GUIDELINES FOR FOREIGN INTELLIGENCE ACTIVITIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000200030007-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 25
• Document Creation Date: December 19, 2016
• Sequence Number: 7
• Content Type: MEMORANDUM FOR

/:
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ES 78-6 ex G 721' -/ ~ 7 /
24 May 1978
MEMORANDUM FOR: See Distribution
FROM : B. C. Evans
SUBJECT : Guidelines For Foreign Intelligence Activities
1. The DDCI would appreciate your comments on the attached
prior to the 2-3 June meeting
2. Please forward same to SA/DDCI by 1 June.
B. C. vans
Executive Secretary
Attachments:
As stated
Distribution:
DDA
DDO
DDS&T
D/NFAC
D/PA
7 P= 5
I G
GC (Attachment to ER-788 sent to you 23 May)
Compt( If 11)
/LC ( 1E II 11 )
ES - Chrono
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trot J'~ t~
j:.') , OR:
Director of Central Intelligence
f~C~;f
SLI JECT
d
.
Graham Allison
Guidelines for CIS l oreic{n
Intel l i~ enc. J ctivities
An Overview of the forest
Better late than never--I hope. In any case, I ara sorry that this -i.s.
so late-
This memo summarizes my response to your assignment: to explore
whether it is possible to devise useful guidelines for the intelligence
community's activities abroad. As your last memo emphasized, this
question applies both to clandestine collection and to covert action-
The delay in my response to your assignment resulted not only from---
the time-consuming demands of learning my new job as Dean- Even more
important has been the extraordinary difficulty of this assignment- At
first, I thought the difficulty stemmed largely front my lack of familiarity
with the community. But as I've talked to hundreds of people within and
without who don't suffer this handicap, I have concluded that the problem
is much deeper- It is relatively easy to take any single tree or other?
and develop the case for pruning it, or fertilizing it, or even cutting it
down v The hardest problem is to step back from the trees and get a broad
view of the forest
Ply k"report:" attempts to present an overview of the forest and problem
of forest management. This memo extracts seven major ideas or points that
are presented it a lengthier, and more orderly form is the report-
la Your first question is: is jit possible to devise Useful
.c uI del i nes for the i ntel l i nce community's acti vi i `s abroad?
Many people at CIA 'and elsewhere argue: no.. For
example, Ambassador Harlan Cleveland stated this
view clearly at the Agency last years "A written-
code of ethics can never be comprehensive enough
or subtle enough to be satisfactory to guide
personal behavior as a public servant- General
prescriptions, whether in the form of dos or don'ts,,
are bound to be so general as to be. useless or so
specific as to be unworkable."
My unambiguous answer to the question about guidelines
is: yes_.
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My grounds for confidence about: the posslri'i i i LY
of devising useful guidelines for CIA are quite
simple and clear: such guidelines now exist,.
Though nowhere stated as such, or assembled in
precisely that form, the body of law, executive
orders, internal regulations, and informal mores
governing CIA do constitute a network of guidelines,
that provides useful direction to, and restrictions
on Agency activity.
2. Why are we interested in a code of ethics?
- The point is not primarily or exclusively to
constrain bad behavior- Contrary to the assumption.
on which much current public discussion is based,
the objective of the exercise is not to tie,down,
or drug a rogue elephant.
The point is to help rooti vate, shape, and constrain
the behavior of professionals in the intelligencecommuni ty in ways that will restore confidence
external l y in lawful i nte?l fence, and en_coura e
pride internally in a most di ffictil t .arid. important
profession.
Especially in your position, you should emphasize the
positive as well as the negative side of the coin of
guidelines. On the positive side, the purpose is to
inspire intelligence professionals to courage,
inventiveness, and effectiveness in performing one
of the most difficult and critical functions, while
assuring relevant publics abort the fundammen tal
lawfulness of intelligence activity. Negatively-,
the purpose is to restrain behavior from violating
basic r igiits and other values-
30 A -System of Guidelines
While any effort to write guidelines will contain a waist
of dos and don'ts, that code will not stand alone- In fact, it is
but one -element in a "system" of guidelines. This systerrr of guideline
includes not only a clear statement of rules ,. but also a process for
pp]yi n the rules to hard cases, a processfor? e2for?ci nq compliance,.
and an independent process for overseeing the community's practices..
j cy presentation of an overview is organized around this
concept of a system of guidelines:
?_? Rules (from general principles to specific guidelines and
perhaps even a formal code of conduct);
ad A. Process for ppl i nq the Rules;
2
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A Process for Overseeing Pr,!ctice in
{ Appl ii cation, and En;_or-cer'ent.
