PROPOSED FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1976 - CONFLICT WITH INHERENT PRESIDENTIAL POWER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79M00467A001100180015-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 19, 2016
• Document Release Date: June 30, 2005
• Sequence Number: 15
• Publication Date: February 10, 1976
• Content Type: MF

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OGC 76-0641
10 February 1976
MEMORANDUM FOR: Director of Central Intelligence
SUBJECT : Proposed Foreign Intelligence Surveillance Act
of 1976 -- Conflict with Inherent Presidential Power
1. The subject legislation would unnecessarily involve both Congress
and the Judiciary in an area heretofore considered the Executive's exclusive
domain. Two United States Courts of Appeals have already held that
warrantless electronic surveillance for foreign intelligence purposes
which is authorized by the Attorney General pursuant to Presidential
power does. not violate the Fourth Amendment. In one of these cases,
United States v. Butenko, 494 F.2d 593 (3d Cir. 1974), the Government
did not oppose the petition for writ of certiorari on this question, arguing
that the practice is lawful and "not subject to prior judicial scrutiny."
Memorandum for the United States on Petition for Writ of Certiorari at
10-11, Ivanov v. United States, 419 U.S. 881 (1974). The Supreme Court
denied the petition without comment.
2. Not only would introduction of the legislation proposed by the
Attorney General constitute a radical reversal of the Executive branch
position on this issue, but it would completely negate the strongest
argument against any similar congressional proposals -- that the subject
is an inappropriate one for involvement of the other branches of Government.
Congress previously recognized this by disclaiming any intent tc4 touch
Presidential power when it passed the electronic surveillance provisions
of the Omnibus Crime Control and Safe Streets Act of 1968. That act, among
other things prescribes judicial warrants for law enforcement purposes, and
goes on to state that nothing in the act is intended to impinge on the con-
stitutional authority of the President "to obtain foreign intelligence." In the
post-Watergate, post-Vietnam climate many in Federal Government and outside,
including some constitutional scholars, feel that a backlash erosion of
Presidential powers and prerogatives must be forcefully resisted.
3. The Agency would not be as directly affected by the proposed
legislation as would NSA and the FBI, although on occasion CIA has
requirements for this activity and receives the product, where appropriate,
of operations conducted by other agencies. In addition, we cooperate with
the FBI on technical aspects as required. Nevertheless, the proposed
bill cannot be viewed as other than a further obstacle to the U.S. intelligence
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collection mission. It would seem preferable to continue the present
procedure in which court review occurs only if the surveillance becomes
an issue in another judicial proceeding, rather than providing for such
review upon every surveillance request. Even if the foreign intelligence
collection mission is thought by some to be secondary to the creation of a
neat judicial record for use in a possible collateral proceeding, Section 3504
of Title 18 United States Code currently provides a procedure for an opposio
party to raise the electronic surveillance issue. Thus, there is no danger
of abuse of authority if the bill is not enacted, and the matter really comes
down to the wisdom and desirability of prior judicial review.
4. In the final analysis, the current furor and consequent political
pressure stem not from the surveillance of foreigners, foreign agents, or
foreign governments -- legitimate foreign intelligence targets -- but from
past surveillance of U.S. citizens, such as the alleged Kissinger request
for the tap which took place on Morton Halperin. Senators Church and Tower
received a briefing here at Headquarters on technical surveillance of foreign
intelligence targets in the U.S. and apparently had no problem with it. If
public reassurance is needed, the pending Executive order can accomplish
that by providing that electronic surveillance of U.S. citizens within the
United States is prohibited.
5. While it can be urged that CIA is not directly involved, as the DCI
you should properly be concerned with any action which would decrease the
capability of the Intelligence Community in the collection of foreign
intelligence. In summary, the arguments against the legislation are:
a. It is not required since, Presidents since Roosevelt have
authorized foreign intelligence wiretaps, and no court has disagreed.
In fact, two circuit courts have approved.
b. Constitutionally, collection of foreign intelligence is reserved
solely to the Executive and the Executive should not urge and support
bringing the Judiciary into the picture.
c. The Executive in pushing legislation for judicial warrants with
respect to collection of foreign intelligence against foreigners destroys
one of its major arguments in resisting legislation introduced on
the Hill for similar legislation.
d. No judge can ever be as fully briefed and understanding as can
the Attorney General of the special need for wiretaps to collect
foreign intelligence. Consequently, it must be assumed that overall
collection in this area would be decreased.
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e. On a purely practical basis there is a serious degradation
of security if the courts become involved, since they are not trained
and obviously persons other than the judge inevitably will handle
the written records, thereby increasing the security risks in this
most sensitive area.
f. The DCI has a positive duty to prevent erosion of capability
and degradation of security in one of the most fruitful areas of the
collection of positive foreign intelligence.
S. AP.NER G GE L. CARY
eral,Counsel Legislative Counsel
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REMARKS:
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to the Director and back to OGC.
Attached is a copy for your files.
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