
facts are upon which he is going. to be asked to vote in the closed
session?
I think this provision was not in the original draft.
You may recall this was an amendment of Senator Davits put in at
the markup, and, of course, there was logic in it.
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If a Senator is going to know, any way, should he not have the right
to go to the source and. back up, whether he will or, will not vote, in
secret session, to disclose this information? I think there may have
been room there, too, to work this provision over. I have listened to
the doubts around this circle, and my feeling is, as a result of these
hearings, and the doubts that you have raised, that you are going to
get abetter resolution out of this.
The CI-IAIRMAN. Certainly, you have done -a real fine job of studying
this, and I certainly feel that the resolution was arrived at after con-
sideration of all possible alternatives. I.certainly want to commend
you for fine dedication and hard work. You personally have done a
fine job, and the committee itself has done a fine job in this area.
Senator RIBIcoFF. Thank you very much. And thank you, Senator
Allen.
The CHAIRMAN. Thank you very much. I do appreciate your testi-
mony. You have been very, very helpful to the committee, and I thank
you, Senator.
I just started to read one thing here from the "Constitution of the
United States of America, Annotated," that I would like for you to
hear before you go. I know that in your approach here you have not
been attempting to assert the congressional authority over the conduct
of foreign relations, but I was just starting to read something with
relation to the authority of the Executive in that regard. Jefferson
wrote in 1790, "The transactions of business with foreign nations is
executive altogether. It belongs, then, to the head of that department,
except as to such portions of it as'are specially submitted to the Senate.
Exceptions are to be construed strictly."
Reading further here elaborating on the necessity of judicial absti-
nence in the conduct of foreign relations, Justice Jackson declared for
the Court, and I quote :
The President, both as Commander in Chief and as the Nation's organ for for-
eign affairs, has available intelligence services whose reports' are not and ought
not be published to the world. lit would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of the Executive
taken on information properly held secret. Nor can courts sit in camera in order
to be taken into executive confidences. But even if courts could require full dis-
closure, the very nature of executive decisions as to foreign policy is political,
not judicial. Such decisions are wholly confided by our Constitution on the politi-
cal departments of the government, Executive and Legislative, They are delicate,
complex, and involve large elements of prophecy. They are and should be under-
taken only by those directly responsible to the people whose welfare they advance
or imperil. They are decisions of a kind for which the Judiciary has neither apti-
tude, facilities nor responsibility and which has long been held to belong in the
domain of political power not subject to judicial intrusion or injuiry.
Senator RIBICOFF. May I make available for 'the record two briefs,
one submitted for the CIA, by Mr. Rogovin, and another that was
commissioned by the intelligence community on the question of legal
responsibility for 'both the CIA and FBI. You will find this fascinat-
ing. There is a responsibility that we have in the Congress in this
field. Thank you for calling that to my attention. I will submit those
briefs for the record.
[The briefs referred to, subsequently received 'by the committee,
may be found as exhibits 1 and 2, respectively, in the appendix of these
hearings.]
The CHAIRMAN. Thank you.
Senator Nunn.
I
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STATEMENT OF HON. SAM NUNN, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator NUNN. Thank you, Senator Cannon.
I know you have a series of witnesses, and I am going to cut my
testimony as short as possible.
I participated in the Government Operations Committee markup
of this legislation. I voted for the legislation, although I had some
doubts about it then. We were, however, under a severe time restraint.
I think Senator Ribicoff did an excellent job in leading our com-
mittee through deliberations, particularly with the time restraint
he had.
I do, however, think there is a requirement for the Rules Com-
mittee to take another look at Senate Resolution 400 and see if it can
be strengthened and improved on.
I believe that almost everyone would agree that, since the National
Security Act of 1947 Congress has failed to provide effective over-
sight of intelligence activities. Many corrective proposals have been
advanced during that time frame, but none has received final approval
by Congress.
The jurisdiction of the proposed committee encompasses budgets
for the intelligence activities of not only the CIA, but the State
Department and Defense Department. I, among others, have raised
the following question : Can the Senate Foreign Relations Com-
mittee meaningfully oversee our relations with nations throughout the
world, consider treaties and agreements with nations, approve aid
programs for nations, and at the same time permit another com-
mittee to determine the scope and character of our intelligence ac-
tivities in these nations and monitor them for the Senate?
I am not a member of the Foreign Relations Committee, but I
suspect that the division of responsibility could jeopardize prospects
for coherent congressional contribution to the formulation of our
foreign policy. In other words, I think the Foreign Relations Com-
mittee has a strong interest in intelligence activities.
I am a member of the Armed Services Committee, and I am con-
fident that the Armed Services Committee cannot authorize procure-
ment, research and development, tactical air, personnel, and other
matters, and let another committee have authority to call its shots of
so-called national intelligence.
I do not believe this will work. I believe that certainly the chairman
is more familiar with that than I am because of his long service on
the Armed Services Committee. Intelligence activities directly relate
to the overall budgetary decision that we make, and without
intelligence input, we would have a difficult time making decisions.
Now, I know that Senate Resolution 400 does not prevent us from
getting substantive intelligence information. My view, however, is if
another committee has total authority over the budget of the intelli-
gence community and total authority over the legislative affairs of that
community it would be difficult for Armed Services to have the kind
of meaningful interchange with the intelligence community that we
must have to insure that community has the resources and wherewithal
to produce the type of information that is essential for us to make
decisions on the overall military budget.
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One of the difficult distinctions Senate Resolution 400 attempts to
draw is between tactical intelligence and international or strategic
intelligence. This is reflected on page 3 of the Government Operations
Committee report. Those who deal in this area obviously know that
this is virtually an impossible distinction to make.
For example, many of the ships we build are equipped with sensors.
These electronic detection devices produce valuable intelligence infor-
mation, some of it tact:.cal and some of it strategic. It would be very
difficult under Senate Resolution 400 to determine which of these
hundreds of overlaps we have.
Then there is the, question of who is to decide how much of the De-
partment of State or Defense budget is to be spent on intelligence, as
against sums authorized or appropriated for other foreign policy-
or defense-programs; and how much is to be spent on intelligence
overall, as against all other Government expenditures.
Clearly, here the Appropriations Committee also has a stake in the
intelligence budget.
Boiling it all down, the Senate's constitutional responsibilities in
the area of foreign policy are exercised primarily by the Foreign Rela-
tions, Armed Services, and Appropriations Committees. No new Sen-
ate intelligence oversight mechanism can function idependently of
these committees, in my view, nor can these committees be divorced
from the oversight function.
We must recognize this reality while at the same time avoiding
needless proliferation and duplication of responsibilities.
So the question is, can we recognize this reality and can we come up
with an answer that has that as an assumption without having a
proliferation of committees.
With these reflections in mind, I would like to give you some of my
preliminary thinking that I hope would be of some assistance to your
committee's deliberations.
I would suggest that a new oversight panel should include members
from the Armed Services, Foreign Relations, and Appropriations
Committees.
For instance, for an 11-member committee, three members each could
be drawn _ from Armed Services, Foreign Relations, and Appropria-
tions. It could have two at-large members. I think we could also con-
sider whether the majority and minority leaders might be ex officio
members of this committee. Although I personally do not think they
would have time to participate on a day-to-day basis, fellow Senators
could ask the majority :minority leaders to pursue a matter for them.
With that kind of structure being set up, I believe we could get a
broad-based committee representing the entire Senate, and yet con-
centrating in the area where we have indispensable, constitutional
duties in this field; that is, Appropriations, Foreign Relations, and
Armed Services.
Another factor that this would help alleviate is the 6-year limitation
on the terms of members of this committee. I understand the reason-
ing'behind the limitation, both on the staff and the members. Yet when
you take all of the glory away from an investigation, then my grave
concern-with the 6-year limitation-is, I wonder who is going to
want to serve. While the interest still is up, perhaps we would have a
lot of volunteers. Over it period of time, however, I wonder if we will
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not get two kinds of people : One kind would be interested in preserv-
ing the status quo, and the other kind would-beinterested in making
tremendous changes for the sake of change.
In other words, what kind of Senators are going to want to be on
this committee? I think that is all-important.
The composite panel which I am suggesting would be required-
or this would be a question for the committee to determine-to make
timely recommendations to the Foreign Relations, Armed Services,
and Appropriations Committees before those committees act on the
overall authorization and appropriation for State, Defense, and CIA.
They would be the oversight committee ; they would keep up with
activities of the intelligence community, and they would recommend
to the Armed Services Committee what the authorization would be.
But you would not have the impossible situation of having a separate
kind of intelligence committee that was authorized independently
which would virtually preclude any kind of secrecy regarding budget,
no matter what protective mechanisms pare set up.
. A new oversight committee group, constructed along these lines,
could assume a role in consideration of legislation, and nominations
related to the intelligence community. It could be done, but it would
be focused primarily on oversight, and it would be required to review,
and to make recommendations annually on the scope of intelligence
programs.
For these reasons that I have outlined, I think this would be a bet-
ter procedure than the ones outlined now under Senate Resolution 400.
One immediate advantage would be, and I have already said, the
annual authorization for intelligence would remain secret, until Con-
gress, by law, or by joint resolution, decides to make the information
public. Senate Resolution 400, involving only the Senate, apparently
would make information public annually, and in some detail. The
intelligence community opposes that and I certainly think that this
matter should be carefully considered.
One final note-I have not, in my proposal, mentioned the FBI, or
included the Judiciary Committee, among those represented on the
new composite panel.
Certainly, if the panel is, or the committee is going to have jurisdic-
tion over the FBI, I think the Judiciary Committee should have cer-
tain representation. On the other hand, I would think it would be
better to assume that the Judiciary is going to be making sure the FBI
is only in areas intended under the original act of 1947. For that
reason I tilt toward leaving the FBI oversight under the Judiciary
Committee.
Mr. Chairman, I know you have a tight schedule, and I have tried
to cut this short. I will be glad to answer any questions, and I would
ask that my full statement be submitted for the record.
The CHAIRMAN. Your statement will be made a part of the record,
and I thank you for your very fine presentation.
You certainly raise some very serious points that this committee
has been concerned with.
In line with your suggestion that one of the suggestions that has
been made that perhaps this ought to be in the nature of a select com-
mittee made up of members of either the three or four committees
that you referred to, and possibly some members at large.
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174
It may be made up from the four committees, and if we exclude
the FBI, then this should be made up of members of the three commit-
tees, and we eliminate the 6-year limitation, both on staff and on
membership and service, and we provide only an oversight function,
not a legislative function, which would mean that the authorization
function would still remain with the committees that are in need of
that information in carrying out their programs.
Your suggestion is quite close to this-quite close to some sugges-
tions that have been under discussion during these hearings.
I thank you very much. Your recommendations certainly have been
very helpful.
[The written statement of Senator Nunn follows:]
I want to thank you, Mr. Chairman, for the opportunity to present my views
on S. Res. 400-a resolution to establish a Senate Committee on Intelligence
Activities.
The issue of Congressional oversight for intelligence operations is vitally im-
portant to our national security. It is my strong impression that Congress, rep-
resenting a view widely held by the public, wants a better,. more aggressive
system.
Further, I know that leaders from the intelligence community, Mr. Colby and
others, feel there is a crying need for effective oversight and support the idea
of a new blueprint for Congressional action.
In that spirit I listened to testimony before the Government Operations Com-
mittee. Given the strong sentiment for action, and given the tight reporting dead-
line imposed upon that Committee, I voted to send S. Res. 400 to the floor for
Senate action.
In the weeks that have followed, I have continued to give the matter serious
consideration. It is clear that since the passage of the National Security Act of
1947, the Congress has failed to fulfill its responsibility to provide effective over-
sight for intelligence activities. Proposals have been advanced; they have been
debated ; but actual progress has always eluded us.
These precedents make it imperative that the charges in Congressional over-
sight should be able to stand the test of time. Frankly, I have some misgivings.
The jurisdiction of the proposed Committee encompasses budgets for the in-
telligence activities of not only the CIA, but also the State and Defense
Departments.
Can the Senate Foreign Relations Committee meaningfully oversee our rela-
tions with Nation X, consider treaties and agreements with Nation X, approve
aid programs for Nation x, and at the same time permit another committee to
determine the scope and character of our intelligence activities in Nation X and
monitor them for the Senate? I am not a member of the Foreign Relations Com-
mittee, but I suspect that this division of responsibility could jeopardize prospects
for coherent Congressional contribution to the foreign policy.
I am a member of the Armed Services Committee, however. I am confident
that the Armed Services Committee cannot authorize procurement, research and
development, and personnel strengths and let another committee call the shots of
so-called "national" intelligence. I am quite sure that will not work.
Part of the problem arises from the fact that S. Res. 400 seeks to draw a
distinction between "tactical" intelligence and "national" intelligence. (This is
reflected on page 13 of our Government Operations Committee report.) Those
of us who are privileged to serve on the Armed Services Committee know that
this fine distinction cannot be maintained.
For example, many of the ships we build are equipped with certain sensors.
These electronic detection devices produce valuable intelligence information,
some of it tactical and some of it strategic, or "national" intelligence. Under
S. Res. 400, how would you determine which was which?
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There are many, many overlaps of this sort. Even the highly classified recon-
naissance satellites which are keystones of our capacity to monitor compliance
with strategic arms limitation agreements, also provide essential tactical intellii
gence information.
Then there is the further question of who is .to decide how much of the De-
partment of State or Defense budget is to be spent on intelligence, as against
sums authorized or appropriated for other foreign policy-or defense-programs ;
and how much is to be spent on intelligence overall, as against all other govern-
ment expenditures. Clearly, the Appropriations Committee has a stake in the
intelligence budget, too.
With these reflections on S. Res. 400 in mind, I have reached some tentative
conclusions on how a better oversight panel might be designed. May I suggest
to you that :
A new oversight panel should include members from the Armed Services Com-
mittee, Foreign Relations Committee, and Appropriations Committee. For an
eleven member committee, three members each might be drawn from Armed
Services, Foreign Relations and Appropriations Committees leaving two "at
large" members. If members were selected by the majority and minority leaders,
I believe a broadly-based membership could be guaranteed without resorting
to the six-year membership assignments proposed in S. Res. 400. The six-year
limitation amounts to a death sentence for staff as well as for committee
members.
Such a composite panel should be required to make timely budget recom-
mendations to the Foreign Relations, Armed Services and Appropriations Com-
mittees before those Committees act on the overall authorizations and appro-
priations for State, Defense and CIA.
Such a panel should be given broad power to consider, hold hearings, and
report on all matters relating to intelligence-including allegations of illegal or
improper conduct by or in the intelligence agencies.
This new oversight group constructed along the lines I have suggested could
assume a role in the consideration of legislation and nominations related to the
intelligence community. But it would be focused on oversight. It would be re-
quired to review and make recommendations annually on the scope of intelli-
gence programs, and it would have authority to inquire into any irregularities.
For the reasons I have outlined, I think this would be a better procedure than
the one outlined in S. Res. 400. One immediate advantage would be that annual
authorizations for intelligence would remain secret until Congress, by law or
by Joint Resolution, decided to make information public. S. Res. 400, a resolu-
tion involving only the Senate, apparently would make information public an-
nually and in some detail. The intelligence community opposes that, and cer-
tainly the matter should be carefully considered.
One final clarifying note : I have not, in my proposal, mentioned the FBI or
included the Judiciary Committee among those which would be represented on
the new panel. I should explain that I hope the FBI will, in the future, confine
itself to counter intelligence activities as was envisioned in 1947. I think budget
authorization for the FBI should continue to be a part of the responsibility
of the Judiciary Committee. If there were indications of wrongdoing in the
FBI-or the IRS or any agency with collateral intelligence responsibilities-
I believe the oversight group, under my blueprint, would have power to investi-
gate and report to the Senate.
Thank you, again, Mr. Chairman, for the opportunity to present these views.
The CHAIRMAN. The committee will now adjourn until 10 o'clock,
Monday morning for the continuation of this hearing.
[Whereupon, at 12:55 p.m., the committee recessed, to reconvene
at 10 a.m., Monday, April. 5, 1976.]
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PROPOSED STANDING COMMITTEE ON INTELLIGENCE
ACTIVITIES
MONDAY, APRIL 5, 1976
U.S. SENATE,
s COMMITTEE ON RULES AND ADMINISTRATION,
Washington, D.C.
The committee met in room 301, Russell Senate Office Building, at
10:07 a.m., Hon. Howard W. Cannon (chairman) presiding.
Present : Senators Cannon, Allen, Hugh Scott, and Griffin.
Staff Present: William McWhorter Cochrane, staff director; Ches-
ter H. Smith, chief counsel; Hugh Q. Alexander, senior counsel; John
P. Coder, professional staff member; Dr. Floyd M. Riddick, profes-
sional staff member; Jack L. Sapp, professional staff member; Ray
Nelson, professional staff member; Larry E. Smith, minority staff
director; Andrew Gleason, minority counsel; Peggy Parrish, assistant
chief clerk.
The CHAIRMAN. The committee will come to order.
Senator Tower, we are happy to have you here with us today as
our first witness, and you may proceed.
STATEMENT OF HON. JOHN TOWER,. VICE CHAIRMAN OF THE
SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO INTELLIGENCE ACTIVITIES; ACCOMPANIED
BY CURT SMOTHERS, MINORITY COUNSEL
Senator TowER. Thank you, Mr. Chairman.
Mr. Chairman, I am the vice chairman of the Select Committee on
Intelligence Activities, however, the views I express here are my own
and may be the views of some of the Members of the committee but cer-
tainly not all of them.
I have with me the minority counsel of the Select Committee, Mr.
Curt Smothers.
My experience with the Select Committee has taught me that the
role of Congress must be that of a partner-and not a silent one-in
the intelligence business. But as in any partnership-that relationship
must be grounded on mutual confidence and each partner's respect for
the prerogatives of the other.
The Executive must understand, as the Ford administration has
clearly demonstrated again and again, that Congress has a legitimate
right to know about intelligence activities. In exercising this right to
know, the Congress must recognize the extreme sensitivity of these
executive branch initiatives, and accept the obligation to hold this
knowledge secure.
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178
If there is agreement in principle with these concepts-which I
regard as fundamental-establishment of a separate intelligence over-
sight committee may be feasible.
Mr. Chairman, both your inquiries and the testimony of many
others have highlighted the serious inadequacies of Senate Resolution
400 as a vehicle for competent and secure Senate oversight of the
Nation's intelligence activity.
In considering the resolution before you, I would urge the Com-
mittee to make a clear distinction between the much needed task of
examining abuses-which we have been engaged in for the past
year-and the overriding and more permanent requirement for re-
isponsible congressional involvement in intelligence policy in the
future.
We must keep in mind that the critical questions are both multi-
and complex. While weighing the best interests of our na-
faceted
tional security, together with the need to protect the people's liber-
ties, we must, also, ask whether our adversaries will be deterred or
heartened by such actions as disclosing the intelligence budget and
the inevitable opening of senitive activities to even limited public
forum debate.
To perform this task, I am not at all prepared to accept the idea
that a separate committee on 'intelligence is necessary or even desir-
able. To meet the task of oversight, intelligence should continue to be
viewed as integrally related to the other questions within the general
jurisdiction of the present standing committees on Foreign Relations.,
Judiciary, and Armed Services, and I might add to a limited extent,
the Finance Committee-rather than exist in the spotlight where
intelligence has lived for the last several months.
It is pure fiction to suggest that if a separate intelligence committee
is not created, oversight of the intelligence community must necessarily
fail. To the contrary, there are a number of steps which could be
taken which would insure more effective oversight.
For example, one of the critical findings of the Select Committee
will be that the Congress has failed to define its role and aggressively
pursue definition of intelligence policy and practices. It would appear
to me that a logical first step for the Senate would be -a mandate to
the effected committees to cure those past deficiencies.
The present standing committees should be mandated, rather than
allowed through custom, to oversee intelligence and to participate
more actively in the policies of the different agencies.
Where there is a felt need for the committees to exchange informa-
tion among themselves, then the mandate might include a require-
ment that each of the present standing committees create a permanent
subcommittee on intelligence which would meet jointly and regularly
with the other subcommittees to share information of common con-
cern.
There are those who would divide such mandates by labeling them
a return to the status quo and I suggest to them that such an ap-
proach, though well meaning, is inconsistent with the facts.
First, we must not allow the Congress' past oversight record to dic-
tate simplistic or ill-conceived alternatives for the future. The pana-
cea of a new committee is always attractive as a signal of apparent
change. But we must not elevate form over substantive issues.
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The Senate clearly signaled its commitment to substantive change
when the select committee was established 15 months ago. We were
mandated under S. Res. 21 to bring the problems of intelligence into
sharper focus and to recommend remedial action strengthening the
balance between the rights of American citizens and the Nation's in-
telligence needs.
I believe the Senate recognized that our inquiry would examine
many matters within the jurisdiction of existing committees and sub-
committees of this body.
I believe the Senate recognized that the overlapping jurisdiction of
our select committee was necessary because intelligence touches so
many aspects of American life.
But it does not follow that the overlapping jurisdiction required
for a genuine look at a many-faceted problem should be adopted as
the vehicle for permanent oversight.
Effective permanent oversight will require that intelligence policy
be closely coordinated with other affected government activity. Sena-
tor Stennis made this point in his testimony and the Judiciary Com-
mittee has taken the position that FBI intelligence activity should
not be separated from law, enforcement determinations.
I believe that the commitment so evident in this body when S. Res.
21 was adopted continues, and that it would be a gross underestimation
of our colleagues to assume that committees having any jurisdiction
over these critical issues would ignore mandates designed to correct
the abuses of past years and simply return to business as usual.
I do not seek to minimize the political impact of Senate action es-
tablishing a new committee, but I believe we need more than political
impact. We need realistic, workable oversight. We should and must
avoid the expedient solutions. We should and must turn our efforts
to the tough task of providing definitive guidelines and mandates to
our colleagues-the same persons who would sit on any new commit-
tees-that we believe will enhance the Senate's participatory role in
intelligence policy.
In addition to the question of form, there is also a need to be more
explicit regarding our anticipated role as policy partners. While the
intelligence community needs participatory guidance-it does not need
a senatorial board of directors.
The Congress must understand that it is not its role to manage
or second-guess what the intelligence community does. Rather, the
role of the Congress must be to insure that this country gets what
it deserves-the assurance of the continuation of the best intelligence
in the world, conducted in a manner consistent with basic American
principles of freedom and decency.
Then finally, we can accomplish our goals without the continuing
myth that the people of this Nation should continue to be misled, as
they have been, that secrets are kept from them because their Govern-
ment does not trust the people or wishes to deceive them. It is clear that
our adversaries are the real targets of efforts to insure effective secrecy.
However, it is equally clear that to accomplish the goal of keeping our
enemies from penetrating our national defense, we must necessarily
restrict the number of Americans, and that includes Senators, having
full knowledge of intelligence operations.
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The principle underlying limited access is, and always has been,
quite simple. As the number of people having access to knowledge
increases, the greater the risk of disclosure and consequent damage to
the Nation.
It is for this reason and this reason alone that I have disassociated
myself with any effort to increase the number of committees, Senators,
and staffers that are briefed on sensitive ongoing operations.
The drafters of the resolution appear unwilling to delegate to the
proposed committee sole knowledge and oversight over intelligence
activities. The language of the report accompanying the resolution
reported out by the Committee on Government Operations purports to
take away from the committees having oversight jurisdiction over
intelligence agencies.
But such treatment fails to take into account the fact that a statute
presently on the books-the so-called Hughes-Ryan amendment-
requires the President Ito inform numerous committees of contemplated
covert actions.
Unless repeal of the Hughes-Ryan amendment is an expressed con-
dition precedent to enactment of any resolution creating an oversight
committee, any claim to limiting the proliferation of intelligence infor-
mation by this procedure is a well-meaning but hollow promise.
Not only do I find that the resolution does too much at times and too
little at others, it also sets dangerous precedents for the operation of
the Senate itself. Some of the language in the resolution is unnecessary
as the Senate Rules already make provisions, for example, for proce-
dures for disclosing classified information to the public.
The resolution grants to a committee authority contrary to the
express provision of rule XXXVI, subsection 5, requiring leave of the
Senate before a document, secret or confidential, can be released to the
public.
In conclusion, Mr. C.aairman, thank you for allowing me this oppor-
tunity to appear before this esteemed committee. I hope that I have
been able to express my deep concern over this matter and hope that
the committee, when it reports out this resolution, will say that it seeks
to arrest, rather than contribute to, the present-day atmosphere of a
vendetta against those agencies of our government and the persons
within them, who seek only to strengthen and protect our national
security.
The CHAIRMAN. Thank you, Senator Tower, for a very good state-
ment. The subject. has been made during the course of the hearings by
some people that what we ought to do other than have a standing com-
mittee on legislative authority is perhaps organize a select committee
with purely oversight responsibilities made un of the membership of
the committees that are necessarily heavily involved in intelligence
now, that is, Armed Services Committee, the Foreign Relations Com-
mittee, and the Appropriations Committee.
Do you have any feel for something along that line?
Senator TowER. I would prefer that approach to a regular standing
oversight committee with legislative and authorization for appropria-
tions jurisdiction. I would prefer, however, to see the CIA Subcommit-
tee or an intelligence subcommittee of the Armed Services created by
appropriate resolution with permanent staff, mandated to perform the
oversight task.
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181
When we recommend the creation of a select or oversight commit-
tee, there is inherent in that recommendation the suggestion that mem-
bers of the Armed Services Committee are not competent to carry on
oversight, and therefore, it has to be taken away from them and given
to somebody else when in fact you may be giving it to the same people
in Armed Services. Obviously, you cannot prevent proliferation when
it is vital to the dealings of the Armed Services Committee, the Foreign
Relations Committee, and the Appropriations Committee to have some
access to sensitive, classified information.
The CHAIRMAN. As a result of your committee's investigation, do you
see any need of granting legislative authority to a committee of this
nature if it is acting in an oversight capacity?
Senator TOWER. I do not believe it should. I am opposed to the com-
mittee in the first place, but I would certainly not let it have legislative
authority. I think such authority would run the risk of being at odds
with the Armed Services and could get into a jurisdictional squabble.
The CHAIRMAN: Then, the resolution, of course, as drafted, would
mean a very wide dissemination of intelligence information, much of
which is very highly classified and some of which is on a need-to-know
basis.
Senator TOWER. It would mean more proliferation of classified In-
formation, not less. I really think that the mood of the country is such
now that the American people want to feel that they are being pro-
tected, that their security is being assured by the ability of the Gov-
ernment, one, to gather intelligence effectively and, two, keep it closely
held. The complaints that I get from my constituents are that we have
disclosed too much information and not too little.
The, CHAIRMAN. What is your best estimate as to when the select
committee will issue its final report?
Senator TOWER. We expect to have it out in the middle of April
and it probably will not get to the floor 'before the recess. We have
mandated the report for the 15th, and that pis the day after recess be-
gins, I believe. The report will be ready but probably we'll not take
it to the Senate until rafter the recess.