Larcer System of Which Gaic,lir, a
TEi
The sys ten of gu i dal i nes on which ny
is but one part of an even larger conglomerate o< the Ft.n,-ttt ass
that shape, motivate, and restrain behavior of individuals in an
organization- The larger conglomerate is called by my colleagues
at the Kennedy School a "personnel management system,," though it
doesn't have much to do with what ordinary personnel officers
think about- This larger system encompasses the array of activities
from recruitment, selection, socialization, and training of er:trants
in the organization through assignment, career development, continuing
education,. rewards and punishments, to exit---all of Vlhich shapes,
motivates, and restrains the behavior of individual members of the
organization. As part of the total "personnel management system,"
_a system of guidelines is important- ? Standing alone, its effect
on the behavior of individuals will be quite limited.. In comparison
with other elements of the total "personnel management system,"
the system of guidelines may be less important than various Other
components r
This larger E' personnel management system" is
beyond my assignment hero As.you knc'r; from the
ar ier memo Andy 1~`~arshaTf anc`i Seenc y 1. have
various larger
system, especially as it relates to the production
of first-rate analysis.
5 General Principles
For the syste:ir of guidelines orz which this assignment
focuses., the most important element is the big picture: general
principles within which more specific guidelines and processes
are established,
In my view, the fundamental principle is thatt the
President (and government) should not undertake
actions in secret that c~!11 .1??`?r??er~'
dofendid _JD gLuh ? :,hd , a_
tes fo pa1 i ti cal viability.
Because clandestine activity cannot be subjected
to the normal test of open public debate, the
institutional challenge is to devise an
ap ro _iate srrroat that engages surrogates
for the interests that would participate in - ul l .
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public discussion, 1nvQ'1 ~ ~Q ed and ongoing
disciplined private rev i e,a of pJ S ,on in ways
covert actions, and requires their sup
subsf.antially equivalent to the nodal G?macratic
test of public support-
The paradigm of a surrogate pro CSS in our society
is the mechanism f__or? b ls~C .1 ~ is.,
the neecJ
~anstituthona -i hts to.privac , ---
acui_re _i nforron that may prC~vent crimes.
How i s this- done? Wiretaps on Us citizens can
FM aut.hori zed only after a court has issued a
warrant on the basis of probable cause to bel i eve-
-
an individual is engaged in criminal activity
6 S cific Guidelines Are a Can I'Jo S
Lengthy, and Perhaps endless arCiume"nt can be made
on both sides of almost every Specific prohibition-
Within lirjits, what is suitable Or- even permissible
R will vary substantially with circumstances-aeriexrmple,
-measures that should not : be and*- k p in pe peaceti
or against a democratic state, ay be
st the refQre
during actual or threatened hos-tilities or
a totalitarian regime. e
be preserved to adjust to ci c "?' s and to
modify rules and procedures as conditions change-
Because of the extraordinary array Of possiblit
it would seem best to state genMralovpresamprp ion
that ca~~~ ~ care' values and to provide
principles
for making exce ti s to these
where exceptions are ;justi'f'ied.
Thus, across -the- array of sped ;f i c issues, I recommend
establishing presun~r~
and thereby affirming the value- but cr~a1.1rrc
a process that allows appropriate individ is to basancee acheotions
these values against other important
in extraordinary situations.
This leads me to believe that bpothasamatter? o l' strategy and tactics, you should,5,. . .k J 4ion-at circumstar~ces_
and permits exceptions in erc:~Pp
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As you know very well, the present, loosely organized
"'system of guidelines" is now undergoing rapid and substantial
change. This change proceeds apace, piecemeal. It is
initiated sometimes by Congress, sometimes by uSC or Justice
(as in the long list of topics being addressed by the second
half of PWN--ll and its follow-on) and sometimes by the Agency
itself. But as far as I have been able to determine, -this
process of change is not informed by any comprehensive overview.
of the problem, or zany comprehensive strategy for change that
explicitly recognizes:
- the
the tradeoffs between one change and another;
the cumulative impact of piecemeal change on the.
actual working of the entire systems
So,, for example: - -
The HuhLS has produced an effect
that was not intended or anticipated by most of
its congressional supporters- Their votes were
won by the argument that the President should
personally have to authorize and certify to Congress.
that specific covert actions were necessary for the
nation's security (and thus himself he clearly and
personally accountable for such actions, unlike
the earlier Castro episode, for instance)-
But what has been the result? This requirement
now means that covert actions are reported not just
to an' oversight committee but to eight separate
committees; these committees' lack of sanctions
for members" unauthorized disclosure Wires ~rr_ ci7 cf
congressmen a virtual over the
majority opinion in Congress about these matters;
this whole prngcf thus. everel restri c s the.
number and scone of ? ~_ ~7. This chain of
effects was never presented in the discussion that
preceded the vote on the Hughes--Ryan Amendment-
The current-draft bill of the Senate Select Carnittee
on Intelligence addresses a half dozen different
problems at very
reflecting nom coherent view of what is n
approp-r ale ro_rgi s I ati on and what for executive-
_Jf orcS-nrorinternal regulation, and omi tti rig
altogether any attempt to address issues like
penalties for unauthorized disclosure of intelligence
materials.
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h'- PPM-1] working grout fall ow--On is
trying to tidy up one problem after another,
one at a time, with little overview of ilossible
tradeoffs and interactions.
someone should ha.ve a
tdh t i s to be done? Somewhere,'
a
a
strateg c overview of the problem and should be pulling together
the relevant parties and pushing them towards a purposive Conclusion-
Candidates for "strategic director" include NISC (possibly Aaron),
the Senate Committee (maybe Miller), the Agency (perhaps Tony i_apham)-
I suspect that the first two candidates will not play this role. -
If you, in close collaboration with someone in the Agency, wanted to
take the offensive and provide at every point.a more thoughtful,
more comprehensive, deeper view of the problem, that r?~^so~!S
~~ fiak?rn~. My "report's is presented, therefore, not only as my
answer to your narrower question about guidelines, but also as a
first cut at an overview of the forest that might----after appropriate
revision and expansion-provide some of the basis for your carrv~ ng
t x n i~h
1:0 -CE ~1`1? L ~~Yrtnyy'f To develop an overview that is simultaneously comprehensive
and deep; to develop' a strategic plan; to-do the strategic management-
each is a big job that will require subst.anEial investments.. The stakes
desk Ptat:
are high here-but they are high in all the issues on your
sitting in your seat, or even being aware of many of the other issues
on your desk, I won't presume to recommend that you invest your time
and ehergy here rather than elsewhere.
If after you've read the memo that full ows and thought about
the larger strategic problen7, you want to hear more on this last
subject, I have a -few thoughts about a plan of action
After too long a delay, and more hemming and hawing than
I 'like to ack.nowl edge, the ball is now back in your court-
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GUIDELINES FOR CIA
FOREIGN INTELLIGENCE ACTIVITIES
The report that 'Follows is organized as an outline of talkinq
points. and I discussed this format and agreed that it
will serve to highlight the major points. After discussion and
revision, I can translate this directly and quickly into a briefing
paper or ?a long memorandum or whatever. The form will depend on how
you might want to use it..
The major ideas in this report have been summarized in the cover
memo. Here they are presented in a more logical and ordered form.
This report is organized as follows:
1. THE SETTING
why should the United States engage in any clan-
destine activity that clearly violates other
nation's laws?
-- can any action the U.S. takes against non-U.S~
citizens abroad harm important U.S. values and
objectives?
11. A CODE OF ETHICS
the importance of guidelines
ap the possibility of useful guidelines
the role of guidelines and a code of ethics
should the intelligence community he defensive
about guidelines and a code of ethics?
III. ELEMENTS OF A SYSTEM OF GUIDELINES
IV. RULES
general principles
-- specific guidelines
V. A PROCESS FOR APPLYING THE RULES
VI. A PROCESS FOR ENFORCING COMPLIANCE WITH THE RULES
VIZ. A PROCESS FOR OVERSEEING PRACTICE IN RULE-4MITINC
AP i)L1 CAi ION, AND ENFORCEMENT
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citizens harm important U.S_ values and
objectives?
B. Why should the United States enc~aye_i n an clandestine
acti vit that clearly vi of ates other nation's 1 aws? hecausc
actions taken by foreign governments in secret can do major andY
snenmes irreoara_ harrn to U_S. nationa C- rty_ Uni
on,
some uni
sespecially closed societies like the Soviet
some nations,
engage in massive efforts to hide from outside view actions that
harm U.S. interests. Because U.S.. interests can be advanced by
acquiring information that others do not want us to have----s4
long as they do not' know that we have collected it. Because U.S-
-
i nterests can sometimes be served by t o fl tie rtet+eve_nts in other
countries by instruments ottierand without
acknowledging our role. The recent orgy of revelations has
focused on failures, rather than successes. But it has provided
a number: of examples that make the point:
when Black September hijacked an Air
France 707 with 100 Israelis aboard, took the plane
to Uganda's Entebbe Airport, and threatened to kill
the hostages unless an equivalent number of Arab
prisoners in Israeli jails were released, what
alternatives to clandestine action existed?