The CHAIRMAN. Senator Scott.
Senator Scorr. Senator Tower, I think your testimony is illuminat-
ing and extremely helpful, and I would like to compliment you and
all of the members of the committee for the careful work done and
for the restraint exercised 'by contrast with experience elsewhere. It
certainly stands out in its desire not to turn this committee into what
you have mentioned-into another context of a vendetta.
I think that your final point is well taken, that when the committee
"reports out this resolution, it will say that it seeks to arrest, rather
than contribute to, the present-day atmosphere of a vendetta against
those agencies of our Government -and the persons within them, who
seek only to strengthen and protect our national security."
The phenomenon which I believe the Senators have observed care-
fully, has been the quite evident reaction of the general public that the
Nation needs to be able to prevent the release of that information
which would aid those who wish us less than well. Certainly, that has
represented a turnaround from the initial hysteria and headlines.
It is interesting that Judiciary, has 'with only two dissenting votes,
recommended to this committee the removal of the jurisdiction of
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tion is now and the arrangement as far as the Foreign Relations Com-
mittee is concerned, and you can describe it yourself better than I can,
has had a satisfactory relationship with the Intelligence community.
. Senator SCOTT. I do not recall a single instance of the Foreign Rela-
tions Committee leaking any matter of secrecy confided to them by
the intelligence agencies. There have been some leaks at times, staff
leaks of more minor matter that came out of the State Department or
something of that sort, but I think they have carefully observed all
of the restrictions on testimony from intelligence agencies.
Senator TOWER. And, I think the Armed Services Committee has
been very responsible in that connection, too. I think that the Armed
Services Committee is fully competent to do what the Congress appar-
ently wants and that is to maintain oversight on a continuing basis of
the intelligence agencies. I think Judiciary is prefectly competent to
monitor the FBI and the Finance Committee is competent to monitor
the Secret Service, and et cetera, and I do not think the super com-
mittee serves anyone. I think it can make our work here in the Senate
less efficient and not more efficient.
Senator GRIFFIN. Mr. Chairman, I did think of one other thing.
That gets to the matter of whether or not a majority on a committee or
a majority, on a subcommittee should have the authority to make classi-
fied information public. The resolution which is before the committee
speaks to this, even though Senator Church says it is not necessary.
He claims that under the present rules the majority of a committee
already has the authority to release classified information, neverthe-
less he has language in there to permit a majority of a committee-
without the authority of the Senate as a whole-to make public classi-
fied information.
Senator TOWER. I will refer to that as reservation on that matter
and perhaps some clarification of that rule can be made. I happened to
be one who disagreed with the Church decision when we got into the
question of releasing the assassination report.
The CHAIRMAN. Anything else?
Thank you very much, Senator Tower, and we appreciate your be-
ing here. Thank you.
The CHAIRMAN. Senator Taft, we will beA pleased to hear from you at
this time. '
STATEMENT OF HON. ROBERT TAFT, JR., A U.S. SENATOR FROM THE
STATE OF OHIO
Senator TAFr. Mr. Chairman, members of the committee, I would
like to thank you for the opportunity to testify before you today on a
proposal which I believe to impact in many serious ways on a vital
aspect of our national policy : Senate Resolution 400.
I believe that Senate Resolution 400 must be of concern to all Mem-
bers of the Senate. I am certain that there is no Senator who wants to
see abuses of power or authority in or by any arm of the Government.
This is certainly true of those agencies and authorities involved with
our national intelligence functions. When we look at the world around
us, we see all. too many cases where national security is used as a justi-
fication for domestic repression: We see, equally, cases where foreign
intelligence services of various states, especially the Soviet Union,
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187
engage in practices on foreign soil that violate the rights and sover-
eignty of other states. We cannot view any of these practices with equa-
nimity or approval.
At the same time, I am sure there is no Member of this body who is
not aware of the vital national needs for adequate and accurate foreign
intelligence. Our international opponents, particularly the Soviet
Union, are closed societies. They do not publicize their capabilities or
their intentions.
I think the question of intentions is particularly acute for this coun-
try. We know that the ideology of the Soviet Union calls for the spread
of communism. What we may not know is how seriously that ideology
is taken, in terms of policy plans. We cannot obtain such knowledge
without using covert intelligence collection, yet without it, how can
we establish a policy toward the Soviet Union other than one based on
general mistrust and suspicion of Soviet intentions? This is, of course,
only one example of the need for intelligence, but at a time when we
are hotly debating the merits of detente, it is a timely example.
There are, as the members of this committee well know, many aspects
to the problem of how to exercise adequate oversight over the intel-
ligence community so as to prevent potential abuses, while at the same
time not impairing our vital intelligence-gathering capability. I would
like to discuss two aspects of the problem as they relate to and I fear
originate in Senate Resolution 400.
One major problem that I see with the proposed Senate Resolution
400 is that, in my opinion, it is impossible to separate budgeting for the
intelligence function from the process of authorizing and appropriat-
ing funds for national defense, generally. It is clear to me from my
work on the Armed Service Committee that intelligence is a part of
national defense. Certainly anyone who has served in the armed serv-
ices in a staff capacity will have found very quickly that intelligence is
inexorably intertwined with operating decisions. 4 served on a naval
staff in planning capacities during several invasions with the intel-
ligence officer-I was an administrative person on the staff and the
intelligence officer actually lived with me, practically in the same room
throughout the entire planning phase of the operations, and there is no
way which you could separate the functions, in my opinion, at any
level in the military establishment, of intelligence and planning of
operations as well as execution.
They are linked together in a complex network that could not be
unraveled. For instance, Navy ships and military bases carry intel-
ligence-gathering equipment, for both tactical and national intel-
ligence. How are funds for these systems to be authorized and appro-
priated? In practice, it is impossible to draw a distinction between na-
tional and tactical intelligence, much less say that one system gathers
only national, and another only tactical intelligence. These differences
exist only on paper, in Senate Resolution 400, not in fact.
I would like to point out one further fact that is not in my prepared
statement. It occurs to me that we have this problem in part today
because of the fact that we take the CIA budgeting in separate items,
and then provide by law for the transfer on certain approvals from
various other budgetary items to the CIA finance. If you put military
intelligence in that same area, you would have the same problem of
transfer or disclosure, if you do it as a separate itemization of the
authorization or the appropriations for intelligence in the military.
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188
So, you would make a problem of military intelligence much worse,
which is, as you know, a very large percentage of our total intelligence
activity. Actually, it is budgeted in the Defense budget to the depart-
ments involved and you do not have that problem arising.
A second aspect of Senate Resolution 400 that disturbs me
Senator GRIFFIN. Senator Taft, I think before you go on it would be
well if we focus the record to the language in Senate Resolution 400
where the attempt is made to separate tactical foreign military from
national intelligence. As I understand it, it is in section 13 at the bottom
of page 18 to the top of page 19-at least in that one place there is an
effort to make that aistinction.
Senator TAFT. Yes; that is not the one I was concerned about.
Senator GRIFFIN. Which you are pointing out as impractical?
Senator TAFT. I do not think there is any way you can do it, in mili-
tary operations, particularly.
Senator GRIFFIN. I just want to be sure everybody knows where it is.
Senator TAFT. The Normandy operations, for instance. We had on
our ship's maps material which certainly related to tactical intelli-
gence, but at the same time the entire timing of the operation was
certainly national and strategic intelligence. There are many aspects
of that information. We could not have drawn up operation plans or
orders if you did not know the time, the tides and everything else.
Senator GRIFFIN. As I understand it, this resolution, as now drafted,
would require the intelligence community to make an arbitrary separa-
tion or distinction as between tactical and national intelligence, a
distinction for which there pis no basis and which would just make it
very difficult to operate in the field.
Senator TAFT. Take the strategic weapons in the Soviet arsenal
today. I suppose that the information about the weapons themselves,
how they might be used, certainly is military intelligence whether
you call it strategic or tactical, and I suppose it is' a matter of termi-
nology. But also let us take the most important thing about those
weapons, in many instances, how the Soviet is expected to use them or
why they are going ahead with a particular program. That is national
intelligence. Yet in making our plans, we must have an assessment of
those overall considerations in order to be able to make any kind of
sound judgment where our programs, our countermeasures, and re-
taliatory measures will have to go.
Senator ScoTT. If I could inject-I had somewhat the same, and
maybe a more limited experience, as executive officer to the intelligence
officer of a naval force. I have had some experience in working on
the drafting of operation plans, and I agree with the Senator, it is
totally impossible to carve out one area as tactical and one area as
national or policy-type intelligence. It is just not possible to do it.
The CHAIRMAN. If the Senator will yield. In one of the Armed Serv-
ices Subcommittees, of which I am chairman, as an inherent part of
our proceedings, we .have to have our briefings from our intelligence
community on the foreign threat and that is known from a tactical
standpoint, and also from a strategic and national standpoint, so
we start off our hearings every year with the assessment of the threat
from the intelligence community, both CIA and DIA, and then go
into our requirement from a tactical standpoint.
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189
Senator TArr. That is the same procedure exactly as followed in the
R. & D., with Senator McIntyre's concurrence.
A second aspect of Senate Resolution 400 that disturbs me pro-
foundly is the stipulation that it be a "B" committee, with not only
members but staffs limited to a 6-year term of service on the committee.
In fact, as every Senator knows, "B" committees do not always
receive the attention from their members which they might deserve.
This is fully understandable in terms of the severe constraint on time
faced by every Member of the Senate. In recognition of this fact, we
usually designate as a "B" committee those committees responsible
for areas which, while vital, are perhaps not as vital as certain other
areas.
Extending this logic, by designating the committee a "B" committee,
we state that its area of concern is not as vital as a number of other
areas, and that it is recognized that members may not be able to give
its committee business as much attention as they would like to. Can
we do this in regard to the area of national intelligence? I strongly
think we cannot. It is clear to me that national intelligence is one of the
most critical areas for which the Congress has some responsibility.
In fact, is it not contradictory that the increasing awareness of the
importance of the intelligence community has brought us to consider
a bill, which implies strongly, by designating the proposed committee
as a "B" committee, that the subject in question is comparatively less
important? I do not think this aspect of the proposed legislation can
be considered at all satisfactory or acceptable.
The restriction to a 6-year term on the committee for both members
and staff has equally disturbing implications. In theory, every Member
of the Senate would be happy to serve on a committee on intelligence,
even if there were a 6-year "death sentence" imposed on membership.
But let us face the facts : How many Members would really seek to
serve on such a committee under such a condition? We cannot let our-
selves be blinded in this case by senatorial dignity or our penchant
for complimenting one another; the matter at hand is too vital to play
with. In fact, there would be little enthusiasm for serving on this
proposed committee under a 6-year limitation.
Members, particularly those with the greatest abilities, would tend
to seek to avoid such a committee assignment. Can we afford to have
this committee regarded by the membersip as one of the "dogs," as
far as committee assignments are concerned? Given the tremendously
important nature of the national intelligence function, I do not believe
we can afford that. We want our very best people to serve on this com-
mittee, if such a commitee is established; and we want them to be moti-
vated to devote their full attention to it.
The same considerations apply, I think, to the committee staff, who
are also limited to a 6-year term. In this case, however, there may
equally be a danger that a staff position on the committee would be
regarded as a steppingstone; that staff members, knowing they would
be unemployed 6 years in the future, would use their 6 years on the
committee to build a personal reputation or personal connections that
would lead to future employment.
There is also the fact to be considered that, by. replacing the entire
staff every 6 years, you are putting out a steady stream of people
knowledgeable about all of the most sensitive aspects of our national
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190
intelligence system and many sensitive aspects of our overall national
security policy.
Do we want to put a steady flow of such people into the job market?
The possibilities for subsequent employment might include some posi-
tions that would not serve the national interest, in terms of the ways
the knowledge of our intelligence functions could be used.
These aspects of Senate Resolution 400 make it impossible for me
to support the measure as reported from the Committee on Govern-
ment Operations. I would like to indicate my support for the proposals
of Senator Nunn, that we consider the establishment of a new intel-
ligence oversight pane.( to be composed of members from the Armed
Services Committee, the Foreign Relations Committee, and the Appro-
priations Committee. Such a panel, given the broad power of over-
sight, should be able to deal with the problem of potential abuses with-
out dividing the authorizing and appropriating functions on non-
functional lines.
I might say that one of the problems I see here came just recently
in this entire matter. It relates to the Angola experience. As soon as
that. issue arose, I went to the staff of the Armed Services Commit-
tee and asked if we had any information whatsoever dealing with
the intelligence situation on Angola. I found that we did not have
such information. I then began making inquiries as to what exactly
and where is the legal authorization or rules authorization for han-
dling this matter of transfer of CIA funds. The statute I have al-
ready mentioned provides for transfer and makes it legal for the
CIA to accept such a transfer. So, when I got down to trying to find
out what the rules were, there are not any rules. We all think there
are rules but if you actually take a look there are no rules in the book
as far as I know that have been used for this method of authorizing
the transfer.
It has been an informal, institutionalized procedure under which the
chairman and the ranking members of the Armed. Services, Appro-
priations, and the Foreign Relations Committee have been consulted,
but we all thought-I thought it was in the books, but it :is not in the
book as far as I have been able to find out, and I do think some pur-
pose might be served by the committee if they could somehow insti-
tutionalize this somewhat more so there is a more direct responsibility.
I do not disagree with Senator Tower on his proposal, but, I think we
do need some institutionalization of the procedure for approving the
transfer of funds.
Senator Scorn. Mr. Chairman, let me comment on the question of
Angola. The Senator raises a good illustration because the only in-
formation that we in Foreign Relations were able to get on Angola
at the time the matter was current and crucial came first in a very
fine briefing from one member who was totally opposed to the entire
matter, which led to some attempts at rebuttal from the Department
of State, but there was no input whatever from the Armed Services.
There was no military input, so that Foreign Relations was actually
working in the dark or in an area of obscurity, and an oversight panel
would have that advantage. I just mention that because I have not
made up my own mind whether this suggestion, or that of Senator
Tower or the others, is the alternative way to go. But certainly we
ought to have some way of knowing, when some group of Senators
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raise the question like Angola, what the whole picture is and not two
or three pieces out of a jigsaw puzzle.
Senator TAFT. Somebody said the transfer was made, presumably
some transfer of funds under the statute was made to the CIA for
this purpose. I do not know whether it was in a big lump sum amount
or it was an individual item. It was put up to some Members of Con-
gress but I never found out who was actually consulted on it and who
did it, and there is no responsibility and no real way of checking back
on that after the fact when it occurs. I think it would be helpful if
we had some kind of separate procedures that we know about that
will take care of it at the same time and with the maximum degree of
security.
Mr. Chairman, I urge the members of this committee to consider
these points, and those raised by other witnesses, carefully. I believe
that it is vital that we exercise oversight over the intelligence com-
munity in a rational and functional manner, and in such. a way that
the work of that community is not jeopardized. We must not let
momentary headlines push us into action which will have long-term
negative consequences. Too much is at stake here for us to be hasty
or frivolous in this matter.
The CHAIRMAN. Thank you, Senator Taft, for a very fine state-
ment. I must say that I agree with a great deal of the points you
made in your statement, and they are certainly very valid points.
I think we do have to consider them in a rational atmosphere rather
than have what I have referred to earlier as a "need" reaction. Every
time something happens our first reaction is that we need to appoint
another committee to take care of it, but that simply will not make
the problem go away.
Senator Scott.
Senator ScoTT. I have no further questions, Mr. Chairman.
The CHAIRMAN. Senator Griffin. -
Senator GRIFFIN. I have no questions. I think that this is a very,
very excellent statement and points out some problems that I think
are just unanswerable in the terms of this resolution. I appreciate the
time that the Senator has taken to come here.
Senator TAFT. Thank you.
Senator Scorr. I would like to make one point for the record, not
directly to the Senator's testimony, but what are the contrasting mo-
tivations here. Those who conceive of Senate Resolution 400 in its
present form had an excellent motivation; that is, to prevent future
abuses, but they did not really go to the question of how the abuses
occurred.
The abuses did not occur in the Senate of the United States or the
House of Representatives. The other motivation which has been
exemplified by the testimony of most of the witnesses is how, as a
Nation, we are entitled to have secrets, and if so, how can those secrets
be preserved and what distinction can be made between the right of a
nation to protect its national security on the one hand and the right
of the people to know those things which are essential for them to
know. If this committee were conceived on the basis of the first motiva-
tion, presumably the dominating membership would be concerned
continually and throughout the future with prevention of abuses, and
that is a good thing, but it would not be necessarily comprised of the
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people who would be aware of the danger to national security through
massive dissemination of classified information.
The CHAIRMAN. I think Senator Allen pointed that out the other
day when he stated that the substantial percentage of this resolution
is devoted to how information could be made available, rather than
providing mechanisms for not disclosing, classified information-in-
formation that should not be made available.
Thank you again, Senator Taft, and we have appreciated your state-
ment. That concludes our witness list, and without objection I will
insert at the conclusion of this hearing a number of letters from Mem-
bers of the Senate and others relating to Senate Resolution 400. Also
the committee will hold these hearings open until noon tomorrow
to receive any additional statements relative to the resolution. We hope
that we would be. able to get a meeting next week to start to consider
a markup of this proposal or to take whatever other action the com-
mittee may decide upon.
Senator Scorr. When will we do that?
The CHAIRMAN. Sometime next week. I will get a day open and
schedule it. The committee will stand in adjournment.
[Whereupon, at 11:04 a.m., the committee was adjourned.]
[Additional written statements and letters received by the commit-
tee from persons expressing their views on the provisions contained
in S. Res. 400 are as follows:]
U.S. SENATE,
COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C., March 1, 1976.
HOn. HOWARD CANNON,
Chairman, Committee on Rules and Administration, U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN : Senate Resolution 400, which the Government Opera-
tions Committee reported to the Senate today and which has been referred to
your Committee, establishes a new standing Committee on Intelligence Activities.
Section 7 of the Resolution sets out a procedure for the disclosure of classified
information by the new Committee. Under that procedure, the President would
have to be informed of any committee decision to disclose such information, and
the Committee would be required to wait five days before making any public
disclosure. If, during the five day period, the President certifies his objection to
disclosure, the matter would be referred to the full Senate for action at the re-
quest of three or more members of the Committee. The provision also provides the
Senate the opportunity tc review a decision by the Committee not to disclose cer-
tain information. Finally, it establishes a procedure to govern instances when
the new Committee may make certain information available in confidence to
other committees or other Senators. Any Senator who fails: to comply with these
procedures may, under the provisions of section 7, be cited to the Senate Com-
mittee on Standards and Conduct for appropriate action.
The Government Operations Committee believes this is a workable solution
to the difficult problem of disclosure of information. Further, it is the strong
feeling of members of this Committee that the procedures should apply to any
Senate committee in deaang with sensitive information of any kind. The Com-
mittee did not, however, believe that its jurisdiction extended to committees
other than the committee which S. Res. 400 would establish. Accordingly, S. Res.
400 makes no provision for restrictions on disclosure of information by any
committee other than the new Committee on Intelligence Activities. However,
the Committee votes unanimously to recommend to you, as you consider this
measure, that these procedures be made applicable to all standing Senate com-
mittees and all Senators dealing with sensitive information.
Please let us know if we can be of further assistance in this matter.
Sincerely,
ARE RIRIcoFF, Chairman.
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U.S. SENATE,
COMMITTEE ON THE JUDICIARY,
SUBCOMMITTEE ON SEPARATION OF POWERS,
Washington, D.C., March 31, 1976.
Hon. HOWARD W. CANNON,
Chairman, Senate Rules Committee, U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN : I wish to commend to the attention of the Rules Com-
mittee two amendments which I had intended to propose to S. Res. 400 during
the Judiciary Committee's consideration of the measure. Because I was called
out of town unexpectedly, however, I was unable to attend the mark-up in
order to do so.
These amendments are directed to the issue of access to and disposition of
sensitive information. As Chairman of the Separation of Powers Subcommittee
I am concerned that certain procedures in S. Res. 400 may permit the executive
branch to assert unacceptable limitations on the proposed Committee's opera-
s tion. Specifically, I proposed the elimination of all references to the executive
branch's classification system and the procedure in Section 7 which formalizes
presidential review of every committee decision to disclose sensitive information
obtained from the executive branch.
My first amendment is designed to ensure that the committee is not bound
by the executive branch's classification system.
Without question there will be information which is deemed too sensitive to
be publicly disclosed. Such a designation, however, should be made by the Com-
mittee and not by virtue of a bureaucrat's classification stamp. The Committee's
work will be seriously hampered if it allows the executive to control the release
of information by the Congress through a classification system established and
controlled by the executive branch. Congress should not rely upon any classifica-
tion system unless it is one established by law.
The second amendment I propose is, in my estimation, required to preserve the
concept of separation of powers. Cooperation between the branches is essential
if the arrangement contemplated under S. Res. 400 is to work. However, such co-
operation can be accomplished by less intrusive means. The formal procedure for
Presidential review that the resolution would establish institutionalizes an un-
precendented involvement by the Executive in the operations of Congress. And,
it is made even more dangerous by the loose trigger mechanism. The report on
S. Res. 400 states that, "The request that information not be disclosed may
consist simply of a restrictive security classification attached to a document
at the time it was provided the Committee or it may consist of a specific request
to the Committee in response to an inquiry from it." In effect no classified informa-
tion (which presumably will include almost everything of significance the Com-
mittee will receive) can ever be disclosed without first checking with the
President.
I seriously doubt that the drafters of this resolution intended to restrict in such
a manner the ability to the Committee to discharge is responsibilities.
The amendment I propose would retain the appeal procedure to the full Senate
when three or more members of the Committee object either to the disclosure or
withholding of information, without institutionalizing a Presidential check over
the Committee's powers. Any objections by a President to the disclosure of cer-
tain information could be worked out with the Committee through an ad hoc or
informal procedure. And if the Committee disagreed with the President on the ne-
cessity to withhold the information, an appeal could be made on behalf of the
President's position by Committee members through the normal appeal procedure.
In view of the serious consequences which would result to the prerogatives
of the Senate if the above provisions are not changed, I urge the adoption of these
two amendments.
Sincerely,
JAMES ABOUREZK,
Chairman.
On page 7, line 12, strike the word "classified" and insert in lieu thereof "sensi-
tive intelligence".
On page 7, line 23, strike the word "classified".
On page 11, line 16, strike "classified".
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On page 19, between lines 11 and 12 insert the following new subsection :
(d) As used in this resolution, the term "sensitive intelligence information"
means intelligence information in the possession of the Committee and which, re-
gardless of any security classification, the Committee has determined should not
be publicly disclosed ... because the threat to the national interest of the United
States posed by such disclosure is vital and outweighs any public interest in the
disclosure.
On page 8, beginning with line 24, strike all down through "days" on line 16,
page 9, and insert in lieu thereof : "such information it shall be disclosed unless
within three days after the vote".
On page 9, line 22, strike the word "any" and insert in lieu thereof "such".
On page 9, line 22, beginning with "sub-", strike everything following through
the word "information" on line 24 and insert in lieu thereof "it".
On page 10, line 8, strike, "(5)" and "(6)" and insert in lieu thereof "(3)" and
On page 10, line 11, strike "(3)" and "(4)" and insert in lieu thereof "(1)" and
"(2)".
On page 11, line 24, strike "2" and insert in lieu thereof "1".
Redesignate sections 4 through 6 as sections 2 through 4, respectively.
U.S. SENATE,
COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C., March 17, 1976.
Hon. HOWARD W. CANNON,
Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.
DEAR HOWARD : As you know, S. Res. 400 was reported by the Government Op-
erations Committee, on which we both serve, by a unanimous vote and referred
to your Committee.
In discussing this legislation with our colleagues, it has become apparent that
there exists a substantial body of opinion within the Senate which believes that
the disclosure provision in Section 7(c)(2) should be further tightened. This
section deals with the ability of a member of the proposed committee to communi-
cate classified information to another Senator or to a Senate committee.
As the resolution now stands, any Senator is free to make such communications
on his own authority, without authorization by the Committee.
As an alternative, we suggest that you consider amending Section 7(c) (2) on
lines 1 through 6 on page 12 to read "The Committee on Intelligence Activities or
any member of such committee may, upon majority vote of the full committee,
make any information described in paragraph (1) available to any other com-
mittee or any other Member of the Senate." Additionally, we feel that the
deletion of all language after the words "Senate" on line 15 through the end of
line 19 is appropriate in that it would not allow disclosure without committee
approval.
We believe that such an amendment would substantially improve S. Res. 400,
and we hope that you will give it your consideration.
Sincerely,
SAM NUNN, (t
CHARLES H. PERCY.
U.S. SENATE,
COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C., April 5, 1976.
Hon. HOWARD W. CANNON.
Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.
DEAR HOWARD : In your consideration of S. Res. 400, I would like to make some
comments in support of the purposes the Government Operations Committee was
attempting to achieve.
S. Res. 400 seeks to achieve one basic goal-to consolidate the current frag-
mented oversight of the V.S. intelligence community by the Congress. It seeks
to cut down on the proliferation of committees involved in the intelligence over-
sight process. I totally agree with George Bush, Director of the CIA, when he
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195
testified before the Rules Committee and said, "I strongly urge the Senate, in
considering the oversight issue, to concentrate oversight of foreign intelligence
activities."
In the extensive hearings that Government Operations had on this issue, the
theme of consolidation was struck time and time again. Among others, then
Director of the CIA Colby urged consolidated oversight and that one committee
should have exclusive, ultimate jurisdiction. Secretary Kissinger also urged that
one committee review the intelligence process, although all committees could still
review intelligence product.
In response to questions from Senator Allen at the hearing, Director Bush
stated that creation of a new intelligence committee causes no problems. In fact,
he said that consolidated oversight with more information being provided to the
new committee, along with better protection of that information, has "enormous
appeal."
He also stated in response to a question from Senator Allen that he is not
happy with the proliferation of committees as it now exists. He said that he
does not favor the status quo.
Therefore, I feel that George Bush and members of the Government Opera-
tions Committee agree. We need to have more consolidated oversight.
Mr. Bush did have some specific concerns, however. Let me address those.
1. Mr. Bush is concerned about the Budget Committee involving itself in the
intelligence process and asking for sensitive information.
This issue had not surfaced before Government Operations at the time we
were considering S. Res. 400, but I too hope along with Director Bush that an
accommodation can be reached that will provide the Budget Committee the in-
formation it needs while maintaining security. I will speck specifically to the
security of budget figures later.
2. He mentions that under the terms of the Hughes-Ryan amendment, Section
662 of the Foreign Assistance Act, that information regarding covert action is
required to be reported to Appropriations, Armed Services and Foreign Rela-
tions. It is true that S. Res. 400 does not affect this law. However, should a new
intelligence oversight committee be created to consolidate intelligence community
oversight, then I think Hughes-Ryan should be repealed and I will introduce
legislation to that effect.