President Amin and the terrorists would not permit
"legal" surveillance of the situation- Actions that
observed local Ugandian law were not. likely to -free
the hostages. Should the U.S. deny itself a capability
for covert action like the Israeli raid on Entebbe?
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1. .THE SETTING
For any broader presentation of these issues to Congress,
the public, or even within the Agency, one needs a short
preamble that puts the problem in context. A concise, all-purpose
preamble is very hard to do well. People come to this issue With
such varied backgrounds and prejudices:
-- some wonder why the U.S. should engage in any
clandestine action at all; ,
-- others are skeptical about any restrictions
whatever on U.S. clandestine actions abroad;
?~~ still others are confused: offended by Soviet
electronic eavesdropping on U.S. citizens' phone
calls or Korean payments to U.S. Congressmen, but
uncomfortable about the basis for their outrage
if CIA engages in equivalent practices in the
Soviet Union and Korea.
A good preamble should establish a common frame of reference
within which to address specific issues, For most interested parties,,
it can serve as a reminder of the scope of' the problem and some
widely-accepted conclusions. For people who are thinking about 'these
issues for the first time, it should serve as a general introduction
to major dimensions of the problem. Among the key points to be made
are the following.
This activity poses two fundamental questions
(1) Why should the U.S. engage in any clandestine
activity?
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uranium from a nuclear reactor in any a a arge
number of countries, U.S. security and interests
could require a covert capability to identify the
fact and, if necessary, to take action.
C. Can any action the U.S. takes a ainst non-U_S. citizens
the how m
abroad harm im artant U.S. vsure and objectc l any
other extreme. I have been p
elli--
people are candidly skeptical abroad--beyondt
' the traditional
tions
gence agencys covert ac
{!L n pia
?
a
_
t
calculation of ;,nP~hr~r question has identified at least
Ply refiect~on on this three ways in which U.S. m ~ntor~argi~nAme~ai~aorsnvaluessandoabtjective~.=
citizens abroad can harm p
_w The power of the U.S. examole is greatly under-
estimated by most Americans. George Washingtanks
contention that the force of our example is our
most powerful instrument abroad overstates the
point. But the opposite view is even less tenable...
As the most open --society-.J zl-_the world, the U.S - is
most vulnerable to international lawlessness:
terrorist activities, terr-~ori st technologies like
plastiqueg-. and even assassination. Weak as it is,
one of our strongest defenses against such action
is to be found in international legal and moral
taboos. Our nation?s role in weakening rather than
strengthening such restraint on political assassina-
~arl,yel?60s..
tion will, I believe~f s~h~dla4eo~950s and tile
marks on our record
Foreign intelligence activities can contravene ands
even
foreign policy objectives are a multi ---faceted and
often not entirely compatible amalgam- Because the
instruments of American foreign policy include many
large organizations, it is not possible to achieve
a finely-tuned consistency. But where an agency
engaging in covert actions is given r wide discretion,
the likelihood of actions contrary to the prevailing
f;- increases. The
; n o
thrust of Anerican fore
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-- 'While the U. S. Bill of Rights does not apply to
nori-U_S_ citizens, the U.S. government has always
asserted the concept of ?b~~man riuh.i1 President
Carter has made this a higher priority in our foreign
policy and penalized governments that regularly
and systematically violate their own citizens.' human
rights- If U.S. intelligence activities were to
engage in regular, systematic violation of the ri hts
of those same i ndi vi-d a l s os i t=i orc wou not
only be inconsistent, our actions would belie the
very values that the President's policy proclaims..
Moreover, revelations that the U.S.- has engaged in
certain categories of action, e..g., political assassi-
nations, raise deep questions in many Americans'
-7f-s /7
11o A -CODE OF ETHICS
Productive discussion of a "code of ethics" requires a
similar preamble that clears away a number of unhelpful pre---
conceptions:
the widespread view at, the Agency and. elsewhere
that it is not possible to devise useful guide-
lines for intelligence activities abroad,
--- the view--prevalent in Congress and the i ntel l i--
gence community---that the overriding purpose of
guidelines and a code of ethics is to tie down
a rogue elephant so as to prevent abuses;
the suspicion--in the Agency and elsewhere-that
anyone who advocates a code of ethics must be a
naive moralist with unrealistic expectations at out
the effect of such codes on the actual behavior-of
members of an organization
Among the points to be made here are- -
A. The Importance of Guidelines. The special importance
of guidelines for i ntel l i gence professionals abroad and alp
home emerges from the juxtaposition of two irreducible facts:
(1) the necessity for clandestine activity to guarantee U.S..
national security and advance important foreign policy objectives;.
and, (211 the likelihood that clandestine activity will violate
important U.S. values and interests.