3. Mr. Bush mentions that. the committee or any member of the committee can
disclose information to any other member of the committee can disclose infor-
mation to any other member of the Senate. While he says that this information
may be necessary for substantive intelligence, he sees no justification for un-
limited dissemination of information about the Agency's sources and methods
and feels that this provision must be tightened up. I agree, Mr. Chairman. Pend-
ing before the Rules Committee at the present time is a letter written by Senator
Nunn and myself on precisely this point. In that letter we state that this pro-
vision is too loose. and we recommend that the Rules Committee change this
section to require that no information can be disclosed to a member of the Senate
not on the Intelligence Committee without the affirmative vote of the Intelligence
Committee.
4. Mr. Bush is also concerned about disclosure of information over the objec-
tions of the President. S. Res. 400 as drafted would require that no such informa-
tion could be disclosed by the Committee if 3 members of th
C
e new
ommittee ob-
jected. The full Senate would than have to decide. If the Rules Committee
wanted tit t
l
o, cou
d tighten this provision even further by simply requiring that,
in a case where the President objected to disclosure of information, the issue
would automatically go to the full Senate. This would totally eliminate the
committee's right to unilaterally disclose.
I would like to make one point in this regard. In his questioning of Senator
Hrnska, Senator Allen made the point that it seemed to him that there was more
emphasis on disclosure of information in this resolution than on protection of
security. Let me just say that there are tougher sanctions on staff, and members,
in this resolution than exist for any other committee of the Senate at the present
time. Further, there are NO disclosure prohibitions on the part of any other com-
mittee of the Senate. Any committee can now disclose anything it wants to. Any
prohibition on disclosure written into S. Res. 400, no matter how weak, is
stronger than anything covering any other committee. Today, for example, For-
eign Relations or Armed Services could disclose anything it wants to to the full
Senate. If the Rules Committee wants to write even tougher sanctions. fine, but
it should be noted that the proposed sanctions are tougher than any other com-
mittee has at the present time.
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5. Mr. Bush is also concerned about an annual authorization process of the
intelligence budgets. He states that an annual authorization bill reported from
the new committee would reveal at least the budget total. Why, I ask? Reviewing
a budge and authorizing a budget are not the same as disclosing the budget.
There could be a secret authorization process. Currently the Armed Services
Committee looks at the CIE budget and decides whether it is appropriate. They
don't put it in the Washington Post the next day. Nor would the new Intelligence
Committee do so either. There is no contradiction between annual authorization
and secrecy.
6. Mr. Bush's last point is that the FBI should not be included in the jurisdic-
tion of the new Committee. I disagree. I feel that the FBI intelligence division
is an important part of time national intelligence community. In FBI counter-
intelligence the only difference between it and the CIA is that the CIA keeps
track of people beyond the water's edge and the FBI keeps track of them within
the continental U.S. One picks up where the other leaves off but they do the
same thing.
The Government Operations Committee has tried to do precisely what Mr.
Bush has advocated-consolidate intelligence oversight. A continuation of the
present system means greater proliferation of oversight, gives greater rise to
leaks of information, and is contrary to the wishes of the Executive branch.
I look forward to worki:mg with you on this issue to reach consensus on how
to resolve this most important matter.
Sincerely,
CHARLES H. PERCY, U.S. Senator.
STATEMENT OF WILLIAM V. ROTH, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Mr. Chairman, I want to thank you and'your colleagues for affording Senator
Huddleston and myself this opportunity to discuss the provisions and rationale of
our amendment to provide for sanctions against Senators or staff members who
make unauthorized, harmful disclosures of legitimate intelligence secrets. This
amendment is incorporated in subsections (c), (d), and (e) of section 7.
I regard the inclusion of this provision in the resolution to create a new per-
manent Intelligence Activi.ties Committee as essential for two reasons : First, to
protect vital national secrets, and second, to help the Committee do an effective
oversight job by winning Executive branch and public confidence in its ability to
protect information that is necessarily secret.
I have been deeply interested in the problem of government secrecy for a num-
ber of years. The problem is two-sided. First, there is far too much classification
in the Executive branch. To a certain extent this is inherent because each agency
which classifies tends to interpret the public interest from a standpoint heavily
colored by its own buream:.cratic interests. The other side of the problem is that
in some quarters excessive secrecy has bred a lack of respect for any secrecy. If
there has been too much Jassification by agencies acting in their own interests,
there has also been too much leaking by individuals for their own interests with-
out proper and careful consideration of the reasons this material may be classified.
In a 1957 article in the Yale Law Journal, Joseph W. Bishop, Jr., stated the
problem very succinctly in this way : "The files of the executive bulge with
documents which Congressmen, from the best and worst motives, are eager to
examine and which bureaucrats, also from the best and worst motives, are deter-
mined to keep for themselves. Many of these documents, if published, would cer-
tainly cause headlines and headaches all across the nation, and some might create
a stir in foreign chancelleries-a prospect from which the average legislator,
especially if he be up for re-election, shrinks about as much as Brer Rabbit shrank
from the briar patch, but which may cause exquisite pain to the executive
branch."
In my judgment, our job consists in trying to ensure full public access to gov-
ernment information for which there is no compelling reason for secrecy, and at
the same time protecting the information for which there is a public interest in
secrecy from being disclosed by individuals acting from the "worst motives" or
simply through carelessness.
It is not possible to define by legislation or Executive Order any precise, objec-
tive line between what must be kept secret and what should be available to the
public. Two individuals, "both acting honestly and in good faith, could arrive at
quite different judgments about any particular piece of information. What we
are saying in this amendment, however, is that when a majority decision has
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197
been made by the Intelligence Activities Committee or the Senate that an item
of information must be kept secret, in the public interest, then an individual
senator or staff aide will not have the right to thwart that majority decision with-
out an appropriate sanction.
It has been suggested in some quarters that this amendment violates the spirit
of the "Speech and Debate Clause" of the Constitution. That clause, however,
provides that for any speech or debate in the House or Senate, no Member of
Congress shall be questioned "in any other place." As the Supreme Court noted
in Gravel v. United States, the fundamental purpose of this clause is one "of
freeing the legislator from executive and judicial oversight that realistically
threatens to control his conduct as a legislator." It does not mean that Congress
cannot discipline its own members. That right is provided for in Article 1, Section
5 of the Constitution and has been long recognized by the Senate in cases of the
kind we are discussing here in Rule XXXVI permitting the censure or expulsion
of Senators who "shall disclose the secret or confidential business or proceedings
of the Senate .. ." The Roth-Huddleston Amendment is an extension of this
Rule.
We have suggested this extension for several reasons. First, Rule XXXVI does
not cover staff members. Secondly, our amendment establishes procedures to per-
mit the free flow of classified information between committees which need it or
among Senators under conditions so that it will be known who has received it.
Thirdly, this amendment contains provisions to prevent a "cover-up" by a com-
mittee of any significant, harmful leak by a powerful or well-liked Member or
staff assistant. To accomplish this, we have included a procedure under which
5 members of the proposed 11 member Intelligence Committee or any 16 Senators
to require an investigation by the Senate Select Committee on Standards and
Conduct and a report of that Committee's findings. This should be regarded as an
exceptional procedure which will hopefully rarely have to be invoked, but will be
readily understood and available if it is necessary to invoke it.
Finally, Mr. Chairman, let me point out that the Members of the Government
Operations Committee believe that careful consideration should be given to ex-
tending whatever rules cover the disclosure and protection of classified informa-
tion by the Senate Intelligence Committee to all Senate committees which handle
sensitive information. This is a matter we felt was outside the scope of our juris-
diction on this resolution, but which we strongly hope your committee will
address.
Whether or not you do deal with this question at this time, I believe it abso-
lutely essential to have such procedures in place for the new Intelligence Activi-
ties Committee. This Committee will be handling some of our nation's most
sensitive information and, very possibly, material that could be a life or death
matter for those who serve our country as intelligence operatives. It is, therefore
essential that this legitimately secret information be given the strongest pos-
sible protection while at the same time we establish the mechanism needed by
our democracy to prevent any further misuse of intelligence agencies or further
misconduct by those agencies.
U.S. SENATE,
Hon.HOWARD W. CANNON, 'Washington, D.C., March 18, J976.
,
Chairman, Committee on Rules and Administration,
T7.S. Senate, Washington, D.C.
~
DEAR MR. CHAIRMAN : As authors of the so-called Roth-Huddleston amend-
ment which is included in section 7(c), (d), and (e) of Senate Resolution 400
as reported from the Government Operations Committee, we wanted to advise
you of our commitment to a strong, effective sanctions provision for Members
of the Senate or employees who make unauthorized disclosures of intelligence
data and to offer our assistance in any way which might be helpful to you.
Our amendment provides that no Senator or employee shall disclose, other
than in a closed session of the Senate, information regarding intelligence activi-
ties which either the Intelligence Committee or the full Senate has determined
should not be disclosed. If there is such a disclosure, the Select Committee may
investigate and recommend appropriate sanctions. If five members of the In-
telligence Committee or sixteen members of the Senate so request, the Select
Committee on Standards and Conduct must investigate the matter.
As you may know, the amendment was discussed at some length in the Gov-
ernment Operations Committee. There was, we think it fair to say, both' some
confusion and some controversy over what was intended and what should be
intended.
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EDWARD M. KENNEDY,
PHILIP A. HART,
BIRCH BAYH,
QUENTIN N. BURDICK,
JOHN V. TUNNEY,
CHARLES MCC. MATHIAS, JR.,
JAMES ABOUREZK.
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We would appreciate the opportunity either to testify, should public hear-
ings be held, or to meet With the committee, should you deem that useful.
Because we are charting somewhat of a new course here, we are certain that
you will want to review both the language of the amendment and the report
language in some detail. Basically, we are convinced that the amendment is en-
tirely consistent with the Supreme Court decisions in Powell v. McCormack and
(travel v. U.S. and with the speech and debate clause of the Constitution. We
view it as an exercise of Article 1, section 5 of the Constitution which author-
izes each House of Congress to determine the Rules of its. Proceedings, punish
its Members for disorderly Behavior, and with the Concurrence of two-thirds,
Thank you for your consideration.
Sincerely,
UNITED STATES SENATE,
Washington, D.C., April 6, 1976.
Hon. HOWARD W. CANNON,
Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : The Committee on Rules and Administration is presently
considering S. 400 to establish a new Intelligence Oversight Committee in the
Senate. Last month the Senate Committee on the Judiciary met to discuss the
issue concerning the extE?nt of jurisdiction the new committee should be given
regarding intelligence activities of the Federal Bureau of Investigation ; we
understand' that the views of the committee, adopted by voice vote, have been
provided to the Committee on Rules and Administration.
While a majority of the members of the Committee on the Judiciary present
at our executive session last month favored the Committee on the Judiciary's
retaining exclusive jurisdiction over F.B.I. intelligence activities, we, the under-
signed members of the Committee on the Judiciary, wanted to bring to your
attention our conclusions to the contrary : that the Intelligence Oversight Com-
mittee should be vested with concurrent or joint jurisdiction in this area.
Unquestionably the F.B.I. is predominately a law enforcement agency which
sets it apart from both the C.I.A. and the Defense Department intelligence opera-
tions. At the same time, however, we recognize that the F.B.I. exercises both
domestic and foreign intelligence responsibilities. The Bureau's foreign counter-
intelligence activities often do not relate directly to law enforcement purposes ;
its domestic security intelligence activities also frequently involve both law
enforcement concerns and matters relating to activities of foreign powers or
groups. Counterintelligen?e activities relating to foreign agents in the United
States fall peculiarly in this category.
The Judiciary Committee, we believe, must maintain its historic jurisdiction
over all aspects of the F.B.I. in light of this committee's responsibilities for and
expertise in the areas of law enforcement and protection of constitutional rights
and civil liberties. On the other hand, we feel that the new committee must also
have oversight responsibilities over the F.B.I. intelligence activities for several
reasons.
Such review will be necessary for the new committee to analyze properly the
foreign aspects of activities of other intelligence agencies. Because of the poten-
tial foreign aspects of counterintelligence, legitimate domestic security and
anti-terrorist intelligence activities, the new committee should have authority
to review the Bureau's operations in those fields as part of the overall picture
of the American intelligence effort and in view of the threats it must meet.
We thus conclude that the Intelligence Oversight Committee should be given
overlapping jurisdiction with the Judiciary Committee with respect to all F.B.I.
intelligence activities.
Sincerely,
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199
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., March 19, 1976.
Chairman, Committee on Rules and Administration,
U.S. Senate.
DEAR HOWARD : I am enclosing a copy of my letter to Chairman Frank Church
on the subject of General Accounting Office audit authority with respect to
intelligence activities.
Since S. Res. 400 is pending before your Committee, I thought you might
be interested in our views prior to final Senate consideration of the resolu-
tion. Without a clearer indication of congressional intent, we can conclude
only that no change in our role is intended.
Sincerely yours,
B-179296.
B-133200.
Hon. HOWARD W. CANNON,
ELMER B. STAATS,
Comptroller General of the United States.
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., March 19, 1976.
Chairman, Select Committee to Study Governmental Operations with Respect
to Intelligence Activities, U.S. Senate.
B-179296.
B-133200.
Hon. FRANK CHURCH,
DEAR MR. CHAIRMAN: The General Accounting Office has been observing the
progress of recent congressional and executive inquiries with regard to the
intelligence functions of the Federal Government, particularly the investiga-
tions conducted by your Committee and the House Select Committee on Intelli-
gence. Our interest has been to determine whether this activity will result in
a clearer definition of the role we are to play in relation to the permanent
congressional oversight structure that will exist after the conclusion of these
studies. We are now writing to your Committee because the time for making
critical decisions appears to be at hand and we have not yet seen strong
evidence of a congressional intent to provide the kind of clarification we believe
is necessary.
To date, neither your Committee report nor the report of the House Com-
mittee has been published. However, the House Committee has published its
recommendations (H. Rept. No. 94-833, February 11, 1976). Recommendation
"H," entitled "FULL GAO AUDIT AUTHORITY," represents the only clear
indication of congressional sentiment on this issue ; this recommendation states :
"The select committee recommends that the General Accounting Office
be empowered to conduct a full and complete management as well as
financial audit of all intelligence agencies. There shall be no limitation on
the GAO in the performance of these functions by any executive classifica-
tion system, and the audit function of GAO shall specifically apply to those
funds which presently may be expended on certification of a Director of an
Agency alone."
However, even within the House Committee there was a degree of uncer-
tainty as to the GAO role, in that the ranking minority member submitted an
alternative recommendation which speaks only of "financial audits," a position
which in our opinion would not produce a material difference in the type of
audit work we are now able to perform.
Furthermore, legislation is now under consideration by the Senate Com-
mittee on Rules and Administration which would establish a standing Senate
Committee on Intelligence Activities. The pending bill, S. Res. 400, derives from
S. 2893, which was introduced on January 29, 1976, by you and a majority of
the members of your Committee. S. Res. 400 was favorably reported by the
Senate Committee on Government Operations on March 1, 1976 (S. Rept. No.
94-675).
Neither S. 2893, S. Res. 400, nor the Government Operations Committee re-
port makes any reference to our Office and there is nothing in any of these
documents which would enable us to know, better than we do now, what assist-
ance the Congress will expect us to render in aid of the oversight function.
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Other pending legislation, for example H.J. Res. 8067 is similarly silent on this
matter. In fact, we are #Lware of only three current bills which are directly
related to GAO audit activity in the intelligence area. Two bills focus primarily
on the problem of auditing funds spent pursuant to statutory certification
authority (H:R. 1523. introduced January 16, 1975, by Congressman Bob Eck-
hardt and others, and S. 1817, introduced May 22, 1975, by Senator Richard
Schweiker). The third bill, S. 653 (introduced by Senator William Proxmire on
February 11, 1975) represents a broad authorization for GAO audits of intelli-
gence activities. No actiol:: has been taken on any of these bills.
Within the last two years we have established, in a series of documents, a full
record of our experiences, comments, and views with regard to GAO audits of
intelligence activities. It is not necessary here to restate all that has been said
before ; however, we have attached a list of the more significant documents for
ease of reference. There is one theme in all of these documents which merits
singular attention, and which can be best illustrated by quotation from these
documents :
1. From the May 10, 1974, letter to Senator Proxmire :
"From prior experience, it is our view that a strong endorsement by the
congressional oversight committees will be necessary to open the doors to
intelligence data wide enough to enable us to perform any really meaning-
ful reviews of intelligence activities."
2. From our July 10, 1975, letter to your Committee :
"We believe a strong congressional endorsement will be necessary to open
the doors to intelligence data wide enough so that we can make the meaning-
ful reviews of intelligence activities that would assist the Congress in per-
forming its oversight function."
3. From our November 10, 1975, letter to the Chairman of the House Select
Committee on Intelligence :
"The Congress must- first make certain fundamental determinations as to
the manner and methods by which it will exercise its oversight role. Once
this set of basic decisions has been made, the role of the GAO in support of
the legislative review function can be more easily and precisely determined.
Until these matters are resolved, GAO's review activity with respect to the
intelligence agencies will be severely circumscribed by the combination of
legal and practical inhibitions outlined in our July 31 testimony. Therefore,
we see any expansion of our sphere of activity in this area as being partic-
ularly dependent upon a strong and clear endorsement from the congres-
sional oversight committees."
We believe that it is Hof importance both to GAO and to the intelligence agencies
to be provided adequate legislative guidance as to the scope and extent of future
GAO audits of intelligence activities. Whether or not there is to be a significant
change in our past role, the legislative intent should be made clear. The present
record permits us to conclude only that no change is intended.
We urge you to help resolve the uncertainty either through appropriate action
during the further consideration of S. Res. 400, or through comment on this is-
sue in your forthcoming Committee report.
ELMER B. STAATS,
Comptroller General of the United States.
RECENT SIGNIFICANT GAO DOCUMENTS ON GAO ROLE CONCERNING INTELLIGENCE
ACTIVITIES
1. Letter to Senator William Proxmire-May 10, 1974.
2. Letter to Chairman Frank Church, Senate Select Committee to Study Gov-
ernmental Operations With Respect to Intelligence Activities-July 10, 1975.
3. Letter to Chairman Otis Pike, House Select Committee on Intelligence-
July 31, 1975 (identical tc July 10, 1975, letter).
4. Testimony of Comptroller General before House Select Committee on In-
telligence-July 31, 1975.
5. Letter to Chairman Otis Pike, House Select Committee on Intelligence-
November 10, 1975.
6. Report to House Committee on the Judiciary, "FBI Domestic Intelligence
Operations-Their Purpose and Scope:. Issues That Need to be Resolved" (GGD-
76-50, February 24, 1976).
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201
U.S. SENATE,
Washington, D.C., March 11, 19'76.
HON. HOWARD W. CANNON,
Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.
DEAR AIR. CHAIRMAN : Senate Resolution 400, as reported to the 'Senate by the
Committee on Government Operations and referred to your Committee for
consideration contains several provisions that constitute precedents insofar as
a standing committee of the Senate is concerned.
Section 2 of the resolution contains a provision. which limits membership
of a Senator on the new standing committee to not more than six (6) years of
continuous membership. To my knowledge, this would be the first instance in
which membership on a standing committee has been limited.
Section 2 also contains a provision which provides for the election of the
chairman of the committee by the Members of the majority party and the election
of the vice chairman of the committee by the Members of the minority party
and that the vice chairman shall act in the absence of the chairman. The author-
ization for the election of a vice chairman of a standing committee would be the
first instance in which a vice chairman would be authorized for and elected by
a standing committee with authorization to act in the absence of the chairman.
Predicated on a strict interpretation, the authorization for the vice chairman
to approve vouchers for expenditures and to appoint employees to the committee
in the absence of the chairman, would appear to require the committee to notify
your Committee each time the chairman is absent for the purpose of your Com-
mittee's approval of vouchers signed by the vice chairman. For the purpose of
staff appointments the committee would also be required to notify my office in
the same manner. Otherwise, it would have to be assumed by your Committee
and my office that the chairman was absent whenever the vice chairman. signed
a voucher or an appointment.
Section 3 of the resolution contains a provision which limits the employment
of a Professional Staff Member to six (6) years, whether employed full time, on
a daily basis, by contract, or by any combination of these three types of employ-
ment. The report of the Committee on Government Operations states that this
provision would not apply to nonprofessional staff members. Except for tem-
porary appointments which are utilized by many offices in the Senate, this is
the first instance in which the employment of any regular employee has been
limited to a specified period of time. This would require a very strict control of
the affected employees to avoid an illegal payment of salary.
While all of the above provisions constitute a precedent insofar as standing
committees are concerned. I am aware that Senate Resolution 400 is decreeing
Senate policy and therefore would not want the information in this letter to
be construed as anything more than a service to your Committee.
If I can be of further service to you and your Committee, please let me know.
Respectfully,
WILLIAM A. RIDGELY,
Financial Clerk, U.S. Senate.
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APPENDIX
STATEMENT OF MITCHELL ROGOVIN, BEFORE THE HOUSE SELECT COMMITTEE ON
INTELLIGENCE, DECEMBER 9, 1975
Re : The Constitutional, Statutory and Legal Basis for Covert Action.
By means of explicit, formal instructions to the Director of Central Intelligence,
the President and the National Security Council have directed that the Central
Intelligence Agency assume responsibility for planning and conducting "covert
action" in support of this country's foreign policy objectives. The legal authority
for the delegation of this responsibility to the CIA derives from three funda-
mental sources, each of which, in itself, constitutes a sufficient legal basis for the
delegation. The three fundamental sources are : (1) the inherent constitutional
power of the President with respect to the conduct of foreign affairs ; (2) the
National Security Act of 1947; and (3) the ratification, by Congress, of the CIA's
authority to plan and conduct covert action.
The major portion of this memorandum is devoted to an analysis of these
fundamental legal sources. Before proceeding with this analysis, however, it is
useful to set forth a description of the kinds of activities which are comprehended
by the term "covert action."
I. Covert action defined
In general terms covert action means any clandestine activity designed to in-
fluence foreign governments, events, organizations or persons in support of
United States foreign policy, conducted in such manner that the involvement of
the United States Government is not apparent.
There are four general categories of covert action :
(1) Covert Political Action or operations designed to exercise influence on
political situations in foreign countries ; this could involve funding a political
party or other group, or the use of an agent in a high government position to in-
fluence his government's domestic or foreign policy in a manner beneficial to the
United States ;
(2) Covert Propaganda or the covert use of foreign media assets including
newspapers, magazines, radio, television, etc., to disseminate information sup-
porting United States foreign policy or attack the policies and actions of foreign
adversaries ;
(3) Intelligence deception operations involving the calculated feeding of in-
formation to a foreign government or intelligence service for the purpose of in-
fluencing them to act or react in a manner favorable to our purpose ; and
(4) Covert paramilitary action, the provision of covert military assistance and
-4 advice to foreign conventional and unconventional military forces or
organizations.
H. Fundamental sources of legal authority for CIA. to engage in covert action
As indicated above, the legal authority for the delegation of covert action
responsibility to the CIA by the President and the National Security Council
derives from three fundamental sources: (1) the inherent constitutional power
of the President with respect to the conduct of foreign affairs; (2) the National
Security Act of 1047; and, (3) the ratification, by Congress, of the CIA's author-
ity to plan and conduct covert action. Each of these fundamental sources is dis-
cussed separately below.
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A. INHERENT CONSTITUTI0 1AL POWER OF THE PRESIDENT WITH RESPECT TO FOREIGN
AFFAIRS
The Supreme Court, the Congress, and the framers of the Constitution itself,
have all recognized that the President possesses broad powers with respect to
the conduct of foreign affairs. No less a constitutional authority than John Mar-
shall in an address to the House of Representatives, declared :
The President is sole organ of the nation in its external relations, and its
sole representative with foreign nations.'
The United States Senate, at an early date in its history, acknowledged the
supremacy of the President with respect to foreign affairs, and recognized that
he has broad powers in that area. In 1816, the Senate Foreign Relations Com-
mittee issued a report which concluded :
The President is the constitutional representative of the United States
with regard to foreign. nations. He manages our concerns with foreign nations
and must necessarily be most competent to determine when, how and upon
what subjects negotiation may be urged with the greatest prospect of success.'
Each of these statements was cited approvingly by the Supreme Court in United
States v. Curtiss-Wright Export Corp., 299 U.S. 311 (1936). In that case, the
Court upheld the power of the President to proclaim it unlawful for United States
citizens to supply arms to any of the belligerents in the Chaco War in South
America. Although the Court could have rested its opinion solely on the grounds
that the proclamation was issued pursuant. to a Joint Resolution of Congress, it
cited the statements of Marshall and the Senate Foreign Relations Committee
excerpted above and spoke at length of the inherent constitutional powers of the
President with respect to foreign affairs. Specifically, the Court spoke of :
[T]he very delicate, plenary and exclusive power of the President as the
sole organ of the Federal government in the field of international relations-
a power which does not require as a basis for its exercise an act of Con-
gress ... 299 U.S. at 320.
The Court has frequently reaffirmed the constitutional doctrine set forth in
Curtiss-Wright that the President is supreme in the area of foreign affairs and
that his powers in that area are "plenary." For example, in United States v.
Pink, 315 U.S. 203 (1942), a case in which the Court upheld the power of the
President to recognize foreign governments and to conclude executive agreements
with them which have the force of domestic law, the Court repeated that "the
President ... is the `sole organ of the Federal government in the field of inter-
national relations.'" 315 U.S. at 230. Then the Court added:
Effectiveness in handling the delicate problems of foreign relations requires
no less. Unless such a power exists, the power of recognition might be
thwarted or seriously diluted. No such obstacle can be placed in the way of
rehabilitation of relations between this country and another nation, unless
the historic conception of the powers and responsibilities of the President in
the conduct of foreign affairs . is to be drastically revised. Id.
Pursuant to this "historic conception of the powers and responsibilities of the
President in the conduct of foreign affairs," the Court has made it clear that the
President may: proclaim it unlawful for United States citizens to supply arms to
foreign belligerents, Curtiss-Wright, supra; recognize foreign governments and
conclude binding executive agreements with them, Pink, supra; use military force
to protect United States citizens and property abroad, In Re Neagle, 135 U.S. 1,
64 (1890) ; and repel an armed attack by meeting "force with force," Prize Cases,
2 Black 635, 668 (1862).
The Court has never considered the precise question of whether the President
may direct an agency of government to perform covert action in foreign coun-
tries. However, in view o:' the Court's recognition of the broad powers of the
President with respect to the conduct of foreign affairs, and in view of .the over-
whelming historical preced-'nts, it is clear that the President does have this power.
The historical precedents are every hit as compelling as the strong language
used by the Supreme Court. Chief among these precedents j is the longstanding
practice whereby Presidents, acting on their own authority, have dispatched
troops to foreign countries and authorized the use of military force short of war.
1 10 Annals of Congress 613 (1800), reprinted in 5 Wheat. Appendix note 1. at 26 (U.S
1820).
2 8 U.S. Senate Reports, Committee on Foreign Relations, p. 24.