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values that can be violated by clandestine activity rnus.
addressed by a system of guidelines that determines how competing
values are to be weighed in specific cases.
The purpose of a code of ethics (or system of guide-
lines) is to motivate, shape, and constrain the behavior of
Professionals in the intelligence community in ways that will
restore public confidence in lawful i rntel 1 i ence and give i ntel--
ligence officers pride in their o 5-sion. More specifically.
the purpose of a code f ethics is twofold:
- positively, to inspire intelligence professionals
to courage, inventi ess, and, effectiveness in
performing one of the most important and critical,
functions of American government;
negatively, to restrain behavior from infringing
basic rights and other important values-
The positive and the negative are two sides of the same coin-
B. The Possibili- of Useful Guidelines. In talking
to people at CIA aril elsewhere, Fe been surprised to dis-
cover how many people believe that it is bno not possible bled osi conclusion
devise useful guidelines for CIA. Some
on little more than the conviction titer -_-..t#z
a,inh 1 f,J S ~:i Y~ ~ .?,f, f L;ij #' tLl-LY, But a
number of more thoughtful individuals come to this conclusion
after hard thought about the extraordinary diversity of
circumstance in which clandestine action may be taken, and
the inherent ethical ambiguity of activity of this sort..
This view was stated pointedly by Ambassador Harlan Cleveland
in a speech at the Agency last year when he said: "A written
code of ethics can never be comprehensive enough or subtle
enough to he a satisfactory guide to personal behavior as a
public servant. General prescriptions, whether in the foram -
of dos or don'ts, are bound to be so general as to be useless
or so specific as to be unworkable."
Having walked around this problem more titres than
I like to admit, I can give you an ambiguous answer to at
least one question. Ambassador Cleveland and other who argue
-that it is not possible to devise useful guidelines for the
intelligence community's activities abroad are incorrect-
Those who answer "no" to the central question have been misled
by too narrow a conception of the problem.
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#s ~oucg now ere s -ated as suc ,
assembled in precisely that form, the body of law, executive
orders, internal regulations, and informal mores governing
CIA do constitute a network of guidelines. These guidelines
nav Nonetheless, in the
day-to--day operation of the Agency, these guidelines provide
important, useful direction to, and restrictions on Agency
activity. For example, why does the Agency not target U.S..
citizens for clandestine collection within the U.S.. (or when
it does so, stand in clear violation)? Because the legisla-
tive charter embodied in the National Security Act of -49473,
as amended., states "Ehe Agency shall have no police, supoana
law enforcement rowers or internal security functions-"
Why do case officers not enter into contractual
relations with working members of the media? Because you and
your predecessor issued internal regulations prohibiting this..
Why are case officers so protective of their agents? Because
of their conception of their professional obligation and
personal relationship of trust with another individual whose
life they have compromised..
C. The Role of Guidelines and -.a Code of Ethics.. Any
effort to write guidelines will-contain a list of dos and
don'ts. But that list of dos and don'ts, whether embodied
in internal regulations like DUO log notices, or perhaps even a
formal code of conduct for intelligence professionals, will not
stand alone. In fact? it will be but one element in a "system of
jdel i nes . " This system of guidelines includes not only a clear
statemwnt of rules, but also a process for a pji n _ the rut es to
hard cases, a process for enforcing compliance, and an independent
process for averseeinc the co rrsunity's practices.
This concept of a s steers of qui deli nes serves as
the organizing principle for the dl scuss r on
--~ Rules (from general principles to specific
guidelines, and perhaps even a formal code
of conduct);
a.~ A Process for pp1Z!i nq the Rules;
A Process for Enforcing Compliance with the
Rules;
-- A Process for Overseeing Practice i n Rule-
writing, Application, and Enforcement..
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a work i nct ~.. rouq of i ntel l i nonce ~f f-i cers and ask them to ry
to formulate a formal code of conduct Such a code might
articulate a half dozen central values for. intelligence profes-
sionals and then provide some illustrative examples of hard cases
with suggestions about how competing values should be weighed and
traded off in these specific instances. 1Tdhi l e the larger system
of guidelines will include many specific dos and don'ts of an
ethical nature laws that say no assassination; executive or ers;
internal regulations; DDO log notices; etc.---this. system of rules
cannot be specified to the level of detail of a tax code..
Because situations and circumstances differ, the intelligence
professional must exercise discretion in applying rules to
hard cases. The virtue of the rules is to distinguish between
easy and hard cases and to provide some guidance in attempting to
weigh the multiple and competing cons"" derati ons that bear on hard
cases.