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This practice was originated by Thomas Jefferson when he, on his own authority,
sent the Navy to combat the Barbary pirates in an effort to protect American
shipping. By 1970 it was estimated that Presidents, on their own authority, had
asserted the right to send troops abroad in "more than 125" instances differing
widely in purposes and magnitude.' Although the Constitution vests Congress
with the power to "declare war (Article I, Section 8, Clause 11), Presidents have,
throughout history, insisted on and exercised their right to use force short of war.
President Taft, who later served as Chief Justice of the Supreme Court, wrote :
The President is the Commander-in-Chief of the army and navy, and the
militia when called into the service of the United States. Under this, he can
order the army and navy anywhere he wills, if the appropriations furnish the
means of transportation."' -
Recent examples of presidential use of force short of war include : Presi-
dent Truman's peacetime stationing of troops in Europe ; President Eisenhower's
sending of Marines to Lebanon in 1958 to prevent foreign intervention in the
affairs of that country ; President Kennedy's imposition of a naval "quarantine"
on Cuba during the 1962 missile crisis, and his sending of planes to the Congo
to evacuate civilians in 1960; President Johnson's sending of troops to the Do-
minican Republic in 1965 to prevent formation of a hostile government; ' and,
President Ford's use of force against Cambodia in 1975 to obtain the release of
American seamen held by Khmer Rouge troops.
Congress has formally acknowledged that the President has inherent consti-
tutional authority to use military force short of war. This acknowledgement is
implicit in the War Powers Resolution, which became effective on November
7, 1973.8 In Section 3 of that Resolution, it is provided that :
The President in every possible instance shall consult with Congress be-
fore introducing United States Armed Forces into hostilities or into situa-
tions where imminent involvement in hostilities is clearly indicated by the
circumstances, and after every such introduction shall consult regularly with
the Congress until United States Armed Forces are no longer engaged in
hostilities or have been removed from such situations.
Moreover, the Resolution specifically states, in Section 8(d) (1), that it is not
intended in any way to "alter the constitutional authority" of the President :
Nothing in this joint resolution-
(1) is intended to alter the constitutional authority of the Congress
or of the President, or the provisions of existing treaties ...
If the President has the power to dispatch troops to foreign countries and to
use military force short of war-and the foregoing discussion clearly demon-
strates that he does-then it would logically follow that he has the power to
send civilian personnel to foreign countries to engage in covert action, since such
action is rarely, if ever, as drastic as the use of military force. In fact, the his-
torical precedents in support of the President's power to conduct covert action
in foreign countries are every bit as clear as those in support of his power to
use military force.
Long before the CIA was established, Presidents, acting on their own authority,
directed executive agents and executive agencies to perform what has come to be
known as covert action. Beginning with George Washington, almost every Presi-
dent has appointed "special agents" to engage in certain activities with, or
against, foreign countries ; although the activities conducted by these executive
agents have included such overt assignments as negotiating treaties and con-
ferring with wartime allies, they have frequently included covert action as well.
In the first century of the nation's existence alone, more than 400 such agents
were appointed by the President.?
Early examples of covert action performed by these agents are legion. The fol-
lowing three are typical : (1) in 1843 President Tyler secretly dispatched an agent
to Great Britain to meet privately with individual government and opposition
3Background information on the Use of U.S. Armed Forces in foreign countries, 1970
Revision by the Foreign Affairs Division, Legislative Reference Service. Library of Congress,
for the Subcommittee on National Security Policy and Scientific Development of the House
Committee on. Foreign Affairs, 91st Cong. 2d Sess. 16 et seq. and Appendices I and II (here-
after, "Background Information.")
4Taft, W. H., Our Chief Magistrate and His Powers, pp. 94-95 (1916).
5 Background information. supra.
9 Public Law 93-148. 87 Stat. 555.
7 S. Doc. No. 231, 56th Cong.. 2d Sess., part 8, at 337-62 (1901) ; H.R. Doe. No. 387, 66th
Cong., 1st Sess., part 2, at 5 (1919).
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leaders and to attempt to influence public opinion with respect to matters affect-
ing the two countries, without ever disclosing that he was a representative of the
United States Government; (2) in 1845, when President Polk feared that Mexico
was on the verge of ceding California to Great Britain, he secretly dispatched
an agent to California for the purpose of "defeating any attempt which may be
made by foreign governments to acquire a control over that country;" (3) in
1869, when the United States had territorial designs on central and western Can-
ada, President Grant sent an agent to that area to foment sentiment for separa-
tion from Canada and union with the United States!
These examples show that the practice of appointment of special agents by
the President for the purpose of conducting covert action in foreign countries
is deeply-rooted in our national history. The practice is so deeply-rooted that
historians have acknowledged the existence of a broad presidential discretion
with respect to appointment of such agents and assignment of functions to
them. According to Henry M. Wriston, for example :
Among all instruments available to the President in his conduct of
foreign relations, none is more flexible than the use of personal representa-
tives. He is free to employ officials of the government, or private citizens.
He may give them such rank and title as seem appropriate to the tasks. .
He may send his agents to any place on earth that he thinks desirable and
give them instructions either by word of mouth, or in;writing, or through
the Department of State, or in any other manner that seems to him
fitted to the occasion. . .
Their missions may be secret, no one ever being informed of them. . . .
The President may meet their expenses and pay them such sums as he re-
gards as reasonable. In this matter there is no check upon him except the
availability of funds which has never proved an insoluble problem. In short,
he is as nearly completely untrammeled as in any phase of his executive
authority! (Emphasis added.)
Individual agents, appointed by the President, were the exclusive means by
which covert action was conducted prior to World War II. During the war, the
President created the Office of Strategic Services, and charged it with responsi-
bility for secret subversive operations against the enemy, as well as general intel-
ligence activities; the OSS thus became the first governmental agency to be
assigned the task of planning and conducting covert action.' The OSS exercised
this task until it was disbanded in September 1945. Then, in January 1946, Presi-
dent Truman, by Executive Order, established the Central Intelligence Group.10
Although the CIG was primarily a centralized intelligence organization, it was
also assigned the function of conducting covert action.
What these historical precedents show is that, beginning long before the CIA
was established, President:; exercised their independent power to direct executive
agents and executive agencies to perform covert action in foreign countries. Con-
sequently, when the CIA was established in 1947, and when, shortly thereafter,
it was delegated the responsibility for covert action, there was no attempt by
the President to assert or exercise any new or theretofore unrecognized executive
authority ; he was merely delegating to the CIA various executive functions
which were previously assigned to ad hoe special agents and other executive
agencies.
In sum, the decisions of the Supreme Court, the actions of Congress, and the
constitutional precedents developed by historical example clearly establish that
the President has broad, inherent powers with respect to foreign affairs, and that
these powers include the authority to assign an executive agency, such as the
CIA, the responsibility for planning and conducting covert action in support of
this country's foreign policy objectives.
The National Security Act of 1947 provided for the establishment of the CIA.
However, the idea for a central intelligence organization was actually conceived
three years earlier. In 1949:, Colonel (later Major General) William J. Donovan,
head of the wartime Office of Strategic Services, prepared a plan for President
8 Wriston. Henry Merritt. Executive Agents in American Foreign Relations, Baltimore.
Md.. Johns Hopkins Press (1929), reprinted Glouster, Mass., Peter Smith (1967).
9:85 Foreign Affairs 219 (19e01.
10 Executive Order 9690, Jar.,uary 26, 1.946. 11 Federal Register 1337, 1339 (February 5,
1946).
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Roosevelt which called for the establishment of a centralized intelligence service.
Donovan's plan envisoned an agency similar to his own OSS, which would procure
intelligence by overt and covert means and which would be responsible for
"secret activities" such as "clandestine subversive operations."
The OSS itself, as indicated above, was disbanded at the close of World War
II in September 1945. However, Donovan's plan, as developed and amended by
the Joint Chiefs of Staff, reached fruition on January 22, 1946; on that date,
President Truman, by Executive Order, established the Cenral Intelligence
Group (CIG).11 The CIA thus became the first peacetime central organization in
American history devoted to intelligence matters. Heading the CIG was a Director
of Central Intelligence, whose duties were to :
(a) Accomplish the correlation and evaluation of intelligence relating to
the national security, and the appropriate dissemination within the Govern-
ment of the resulting strategic and national intelligence policy .
(b) Plan for the coordination of such of the activities of the intelligence
agencies of [other] departments as relate to the national security and
recommend to the National Intelligence Authority [composed of the Secre-
taries of State, War and Navy, and a personal representative of the Presi-
dent] the establishment of such overall policies and objectives as will
assure the most effective accomplishment of the national intelligence mission.
(c) Perform, for the benefit of said intelligence agencies, such services
of common concern as the National Intelligence Authority determines can
be more efficiently accomplished centrally'.
(d) Perform such other functions and duties related to intelligence af-
fecting the national security as the President and the National Intelligence
Authority may from time to time direct.72 (Emphasis added.)
The National Security Act of 1947 called for the CIA to have the same powers
and responsibilities as were accorded the CIG under the 1946 Presidential
Directive. Accordingly, when the House Committee on Expenditures in the
Executive Departments held hearings on the 1947 Act, it paid special atten-
tion to the broad authority delegated to the CIG by subsection (d).2 During
these hearings, for example, Representative Clarence Brown questioned Lt.
Gen. Hoyt S. Vandenberg, Director of Central Intelligence, about the authority
which subparagraph (d) conveyed :
Rep. Brown. "[T]his other section (i.e., subparagraph (d)) was so
broad that you could do about anything that you decided was either ad-
vantageous or beneficial, in your mind?"
Lt. Gen. Vandenberg : "Yes, sir."
Rep. Brown : "In other words, if you decided you wanted to go into
direct activities of any nature, almost, why, that could be done?"
Lt. Gen. Vandenberg : "Within the foreign intelligence field, if it was
agreed upon by all of the three agencies concerned [i.e., State, War and
Navy, the three agencies represented on the NIA]." 14
A subsequent witness, Peter Visher, the draftsman of the Presidential Direc-
tive establishing the CIG, recommended to the committee that it pass the Act
without authority for the CIA to perform any "other functions related to in-
telligence affecting the national security." He called this provision a "loop-
hole" because it enabled the President to direct the CIG to perform almost
any operation.16 Various members of the committee discussed the provision
with the witnessl8
It is significant, then that when the bill was reported out, and when it was
passed, it authorized the CIA to :
Perform such other functions and duties related to intelligence affect-
ing the national security as the National Security Council (which replaced
the NIA) may from time to time direct. (Section 102(d) (5) ).
In other words, the committee, with full knowledge of the broad implications
of subparagraph (d) of the 1946 Presidential Directive, conferred the iden-
tical powers and responsibilities on the CIA. This legislative history indicates
11 Executive Order 9690, supra.
11 Id. at 1337.
13 Hearings before the House Committee on Expenditures in the Executive Departments.
June 27. 1947, addendum No. 1 to Volume 1 (hereafter "hearings").
14 Hearings, supra, p. 11.
15 Id., p. 88.
19 Id., pp. 78-108.
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that the committee, by including Section 102(d) (5) in the final bill, intended
that the CIA have the authority, subject to directions from the National Se-
curity Council, to conduct a broad range of direct operational assignments.
C. CONGRESSIONAL RATIFICATION OF CIA AUTHORITY TO PLAN AND CONDUCT
COVERT ACTION
Throughout the 28-year history of the CIA, the Agency has reported its covert
action programs to the appropriate members of its oversight subcommittees in
both the House and Sena:e. Moreover, Congress, through the mechanisms it
has established for funding the Agency, has continually appropriated funds to
the Agency for these activities.17
The Justice Department, in its 1962 memorandum, _discussed supra, pro-
vided the following description of the history of CIA reporting of its covert
action programs to Congress, and Congressional appropriation of funds for such
programs :
Congress has continued over the years since 1947 to, appropriate funds
for the conduct of such covert activities. We understand that the existence
of such covert activities has been reported on a number.of occasions to the
leadership of both houses, and to members of the subcommittees of the
Armed Services and Appropriations Committees of both houses. It can
be said that Congress as a whole knows that money is appropriated to
CIA and knows generally that a portion of it goes for clandestine activities,
although knowledge of specific activities is restricted to the group spec-
ified above and occasional other Members of Congress briefed for spe-
cific purposes. In effect, therefore, CIA has for many years had general
funds approval from the Congress to carry on covert cold-war activities ...18
The law is clear that, under these circumstances, Congress has effectively rati-
fied the authority of the Cl'A to plan and conduct covert action under the direc-
tion of the President and the National Security Council. The leading case on
this point is Brooks v. Dewar, 31'3 U.S. 354 (1941). In that case, a 1934 Act of
Congress authorized the establishment of livestock grazing districts on certain
federally-owned land, and charged the Secretary of the Interior with responsi-
bility for administering and maintaining these districts ; although the powers
conferred on the Secretary were broad, the Act did not explicitly authorize him
to require persons wishing to utilize the land to purchase licenses. Nevertheless,
the Secretary promulgated regulations which imposed a license requirement, and
sought to bar respondents who had not purchased a license, from utilizing a par-
ticular grazing district.
In the Supreme Court., the Secretary argued that, even though the 1934 Act
did not explicitly authorize him to require users of federal grazing lands to
purchase licenses, his exercise of this authority was lawful because Congress, by
its own actions, had ratified it. The Secretary argued that, on several occasions,
he fully informed the appropriate Congressional committees that he had imposed
a license requirement and that, in light of this information, Congress continually
appropriated funds for the operation of the grazing district program ; this, he con-
tended, amounted to a ratification of his authority to institute the license
requirement.
The Supreme Court agreed that Congress, by continuing to appropriate funds
with knowledge of the Secretary's actions, ratified those actions. The Court
explained :
The information in the possession of Congress was plentiful and from
various sources. It knew from the annual reports of the Secretary of the
Interior that a system of temporary licensing was in force. The same infor-
mation was furnished the Appropriations Committee at its hearings. Not
"The history of CIA reporting of covert action programs and congressional appropria-
tion dates hack to 1948. In April 1945. when the House Armed Services Committee was con-
sidering the CIA act (ultimate:y adopted in 1949). Director of Central Intelligence Hillen-
koetter told the committee that the act was needed to enable the Agency to, inter aiia, do
research on and purchase explosives, utilize and supply underground resistance movements
in overrun countries, purchase printing presses for the use of agents. and do research for
psychological warfare purposes. Passage of the act clearly reflects Congress' determination
that the Agency he able to conduct activities. such as covert action, similar to those con-
ducted by the OSS: for example, the permanent appropriations language in the CIA Act was
modelled after the appropriations language for the OSS because of its flexibility and its
provision for confidentiality of appropriations for secret operations.
za DOJ memorandum, pp. 12-l.3.
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209
only was it disclosed by the annual report of the Department that no permits
were issued in 1936, 1937 and 1938, and that permits were issued in only
one district in 1939, but it was also disclosed in the hearings that uniform
fees were being charged and collected for the issue of temporary licenses.
And members from the floor informed the Congress that the temporary li-
censing system was in force and that as much as $1,000,000 had been or
would be collected in fees for such licenses. The repeated appropriations of
the proceeds of the fees thus covered and to be covered in to the Treasury,
not only confirms the departmental construction of the statute, but consti-
tutes a ratification of the action of the Secretary as the agent of Congress
in the administration of the act. (Footnotes omitted.) 313 U.S. at 360-361.
The Brooks case requires the conclusion that Congress has ratified the CIA's
authority to plan and conduct covert action. Relying on Brooks, the Justice De-
partment reached precisely that conclusion :
It is well-established that appropriations for administrative action of
which Congress has been informed amount to a ratification of or acquiescence
in such action. Brooks v. Dewar, 313 U.S. 354, 361; Fleming v. Fohawk Co.,
331 U.S. 111, 116; see also Ivanhoe Irrig Dist. v. McCracken, 357 U.S. 275,
293-294; Power Reactor Co. v. Electricians, 367 U.S. 396, 409. Since the
circumstances effectively prevent the Congress from making an express and
detailed appropriation for the activities of the CIA, the general knowledge
of the Congress, and specific knowledge of responsible committee members,
outlined above, are sufficient to render this principle applicable.1D (Footnote
omitted).
Recent legislative developments provide further support for the Justice De-
partment's conclusion that Congress has ratified the CIA's authority to plan and
conduct covert action. In September and October 1974, attempts were made
in both the House and Senate to limit the Agency's power to conduct covert ac-
tion ; these attempts were soundly defeated. In the House, the attempt took the
form of a proposal by Representative Holtzman for a joint resolution amending
the Supplemental Defense Appropriations Act as follows :
After September 30, 1974, none of the funds appropriated under this joint
resolution may be expended by the Central Intelligence Agency for the pur-
pose of undermining or destabilizing the government of any foreign country.
The proposal was defeated by the House on September 30, 1974, by a vote
of 291-108.
In the Senate. Senator Abourezk attempted to amend the Foreign Assistance
Act of 1961 so that it would state :
(a) No funds made available under this or any other law may be used by
any agency of the United States Government to carry out any activity within
any foreign country which violates, or is intended to encourage the viola-
tion of, the laws of the United States or of such country.
(b) The provisions of this section shall not be construed to prohibit the
use of such funds to carry out any activity necessary to the security of the
United States which is intended solely to gather intelligence information....
This amendment was defeated by the Senate on October 2, 1974, by a vote of
68-17.
However, the following amendment to the Foreign Assistance Act of 1961 was
enacted:
Sec. 663. Limitation on Intelligence Activities.
(a) No funds appropriated under the authority of this or any other Act
may be expended by or on behalf of the Central Intelligence Agency for op-
erations in foreign countries, other than activities intended solely for obtain-
ing necessary intelligence, unless and until the President finds that each
such operation is important to the national security of the United States and
reports, in a timely fashion, a description and scope of such operation to the
appropriate committees of the Congress, including the Committee on Foreign
Relations of the United States Senate and the Committee on Foreign Affairs
of the United States House of Representatives.
This provision prevents the CIA from engaging in any covert action unless and
until the President makes a finding that such action is important to the na-
tional security. It also requires the President to report. on the description and
scope of the action "in a timely fashion" to the appropriate Congressional coin-
19 DOJ memorandum, p. 13.
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mittees. The provision clearly implies that the CIA is authorized to plan and con-
duct covert action. The Association of the Bar of the City of New York has
concluded, in fact, that the provision serves as a "clear Congressional authoriza-
tion for the CIA to conduct covert activities." '0
In sum, the history of Congressional action since 1947 makes it clear that Con-
gress has both acknowledged and ratified the atuhority of the CIA to plan and
conduct covert action.
III. Conclusions
There is ample legal authority for the Central Intelligence Agency to plan
and conduct covert action in foreign countries. First, it is within the inherent
constitutional authority of the President with respect to foreign affairs to dele-
gate an executive agency, such as the CIA, the responsibility for planning and
conducting such activities ; in fact, by means of various National Security Coun-
cil Directives, and National Security Decision Memorandum 40 (issued by the
President himself), he has lawfully delegated this responsibility to the CIA.
Second, the National Security Act of 1947 authorizes the CIA, at the direction
of the National Security Council, to engage in covert action in foreign countries.
The legislative history of this statute, particularly in the House of Representa-
tives, gives support to this conclusion. Third, the 28-year history of Congres-
sional action with respect to the CIA clearly establishes that Congress has rati-
fied the authority of the Agency to plan and conduct covert action.
MITCHELL RCGOvIN,
PAUL REICHLER.
20 The Central Intelligence Agency: Oversight and Accountability, by the Committee on
Civil Rights and the Committee on International Human Relations of the Association of
the Bar of the City of New York (1975), p. 15.
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EXHIBIT 2
CONSTITUTIONAL AND STATUTORY AUTHORITY TO 'CONDUCT FOREIGN INTELLIGENCE
ACTIVITIES
Authority for Activities Relating to Collection of Foreign Intelligence
Authority To Engage in Covert Operations
Limitations on the Authority To Reorganize the Civilian Intelligence
Community
1. INTRODUCTION
This research study was made at the request of the IC Coordinating Staff and
based on a recommendation by the General Counsel. It is divided into three parts :
A-Authority for Activities Related to the Collection of Foreign Intelli-
gence.
B-Authority to Engage in Covert Operations.
C-Limitations on the Authority to Reorganize the Civilian Intelligence
Community.
Each of these subjects is treated separately. Neither the text nor the references
include classified information.
The conclusions reached were based on present knowledge of intelligence opera-
tions. It is conceivable that some of the conclusions may have overlooked some
aspects of the practical functioning of intelligence operations and, therefore, may
require further study.
We are confident that the case law in the field has been exhausted. It should
be noted, nevertheless, that there are very few cases dealing precisely with the
issues discussed in this paper. However, the cases played an important part in
arriving at the conclusions, and our supporting views are based, in large part,
on the rationale of some of the leading decisions, particularly those which involve
Presidential powers.
It can be expected also that the issues discussed in this paper will suggest
others on which research may be desired., Other topics which may be considered
as additional research projects are the following :
1. Jurisdictional problems in conducting domestic intelligence activities ;
2. Scope of authority to protect sources and methods ;
3. Fourth Amendment problems in connection with domestic intelligence activi-
ties ;
4. Limits on CIA authority to conduct investigations and other similar activi-
ties within the United States ;
5. Limitations on covert operations under international law ;
6. Authority of CIA to assist other Federal agencies in carrying out their
responsibilities ;
7. Nature and scope of the confidentiality of CIA records ;
8. Legal responsibilities of CIA and its employees for lawful conduct within
the U.S.
II. ANALYSIS OF SOME OF THE ISSUES
1. The Nature of Presidential Powers
The nature and scope of Presidential powers relating to foreign affairs are
difficult to determine. The few references to such powers in the Constitution offer
little guidance and court decisions are not too helpful, tending to keep within the
narrow limits of the issues.
The clauses in Article II of the Constitution do not articulate the powers of
the President in conducting foreign affairs, formulating and implementing foreign
policy, and taking the steps necessary to safeguard national security. Some
authorities contend that the Constitution contemplated that the President should
possess the sovereign power which the founding fathers intended to vest in the
(211)
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I Totten v. United States, 105 U.S. 106 (1875). ~
6 418 U.S. 683, 705 (1974).
?'This is not to imply that if Congress legislates with respect to the collection intelli-
gence, the President can still act: independently of the legislation.
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Federal Government as a Whole. Whatever sovereign power that exists in the
national government for conducting foreign affairs is distributed among the three
branches, and the theory that the President has unrestricted sovereign power to
act exclusively and independently in foreign affairs cannot be supported.'
The problem of ascertaining the true nature of the President's powers is made
particularly complex because the Constitution has divided responsibility for
foreign affairs between the President and Congress. The President negotiates a
treaty ; the Congress ratifies it. The Congress declares war; but the President
prosecutes it. Since there :is no explicit allocation of authority between the two
branches of government, it: remains uncertain as to which branch has authority
to determine U.S. foreign policy and under what circumstances both branches
must share in its formulation.
Traditionally, Congress makes the laws and the President executes them. If
our Constitution required a strictly functional separation of powers, Congress
would have the responsibility of making foreign policy and the President of en-
forcing it. But this concept has been rejected by history, and we have followed the
general tradition of recognizing the authority of the President to "legislate"
foreign policy and Congress to legislate in domestic affairs. On the few occasions
the Supreme Court has reviewed the scope of the President's powers in foreign
affairs, it has tended to avoid any ruling that offers much assistance in ascer-
taining the limits of the scope of such powers. In the Curtiss-Wright case 29 the
court seemed to endorse the proposition that the President had inherent author-
ity to legislate foreign policy. However, in Youngstown 8 the court seemed to
favor a "natural" division of powers between Congress and the President, allo-
cating those which are inherently "executive" to Congress. Whether ;he rule
in Youngstown will be applied broadly to foreign. affairs, or restricted to the
domestic aspects of foreign policy, has not yet been decided.
Acceptance of the view that Congress and the President share authority in
the field of foreign affairs belies any conclusion that the President possesses
unrestricted inherent power. Moreover, to adopt the principle of the exclusive
primacy of Presidential powers in foreign affairs is to ignore the doctrine of
separation of powers. Therefore, an anlysis of Presidential authority in that
area must take into account the statutory framework which Congress established
under its power to legislate.
2. Presidential Power and Intelligence Activities
The power of the President to collect foreign intelligence affecting our national
security need not rest exclusively on a Congressional delegation of authority.
The existence of such authority can be supported by the President's authority as
Commander-in-Chief to acquire intelligence for use in making military decisions
necessary for protecting our national security.' This is reinforced by Congressional
policy as articulated in the NSA.
There is support for the view that the responsibilities of the President for
conducting foreign affairs vests an inherent authority in him to collect intelli-
gence necessary to intelligently carry out his responsibility. This is based on the
proposition that the manifestly complex nature of foreign policy decisions re-
quires that the President obtain information to aid him in formulatint foreign
and domestic policy. In discussing Presidential authority as related to i :ecutive
privilege, the Supreme Court in United States v. Nixon 9 stated that! "certain
powers and privileges flow from the nature of the enumerated powers. ' There-
fore, the authority of the President to collect foreign intelligence witho it legis-
lative authority either can be implied from an enumerated power or F can be
based on the power of the President to conduct foreign affairs and to f+ emulate
foreign policy. It may be concluded, therefore, that the mere collection pf intel-
ligence to assist in formulating foreign policy needs no supporting leg slation.'
3. Authority to Conduct Co'cert Operations
There has never been any doubt as to the President's power to ui f! what-
ever means, covert or otherwise, to meet the threats of war or nation tl emer-
1 See e.g. "Foreign Policy and the Constitution", 61 Va. Law Rev. 751, 753 (197: I.
2 United,States V. Curtiss-Wright, 299 U.S. 304 (1937).
3 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
4Unlike Article II which states that: "The Executive Power shall be vested ii a Presi-
dent .. ", Article I states that "All legislative powers herein granted shall be vi Led in a
Congress. . ." (underscoring added).
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213
gency. The authority is inherent under his power as Commander-in-Chief. When
the President is not acting under his authority as Commander-in-Chief during
times of war or national emergency, his authority to conduct covert operations
involving political or military force directed at foreign governments and their
leaders must be based on what is appropriately described as his "residual"
power. This power includes the authority to conduct foreign affairs and the pri-
mary responsibility for safeguarding our national security from foreign threats.
However, because it does not fall within one of the President's enumerated
powers giving him an independent source of power, the authority to conduct
foreign affairs and to safeguard the national security must be shared by him
with Congress.
The right of a nation to act in order to protect its national security is based
upon the rule of international law which recognizes the sovereign right of self-
preservation. But under our system of government, authority to take action to
safeguard our national security does not rest in the President alone.
;Until the enactment of the Foreign Assistance Act of 1974, there was serious
doubt that the CIA had authority to engage in covert operations involving the
use of political and military force against, or in support of, a foreign govern-
ment or its leaders. Such operations involve the implementation of foreign
policy-a power which would be difficult to support as having been delegated to
the CIA, the NSC, or the President by the National Security Act. Most of the
duties delegated to the 'CIA under that Act are ministerial and do not involve
policy making or policy implementation in the field of foreign affairs.
Using covert operations to implement foreign policy within the context dis-
cussed herein, independent of any Congressional grant, affects the equilibrium
sought by the framers of the Constitution in providing for the separation of gov-
ernmental powers. If this authority were recognized as independently existing in
the Executive Branch, it would permit the President to secretly "legislate" for-
eign policy and then secretly execute it, using covert means in so doing.
It has been suggested that the special authority given to the National Security
Council in section 102(d) (5) of the Act' to authorize "other functions and
duties" provides the necessary authority for CIA to conduct foreign covert opera-
tions. Any such interpretation would strain the literal meaning of the language
used. The "other functions and duties" which the NSC may assign are limited
to those "relating to intelligence affecting the national security". It would be diffi-
cult to support the view that the implementation of foreign policy by the covert
use of political, economic, or military force is related to the collection, evaluation
or dissemination of intelligence.
Any question as to whether the President can authorize covert operations has
now been removed by the enactment of the Foreign Assistance Act of 1974.?
Section 662 of that Act limits the authority of the President to use appropriated
funds for conducting CIA covert operations in foreign countries, other than those
relating to intelligence collection, unless he makes a finding that each such opera-
tion is important to national security and reports such finding to Congress.
There are two ways to view this section. One view is to construe it as making
an affirmative grant of power to engage in foreign covert activities. Another
view is to construe it as placing a limitation on authority that is presumed to
already exist in the President, the CIA or the NSC.
4. Covert Operations and International Law
This paper has not dealt with the scope of the authority of a nation to pursue
foreign policy objectives by the use of covert operations. It also does not touch
on the issue of whether some of the reported instances of the use of covert
operations violate treaties or resolutions of the United Nations. However, we have
expressed the view that international law should not be the basis for determining
the legality of foreign covert operations to the exclusion of statutory and Con-
stitutional considerations which are part of our domestic law. This view would
seem to apply also to foreign intelligence collection activities.
5. Reorganization of the Civilian Intelligence Community
It is apparent from our study of the legal problems in reorganizing the civilian
intelligence community that many of the administrative obstacles to improving
the efficiency of the national intelligence operation cannot be overcome without
Congressional action. Any attempt by .the President to vest in a new appointee
8 50 U.S.C. 402(d) (5).
9 Public Law 93-559 (1974).
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authority that has already ;peen delegated to a specific person or body u: der the
National Security Act or any effort to reallocate duties already assi ned by
statute would be contrary to the Act and also may constitute an e :ecutive
reorganization requiring legislation."
A. Authority for Activities Relating to the Collection of Foreign Intell gene
1. The authority of the President to collect intelligence in times of ar and
national emergency is implied from his Commander-in-Chief power, suppl -mented
by his authority to faithfully execute the laws. This authority needs i io inde-
pendent Congressional grant to support it.
2. The President also would appear to have authority to collect inte Jgence,
independent of a Congressional grant, when necessary or appropriate in i arrying
out any of his other enumerated powers or powers which are implied I :om the
nature of his responsibilities, such as the conduct of foreign affairs.
3. Nowithstanding the existence of independent authority in the Pre; .dent to
conduct intelligence activities, Congress has concurrent jurisdiction to egislate
in the broad field of foreign affairs and, therefore, when it does legis ite, the
President is subject to such legislation. Any objection by the Presider ; would
have to be based on the claim that concurrent jurisdiction does not exist and the
legislation encroaches upon Presidential powers in violation of separ tion of
powers.
4. Under the National Security Act and amendments thereto, the C] ',, DCI,
NSC and the, President are limited by the provisions of that Act in the. conduct
of intelligence activities and any actions which are inconsistent with, the Act
would be invalid and violate the separation of powers.
5. The DCI has plenary authority to protect intelligence sources and 1 :ethods.
This authority may be exercised in a quasi-legislative manner, but it ma ' not be
exercised in a manner which would violate the prohibitions against nth ? use of
law enforcement powers or involvement in internal security functions.
6. To the extent that foreign covert activities are used solely in col nection
with,the collection of intelligence or the protection of sources'and meths. Is, such
activities appear to come within the authority of the NSA.
B. Authority Relating to Covert Operations
1. The President has inherent authority under the Constitution, inde endent
of any grant of legislative authority, to authorize covert activities ii 7olving
the use of political, economic, or military force aaginst a foreign govt cnment
or its leaders--
(a) In times of war or national emergency under his powers r Com-
mander-in-Chief and his responsibilities for executing the laws; and
(b) To a limited extent, in times of peace under his residual a thority
as chief executive to take appropriate action when confronted with : oreign
threat to the security of the United States.
2. Although there are differences of opinion, it is doubtful that C A was
intended to have authority under the NSA 'to implement foreign polic3 by the
use of covert means targeted against foreign elements.
3. The use of the CIA by the President or the NSC for! conduotini covert
activities unrelated to the collection of intelligence and prior to the en ctment
of the Foreign Assistance Act of 1974 is not supported by the provision of the
National Security Act or its legislative history.
4. In the enactment of the Foreign Assistance Act of 1974, Congress e pressly
recognized, and, by implication acquiesced in, the authority of the Pres dent to
authorize covert operations subject to a finding that the operation is in Irortant
to the national security and a report of such finding is submitted to the d ngress.
5. The theory that the President has unrestricted sovereign power to a! thorize
covert operations as long as they do not violate international law ca mot be
supported.
C. Limitations on the Reorganization of the Civilian Intelligence Coy nunity
1. The President can add to or change those'duties of the Director of! l3entral
Intelligence (DCI) which would not amend the National Security Act (NSA)
10 Reorganization under the procedure of the Executive Reorganization Act 4 :ded on
April 1, 1973. 5 U.S.C. 901, 905.
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and which are within the range of duties that can be implied from 50 U.S.C.
403(d). Such changes may be initiated by the National Security Council (NSC)
or the President through the Council.
2. The appointment of a senior intelligence advisor, coordinator, or other
assistant to aid the President is a valid exercise of Presidential authority pro-
vided that the duties and functions assigned to such appointee do not conflict
with those expressly assigned by the NSA to the NSC or the CIA.
3. The President can direct the NSC to perform additional functions and
duties provided that they do not conflict with the advisory role of the Council
and are otherwise consistent with the provisions of the NSA.
4. The President should work through the NSC in directing the creation of
additional advisory committees to aid the work of the CIA and the NSC. The
President's own advisory committees can perform advisory activities which
parallel the work of the NSC but such committees cannot usurp the management
and supervisory functions the NSA directs the Council to perform.
A. Authority for Activities Related to the Collection of Foreign Intelligence
1. Presidential Powers Generally
"Presidential powers are not fixed but fluctuate, depending upon their dis-
junction or conjunction with those of Congress." 1 This statement, made by Mr.
Justice Jackson in his concurring opinion in the Youngstown case, describes the
fundamental nature of Presidential powers and points to the problem in attempt-
ing to draw precise lines between Presidential and Congressional powers. In this
case he described the powers of the President as falling into three broad cate-
gories :
1. When the President acts pursuant to an express or implied authoriza-
tion of Congress, his authority is at its maximum, for it includes all that
he possesses in his own right plus all that Congress can delegate. In these
circumstances and in these only, may be said . . . to personify the federal
sovereignty.
* * * * * *
2. When the President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own independent powers, but
there is a zone of twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain. Therefore, congressional
inertia, indifference or quiescence may sometimes, at least as a practical
matter, enable, if not invite, measures on independent presidential respon-
sibility. In this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderables rather than on
abstract theories of law.
3. When the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb, for then he can
rely only upon his own constitutional powers minus any constitutional
powers of Congress over the matter. Courts can sustain exclusive presidential
control in such a case only by disabling the Congress from acting upon the
subject. Presidential claim to a power at once so conclusive and preclusive
must be scrutinized with caution, for what is at stake is the equilibrium
established by our constitutional system." 2
This analysis of the interaction of Presidential and Congressional powers offers
some guidance in determining the scope of such powers in the field of foreign
intelligence within the framework of the National Security Act.
2. Authority to Collect Foreign Intelligence
The President's authority to collect intelligence during war is unquestioned.
The authority is implied in the power of the President as Commander-in-Chief
of the armed forces. Totten v. United States, 92 U.S. 105, 106 (1875). Because
of the need for accurate and reliable intelligence to enable the President to
carry out his responsibilities for anticipating outside threats to our national
security and conducting foreign affairs on a day to day basis, the collection of
intelligence under conditions other than war or national emergency also seems
1 343 U.S. 579. 635 (1952).
2Id. at 635-38.
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clearly justified. These powers aid the President in the conduct of foreig t affairs
and in the preparations to meet potential threats to our national secs :pity. In
commenting upon the Pres:ident's authority as Commander-in-Chief ant in con-
ducting foreign affairs, the United States Court of Appeals' for the TI l rd. Cir-
cuit, in United States v. h'utenko,3 pointed to the importance of the I resident
having information to assist him in making an informed judgment in -arrying
out his responsibilities. "Decisions affecting the United States's relations lip with
other sovereign states are more likely to advance our national interes ,; if the
President is apprised of Lie intentions, capabilities and possible rest nses of
other countries." In United States v. Nioon,4 The Supreme Court recogn .,ed this
broad concept of executive power in commenting on the Presidential ower of
executive privilege. The Court stated that "certain powers and privili ;es flow
from the nature of enumerated powers" and as such have "constitutions I under-
pinnings." 5
Although the President has inherent authority to collect foreign int Iligence,
this authority is not exclus'..ve. There is no doubt that Congress has the ithority
to legislate the administrative and organizational framework for the c( -iduct of
intelligence activities.' To provide this framework, Congress enacted the' rational
Security Act of 1947 establishing the National Security Council and lie CIA.
To the extent the National Security Act has legislated with respect to int illigence
activities, the President is limited. However, he is not limited by fun ;ions or
activities not embraced by the Act and which can be supported under ts inde-
pendent authority as President under Article II of the Constitution.
3. Authority Under the National Security Act
Under the National Security, Act, the CIA is authorized to correlate, valuate
and disseminate intelligence information derived from other intelligence itgencies
of the Government 7 In the performance of this function, the Agency L author-
ized to require the submission by other agencies and departments of aforma-
tion affecting national security.' The CIA is also authorized to perform cervices
of common concern for the benefit of other intelligence agencies,' a,,d other
intelligence functions and duties affecting national security as the ational
Security Council may direct." In addition, the Director of Central Intl1.ligence,
under the direction of the National Security Council is given the resp( risibility
for the protection of intelligence sources and methods.11 To delineate th respon-
sibilities of the CIA in the foreign intelligence field and the FBI in the l.omestic
field, the Act contains a :specific prohibition against the utilization police,
subpoena, and law enforcement powers, or the performance of internal( security
functions."
Conspicuous by its absence is the "collection" function. This functi n is not
readily implied from correlation, evaluation, or dissemination; but it is c dear that
Congress intended the "collection" function to be included in the Act. The
legislative history is also (?lear that the CIA was limited to foreign in iflligence
activities with the possible exception of such activities relating to id, house-
keeping responsibilities and the protection of its sources and methods.
The legislative history of the NSA disclosed the concern of several itnesses
for the need of a central collection operation for foreign intelligence. In addi-
tion the language of the Act concerning "additional functions and duties""
3494 F. 2d 593 (3rd Cir. 1974).
4 418 U.S. 683 (1974).
b Id. at 705-06.
6 Coneress has the power under the "necessary and proper" clause to limit P
authority in foreign affairs. U.S. Constitution. Art. I. ? 8; of. Zweibon v. Mitchel
1847 (D.C. Cir. June 23, 1975) slip op. at 825, 880 n. 228.
7 50 U.S.C. 403(d) (3) (1964).
350 U.S.C. 403(e) (1964).
6 50 U.S.C. 403 (d)- (4) (1964).
10 50 U.S.C. 403(d) (5) (1964 ).
11 50 U.S.C. 403(d) (3) (1969).
12 Td.
is See Hearings on S. 758 Before the Armed Services Committee, 80th Cong., 1
491-501. 469; H.R. Rep. No. 2734, 79th Cong.. 2nd Sess. (1946) (Includes recom
that collection authority be withheld, but prohibition dropped in later drafts) ; S.
rose, Jr., Collection of Background Papers on Development of CIA (15 May 1947
Commission on CIA Activities Within the United States (hereinafter, Roekefell
lion Report) at 59. The authority for collection would probably fall under the `
and duties" section. 403(d) (r). see Note 16 infra., although tf 403(d) (4) nro
thority for performance of "services of common concern" could also be used. Wal
CIA: A Study in the Arrogation of Administrative Powers", 39 Geo.,Wash. L. R
(1970).
11 "(It) shall be the duty om'' the Agency .. (5) to perform such other fun
duties related to intelligence affecting the national security as the National Securi
may from time to time direct." 50 U.S.C. ? 403(d) (5) (1964).
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,sidential
, No. 73-
Sess. at
,endation
3.L. Pen-
Report,
Commis-
functions
ding au-
len, `The
r., 66, 69
ions and
V Council
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217
was taken directly from the Presidential order establishing the Central Intelli-
gence Group (CIG). A key witness testified that he interpreted the language of
the order to include collection activities.'2 For Congress to use the same language
in the act as used in the order indicates strongly that the CIA was intended to
have authority to collect intelligence 18 The practice of CIA performing collec-
tion activities since its inception leaves little doubt that the collection function
is within the CIA's authority."
4. Restrictions on Executive Authority
Although delegation of authority for the President's use of the CIA is broad,
there are certain provisions contained in the NSA which limit the Executive
Branch in conducting intelligence activities. The provision prohibiting the use
of the CIA for internal security or police functions, along with the legislative
history of the Act, make it clear that the Agency is limited in its conduct of
intelligence activities within the United States, except possibly those of an overt
nature relating to foreign intelligence ' or those which may be justified in
order to protect the intelligence sources and methods.'
In conducting intelligence activities, the Executive Branch also must keep
within Constitutional limitations and any treaty limitations that may be appli-
cable.20 The President has no inherent power to authorize intelligence collection
functions in violation of Constitutional provisions. The extent of the latter restric-
tion is unclear. Court decisions concerning Fourth Amendment requirements
have dealt only with domestic aspects of national security and have left unan-
swered the question of the applicability of the Fourth Amendment to the
foreign aspects of national security, i.e., surveillance of agents or organizations
operating in the U.S. but serving the interests of a foreign nation 2'
Since Congress has acted in the foreign intelligence field, the President is
limited in his use of CIA to the specific functions allocated to the Agency by
the NSA. If Congress had intended to authorize the President to use CIA to carry
out foreign policy generally, it could have so provided. There was, in the develop-
ment of the Act, a concern over the President's apparent authority to assign
functions to the Agency. This concern led to the specific assignment of CIA'9
functions in the statute.22 It would appear, therefore, that the President can only
direct CIA in its assigned functions-correlation, evaluation, dissemination, and
collection 2t-and is not permitted to direct the performance of functions unre-
lated to foreign intelligence or not otherwise within the statutory grant.
5. DCI Authority
The Act confers on the Director of Central Intelligence special authority in
relation to the other elements within the intelligence community. It states, in
effect, that to the extent recommended by the NSC and approved by the President,
the intelligence collected by other agencies and departments shall be made avail-
able to the DCI for correlation, evaluation and dissemination.' This seems to
provide the President with ample authority to require all agencies and depart-
ments which collect intelligence affecting national security to report such
15 Hearings on S. 758 before the Senate Armed Services Committee, 80th Cong., 1st Sess.
at 491-501.
16 In an early version of the functions and duties of the proposed agency, an express
nrohihition was included forbidding collection activities. H.R. Rep. 2734. 79th Cong.. 2nd
Sess. (1946). In the final draft, however, that prohibition was excluded with the remaining
laneuage unchanged. 50 U.S.C. 403(d) (5) (1964).
17 The administrative practice of including collection within the Agency's authority pro-
vides strong support for the interpretation that that function falls under ? 403(d)(5).
es"ecially if Congress, with knowledge of such an interpretation, acquiesces in it. United
States v. Midwest Oil Co., 236 U.S. 459 (1915) ; see Saxbe v. Bu8to8, 419 U.S. 65 (1974).
16 Rockefeller Commission Report at 48.
19 See Note 26, infra.
20 This discussion is not intended to judge the impact of a specific international obligation
of the United States on the authority of the Executive to conduct intelligence activities. The
vast number of treaties and other agreements to which the United States is party would
make such an undertaking extremely time consuming and voluminous. It should he noted
that treaties of which the United States is a party are the law of the land and, of course.
any actions of the President must not he inconsistent with them. Youngstown Sheet and.
Tube Co. v. Sawyer. 343 U.S. 579 (1952). For a good discussion of espionage under inter-
national law, both in war and in peace, see Note, "Espionage in Transnational Law", 5
Van4. J. Trans. L. 434 (1972).
a r7nxted States v. U.S. District Court, 407 U.S. 297 (1972) : compare 7weibon v. Mitchell.
Na. 73-1847 (D.C. Cir. June 23, 1975), with United States v. Butenko, 494 F. 2d 593 (1974).
22 Heorinas on S. 758 before Senate Committee on Armed Services, 80th Cong.. 1st Sess.
at on. 78. 87-89. 96-99 (1947) : H.R. Rep. 961, 80th Cong., 1st Sess., pp. 3-4 (1947).
21 See text at Notes 13-17. supra.
24 50 U.S.C. ? 402(e) (1964).
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intelligence to the DCI for the purposes of correlation, evalua{;ion and
dissemination.
6. Protection of Sources and Methods
The Act contains another provision relating to intelligence that s!iould be
touched upon. This provision places upon the DCI the responsibility "fo$' protect-
ing intelligence sources and methods from unauthorized' disclosure!" M This
authority is plenary and gives the DCI authority to establish the stand ards and
rules for protecting such sources and methods for all agencies and de irtments
collecting intelligence affecting national security. There is no indication as to the
extent which the DCI might go in carrying out this responsibility or its to the!
methods which may be put to use. Also, in view of the prohibitions against the
use of police or law enforcement powers and involvement in internal security
functions, it could appear that the DCI's authority for protecting intelligence
sources and methods is limited to rule making in nature rather than nvestiga-
tory or prosecutory, particularly in exercising authority domestically.
7. Conclusions
a. The authority of the President to collect intelligence in times of war and
national emergency is implied from his Commander-in-Chief power, supple-
mented by his authority to conduct foreign affairs. This authority needs no inde-
pendent Congressional grant to support it.
b. The President also would appear to have authority to collect intelligence,
independent of a Congressi.onal grant, when necessary or appropriate in, carrying
out any of his other enumerated powers or powers which are implied from the
nature of his responsibilities such as the conduct of foreign affairs and faithfully
executing the laws.
c. Notwithstanding the existence of independent authority in the President to
conduct intelligence activities, Congress has, concurrent jurisdiction to legislate
in the broad field of foreign affairs and, therefore, when it does (legislate,
the President is subject to such legislation. Any objection by,the President would
have to be based on the claim that concurrent jurisdiction does not exist and
the legislation encroaches upon President powers in violation of separation of
powers.
d. Under the National Security Act, the CIA, NSC and the President are
limited by the provisions of that Act, and any amendments, thereto, in the con-
duct of intelligence activities and any actions which violate the Act would be
invalid and violate the separation of powers.
e. The DCI has plenary authority to protect intelligence sources and,methods.
This authority may be exercised in a quasi-legislative manner, but it may not
be exercised in a manner which would violate the prohibitions against the use
of law enforcement power or involvement in internal security functions.
B. AUTHORITY To ENGAGE IN COVERT OPERATIONS
The President's authority to order covert operations* must arise from his
enumerated Constitutional. powers or a statutory delegation by Congress. If act-
ing under a grant from the Constitution, the President must draw upon his
inherent powers or those implied from his express powers. If acting pursuant to
legislative enactment, two statutes possibly provide the requisite authority : the
National Security Act of 1947' and the Foreign Assistance Act of 1974.2 This
26 50 U.S.C. 1 402 (d) (3) (1964).
26 See generally Rockefeller Commission Report at 60-61, 165-70 (1975) : Association of
the Bar of the City of New York. The Central Intelligence Aaencv: Oversight and Account-
abilitu, at 10, 11. 34 (1975) ; Heine v. Raus, 399 F. 2d 785 (4th Cir. 1068). on remand
305 F. Supp. 816 (D.C. Md.) af'd, 482 F. 2d 1007 (4th Cir. 1969). The language of the
Act granting protection of sources and methods responsibility to the DCI Is so general as
to be subject to substantial variation in interpretation. It would seem reasonable, however.
that the general restrictions on the Agency would also apply. at least in spirit, to the DCI,
thus delegating him an extensive responsibility abroad in relation to protection of sources
and methods, while substantially limiting the delegation as to his, responsibility in that
area domestically.
*For the purposes of this memorandum, covert operations embrace only those activities
unrelated to collection of intelligence which are conducted on foreign soil against foreign
nationals.
1510 U.S.C. 402.
2 Public Law 93-559, 132 (1974).
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analysis will determine whether Presidential power exists to authorize covert
operations and, if so, whether the CIA is empowered to engage in them. Unless so
empowered, any Executive Order would be without authority and appropriate
legislation would be necessary.
1. Con3titutional Authority of the President to Authorize Covert Operation
The determination of Presidential authority to formulate a peacetime policy
of foreign covert operations requires an analysis of the powers granted in Arti-
cle II. Specifically, this authority may arguably be implied from each of the fol-
lowing express powers 3
a. Responsibility to see that the laws are faithfully executed ;
b. Commander-in-Chief power to command the armed forces ; and
c. Grant of general executive power.
To claim authority under the first, the President must act pursuant to statute
or treaty. There are only two statutes which could be interpreted as conferring
such authority : the National Security Act of 1947 and the Foreign Assistance Act
of 1974 (see discussion on page 34 infra.).
The President may order covert operations under his Commander-in-Chief
authority in time of war.' However, in times of international tranquility, the
President may be restricted to the collection of intelligence. Authority for covert
operations would then arise from the need of the President, as Commander-in-
Chief, to make informed decisions on deployment of forces to protect the national
security'
The last possible source of Presidential authority is the inherent or general
"executive power".? It could be interpreted to allow covert operations in peace-
time as a means of implementing foreign policy. This executive power can be
interpreted broadly to grant discretionary authority to the President to engage
in covert operations limited only by Congress' power to declare war.' A second
interpretation would allow the President to engage in such operations, but subject
to statutory restriction as well as Congress' enumerated powers.' The third and
most reasonable interpretation of executive power would make the President's
actions subject to statutory restriction except under those circumstances when
he must conduct covert operations to eliminate a threat to the national security e
3 Art. II, U.S. Constitution. This memorandum does not address any issues relating to
international law. An analysis of covert operations and outstanding international agree-
ments will be provided upon request.
4 Cf. Totten v. United States, 92 U.S. 106 (1875) and United States v. Curtiss-Wright,
299 U.S. 301 (1937) for the proposition that authority to order covert operations against
the enemy in time of war is implied from the Presidential powers as Commander-in-Chief.
5 Ibid. See also Federalist No. 23 (Hamilton) and Federalist No. 48 (Madison), and
Federalist No. 69 (Hamilton) for endorsement of strong Executive power in the area of
foreign policy. Rostow, E., "Great Cases Make Bad Laws : The War Powers Act", 50 Tex. L.
Rev. 833, 864 (1972), Notes, "Congress, the President and the Power to Commit Forces to
Combat", 81 Marv. L. Rev. 1771, 1777 (1968).
9 General executive power was recognized as a distinct enumerated power of the President
under Art. II by the Supreme Court in United States v. Nixon 418 U.S. 683 (1974). See also
Notes, "Congress, the President, and the Power to Commit Forces to Combat", 81 Harv. L.
Rev. 1771, 1776 (1968).
7 An overly broad interpretation of United States v. Curtiss-Wright 299 U.S. 304 (1937).
would grant the President, as holder of the general executive power, residual authority to go
beyond his enumerated powters to take whatever measures he deems necessary to implement
foreign policy. The Presidential power would be exclusive and plenary in foreign affairs ; sub-
ject only to the Bill of Rights and Congress' enumerated powers (i.e., power to declare war).
Under this broad view, the President would have almost total discretion to use covert
operations as an instrument of foreign policy regardless of existing statutes. See also Barry
Goldwater. "The President's Constitutional Primacy in Foreign Relations and National
Defense". 13 The Virginia Journal of International Law, 463, 475 (1975).
8 Art. I ? 8. Necessary and Proper Clause ; McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed.
579 (1819). President must adhere to an expression of Congressional policy in an area of
share responsibility. Youngstown v. Sawyer, 343 U.S. 579 at p. 635-38 (1953) (Jackson
Opinion). See also Note, "Presidential Power: Use and Enforcement of Executive Orders",
39 Notre Dame Lawyer 44. 49 (Dec. 1963) ; Reveley: "Presidential War Making: Constitu-
tion Prerogative or Usurpation?". 55 U. Va. L. Rev. 1243 (1969). Federalist No. 47 (Hamil-
ton) pp. 312-15 (Mod. Library ed.). There are limits to the extent of statutory control (see
N. 9 below).
3 The President's power to eliminate the threats to the national security is not properly
subject to statutory restriction because it is implied from his exclusive power as Com-
mander-in-Chief as well as an integral aspect of his more general executive power. See gener-
aii:u Wiener v. United States, 357 U.S. 349 (1958) : Myers V. United ,States, 272 U.S. 52
(1926) : Muskrat v. United States, 219 U.S. 346 (1911) : Federalist No. 48 at pp. 321-23
(Mod. Library ed.). The scope of Presidential discretion is governed by what is practically
necessary under the particular circumstance. See Federalist No. 72 at pp. 468-69 (Mod.
Lib. ed. 1937). Rostow. "Great Cases Make Bad Laws : The War Powers Act 50 Tex. L.
Rev. 833, 864 (1972) ; Notes, "Congress the President and the Power to Commit Forces to
Combat", 81 Harv. L. Rev. 1771, 1785 (1968) ; Reveley, "Presidential War Making: Consti-
(Continued)
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As such, the range of permissible Presidential actions is necessarily circumscribed
by the nature of the threat to the national security.
The President may, therefore, establish policy guidelines for covert operations
for he does possess the requisite independent authority. However, this does
not mean that the President can establish a policy of CIA-administered covert
operations for that is a question of statutory rather than Constitutional inter-
pretation.
2. Statutory Authority of the President to Engage the CIA in Covert Operations
a. National Security Act of 1947. 1
Whether there exists authority for CIA covert activities involves analysis of
both the authority vested in the National Security Council (NSC) and the
President under the National Security Act (NSA).