D. Should the Intelli ence Community Be Defensive About
Guidelines and a Code of Ethics? The ethos of the cammuy nity is
that
?to tak'~ a l ow profi l e and be defensive. I believe, however,
a strong case can be made for takir
As the accused-and ,an agency evidently guilty
of some serious abuses-.-the Agency is the target
of many reformers, especially in Congress.
Defensiveness usia
--~ In fact, the system of guidelines the Agency has
been developing, particularly over the last
several years----when tidied up and thoughtfully
presented----can be shown to be as thorough,
thoughtful, and effective a system of guidance
as there is for any major agency in Washington--
ency
If the A
g
ircluding especially the Congresses
took the offensive and was acgressiVe ?in ex lor~ng
the t9 lpm s, in making the case nor t e esserra
t?i le of intelligence, speci f i cal ly 1 awful
intelligence in a free soci. ety, and in arguing the
case that the emerging system of guidelines will
guarantee lawful intelligence, it might both restore
the standing of the community externally and the
morale of its members internally.
Today the intelligence community labors under- the
shadow of revelations of abuse and scandal- indeed,
as Monday-morning quarterbacks? we can now see
~nS:_. mrruni tv' s posture-in
cl early that the i n___tel 1 a , ,
j j an open democratic society was throuc;h the 1 c"60s
essent?i a }Ty anomalous. You have moved vigorously to
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~. ~ 'f l `.L`L,
5~lt ~1!+' L.le? ~r tit 7 h i 1 i t i n r# r n 1 A
e _ al QuideIines fort y (as
an example for all major agencies of government)
should at least be explored-
111. ELETIENTS OF A SYSTEM OF GUIDELINES
The organizing principle for this discussion is a "systen of
guidelines-" The key elements of this system are:
A. Rul es
General Principles
-~-~ Specific Guidelines
8o A Process for An the Rules
C. A Process for Enforcing Compliance with the Rules
D. A Process for 'Overseeing Practice in Rule-Writing?
Application, and Enforcement }
A. General Pri ncl es
Rules for the intelligence community consist of both
general- principles and specific guidelines- Most important
are the general principles that establish the context for more
sper;ifi?: argument. While ii: is possible to multiply principles,
I have tried to formulate the minimum number that could serve
to establish a working context.
I
Recall this system of guidelines is one part of a much larger
%xnr~l m,-in~ ?,~~ ,~'- .-." that includes recruitment, selection
socialization, and training through assignment, career development,
continuing education, rewards and punishments, to exit. This entire
system shapes, motivates, and restrains the behavior of members of
the organization.
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 Apprc ed &A& .V_ bb6 > tr r ~~ ~y because
of the danger of abuse v i o ate on Ci1"'6r~~Ca~Or~Q
values and interests, clandestine action should he under-
taken only as an extraordinary remedy, and where the benefits
of the clandestine action, and the advantage of pursuing the
objective through clandestine means rather than overt means?
have been clearly identified.
C o r' This principle establishes a mr _sA ran
r;r, . It puts the burden of proof on those:
(Contrary to the impression created by recent
revelations, clandestine activity has mainly been considered
and authorized as an extraordinary act. The most dramatic
indicator is budget. Even Marchetti and Marks, whose thesis
is that American intelligence is dominated by'covert action,
estimate the budget for covert action in `75 to be only $750
million. In discussing this subject, I've found that many
seemi ngl'ii nformed New York Times readers, and even some
writers, believe that the covert action budget must be many
billions.)
2. The most fundamental principle ' .i s that the President
Land government should riot undertake actions irr secret that
could not i n prir~ci p1 e be defended to_ fihe F~,meri can puia l ic:
anti meet the test of po i i ti aliri abi E There i s a view
that the American people are not sophisticated enough -to
appreciate the need for covert action, don't understand the-
exigencies of state, and are naive about the dangers inherent
in the world. While there is considerable evidence to
support this view, the U.S. government is constructed on a
quite different presumption... That presumption is that, on
balance, and Qv time, a process that forces the President
and the government to seek and win the support of the
American people to sustain a chosen course of action ; s
preferable to any other process yet invented for selecting
and sustaining public policy. The record is mixed.. But on
balance, and overall, this democratic presumption has a better
batting average than any competitor.- (Recall Churchill`5
remark: democracy is the worst form of government---except
for all the others.)&
*NOTE: Political viability is not measured by a direct poll of
public opinion. In our system of government, political
L l
viability is determined by an amalgam of views o f the
President, Congress, courts, and citizens.