The Act describes the function of the NSC as that of making assessments and
recommendations to the President regarding matters relating to the formulation
of foreign policy 10 In the provisions stating the role of the NSC, no independent
operational authority is canferredll. The NSC acts primarily in an advisory
capacity. Whatever independent operational authority exists must be implied
from those sections concerned with the functions and duties of the CIA12 As such,
the NSC is limited under the Act to instructing the CIA in the performance of
those ministerial tasks necessary for the production of more accurate foreign
policy assessments and recommendations. Covert operations do not appear to
fall within this class and, therefore, may not be authorized by the NSC without
Presidential approval.
Under the NSA the President may utilize the NSC as an instrument of his
Constitutional powers.13 The NSA did not purport to delegate to the President
any additional authority in the area of foreign policy 14 Rather, the Act recog-
nized and preserved existing independent Executive authority,"G and established
a statutory framework for its implementation to which the President must
adhere.'"
Assuming arguendo that the President does possess the constitutional author-
ity to conduct covert operations, he may direct the NSC to establish "executive
action" groups subject to appropriate guidelines as approved by him. However,
with respect to the utilization of Congressionally created agencies, he is limited
to the functions and duties they are assigned by statute 11 Consequently, the Pres-
i
(Continued)
tutlonal Prerogative or Usurpation", 55 U. Va. L. Rev. 1243. 1257-65 (1969) ; Madison,
Notes of the Debates in the Federal Convention of 1787, pp. 475-76 (Ohio Univ. Press ed.
1966)-(as cited in 48 Chi. Kent L. Rev. 13, pp. 131-32) (1971). Although Presidential dis-
cretion. when dealing with threats to the national security is broad. he may not act under
a colorable assertion thereof. Cf. United States u. Nixon, 418 U.S. 683 (1974). Nor can he
take actions which amount to a usurpation of Congress' power to declare war. See gen. War
Powers Act of 1973. Ilse. Rep. 93-287 on H.J. Res. 542, Committee on Foreign Affairs. 93rd
Cong. lot Sess. (1973).
10 50 U.S.C. 1 402 (a). 402(b) (1) (2).
11 50 U.S.C. 1 401, 402.
1250 U.S.C. 1 403(d) ; 403(d) (5).
13 50 U.S.C. 1 402 (6).
1450 U.S.C. 1402(d). 402(t,). Note that NSC is an advisory body. Moreover. 50 U.S.C.
403(d) incorporated the CIA functions and duties as stated in the Presidential Directive
of Jan. 22. 1946. 3 CFR 1080 (1943-48 Comp:).
15 Art. II, U.S. Constitution. Particularly the general executive power and Commander-in-
Chief clauses.
10 Congress may prescribe the necessary and proper means for the execution of Presidential
powers. Congressional action is unconstitutional only where it limits Presidential power
rather than merely providing a means for Its execution. (See Notes 8 and 9). See also
Zweibon v. Mitchell No. 73-1847 at p. 880. Note 228 p. 228 (1975). For the proposition that
under the NSA the CIA was to be limited to specific functions and duties see: (1) Memo-
randum for the Record by L. Gen. H. Vandenberg, Proposed Legislation for CIG, Chief
Legislative Liaison Division. (2) Hse. Rey). 2734, 79th Cong. 2nd Sess. (1946). (3) Sen. Rep.
1327. 79th Cong. 2nd Sess. (1946). (4) Hse. Rep. 961. 80th Cong. Test Sess., pt. 3 (1947).
(5) Hearing on H.R. 2319 before Hse. Comm. on Expenditures in the Executive Depart-
ments, 80th Cong. 1st Sess., 1). 170 (1946) (colloquy between Rep. Brown and Secretary
Forrestal. (6) Hearing on H.R. 2319 before Hse. Comm. on Exp. in Exec. Depts., np. 456-58
(1946) (statement of Brig. Gen. Merritt A. Edison). (7) Hearings on H.R. 2319 before Hse.
Comm. on Exp. in Exec. Depts., pp. 166-81 (1946) (colloquy between Rep. Harness and
Adm. Sherman). (8) Hearings on S. 758 before Senate Committee on Armed Services, p. 555
(1946) (statement of Lt. Col. Riddell). (9) Hearings on S. 758 before Sen. Comm. on Armed
Services. 80th Cong., 1st Sess., pp. 437-39 (1946) (statement of J: J. Bracken). For the
proposition that CIA was to have maximum flexibility In its functions and duties see: (1)
Memorandum to Gen. Magrud.sr from Commander Donovan, General Counsel. OSS. 23 Jan.
1946. (2) Hearings on H.R. 2319 before House Comm. on Exp. in Exec. Depts., p. 228
(1946) (statement of Gen. Norstad). (3) Hearings on H.R. 2319 before Hse. Comm. on Exp.
in Exec., Depts., pp. 111-14, ;3p.119-21( 1946) (colloquy between Rep. Busbey and Secre-
tary Forrestal).
17 Id.
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ident's use of the CIA must fall within the ambit of the applicable provisions
of the NSA.
Under the NSA, the primary function of the CIA is to collate, evaluate and
disseminate foreign intelligence.18 The motivation for the creation of the CIA was
not to provide the President with an instrument of subliminal warfare, but to
assure him access to an organized body of information necessary for making
major foreign policy decisions.19
The only provision of the. NSA that could be interpreted to allow CIA covert
operations is ? 102(d) (5)." Under this provision the CIA may be charged with
"other functions and duties relating to intelligence affecting the national se-
curity." "Relating to intelligence" can be interpreted to mean "relating to the
collection of intelligence." 21 Covert activities not related to collection (e.g,, acts
of economic or political subversion) are, therefore, arguably outside the scope
of ? 102 (d) (5). Moreover, there are no references to these activities in the floor
debates or Committee reports. There are only four references made to covert
operations in the entire Hearings Record."
To summarize, neither the provisions nor the legislative history of the NSA
indicate that the CIA was to engage in operations not related to the collection
of intelligence.23 Therefore, it seems clear that any Presidential action directing
the CIA to undertake covert activities other than those related to the collection
of intelligence, cannot be based solely on the NSA.
b. Foreign Assistance Act
Section 662 of the Foreign Assistance Act of 1974 21 requires the President
to make a finding that any proposed CIA covert operation not solely related to
the gathering of necessary intelligence, is "important to the national security"
and then report such finding to the Congress.
Two interpretations may be given to Section 662 concerning the existence of
Presidential authority to use the CIA for the performance of covert operations.
This provision can be construed as either an affirmative grant of power to the
President or a limitation upon presumed Presidential authority " to engage the
CIA in covert operations.
The legislative history provides support for both of these interpretations. In
the House debates, statements were made to the effect that Section 662 was
inended to permit CIA "to engage in nonintelligence gathering activities ~ and
provide "a further statutory basis for the implementation of foreign policy-
related operations of the CIA." ' Conversely, there were also statements made
18 50 U.S.C. 403(4) (1)-(4) and p. 18 of text.
19 (1) Sen. Rep. No. 239. 80th Cong., 1st Sess. p. 2, 5 June 1947. (2) Hse. Rep. 961, 80th
Cong., 1st Sess., 16 June 1947, p. 310. (3) Sen. Rep. 1327, 79th Cong., 2nd Sess. (1946).
(4) Thomas Address, Congressional Record, 14 March 1947, p. 2139. (5) Hearings on H.R.
2319 before Hse. Comm. on Exp. in Exec. Depts., pp. 166-81 (1946) (statement of Vice
Adm. F. Sherman). (6) Hearings on H.R. 2319 before Hse. Comm. on Exp. in Exec. Depts.,
13 May 1947 (statement of Gen. Carl Spaatz). (7) Hearings on S. 758 before Sen. Comm. on
Armed Services, 80th Cong.. 1st Sess. (Mar. 18-May 9, 1947). (statement of Adm. Chester
Nimitz. (8) Hearings on,S. 758 before Sen. Armed Services Comm., 80th Cong., 1st Sess., pp.
491-501 (1947) (statement of Lt. Gen. H. Vandenberg). (9) Hearings on S. 758 before Sen.
Comm. on Armed Services, 80th Cong., 1st Sess., pp. 548-555 (1947) (statement of Lt. Col.
Riddell). (10) Presidential Directive, 1/22/46 (3 CFR 1080). (11) See also floor debates:
Senate: 93 Cong. Rec. pp. 8466, 8677, 9671 ; House: 93 Cong. Rec., pp. 9565. 9569, 9573,
9379, 9581, 9582, 9590, 9576. (12) See also N.Y. Bar Association Study, "The CIA Oversight
and Accountability", p. 14. (13) Walden, "The CIA : A Study in the Arrogation of Adminis-
trative Powers", 29 Geo. Wash. L. Rev. 66, 84 (1972).
20 40 U.S.C. ? 403 (d) (5).
21 See (A), Note 14. supra.
22 (1) Statement of Allen Dulles, Sen. Comm. Hearings on S. 758, p. 528 (1947). (2)
Statement of Lt. Col. Riddell. Sen. Comm. Hearings on S. 758, p. 555. (3) 'Colloquy between
Rep. Bushey and Secy Forrestal, H8e. Comm. Hearings on H.R. 2319, p. 120 (1947). (4)
Colloquy between Rep. Brown and Gen. Vandenberg, Hse. Hearings on H.R. 2319
(27 June 1947).
22 Debates : Senate-93 Cong. Rec. pp. 8299, 8308, 8320. 8493, 8494, 9496-97, 8500-01.
House-93 Cong. Rec. pp. 9397. 9400. 9403-04. 9412-13. 9419. 9421, 9430, 9443. 9447. Re-
ports : Use. Rep. 961 and Sen. Rep. 239, 80th Cong., 1st, Sess. (1946).. Cong. Rep. on S. 758.
80th Cong. (Hse. Rep. 1051. 80th Cong. 7/24/47 at pp. 17. 18. 19). Hearings : On H.R. 4219
before Hse. Comm. on Exp. in Exec. Depts. On H.R. 2319 before H8e. Comm. on Exp. in Exec.
Dents., 80th Cong., 1st Seas. (1947). On S. 758 before Sen. Comm. on Armed Services, 80th
Cong., 1st Sess. (1947).
24 P.L. 93-559, ? 32 (1974).
25 Any pre-existing Presidential authority must he based on $ 102(d) (5) of the NSA (see
text p. 33). Section 662 of the Foreign Assistance Act could he the recognition by Congress
that 102(d) (5) was originally intended to allow the President to delegate his general execu-
tive or inherent power to the CIA. In fact, the Senate version (S. 3394) referred to acts
taken pursuant to 102(d) (5) of the NSA. See p. S21413 Cong. Ree. (1974).
29 Cong. Rec., Dec. 11, 1974, p. 1111651-2.
27 Id. at p. 2.
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in House debates indicating that the Section was to "limit the instances in which
foreign policy is in essence being created by the President, the CIA, and four
committees of Congress" 'e and "to allow for closer supervision of CIA
activities." 2?
However, whether Section 662 is an affirmative grant of power to the President
or limitation upon Presidential authority to engage the CIA in covert opera-
tions is unimportant. The mere presumption by the Congress of Presidential
power in the field of foreig:i affairs is the equivalent of an implied delegation of
the requisite statutory authority." Moreover, this interpretation of Section 662
appears consistent with the underlying intent of the NSA in that the latter did
not disturb the independent power of the President to safeguard our national
security. Consequently, the Foreign Assistance Act provides'the President with
the requisite authority to engage the CIA in covert operations, such operations
to be authorized in accordance with the procedures of the NSA.
3. Conclusions
a. The President has inherent authority under the Constitution, independent
of any grant of legislative authority, to authorize covert activities involving
the use of political, economic, or military force against a foreign government or
its leaders-
(1) In-times of war or national emergency under his powers as Commander-
in-Chief and his responsibilities for executing the laws ; and
(2) To a limited extent, in times of peace tinder his residual authority as
chief executive to take appropriate action when confronted with a foreign threat
to the security of the United States.
b. Although there are differences of opinion, it is doubtful that CIA was in-
tended to have authority under the NSA to implement foreign policy by the use
of covert means targeted against foreign elements.
c. The use of the CIA by the President or the NSC for conducting covert
activities unrelated to the collection of intelligence and prior to the enactment
of the Foreign Assistant Act of 1974 is not supported by the provisions of the
National Security Act or its legislative history. I
d. In the enactment of the Foreign Assistance Act of 1974, Congress expressly
recognized, and, by implication acquiesced in, the authority of the President to
authorize covert operations subject to a finding that the operation is important
to the national security and a report of such finding is submitted to the Congress.
e. The theory that the President has unrestricted sovereign power to authorize
covert operations as long as they do not violate international law cannot be
supported.
C. Limitations on the Authority To Reorganize the Civilian Intelligence
Community
INTRODUCTION
With the passage of the National Security Act of 1947, Congress asserted its
legislative authority over the structuring of the civilian intelligence community.
The Act provided for the administrative and functional framework within which
intelligence activities were to he performed by the CIA, designed to replace the
CIG (Central Intelligence Group). The National Security Council was established
as the new supervisory body, replacing the NIA (National Intelligence Authority).
Any administrative changes substantially affecting the present statutory frame-
work for conducting intelligence activities could not be implemented unless ap-
proved by Congress. It should he noted, however, that because of the vagueness
of certain provisions of the Act, coupled with the broad discretionary authority
vested in the President to direct the activities of the NSC, the restrictive effect
of the statutory limitations is considerably diminished.
28 Id. at p. 2.
29 Id. at p. 2.
3? See United States v. Curtiss-Wright. 299 U.S. 301 at p. 302 (1937). See also Jackson
opinion in Youngstown v. Sawyer, 348 U.S. 579 at p. 635 (1953) wherein he distinguishes
Curtiss-Wright and also notes that the President's powers are at their fullest when Congress
has either implicitly or expressly authorized the exercise thereof. Cf. Notes 5. 7. 9. Note
also that the standard of `Important to national security" set forth by Section 662 may in-
clude actions broader than those necessary to thwart threats to the national security. There-
fore, Section 662 may constitute a Congressional enlargement of Presidential executive
power within the broad confines of Curtiss-Wright. It should be noted,also that there is sup-
port for the view that implied authorization for a specific operation, is not effective in an
appropriations bill unless the Congress is fully knowledgeable of the facts. C.f. Holtzman v.
Schlesinger, 484 F. 2d 1307, 1316 (C.C.A. 2d 1973) Involving the secret bombings of
Cambodia.
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1. Reconstituting the Duties of the Director of Central Intelligence
a. Existing statutory responsibilities
The NSA has elevated the role of the DCI to that of a senior intelligence offi-
cial whose responsibilities include coordinating the intelligence activities of all
the intelligence services as well as the management and direction of the CIA.
(See CHART A at the conclusion of this section.) The CIA occupies a status
which is in effect superior to the other established intelligence agencies. The func-
tion of the Agency in this context is to centralize the intelligence information and
activities so as to provide the NSC with a comprehensive and coordinated intel-
ligence product.
The DCI's statutory duties and responsibilities include :
(1) The coordination of the intelligence community activities as the head of
the CIA and as the NSC's senior intelligence advisor. 50 U.S.C. 403(d) (1)-(5)
(1964).
(2) Subject to the approval of the President, the right to inspect the intelli-
gence products of all other intelligence services both military and civilian ; the
DCI must request in writing intelligence relating only to national security from
the FBI. 50 U.S.C. 403(e) (1964).
(3) The protection of intelligence "sources and methods" for the benefit of
all of the intelligence services under the direction of the NSC. 50 U.S.C. 403(d),
(g). (1964).
(4) The joint responsibility with the Attorney General and the Commis-
sioner of Immigration to determine which essential aliens can be permitted to
gain residence in the U.S. if in the interest of national security or intelligence
needs. 50 U.S.C. 403(h) (1964).
(5) The appointment of advisory committees. 50 U.S.C. 405(a) (1964).
b. Adding additional duties.
Although the DCI has a broad range of coordinating functions, the NSA limits
the use of the CIA and the DCI to the statutory duties and responsibilities con-
tained therein. If the President were to direct changes in the functions of the
DCI which are not authorized by statute, he must rely on Executive powers
which are the least tenable, notwithstanding his extensive authority to conduct
foreign affairs.'
Thus, it is difficult to support the President's reliance on inherent Constitu-
tional authority as the basis upon which to initiate organic changes in the
structure of the office of the DCI' The passage of the NSA represents the
1 Senator Goldwater's argument that the President has broad authority to appoint and
rely on whichever advisers he wishes reflects the view that the Executive Branch retains an
almost unlimited power in the area of foreign affairs. Goldwater, "The President's Constitu-
tional Primacy in Foreign Relations and National Defense," 13 Va. J.I.L. 463, 475 (1973).
Goldwater's arguments are consistent with the very liberal reading of the Curtiss-Wright
case which supporters of the Executive's power interpret to give the President an unencum-
bered authority in the conduct of "external" affairs. United States v. Curtiss-Wright, 299
U.S. 304, 320 (1936). Alexander Bickel, in contrast, views the "necessary and proper"
clause of the Constitution as the power of Congress to limit Presidential action in foreign
affairs. Bickel. "Congress, the President, and the Power to Wage War," 48 Chi.-Kent L. Rev.,
131. 140 (1971). In a note on executive orders, the position is taken in line with Bickel's
thinking that Presidential directives are limited by the declarations of Congress in statutes
like the 1947 Act. Note, "Presidential Power : Use and Enforcement of Executive Orders,"
39 Notre Dame Law, 44, 49 (1963). The best approach is to follow the analysis of Presiden-
tial power made by Mr. Justice Jackson in his concurring opinion in the Youngstown case.
Usine the executive powers model which Jackson establishes as the basis for his analysis, the
President, in reorganizing the intelligence community, must rely upon powers which, when
exercised, run contrary to the will of Congress in this area of concurrent jurisdiction. Jack-
son finds this particular variety of Presidential power the least defensible. Referring to the
steel mill seizure by Truman, Jackson said this type of power is "most vulnerable to attack
and in the lest favorable of possible constitutional postures." Youngstown v. Sawyer, 343
U.S. 579, 640- (1952). Justice Frankfurther, commenting on the President's duty to faith-
fully execute the laws, concluded that the duty does not transgress the laws as they exist
"or require him to achieve more than Congress sees fit to leave within his power." 34:3 U.S.
at 610.
2 The argument has been advanced that the President's exercise of his wartime powers to
create the OSS had the residual effect of vesting within the Executive office the power to
niter or reassign the duties of the civilian intelligence community set up by the 1947 Act.
The President can initiate executive action in those areas of concurrent authority with
Congress where the Congress has failed to enact legislation. As Mr. Jackson explained in
Youngstown, "In this area any actual test of power is likely to depend on the. Imperatives of
events . rather than on abstract theories of law." 343 U.S. at 637. Thus, the nature
of the Presidential initiative is often that of a contingent response where immediate needs
require that a particular void be filled. President Truman's secret directive in January 1946
creating the Central Intelligence Group was issued only six months prior to the committee
hearings dealing with legislative proposals which eventually resulted in the NSA of 1947.
But once the Congress enacts legislation in an area of concurrent jurisdiction, the statute
repeals those particular parts of executive directives which are inconsistent with the new
legislation. Of. Zweibon v. Mitchell, No. 73-1847 slip op., note 228 at 880 (D.C. Cir..
June 23, 1975).
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exercise of Congressional power in an area of concurrent jurisdiction with the
President and the Act thereby restricts changes to those which -would not cir-
cumvent the provisions set forth in the NSA.' If, for example, the President
where to remove the DCI from the supervision of the NSC, the change would be
inconsistent with the organizational framework established .by Congress.' This
type of restructuring would constitute a usurpation by the President of legisla-
tive power and would thus be subject to challenge unless approved by Congress
either as a governmental reorganization plan or by amending legislation.'
Although the President's inherent power to restructure the office of the DCI
is questionable, the NSA itself provides the Executive with a significant amount
of discretion in initiating internal changes. Under section 403(a) of the Act the
office of the DCI is organized under the NSC, and the Council, in turn, is estab-
lished as an advisory body to the President on national security matters. Strictly
applied, the statute, in effect forecloses direct Presidential control over the DCI
insofar as the administration of the provisions of the Act are concerned" But
the President indirectly controls the functions of the DCI in his role as chairman
of the NSC, provided that the directives he initiates in the Council remain within
the scope of the statute. The scope of the statute, though, is sufficiently broad
to provide the President with a wide range of authority for utilizing the intelli-
gence community as an advisory body.'
As a practical matter, tie difference between the issuance of a Presidential
order to the DCI or requiring the NSC to initiate such a directive should not be
an organizational deterrent impeding Presidential action. The DCI and the
members of the NSC are :Presidential appointees and, therefore, there should
be no obstacle to Presidential management of intelligence activities, including
those of the DCL? Apparently, this channel of authority established under the
Act is intended to reflect the legislative view that a consensus management
and control of the lower level intelligence staff and agencies provides the de-
partments represented on the Council with a better means to secure information
needed to advise both the President and the departments.
The direct supervision of the activities of the CIA by the, NSC also provides
ail accountability factor which diminishes the potential for misuse of the Agency
by the President or White House level officials.' Moreover, a clear. orderly ad-
ininistrative conduit through which Presidential policy directives flow to the
various levels of the intelligence community call augment the effectiveness of
both the CIA and the NSC.
c. The dual role conception
As an alternative expanding the functions of the DCI in his present capacity,
the President could appoir..t the DCI to an additional White House level post
reviewing the activities of the entire intelligence community. Making the
DCI the equivalent of a national intelligence advisor to the President is similar
to the status of the present Secretary of State. There are strong political and
practical objections to this dual role conception. It would create, for example, a
possible conflict of interest in the use of political power if such an advisor
were to favor civilian intelligence over military, intelligence or vice versa. The
3 50 U.S.C. 403 (a). (d). (e) (1964).
4 The legislative history of the 1947 Act shows that the understanding of members of
Coneress. during testimony in committee hearines, was that the DCI and the Agency would
work under. the direction of thF, NSC. [Office of Leg. Counsel-CIA] "Legislative History of
the Central Intelligence Agencc" at 64 (1967) elassifled SECRET).
? The Executive Reorganization Act (50 U.S.C. 901. 905) expired on April 1. 1973. Con-
senoently, the President must pursue Executive reorganization plans through the regular
and more cumbersome legislative process which the Reorganization Act bypassed if Con-
gress did not act upon the elan in 60 days.
? "The Director (of CIA) reports, under the provisions of the statute. to the members of
the National Security Council in the only corporate capacity in which the Council acts. In
other words. the Council is a statutory Board of Directors for the CIA." Anderson. "The
President and National Security", Atlantic Monthly, 1956, at 44.
+50 U.S.C. 402 (a). (b) (1964).
? IC., 402(a). The Act does provide for a Presidential designee to preside over NSC meet-
ings but the same phrase is not included in 402(b). Thus, one would he hard pressed to
eonstrue 402(b). in light of the express Dower to designate someone to preside over NSC
meetings. to imply a similar right to designate someone to exercise the President's powers to
dire^t "other functions".
9 Recommendation (26) of the Rockefeller Commission report emphasizes that any high
level channel between the White House and the CIA should involve the NSC. The recom-
mendation was the result of -she need to prevent abuses of the CIA similar to the ones
apnarent in the Watergate related cases and the break-in of the home of Dr. Ellsberg's
nsychiatrist and the prenaration of the nsvchological profile on Dr. Ellsherg by Agency
doctors. "Report to the President by the Commission on CIA Activities Within the fruited
States." At 33 (1975).
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extent of any conflict would depend upon what authority is vested in the ad-
visor by the President. Less conflict would probably develop if the authority
was limited to executive oversight. But if the advisor were assigned manage-
ment responsibilities over the intelligence community, the conflict could become
irreconcilable 10 In contrast with the DCI, the Secretary of State's direct respon-
sibility to the President in either position he occupies, his advisory capacity,
and the absence of an intermediate supervisory body like the NSC eliminates
most of the organizational problems which the DCI would confront in a dual
role.
d. Appointing a separate intelligence adviser to the White House
A second alternative is the appointment of a senior intelligence advisor apart
from the DCI and not responsible to the NSC. The advisor would assume the
additional duties the President would have assigned to a senior intelligence
officer like the DCI. In fact, the use of advisory personnel whose functions would
either supplement or duplicate the work of the NSC or the DCI is not a novel
practice. Past Presidents have relied greatly on informal but regularly attended
meetings of special advisory groups or advisors to help formulate intelligence
related policies and operations. While there would not be legal obstacles to the
appointment of an independent White House advisor on intelligence matters,
it would encounter the same type of political objections as in the above dual
role conception 11 Also, the advisor's functions should be consistent with the Act.
2. Altering the Responsibilities of the National Security Council
Any changes in the duties and responsibilities of the National Security Council
require a discussion of issues similar to those raised above. (See CHART B at
the conclusion of this section.) The National Security Council is under the direct
authority of the President and serves as the umbrella supervisory body over
the intelligence community, filtering down the Presidential directives and
assignments.
While the President has certain inherent powers over the conduct of foreign
affairs, it is doubtful that he can delegate the use of such powers to a Congres-
sionally created body unless the delegation is consistent with the broad outline
of the NSC's statutory duties. Neither residual or independent powers exist in
the Council other than the basic ministerial authority to perform the advisory
function. The Council does have the equivalent of a derivative ministerial author-
ity from the President by virtue of the broad statutory grant vested in him to
direct the NSC's activities. In this respect, the organizational structure estab-
lished by Congress in the NSA gives the President a significant amount of dis-
cretion in using the NSC in its advisory role. But despite the NSC's functional ad-
ministrative utility, previous Presidents have found it desirable to rely on in-
formal high, level advisory committees. Professor Jerrold Walden's analysis of
the administration of the CIA traces the development of this type of parallel
advisory structure by reviewing the frequency of NSC meetings. He states, for
.example, that President Kennedy eliminated the regular meetings of the Council
and President Johnson "virtually abandoned" the NSC (quoting a news magazine
story), relying instead upon the "Tuesday Luncheon" group.'
The propriety in utilizing these so-called informal groups rather than pursuing
the policy objectives through the NSC is questionable. To the extent that these
groups supplant the role of the NSC in the formulation of policies, possible con-
flicts under the Act could arise unless the President has authority to act independ-
ently. The formation of Presidential level advisory groups to supplement the
work of the NSC is not inconsistent with the NSA. However, a transfer of duties
to these groups which the statute expressly assigns to the NSC would violate
the statutory scheme again unless the President can act independently.
3 3. Appointing of Advisory Committees
10 Earlier internal studies examined various options for the reorganization of the office of
DCI. The primary objection raised in opposition to the appointment of what is in effect an
intelligence "czar" was the control of the military intelligence apparatus. This recurring
conflict between the military establishment's needs and those of the civilian intelligence
community reflects the fundamental distinction between the foreign affairs and war-making
powers and the institutional rivalries which the Constitutional dichotomy facilitates in the
executive departments.
11 See Note 10, supra. -
12 Jerrold Walden. "The CIA : A Study in the Arrogation of Administrative Powers," 39
Geo. Wash. L. Rev., 66, 90 (October 1970).