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 6?+hat goes 1-111Z, Fll I III i I' ? ,
1, (~ ~,Ff rt of th(: U_S_
a,riFcle~ ~cfl: ~~'~-18 0 -0
to influence events in ores gn country 9@2i9_P ao7
knotiin that we are the influencing agent) and cl aandfesti ne
collection (the effort to collect information that others
do not want us to have and without anyone knowing that
we have collected it)? In the abstract, the implication
is clear: the U.S. government should not undertake actions
that r oul d not i n 11r of e wto th u.R,~ar
people (i v;~~~n_~SSihl~ 2ha~~_fu11 ~r~~k ubp tic
.i.. The practical dilemma is that clandestine
activity must by definition be secret and cannot therefore
be subjected to the full, open processes of public debate to
determine whether it meets the test of political viability-
This dilemma poses the institutional challenge: to devise
an aoor nr. I I P rr ate r P - That? s the point of
principle 3.
3. Because clandestine activit,y_ tecannot besubjected
to the normal test of o~rn rubl deba p its must bed
authori zed and overseen by an ap_p r i ate sumo ate process
a process that engages surrogates for the interests that
would participate in full public discussion; involves
them in a serious, disciplined private review of proposed
and ongoing covert actions; and requires their support in
ways substantially equivalent to the normal democratic test
of political viability,. No easy task.
The present process for authorizing clandestine
activity, for overseeing the process, and for checking
abuses represents at least one attempt to meet th.i s prin-
ciple. The question is how well current procedures meet
this test and how they can be improved.
Two slightly more specific implications of this
principle are:
(1) that 1, ,o '?. ac tivity must be consistent
with o enl_ announced substantive nolic;Yes and o jec
``?cnacyna e een established ? tote norms open
_process of government; and
(2) that the President and Director- of CIA
should b _~ _epared to defend i nbf i c the bread
cateor_ies of clandestine activity_ in which the D_S
enga~es, though not the specific actions themseves,
This is clearly controversial; and contrary to the,
practice of the past. According to this principle, if
the U.S. is going t.o provide clandestine support
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for democratic parties in countries where the opposi-
tion parties are being funded by other nations, this
general class of action should be defended in public
debate This does not mean, however, that the U. S..
government's action in funding any particular party
should at the time have to meet the test of public
debate (since it will not be possible to make public
all the information on the basis of which a full and
open debate could take place).
It has sometimes been proposed that we add a
fourth principle of publ i city, somet imes stated as follows:
if a particular clandestine activity were made publics would
you be proud of your action? I find this proposed principle
unsatisfactory. It is both too loose and too tight..
On the one hand, the principle is too loose: individuals`
notions of pride differ. Gordon Liddy would be proud to
have made public many actions that most Americans find
offensive. On the other hand, the principle is too tight
and restrictive in that clandestine action- is by its nature
secret and unacknowledged. The grounds for the decision to
engage in clandestine activity in a particular case, and
the circumstances that surround that decision, encompass
many facts and factors that cannot be made public.. Conse-
quently, it is not possible to present the full case in -
public for any particular action. Absent that full case,
the purl is does not have full grounds for judgment.. Con-
sequently, the public test of support and "pride" is not
appropriate. That's the point addressed by the surrogate
process above
B. Specific Guidelines
Each class of clandestine activity presents a juicy
target for endless juridical argument-both pro and con. You
will recall the lengthy debate about the Harvard CIA guideline
requiring professors to inform their dean about any paid work
they do for CIA.
As an academic, I find it difficult to resist joining
such arguments, for instance, about whether the intelligence
community should be permitted to try to overthrow democratically-
elected governments, and if so, tinder what circumstances,.
I have lengthy notes on both sides of proposed guidelines about
a half dozen major classes of clandestine activity.
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 Apprt6~Wl ftbre.RRl " @s oEf/12/d4l-"6 Z 8g f Ob~,ok Oe
it seems.more appropri ate to limit myself o o i entt yi ng e
na,jo ice?-e.s to be weighed in choosing any specific. guidel ines,
and to offer some general criteria that should be applied in
choosing specific guidelines. The major issues to be weighed in
devising specific guidelines are four:
(1) the pros and cons of s acute executive
order v. internal regulation;
(2) the relative merits of flat prohibits ns
v. prohibitions subject to waiver
(3) the advantages and disadvantages of engaging
rnDre external sir z aces (courts and Congress) at
successive levels of specificity; and
(4) the-impact of each guideline in con-
straining abuse, encouraging undue timidity, and
motivating professionals in the intelligence community
to the desired mix of initiative, inventiveness,
and restraint.