13 These would include PFIAB, set up by Presidential Directive, and the various commit-
tees created by secret NSCID's or DSID s which aid the work of the NSC or the DCI like the
NSCIC, IRAC, and the IC Staff.
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the NSC "are authorized to appoint" the advisory committees they deem neces-
sary to assist them in the execution of their advisory functions and duties."
The President is not included in the authority conferred by 'this section of the
Act.1` The President's authority to appoint committees to aid the NSC or the DCI
must, therefore, be implied from his authority to direct the NSC.10 The President's
power is thereby procedurally limited in that it must be exercised through the
NSC.
In contrast with the advisory committees established to facilitate the work of
the NSC and the CIA, the President has the direct authority to appoint advisory
panels to advise him on intelligence matters. An example of such a panel is the
President's Foreign Intelligence Advisory Board (PFIAB) which advises the
President on intelligence activities after examining the "objectives conduct, man-
agement and coordination of the various activities making up the overall national
intelligence effort." 14 However, as in the case of other delegations of Presidential
authority to non-statutory bodies, and such delegations to PFIAB of functions
or duties which have been expressly reserved by statute for a body like the NSC,
would be contrary to the allocation of such functions and duties as set forth in
the Act.18
4. Conclusions
a. The President can add to or change those duties of the DCI which would not
amend the NSA and which are within the range of duties that can be implied
from 50 U.S.C. 403(d). Such changes may be initiated by the NSC or the Presi-
dent through the NSC.
b. The appointment of a senior intelligence advisor, coordinator, or other assist-
ant to aid the President is a valid exercise of Presidential authority provided that
the duties and functions of such an advisor do not conflict with those assigned
by the NSA to the NSC or the CIA. However, the appointment of such an assist-
ant to the President would be politically undesirable because it would increase
the rivalry between the civilian and military intelligence services.
c. The President can direct the NSC to perform additional functions and duties
provided that 'they are consistent with the advisory role of the Council and are
otherwise consistent with the provisions of the NSA.
d. The President should work through the NSC in directing the creation of addi-
tional advisory committees to aid the work of the CIA and the NSC. The Presi-
dent's own advisory committees can perform advisory activities which parallel
the work of the NSC but such committees should not usurp the management and
supervisory functions the NSA directs the Council to perform. .
14 50 U.S.C. 405 (1964).
15 President Truman apparently circumvented the requirement that the NSC or the DCI,
at the time, the Chairman of the Resources Board, appoint advisory committees they needed.
Truman established the National Advisory Committee on Mobilization Policy by executive
order to aid the National Security Resources Board. E.O. 101609, 15 F.R. 6901 (Oct. 13,
1960).
16 Section 405 could be interpreted merely as a procedural provision, thus, not excluding
the President from directly appointing advisory committees to aid the NSC and the DCI.
The provision was probably enacted to facilitate the work of the NSC and the CIA and not
to restrict the President from taking a direct and active role in helping to organize the then
newly created civilian intelligence community. In contrast with the procedural nature of
Section 405, Section 402, for example, is more substantive and the failure to include the
President in direct CIA supervision reflects the Congressional intent! to place the Agency
under direct control of the NSC.
17 PFIAB was created in 1961 by President Kennedy, replacing the' President's Board of
Consultant's on Foreign Intelligence Activities which was appointed by President Eisen-
hower in 1956. E.O. 10938, 26 F.R. 3951 (May 4, 1961). President Nixon changed PFIAB
In 1969. E.O. 111640, 134, F.R. 5535 (March 20, 1969).
18 See generally Note 8, supra,
I
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 IRAC
DCI'S FUNCTIONS IN THE INTELLIGENCE COMMUNITY
S. 403(a) Directs the --
activities of the CIA under
direct supervision of the NSC
S. 403(d)(5) Perform other --
"functions and duties" apart
from (1-4) above r ---
DIRECTOR
OF
CENTRAL INTELLIGENCE
CENTRAL
INTELLIGENCE
AGENCY
--S. 403(d)(1)-(4) Perform various
functions and coordinating duties
I--S. 403(d)(5) Perform other "functions
and duties" apart from (1-4) above
1--S. 403(c) DCI can inspect FBI intelligence
after making a written request provided it
relates to national security. Other depart-
mental intelligence is available as
recommended by the NSC and approved by
the President
--S. 403(g) Exempts the DCI from disclosure
laws to protect "sources and methods"
--S. 403(h) Determines with Attorney General
and Immigration Commissioner the admission
of essential aliens
STATE
DEPT.
OTHER
EXEC.
DEPTS.
FU -S
Ii
--S. 405 Appoint Advisory
Committees
IC STAFF
OTHER
SERVICE
BRANCHES
ERDA
F__]
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228
THE N:C'S & THE PRESIDENT'S ADMINISTRATION
OF THE INTELLIGENCE COMMUNITY
-President has independent
power to appoint own adviscrs
SENIOR
INTELLIGENCE
ADVISOR
TUESDAY
LUNCHEON
GROUP
OTHER
ADVISORY
GROUPS
F-set up by E.O.
-402(a).Preside over NSC or designate
someone else
Appoint members to NSC
402(b)(d) Direct NSC
-403(a) Appoint DCI
-403(e) Approve DCI inspection of other
departmental intelligence
NATIONAL SECURITY COUNCIL
1. President/Chairman
2. Vice President
3. Sect'y of State
4. :ect'y of Defense S. 402(b)
5. Sect'ys and Under-
5ect'ys
6. Advisors appt'd by
President*
*Different Administrations have
appointed various officials to
an advisory non-voting status on
the NSC
-- 402(a) Advises President
-- 402(b) Performs other functions
President directs
-- 402(b)(1)(2) Various advising duties
-- 402(d) Makes reports/recommendations
to President'
-- 403(a) Supervises and directs the
CIA
- 403(e) Recommends to President what
other departmental intelligence
shall be open to DCI inspection
-- 405(a) Appoints advisory committees it
needs
(Sections referred to
are keyed to the National
Security Act and amend-
ments.)
CENTRAL INTELLIGENCE
AGENCY
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S 4S70 CONGRESSIONAL RECORD - SENATE
any 1ore.
?HE MIAN. Quite a long time ago in this
progr m, quite a long time ago in the Senate,
you've expressed the opinion that the United
States should leave the rest of the world
alone, ould stop acting as a policeman or
even as traffic cop-
Senat MANSFIELD. Not leave the rest of
the worl alone. .
HERMA. Well, I now bring you to the
question f the United States' role in the
Middle Eas .
Senator ANSFIELD. Well, I'm in favor of
the sale of e C-130's to Egypt, and further
sales if ne be to maintain a reasonable
equilibrium 'n that area. After all, if we
can create di isions among the Arab states,
I think it's 14 our interest, and I think it is
in the interes of Israel as well, and here we
have Sadat w has really thrown his cards
on our table, ho has broken with the So-
viet Union, wh is in economic difficulties,
who has given up-who has reached an
agreement on a part of the Sinai, and I
think he ought t be given whatever assist-
ance we can.
MCLAUGHaIN. S ator Mansfield, some of
the other senator who have heard about
Egypt wanting additional arms sales say that
they think that th t request would put the
C-130 transport des, in jeopardy, that they
are so opposed to it You don't see that in
Senator MANSFIELD.hiWkell, I hope not. I'm
not opposed to it. I t if we want to keep
a friend and maintain ome degree of equi-
librium and fairminde ess in the Middle
East, we've got to at ast carry through
ale of C-130's to pt. And further
as far as arms are oncerned, I noted
ROWAN. Senator, very cle rly they are go-
ing beyond C-130's, Sadat is Ding to ask for
fighter planes, maybe tank and so forth.
Are you saying that you al sLo would favor
the United States selling thos kinds of arms
Senator MANSFIELD. If they d n't buy them
from us, they'll buy them fro France, as
elsewhere, and I think we ough to maintain
some kind of a hold in the interest of
achieving equilibrium and may a peace in
HERMAN. Do you think there is chance of
expanding this foothold for Amer ca among
the Arabs, for example Syria and J dan?
Senator MANSFIELD. Syria will b difficult
though Assad, I understand, is no an un-
reasonable man, King Hussein has en in a
most difficult position, but you've go to give
him some encouragement too on t e other
side, and I think that Saudi Arabi would
come along, so if we can maintain th break
and give these people some hope, I t ink it
would-be for the benefit of Israel in t e long
HERMAN. Thank you very much. S nator
Mansfield, for being with us today on Face
ANNOUNCER. Today on Face the N ion,
Senate Majority Leader Mike Mans eld,
Democrat of Montana, was interviewed by
CBS News Correspondent Marya McLaugh in,
Syndicated Columnist Carl T. Rowan, and y
CBS Correspondent George Herman: N t
for the Democratic presidential nomination
1 0 Face the Nation
THE PROPOSED STANDING COM-
MITTEE ON INTELLIGENCE AC-
TIVITIES
Mr. MANSFIELD. Mr. President, in
Sunday's Washington Post there ap-
peared a cartoon which I think was most
unfair to the distinguished assistant
Democratic leader, the Senator from
West Virginia (Mr. ROBERT C. BYRD). The
title of the cartoon is "We Don't Mind
Your Getting a New Watchdog, As Long
As He's Just Like This One," relative to
the proposed oversight committee now- mittee on April 30 was May 6, and be-
under consideration in the Rules
Committee.
I would point out that at the Demo-
cratic conference on Thursday last, the
question of a permanent standing Com-
mittee on Intelligence Activities was
taken up, on my initiative. I would point
out also that at that conference, the
Senator from Connecticut (Mr. RIBi-
coFF) and the Senator from Idaho (Mr.
CHURCH), as well as the Democratic lead-
ership and the Senator from Nevada
(Mr. CANNON), the chairman of the Rules
Committee, were in attendance.
It was stated at that meeting that it
would be the intent to allow an extension
of time, for good and sufficient reasons,
to the Committee on Rules and Admin-
istration for the consideration of legisla-
tion reported out initially by the Gov-
ernment Operations Committe under
Senator RIBICOFF, which had been re-
ferred, I believe, to other committees.
After that meeting, Senators ROBERT
C. BYRD, RIBICOFF, CHURCH, CANNON, and
I met, and we agreed that what the con-
ference had recommended was the best
way to face up to a situation which called
for further consideration. In Thursday's
RECORD, when I submitted Senate Reso-
lution 400, to establish a standing Com-
mittee of the Senate on Intelligence
Activities and for other purposes, for an
extension, I said the following:
Mr. President, I ask unanimous consent
that the Committee on Rules and Adminis-
tration have until April 30 to file its report
on Senate Resolution 400. May I say that
this was unanimously agreed to in the Dem-
ocratic Conference today. It meets with the
approval of all the concerned parties and, I
think, in view of the circumstances which
have developed that it is in, the best inter-
ests of this legislation to do so in this man-
ner at this time.
Further on, I said, in reply to a ques-
tion raised by, the Senator from Illinois
(Mr. PERCY) relative to the time taken by
the Rules Committee to come up with
legislation creating a Budget Committee:
The Senator is absolutely correct. The
Rules Committee did a stupendous job on
the budget legislation and because of the
time it took and the care it showed we have
a good budget committee at the present time
which is making its weight felt and is doing
an exceedingly good job. -
.I approve without equivocation this pro-
posal ...
That is, for the extension-
. which I made to extend the time of
the committee to file its report because, on
the basis of the facts explained in the Dem-
ocratic Conference this morning, and there
April 5, 1976
was no other alternative, and the idea is to
do a good, thorough, and complete job.
As far as the Democratic majority leader
is concerned, as soon as it is reported out it
is his intention, in conjunction with'the dis-
tinguished Republican leader, to call the leg-
islation up as soon as possible.
May I say, Mr. President, it was at the
suggestion of the distinguished assistant
Democratic leader, the Senator from
West Virginia (Mr. ROBERT C. BYRD), that
the date for it to be taken up after it -
would be reported out of the Rules Com-
cause of the suggestion by Senator ROB-
ERT C. BYRD the Senate agreed that on
May 6 we would take up the creation of
a Committee on Intelligence Activities.
May I say that this met with the ap-
proval of Senators RIBICOFF, CHURCH,
and all parties concerned.
I think the record should be straight.
I do not like to see any colleague of mine
in this body, Republican or Democrat,
treated unfairly. I hope what I have
had to say will help to clear the record.
I believe that it is only fair to give
credit where credit is due and because
of that I took it upon myself this morn-
ing to rise in support of my distinguished
colleague, the Democratic whip, the Sen-
ator from West- Virginia (Mr. ROBERT C.
BYRD).
I hope that this clears the record and
keeps things straight.
Mr. HUGH SCOTT. Mr. President, I
think the cartoon was most unfair to the
distinguished assistant majority leader
and particularly in view of the explana-
tion of the distinguished majority leader
himself.
Actually, the status of this bill is one
which has required the attention of four
committees. It was reported by the Com-
mittee on Government Operations. The
Committee on the Judiciary has fulfilled
its function under the reporting, pro-
visions and has made its recommenda-
tions to the Committee on Rules and
Administration. The Committee on For-
eign Relations has before it certain rec-
ommendations and either has or will
shortly make its recommendations, I
would assume, to the Committee on
Rules and Administration, or if not, to
the full Senate. The Committee on Rules
and Administration itself completed
hearings this morning on the bill. We
are. prepared to proceed with markup,
according to the Chairman of that com-
mittee, early next week.
There are many differences of opinion
on this bill ' that go fundamentally to
questions of the difference between over-
sight and overall jurisdiction, the ques-
tions of the difference between the dis-
placement of functions which have been
performed by existing committees, or
whether or not there should be a com-
mittee on general oversight and sur-
veillance or a committee which removes
jurisdiction from other committees, a
proposal which has run into very sub-
stantial resistence on the part of a num-
ber of distinguished witnesses.
However, the chairman of the Rules
Committee has done a fine job, and he is
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April 5, 1976 ' CONGRF SSIONAL RECORD - SENATE
we have to be aware of what we are, what
we have, what we can do, and not what
some people would like to have us do on a
worldwide basis.
HERMAN. Well, in a concrete legislative
fashion then, should we be increasing the
defense budget, should we be cutting the
defense budget, or is it about right?
Senator MANSFIELD. I think we ought to
cut it. I think that there is a lot of fat
which could be done away with. I think we
spend too much money on research and de-
velopment of exotic weapons which don't
turn out to be what their originators
thought they would be. I'm for a strong de-
fense, as is every American, but I'm'not for
wasteful expenditures in the Defense De-
partment, or in any other department of
government.
ROWAN. Well, they are now asking for
about $113 billion in spending authority.
What do you think would be the proper
figure?
Senator MANSFIELD. Oh, I couldn't give you
a figure, but I do think it could be reduced.
MCLAIIGHLIN. Senator Mansfield, when I
asked you before if you thought that Secre-
t ry Kissinger should come up and talk with
the Senate Foreign Relations Committee,
what he said on Thursday and Friday was
not exactly as you have just said what he
has been saying in public; it was more mbdi-
fled. Does that seem right to you?
Senator MANSFIELD. Well, ft's hard for me
to say because I wasn't at the committee
meeting. All I could note what the press
accounts carried, and that was to the effect
that there was a modification of what he
had said out in the hinterland and what.
he'd said before the committee.
MCLAIIGHLIN. Well, you don't think there
has been any change in his attitude? You
just think he says one thing when he's be-
fore the committee and one thing when he's
in public?
Senator MANSFIELD. Well, I don't think
that's a good policy, if it turns out to be so
categorized, because you just can't hide be-
hind one thing and the other, when we have
the kind of open information processes that
we have.
ROWAN. Senator Mansfield, let me bounce
back to this question of military superiority.
Mr. Ford and Mr. Kissinger are under pres-
sure from Reagan forces to say that the
policy of detente has caused the U.S. to
lapse into a second-class status. Now you
get a lot of secret military data based on
what you know, has the U.S. lost its position
of military leadership?
Senator MANSFIELD. I would say that we
are on a parity, at least with the Soviet Union,
all things considered.
HERMAN. And which way are we moving?
Senator MANSFIELD. Up, but so is the Sovie
Union.
HERMAN. No, relative to the Soviet Unto -
are we gaining or losing? Parity is just a in-
stantaneous-
Senator MANSFIELD. Only the futur . 1 be
able to answer that question.
HERMAN. You don't have any f ling that
we might be losing ground, as a t of people
have said?
Senator MANSFIELD. No, I n't think we
are. As a matter of fact, I th we've got too
much in the way of milita personnel scat-
tered in too many areas th ughout the world.
ROWAN. Then would ou go ahead under
strategic arms limits on agreement?
Senator MANSF Yes, indeed, I would,
not only a rimitat n, but I would adopt the
Henry Jackson i ea of a reduction in arma-
ments because think that is the ultimate
answer, not ,limitations, because you can
limit, but iten you go up-if you reduce,
then you go down.
HERMAN. Senator, as I listen to all the cam-
paign talk, I suspect you might call some of
it rhetoric-I seem to hear a lot of talk about
two major villains-one is Cuba and the
other is Washington, D.C. Is this a proper way
for the people to hear a campaign explained?
Seneetor MANSFIELD. Well, Cuba has been
the vi lain in the-minds of people who don't
like u:e, but we're used, to it, and we can roll
with 17.
HER:SAN. But what do you think of a poli-
tician who adopts that as one of his major
points of rhetoric?
Seni for MANSFIELD. Well, I think he's in
with the mood of the people because people
are blaming us, blaming the Congress especi-
ally, t: lough they don't blame their individ-
ual congressmen and senators when they go
home--they blame the administration-they
are evsn blaming the courts more.
HERMAN. -mood of the people can either
be sensitive and intelligent appreciation, or
it can be called demagoguery.
Senator MANSFIELD. Well, I know, but the
demagoguery is one side of those who are
seeking office, when they campaign against
Washington en toto. They don't get down to
specifics, whereas as far as the votes will be
concerned, I have an idea come November-
I'm not talking about the primaries-that
the Ainercan people will have a pretty good
idea of what their government in Washing-
ton is and what it is all about.
MCIAIIGHLIN. Senator, one of those wh
has been criticizing Washington has
Jimmy Carter. Another man who is m
tioned but has not been in any of the ri-
marieii is Hubert Humphrey. Is it Kett too
late for Hubert Humphrey, or can h waltz
into the convention and pick up th tips?
'Senator MANSFIELD. He can't w into it,
but h ,3s available, I'm sure. He's siting on
the si felines, and it depends u n events.
MCLAUGHLIN. Do you think a should get
into the primaries?
SenItor MANSFIELD. No, I nk he's doing
just r:;ght.
RovrAN. What about
comment that those didates who are
running against Was
run-
dulgirLg in racism,
ning against IT es and the poorest peo-
ple in the land?
senator MANS Well, I really wouldn't
agree with that I think what they're
running agar is the government, and that
Induces all US.
ROV IAN. eaking of Humphrey again, as
a matter of principle-, do you think the
e Party ought to give the nomina-
Demo.
tion, u can give it to some one who has not
any of the primaries?
enters
made his mark.
ROWAN. Carter says he's got a loser's image,
and That that's why the party ought not
nominate him. Do you think he's got a los-
er's image?
Senator MANSFIELD. Hubert's one of the
best, broad-minded, intelligent, a keen ca-
pacity to understand people. No, I wouldn't
agree.
HES MAN. Are you campaigning for him?
Senator MANSFIELD. No, I'm not. I'm trying
to be honest about him.
MCLAIIGHLIN. Could it be a modified en-
dorse:nent? I mean, can we-
Sen ator MANSFIELD. No, no, I'm not endors-
ing any one, because I've got to live with
too many of them, and I'm going to get along
with all of them.
ROWAN. Carter also says he's too old. He'll
be 65 in May. Is that too old to put a man
in the White House?
Senator MANSFIELD. Now, you are pushing
me too far. (Laughter) But I don't think
so. I have great admiration for all of the
people running on the Democratic ticket,
even when I disagree with them, and I think
as far as Mr. Carter is concerned, that he
cannot be underrated, he's a most formidable
candidate, and he will have to be reck ed
with in the weeks and months ahead
HERMAN. I suppose we should 'upl note
for the record here that the ter-
his is 73rd birthday a week and -a h ag<
Senator MANSFIELD. That is c
HERMAN.- Senator, what abou charges that
the administration in power n manipulate
the economy, and that we h e an improve-
ment in the economy eve four years when
the incumbent president tries to get him-
administrations. y can put out projects
here and projects were, and they both do it.
HERMAN. Is t what is now happening?
The economy improving considerably-
it is partially political effort? '
Senator sFSELD. No, I think it is mostly
coming f the private sector. Unfortu-
nately th government has done too little.
The un ployment rate is still too high,
and th inflation rate is still too high.:
H N. Do you favor, for example, the
H prey-Hawkins bill to bring unemploy-
me tdown?
Aenator MANSFIELn. I do.
ROWAN. What about those who say that
this improvement in the economy that we're
seeing is proof that Presdent Ford was right
in vetoing all those big spending bills that
you and your Democratic colleagues wanted
to make into law?
Senator MANSFIELD. I think he was wrong
because the kind of projects which he vetoed
would have been very helpful to the econ-
omy, and would have reduced the unemploy-
ment rate still more because, while we have
about seven, seven and a half million un-
employed officially, if you'll look at the 11 n-
deremployed, those who have quit looking for
jobs, those who would like to have jobs, I
think the figure would be up around ten
million.
MCLAIIGHLIN. Senator Mansfield, th '
ity in Congress caused by presidential V
and ' some changing attitude towards
social programs, did that have anything to
do with your decision not to run again?
Senator MANSFIELD. No,-this was a decision
my wife, Maureen, and I had been consid-
ering for some time. We got together, and I
never make a decision without consulting
her-she has always been right-on occasions
I've been wrong-much more wrong than I
care to admit-so, no, this was something
which was done in the family, and she was
the one who made it official, as far as I was
concerned, because what I am, she is.
HERMAN. It will take a moment to digest
that one. (Laughter)
ROWAN. Let me ask a little personal ques-
tion in terms of the vetoes and so forth-
some critics say that your genteel, permis-
sive leadership of the Senate led to an ac-
cretion of presidential power, decline in the
power of the Senate. How do you answer
those critics?
Senator MANSFIELD. They are wrong, be-
cause presidential power has been increasing
ever since the time of Franklin D. Roosevelt
under all majority leaders, and I think that
what we've done in the Senate since I have
been the majority leader has been construc-
tive, has been in the interest of the nation
as a whole, and the Senate as well, has re-
ceived 'little publicity, but has been evolu-
tionary in character, and I think the Senate
is better off because of it.
RowaN. Some people say that with a little
Lyndon Johnson-type arm-twisting in the
Senate and Rayburn-type badgering in the
House, you would have overridden the Presi-
dent more times and would have some social
legislation-
Senator MANSFIELD. Well, let me tell
Mr. Rowan, that the last time I thoughtft
had the votes to override the President-
on the veto of the public works bill, public
service works bill. Unfortunately, we lost
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April 5, 1976 CONGRESSJONAL RECORD -SENATE
very anxious, as he told me this morning, Obviously, if we continue this trend of
to x?y to make our report before we even giving special rates and giving special
ich
h
ti
i
ti
it
O(
v
ves w
ncen
to recess, but we will certainly make artificial deductions or
on the part of anyone. This year I intend to introduce a series
I myself have, I suppose, been the ob- of amendments, which I will press in the
ject of as much press commentary and Committee on Finance, and if not suc-
criticism as anyone around here. I have cessful there I will press on the floor,
endured it for 34 years. I think I can en-
dure it a little longer. I always remem-
ber that the Bible says that "it is hard
for thee to kick against the pricks." You
will find that in the New Testament, Mr.
President, in the Acts, 9: 5. And I try to
observe that.
I yield back the remainder of my time.
ORDER OF BUSINESS
he ACTING PRESIDENT pro tem-
poreUnder the previous order, the Sen-
ator fr Colorado (Mr. HASKELL) is rec-
ognized fbt a period not to exceed 5 min-
TAX REFO M ACT OF 1975-
l C612
AMENDMENT O. 1557
(Ordered to be print and referred
to the Committee on Finan .)
THE EROSION OF THE TAX E
Mr. HASKELL. Mr. Presid t, this
year Congress has a unique oppo nity
to attack the erosion of our tax bas or
ceeding with snowball effect over the last
A ts. In the Committee on Finance
,,Is a bill pending, H.R. 10612, that
bears the title of the Tax Reform Act of
1975.
I would like to say a word on the ero-
sion of our tax base which I hope that
some of our colleagues will read in the
RECORD: In 1960, for example, the cor-
porate income taxes accounted for 35
percent of Federal revenues. This fell to
27 percent in 1969. It further fell to 14
percent in 1975.* As all of us know, the
statutory corporate rate is 48 percent;
however, the average rate paid by a cor-
poration is about 35 percent.
Similarly an erosion of the income tax
base in individual taxes has occurred.
As I believe all of us know, the effective
rate over $100,000 of income for an indi-
vidual is 70 percent; however, based upon
1973 figures the- actual effective tax paid
by people who earn over $100,000,
whether they earn $500,000 or $1 million
or $2 million, is approximately 32.1
percent.
I think these figures graphically illus-
trate the fact that the base upon which
taxes are levied has been eroded.
Basically this arises from two sources.
Special tax rates are provided to people
particularly well considered by Congress;
Also many artificial deductions in the
code exist.
An artificial deduction is defined by
the Committee on Ways and Means of
the House of Representatives in its re-
p2 at on the recent revenue act as deduc-
that do not accurately reflect
nt expense." These are somewhat
eup uistically referred to as incentives.
designed to recoup the loss of revenue
occasioned by these twin sources of ero-
sion, artificial deductions and special
rates.
Initially I' have four, amendments. I
may have more later. But the four
amendments I have would raise $15.5 bil-
lion. I pointed out that the 1976.income
tax cut designed to help the lower- and
middle-income groups is $12.3 billion. So,
if enacted, my very modest amendments
would net the Treasury somewhere
around $3.5 billion and serve to reduce
the deficit which members on both.sides
of the aisle, of course, decry.
The amendment which I will ask con-
sent to introduce at this time would re-
peal the so-called DISC provision. The
DISC provision permits anyone export-
ing goods for sale overseas to pay ap-
proximately one-half the, normal tax
rate.
The revenue loss for the year we are
currently in is. $1.5 billion.
The claim for DISC, of course, is that
we should help our exports so we should
subsidize them. However, I quote from an
editorial in the Wall Street Journal. In-
cidentally, the Wall Street Journal de-
consideration, an
?bership in the third world.
Mr. President, I ask unan ous con-
sent to have this editorial grin in the
RECORD at the conclusion of my re arks.
The ACTING PRESIDENT pro tqn-
pore. Without objection, it is so ordere
(See exhibit 1.)
Mr. HASKELL. One comment on the
uneconomic effect of DISC is very impor-
tant. Those who defend it claims it cre-
ates jobs. Actually, the converse, in all
probability, is true.
Professor Horst, who is of the Fletcher
School of International Law and Diplo-
macy, has. testified as follows before the
Senate Committee on the Budget; and I
read this because it is particularly inter-
esting : -
Let me turn next to the impact of the DISC
on U.S. employment. If DISC contributed $3.3
billion to U.S. exports, those exports would
immediately stimulate production in the ex-
port industries, and then, by the usual mul-
tiplier process, throughout. the economy.
This line of reasoning is fine, as far as it goes.
The problem is it does not go far enough.
In particular, it conveniently ignores the
way those exports drive the value of the dol-
lar up in foreign exchange markets, and con-
S 4871
sequently the greater ease our foreign com-
petitors have in exporting to the United
States.
This process may be gradual. The exact
timing may be difficult to predict. But if
you have been following the way 'our growing
balance of trade has been causing the dol-
lar to go up in foreign exchange markets over
the last year, you know the process is work-
ing. As the dollar goes up, our own multina-
tionals are going to find exporting from the
United States increasingly unattractive. Our
foreign competitors will find it easier to ex-
port to the United States at a profit. Ameri-
can automotive workers, textile and shoe
workers, and many others may find their
jobs displated by the growing imports.
The multiplier process works in reverse.
If you want to estimate the real contribu-
tion DISC makes to U.S. employment, you
must first add the jobs created by exports,
then subtract the jobs destroyed by imports.
Because the industries which must compete
with imports are often labor intensive, DISC
may well be destroying more jobs. than it
creates.
I point out to those who claim that
DISC is creating jobs, in addition to the
reasoning of a preeminent authority on
foreign trade that it does not create jobs,
that it has a disincentive for creating
jobs, we have the fact that the AFL-CIO,
which I assume is interested in creating
jobs, opposes DISCS as a giveaway.
For that reason, Mr. President, I ask
unanimous consent to submit at this time
the first of a series of amendments which
I intend to submit to H.R. 10612. The
amendment today, as I say, would remit
to the U.S. Treasury $1.5 billion. I have
three or four more amendments, which
will total $16 billion in uncollected reve-
nues which we are giving away in the
name of "incentives."
The ACTING PRESIDENT pro tem-
pore. The amendment will be received
and appropriately referred.
Mr. HASKELL. Mr. President, I yield
back the remainder of my time.
Exalsrr 1
THE SOMETIMES FREE MARKETERS
There's hardly anything that discourages
us more than seeing a long,line of American
businessmen trooping up to the House Ways
and Means Committee to plead for export
subsidies.
There is Reginald Jones of General Electric,
who toasts the free market Thursdays
through Tuesdays, on Wednesday pleading for
export subsidies. There is David Garfield of
Ingersoll Rand pleading for-export subsidies.
There is Russell Laxson of Honeywell, speak-
M& ufacturers-the foremost sometimes
cha ion of the free market. Mr. Laxson
says t e NAM wants export subsidies. And
look, th usually simon-pure free marketer
William on, recently of Salomon Brothers,
now of the S. Treasury, is also asking for
export subsi s.
At issue is Nether or not to continue
the DISC gimmi to promote exports that
was inspired by th idea that the U.S. econ-
omy had lost its "co etitiveness. ? What this
means, in theory, is th of American Widget
can't sell its widgets abro d at a profit for less
than $1, and foreigners a only willing to
pay 95 cents, the American xpayer should
give the foreigners five cent for each $1
Of course, the program arrange 11 this in
a way that makes it look less bla nt. U.S.
companies that set up Domestic Inte ation-
al Sales Corporations (DISCS) to ban ex-
ports get to defer federal taxes on 50% of
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S 4872 CONGRESSIONAL RECORD-SENATE
the DISC'S earinings. The Office of Manage-
ment and Budget estimates that DISCS last
year increased U.B. exports $1.6 billion at a
cost to the Treasury of $1 billion in lost
revenues. If all this is in the name of earning
foreign exchange is was an expensive way to
go about it.
The lost revenues are of some significance
in this year of massive federal borrowing.
But the faulty principles that DISC repre-
sents,are even more troublesome. First of all,
it is a dubious argument that subsidies
strengthen U.S. competitiveness abroad, as
the checkered history of the heavily sub-
sidized U.S. merchant marine will attest. Sec-
ond, through the DISC subsidy, one sector of
the private economy; that is the kind of in-
equity that ultimately destroys confidence in
the fairness of the tax system. Finally, DISC
enables foreigners to buy U.S. goods at lower
prices than are available to Americans.
The revenue loss to the Treasury, which
of course must be covered by bond sales,
would be much more efficiently invested
through a general reduction in business
taxes. Folding DISC and using the antici-
pated revenue gain to that end would, for
example, permit a cut to 46% in the cor-
porate tax rate. While the net result might
mean a reduction. in exports, the change
would mean that all U.S. companies, their
employes, and their customers would share
the benefits.
There's no economic reason why the U.S.
government should intervene in the market
to subsidize exports, just as there's no eco-
nomic reason why it should intervene to
restrain exports. The whole reason for trade,
whether between Kansas and California or
between Japan and the United States, is that
each region benefits from the other's advan-
tage in producing the traded goods. In de-
parting from this principle, businessmen who fathers formed a new go
United States, and all those who rely
upon us as the leader of the free world.
ing and tary strength of the Soviets-But the
CIA can only tabulate what it knows and
ernment VW ments may often be subjective, and it
argue for export subsidies-whether through place the Federation to create a
DISCS or the Export-Import Bank-must union strong enough survive in a hos-
perforce use the same logic employed by til4l world.
those who wish to restrain exports.
We are especially unimpressed by argu- Recognizing ? challenge we set
ments that the United States must skew abut to establiffi a military capability
its economy toward export sales because its to sustain our position as a world leader.
competitors are doing so. Because U.S. trad- In terms of nSilitasy strength, and de-
ing partners are so foolish as to design in- termination/to use our strength when-
efficiencies into their economies hardly makes ever neces ary to defend our Interests,
the case that we should follow suit. The
British have been almost fanatical in sub- America ,At the close of World War II
sidizing exports, and if they keep at it much Stood fthout question as not only the
longer they will be eligible for membership No. 1 terry power, but the dominant
in the Third World. The recent Common mili ry power in the world. A shattered
Market proposal for a European Export Bank wo d lay at our feet. There was no land
!s h rtil t d b
ea
th
B
ti
y suppor e y
e
ri
sh because wd could not have conquered. Yet we
the Germans would be paying the bills. , ere true to the principles which guided
American businessmen are now being tan-. OI'., Revolution. We dedicated our efforts
Bled in the same snare that caught their
British counterparts a generation ago. Thj' to encouraging and defending freedom
April 5, 1976
,Mr. BARTLETT. Mr. President, during most cietermined.
the fall of every year, the students. alum- . At question is not only 4.. nerica's
nothing less.
ship football ranking in the Nation-and
there is only onNn 1 -11-- f-4-U-11 Now, conventional wisdc
h
l
th
-.- 4 ...... K . a s
o
y at ter
e a myopic view of
end of the season bowl games January 1_ national interests an
tion of a sports fan. It was a statement circles. Now, we a
The primary reason
it. It's disheartening to find s99' many free sacrifice was bound to narrow the gap
marketers lined up behind DI C on bended in military capability between us. They
knees. / were bound to build the weapons which
ORDER OF TSINESS
The ACTING PPyESIDENT pro tem-
pore. Under the p vlous order, the Sen-
ator from Oklah ma (Mr. BARTLETT) Is
recognized for Mot to exceed 15 minutes.
Mr. BAR TT. Mr. President, I ask
unanimous resent that Mr. Lee Rucker,
of 'MY s ff, have the privilege of the
floor g the consideration of and the
vote on S. 3136.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
could harm us. We can no longer destroy
an;T potential enemy and remain rela-
tivsly unharmed. But we can still remain
preeminent or No. 1.
Our military supremacy faces an awe-
sor.ae and continuing challenge. The So-
viet Union, pursuing a goal of global
application of its own Communist Ideals,
ha:; charted a course designed to give it
military superiority, not parity, in the
world. In the heat of this competition,
serious questions have arisen about
America's resoI1e to remain the leader
of the free world, to retain our position
nual military expenditures of the 93 et
Union in relation to its'GNP.by a factor
of 100 percent. It is currently thought
that the Soviet Union is spending close
to 15 percent of its GNP on defense, while
the United. States spends approximately
6 percent of its larger GNP on defense.
If the United States believed it pos-
sessed military superiority, then our
position relative to the_ Soviet Union
would not necessarily change because of
such a miscalculation; we might very
well retain superiority. However, if our
goal was only military parity with the
Soviet Union, a serious miscalculation of
Soviet capability would leave us with
something less than parity-a position
our Nation cannot afford to accept.
Conventional wisdom speciously begs
the question when it says we should not
be in an arms race with the Soviet Union.
Obviously, we are in a qualitative arms
race that recognizes a negative quantita-
tive imbalance; and we must compete
successfully with any nation so clearly
dedicated to becoming the dominant
military force in the world. The costs
may be significant, but fortunately,
America can maintain military superior-
ity by sacrificing a much smaller share
of our gross national product than the
Soviet Union-if we have the will.
Certainly, this does not mean that we
should refuse to limit the arms race
the Soviet Union. Such limitations,
applied to both nations equitably and
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Plan-for Hill Intelligence Unit Assailed
By Walter Pincus
Washinston Post Staff Writer
Opponents of establishing
a new Senate committee to
oversee intelligence activi-
ties let fly with a barrage of
criticisms yesterday in a
hearing before the Senate
Rules p-mmittee.
Thy oncentrated their
criticis~af on the proposal
that the new committee
have exclusive jurisdiction
over all foreign and doikies-
tic intelligence-gathering
agencies.,
I.t; aleo -present was a
4Z" Rules
pie at home "feel Congress
is out to destroy intelligence
agencies."
Armed Services Commit-
tee Chairman Sen. John C.
Stennis (D?Miss.) declared
his strong opposition to the
new committee and recom-
mended instead funding a
permanent subcommittee of
his committee that would
concentrate on intelligence:
Stennis' Armed Services
Committee, under the new
proposal, would lose its ju-
risdiction over the Central
Intelligence Agency and the
intelligence activities of_ the
military services.
"You strip away this au-
thority and leave the Armed
Services Committee un-
dressed and in public as far
as being effective" in car-
rying out its defense re-
sponsibilities, Stennis . de-
clared at one point.
Sen. Roman Hruska (R-
Neb.), speaking on behalf
of the Judiciary Committee,
said that body voted Tues-
day to recommend removing
FBI intelligence activities
from the new committee's
jurisdiction.
CIA Director George
Bush, who had asked to tes-
tify, said that, "speaking as
head of the intelligence
community and for the ad-
ministration," he "could not
support" the proposal for a
new committee as currently
drafted.
"Certain section," Bush
said, "would unnecessarily
hinder our foreign intelli-
gence effort."
Four of nine Rules Com-
mittee members indicated
by. their statements and
questions yesterday that
they have doubts about the
new committee as proposed
by a resolution the Senate
Government Operations
Committee passed.
Rules Committee Chair-
in one of its bad moments,"
Stennis said, "but of course
I knew nothing about it."
Stennis for years has br
Congress is taking a more
objective view" because peo-
chairman of the Arn
Services subcommittee wt
authority to oversee
activities.
"There's been more sur-
veillance of the military
part of CIA," he said, "than
appears on the surface. I've
been rather shut mouth on
this myself."
man Sen. Howard W. Can- Stennis argued that his
non (D-Nev.), who also is a Armed Services Committee
member of Armed Services, needs budget authorization
said that because of the con-? jurisdiction over all aspects
flitting views, he would re- of defense intelligence be-
commend that the resolu- cause the remaining part of
tion remain in his commit-- the defense budget is de-
tee for 30 days beyond the
April 8 deadline he now has
to report it to the Senate
floor.
Sen. Frank Church (D-
Idaho), chairman of the Sen-
ate intelligence committee
and a chief proponent of the
new committee, waited al-
most an hour to- testify yes-
terday and then asked to be
heard this morning so that
he could prepare to meet
the varied criticisms.
Stennis' presentation set
the tone for those who fol-
lowed. Stennis said the CIA
overall had done an
"excellent job" gathering in-
telligence in foreign areas.
"I'm ashamed, ashamed of
what CIA had done at home
pendent upon it.
He added that if his con'
mitteee did not at,""'>'.
the intelligence part d,oJ ,
budget, it could not ha.,~? e
conferences with the HotiY
Armed Services Committer
to iron out differences be-
tween defense authorization
figures passed by the two
houses.
Bush took aim at a provi-
sion in the resolution that .
would permit public disc:,
sure of intelligence informa-
tion over the objection of
the President.
Arguing that the section
"could impede the flow of
sensitive information to the
committee," Bush recom-
mended it "be deleted."
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a-
)versight Compromise Offer tfd
By Walter Pincus
Washington Post staff writer
The powerful Democratic
whip, Sen. Robert C. Byrd
(W.Va.), declared yesterday
Committee, the new intelli-
gence , committee would
have taken jurisdiction over
"the power of the purse is
the ultimate authority" and
he "couldn't see effective
oversight without" it.
A letter from Defense
Secretary Donald Rumsfeld,
introduced at the hearing
yesterday, supported the po-
sition that it is impossible
to separate cleanly the De-
fense Department's intelli-
gence budget from its over-
all spending since many pro-
grams are intermixed.
Rumsfeld echoed the Byrd
suggestion that the new
committe undertake only in-
telligence oversight.
Other senators raised with
Church the proposal that
the new committee be au-
thorized to disclose classi.
fied information over a
President's objection.
Church responded, saying
"the greatest breach of secu-
rity" he had ever seen was
the recent disclosure by the
CIA that the Israeli govern-
ment possesses 10 or more
nuclear weapons. "I have
never even heard anyone
was reprimanded," Church
said.
To emphasize his point
that the resolution as now
written was vulnerable to
attack, Byrd spent 20 min-
utes listing more than a
dozen Senate rules that
would have to be revised in
major or minor ways to con-
form to the resolution's lan-
guage.
Sen. Abraham A. Ribicoff
(D-Conn.), chairman of the
Government Operations
Committee that drafted the
resolution, told Byrd "not a
single point there can't be
reconciled" by redrafting
the resolution.
. Ribicoff proposed a staff
meeting to iron out differ.
ences but Rules Committee
Chairman Howard W. Can-
non (D-Nev.) said that was
"premature" since "we don't
know ourselves" what is
needed.
that, there is "no way" the
nes''-'tion to establish a new
Sej committee on intel-
ligence activities could pass
as now written."
Saying the "political cli-
mate indicates a necessity
for some kind of commit-
tee," Byrd offered a com-
promise plan to solve a ju-
risdiction fight that has en-
tangled the present' pro-
posal.
Under the Byrd plan, a
new, permanent Senate in-
telligence oversight commit-
tee would be set up with
subpoena power but with-
out budgetary control over
intelligence agencies.
Byrd,s suggestion came
during Serrate Rules 'Com-
mittee questioning of Sen.
Frank Church (D-Idaho),
chairman of the Senate in-
telligence committee and an
architect of the proposal un-
der attack.
Under the resolution ap-
proved March 2 by the Sen-
ate Government Operations
intelligence agencies' budg
ets from three powerful
Senate committees-Armed
Services, Judiciary and For-
eign Relations.
All three committees have
raised objections to the pro-
posal.
Byrd told Church: "That
road is so formidable, and
difficult to travel." Instead
he suggested that, "we may
achieve the desired objec-
tive" by giving subpoena
power to the new committee
and "leaving the rest where
it lies."
Otherwise, Byrd said, ap-
proval might be endangered
because "the resolution will
be subjected to unlimited
debate."
In his initial statement,
Church said overlapping or
concurrent jurisdiction be-
tween' the new committee,
and the Old ones was the
"traditional" Senate solu-
tion "where the interest of
two committees... is
strong."
After Byrd offered his
compromise, Church argued
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 ?
THE WASHINGTON POST
By Laurence Stern and Walter Pincus
Washington Post Staff Writers
The._congressional crusade=to change
the system of intelligence oversight on
Capitol Hill is virtually dead-a,cas-
ualty of shifting public mood, adroit
White House political orchestration
and territorial jealousies of congress-
ional barons.
This is the current assessment of the
battle despite the past year-and-a-half
of skeleton-rattling in the closets of
the Central Intelligenpe Agency, FBI
and other compartments of the U.S.
national security establishment.
Equally doubtful is the prospect for
legislative reform of the, intelligence
community whose excesses-such as
involvement in foreign assassination
plots, illegal survelliance of American
citizens and domestic political espion-
age-have been chronicled in volumes
of congressional testimony and count-
less newspaper stories.
OVERSIGHT, From Al
? Vesting power of disclo-
sure in the new committee
or the full Senate of any in-
telligence matter deemed to
require public airing, even
over presidential objections.
? Timely sharing of se-
crets by the intelligence
agencies with the Senate
overseers to give Congress a
chance to blow the whistle
on executive actions before
they become irreversible
policy, as in Indochina and
Angola.
? Giving the new commit-
ire jurisdiction over the en-
tire intelligence comlimunity,
which spreads through 11
separate civilian and mili-
tary agencies.
Now the reformers, led by
Senate intelligence, commit-
tee chairman and presiden-
tial aspirant Frank. Church
.(D-Idaho), would be happy
to settle for much less.
They would, for example,
accept limiting the new com-
mittee's jurisdiction to the
CIA and civilian, intelli-
gence functions of the FBI.
They are also willing to
have the new committee
share legislative and budget-
ary authority with the
Armed Services and Judici-
ary committees for the CIA
and FBI, respectively.
Church and his allies have
given up hope for favorable
action in the Senate Rules
Committee, which is now
chopping up the original
version of S. 400, to as-
suage the powerful elders of
Congress who want, to pre-
serve their military and in-
IvIligence baronies intact.
Church's strategy is to have
-tlie decisive shootout on the
Senate floor in a major pub-
lic debate. To this end he
has timed the final reports
of his select committee-the
last salvos of disclosure-for
So profound has been the rout that
one top CIA official remarked with a
touch'of cQntrittion. last week:. .
"I, hate to say this, but I think we've
won too much."
The prediction, if not the misgivings,
is widely shared by his colleagues
throughout the intelligence-_ commW_
nity. And so with- hawkish elan. buoy-,
ed by a favorable windshift in Con-
Hill Reform of CIA Review Stymied
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~
DATE 4t
? PAGE
News Analysis
gress, the Ford administration is now
pressing for at best a token form of
oversight on Capitol Hill-an approach
that would heavily -circumscribe con-
gressional power to investigate and
give the President veto power over
public disclosure of the findings.
It is a far cry from the state of
affairs six months ago when, stung by
the revelations of abuse, Congress ap-
SEN. FRANK CHURCH
... eyes floor showdown
the end of April. The floor
fight is now set for May 6.
The change of fortunes
for the intelligence reform-
ers began last December
when the Senate investigat-
ing committee stopped its
flow of hearings and reports
detailing the abuses. At that
point there were no new
horrors to arouse indigna-
tion and fuel the crusade
for corrective action.
On Dec. 23 the CIA's sta-
tion chief in Athens, Rich-
ard S. Welch, was assassi-
nated. The administration
linked the murder of Welch
by still-unknown- assassins
with the torrent of disclo-
sure, including the names of
operatives, of intelligence
activities. Even the former
director of the agency, Wil-
liam E. Colby, acknowledged
that the Welch assassination
ways a major turning point
gence conAAWp%vA Ft6Sr 2191/91 iP~1'1eSC19' -
CIA's favor. in (in a ligence agen-
While most of Welch's col- cies." The order, said
geared on the verge of taking an un-
precedentedly strong hand in over-
seeing the intelligence community.
Leaders of the intelligence reform
movement in Congress are now in the
process of cutting back their ambit-
ious legislative goals in keeping with
their darkened political prospects.
The fate of the reform bill S. 400?il-
lustrates the old Washington truism
that there is more political mileage in
exposing governmental abuses tlian in
acting to prevent their recurrence.
Six months ago the agenda of the
reformers included such minimum de-_
mands as these: -
? Creation of a new standing Senate
oversight committee which would op-
erate independently of the pliant.,
Armed Services and Appropriations
year.
See OVERSIGHT, A4, Col. 1
leagues killed in the line of
duty are commemorated by
anonymous stars chiseled
,into the entrance hall of the
CIA's headquarters, his own
funeral was conducted with
impressive national panoply,
with full television cover-
age, attended by President
Ford',T.d Secretary of State
Henry A. Kissinger.
In January there ensued a
controversy over the leak of
the House. intelligence com-
mittee's report to .CBS News
and The New York Times,
then, in textual form, to The
Village Voice. This further
raised congressional hackles
and fed the arguments of
the administration that Con-
gress could not be trusted
with secrets. The result was
an extraordinary House vote
to suppress the report.
The House committee,
chaired by Otis G. Pike (D-
N.Y.), went out of existence
in a bedlam of political re-
crimination, its staff the tar-
get of an FBI investigation
and its report censored- by
vote of the House. Even in
the leaked version the sub-
stance of the Pike report
went virtually ignored be-
cause of the controversy
surrounding its bootlegged
publication.
At this point the- admini$-
tration began a series of
well-timed public initiatives
to foster the impression that
President Ford was carrying
out by executive action
many of those very reforms
upon which Congress em-
barked through the legisla-
tive process.
On Feb. 18 Mr. Ford an-
nounced to Congress his
promulgation of an` execu-
tive order that he said set
RICHARD S. WELCH
... murder a turning point
Mr. Ford, "will eliminate
abuses and questionable ac-
tivities on the part of the
foreign intelligence agencies
while at the same time per-
mitting them to get on with
their vital work of gathering
and assessing information."
The President, while
blessing the principle of
"successful and effective
congressional oversight,"
stole the march on Congress
by appointing his own Board
of Overseers for foreign in-
,telligence. He named as its
chairman Robert D. Mur-
phy, 81, who was a presiden-
tial intelligence adviser at
the time of the Bay of Pigs
and four. of the five assassi-
nation attempts against for-
eign leaders in which the
Senate intelligence commit-
tee found the CIA to be im- as it has been since the ere-
plicated. atio of CIA, in It envi-
In private,--not-f.;-attrib. sion -a tripling of the staff
ul,ion conversations,. -intelli- -fr m one to three-of his
gence advisers close to'.the sub ommitt~e on intelli-
President look upon the gen. .e and an expansion' of
.year, of.,congressional inves- its h_ arter {o provide what
tigations with amused dis- the ississippi Democrat in-
paragemei t. ini t bly described as a
They say, for example, "loo -see-surveillance-over-
trrat--tl;e- abuses -Con lO d 4f coordination
egress gr
aid the press claim-to-have T e White House was re-
uncovered actually surfaced port d to be looking with
in an internal CIA review keen interest at such an ap-
ordered by then 'CIA Direc- proa h.
tor James R. Schlesinger in
19_73-the so-called _"J;a pily
jewels" report of. more than
600 pages which leaked, in
part, to the press. Schle-
singer ordered the inquiry
- to find out the extent of
CIA involvement in' 'the
Watergate_ scandal.
The backroom view _in the
White House- is that there
should-be -a single oversight
committee on Capitol Hill to
answer the clamor for correc
live action-but one which
is fully subject to presiden-
tial determination of what
can be disclosed.to it, and by
it.
The i_ s a strong Sympa-
thy forthisview among,the
cpngressional elders wno
have looked with suspicion
upon the pros ect_of an ups-
tart- _in tellig.ence_imersight
committee_vvith. g uine in-
vestigative powers since . it
was_lir~st_propnsecL ears
ago.__by-_-Senate Majority
I_-eader Mike Mansfield (D-
Sen. John C. Stennis is re-
poitedly acWocating a- plan
-which would vest all intelli-
gence oversight in his own
Armed Servics Committee,
 WASHINGTON PO ST
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Sho uTdozvn on In te Ilige n ce Oversight
THE SENATE is about to decide whether to let the
results of its year-long intelli
ence in
uir
n? ~1.,..,.,
g
q
y
the drain, as the House already has. It would be a dis-
grace for the Congress to do so, and it would also repre
.'sent a genuine -misfortune for the public. But it yet
could happen if the barons of the Armed Services and
Judiciary Committees succeed in blocking creation of
..an effective intelligence . oversight committee. The
barons believe the new panel would reflect unfavorably
on their past stewardship of the intelligence community
and cut into their future jurisdiction. But these are not
very substantial objections. The old oversight mechan-
..isms were considered suitable to their time. Those who
managed them are entitled to feel they were serving the most ticklish matter before the Rules Committee. In the-.
national interest as it was then perceived: Partly on ory, national security and the public's "right to know".
;.,two, the general perception of the national interest has
Wlanged. Intelligence oversight must change, too.
mittee would create a permanent Committee on Intel-
ligence Activities with. these new and necessary powers:
budget authority, authority to shape the charters or
missions of all foreign-intelligence agencies, and regular
access to intelligence information. The obvious answer
to Armed Services' and Judiciary's jurisdictional anxie~
ties is to provide-for overlapping jurisdiction. The old
committees would lose only their exclusivity, and many
other committees manage to live with such a pattern.
The case for exclusive Armed Services jurisdiction over
CIA is especially weak in view of the civilian nature of
most of the work of CIA, which was never meant to be
a military intelligence agency anyway.
pose irreconcilable demands. It is important to -note,
however, that the actual operation of the Senate intelli-
gence committee has tended to. soften these tensions,
MWThe -specific. need is to centralize oversight of the and that it has done so not by finding some magical
,,intelligence community, just: as management of. the formula to balance off interests in conflict, but rather
:community has been centralized-the more so, by the by setting a procedural example of back-and-forth c,,n
:..recent Ford executive order-in the executive branch. sultation to work out disagreements. The result is that
-.Only in this way can the Senate see that the community there have been neither leaks nor impasses, an achieve-,
is run efficiently and legally and that intelligence is ment for which chairman Frank Church and all of the
,-.properly fitted to military and diplomatic policy. These members deserve major credit. The committee's final
.. are more amibitious goals than those held by past in- repot is going through the committee-executive mill
tel'igence overseers, who in the main insisted merely now. Parts of it will remain classified-the parts report-
_.that they not be surprised. Future overseers, however,
"ought to represent the full political spectrum, not just
".the military-conservative end of it. The revelations of the
,,past 18 months, not to speak of the whole post-Vietnam
,consensus favoring more open government,. provide com-
pelling reason for the change.
A resolution pending before the Senate Rules Com-
ing on activities kept secret by executive-congressiv.d1i:
agreement. Such a procedure does not satisfy tiia all-
or-nothing partisans of either left or right but it does
.offer the basis for a solid Senate consensus on tine re-
solution creating . a new committee, which is due to
emerge from the Rules Committee by the end of the
month.
Approved For Release. 2001/07/27 : CIA-RDP90-00735R000200160003-5
The handling of classified material is no doubt the