Each of these issues invites lengthy argument. Hone
is easy to weigh in specific cases... But for the sake of brevity,
I will propose three -general criteria for choosing specific.
guidelines----criteria that should, I believe, be widely acceptable-
1. The necessity for fl exi bi l it.y. The appro-
priate course of action will vary substantially with cir-
cumstances. For example, measures that should not be
undertaken in peacetime or against a democratic state,
should be permitted during actual or threatened hostilities
or against a totalitarian regime. Circumstances change.
Guidelines must therefore preserve flexibility to adjust
to circumstances and to modify rules and procedures as
conditions change. (This criterion has strong implications
for the balance between legislative statute and executive
order subject to Congressional veto.)
2. Guidelines should xpr ess - i n wad
that establish strong presumptions acai nsta viol ti on cit
those values,. Clandestine activity runs a constant risk
of violating important American values. Guidelines should.
therefore state these values as clearly as feasible in
order to affirm the values and to place the burden of
proof on whoever proposes to risk harming the value..
13
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 ~ppRy
qRIZ-F
riient_should establish a process that allows appropriate
individuals to balance one set of values against another and
thus make exceptions to the guidelines in extraordinary
situations.
The specific guidelines proposed in the Senate Select
Committee's charter legislation include flat legislative prohi-
bitions on:
assassination of foreign officials;
special activity that has as its objective or is
likely to result in:
-- the support of international terrorist
activities
the mass destruction of property
the creation of food or water shortages
or floods
the creation of eLidemics or diseases
--~ the use of chemi calms h%Alal , or other
weapons in vio ion of treaties
- - the violent ver thr n~ I c
country
the torture of individuals
-?- the support of any action, which violates
6~crm~-~~~; ~ti~ = y conducted by the police, -
forei gf intelligence, or internal security
forcas of any foreign country,
the use for certain intelligence activities of U.Sm -
persons who follow a full-timer;1igin an or
who travel to a foreign country under sponsorship and
su no nment as part of a U.S.
government program designed to promote education or
JD~ n s.,. r xu1Lu fairs;
the arts
the use for certain intelligence activities of
journal accredited to any U.S- media organization-
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 1n my view, udull ui ;" ~~L N - , .v . ..
v~ ittLLed_ Thesr~ prohiti-
impo /~ P~RD ~ RL 2~ Opp 7
_W,
Lions also appropriately cave to he Ex
writing' specific implemenl:ing regulation5A
The chief probl~,'m with these guidelines is their- forma
If stated as presurn iot_ rather than flat prohibitions, and
accompanied by an appropriate procgssa
a reformulated (and, one hopes, more felicitious formulation
of the values) should be acceptable.
Though the draft charter does not state prohibitions
or presumptions relating to_ collcCti D_ J'o~ u miclnt wanes to propose
Several presumptions: royr example:
Ie, intrusive means of collectite.'ca_
reel to more i ntr+ s (thus gathering informa-
tion from unwitting individuals is preferred. to
unobtrusive electronic surveillance whi his preferred
to breaki g and teripg
A final point may `e m )re relevant for internal Agency'
purposes. If one takes each class of clandestine, act-ivity, for
example, "propoganda" or "economic warfare," and asks what
specific guidelines now exist, one quickly discovers an elaborates
network of guidelines from charter legislation to NSIDs to. DCIDs
to DDO Log Notices.. For each class of clandestine activity, one-
could array these guidelines They could then be explicitly -
reviewed and refined with careful attention to the major issues
identified above.
V. A PROCESS FOR APPLYING THE RULES
The process for authorizing special activities, special
collections and counterintelligence is spelled out in Executive
Order 12036. A brief sketch of that process and of the sur-
rogates involved at each stage could be provided-
VI. A PROCESS FOR ENFORCING COMPLIANCE WITH THE RULES
The Inspector General, the General Counsel., and tho' IOD-
VII. A PROCESS FOR OVERSEEING PRACTICE IN RULE-WRITING APPi_I:CATION
AND ENFORCEI-NY
The Senate and House Intelligence Oversight Cor.nit-tees,
especially if they would get their acts together.-
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Sections V, VI, and VII can be filled out whenever you 'tike..
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ADDITIQ`IS TO ALLISON CONCEPT
Section on public as an oversight process
Policy of openness
Acknowledgement of limitations on sharing with public
Limits on FOI11
Sanctions against disclosure
l I Section on rewards
Acknowledgement of special role and sacrifice of
intelligence professionals
System of incentives
Medal s
Retraining program for retirement
Retirement program
iii Section on domestic activities
FBI-CIA jurisdiction
Special concerns for rights of Americans
Relations with American institutions
Press
Peace Corps
Cover
Electronic surveillance domestic'
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2 -
IV Section on l iaision
Limited to intelligence, not security
Need to respect privacy
22 May 1978
f
TAT
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