Foreign Relations of the United States, 1969–1976, Volume II, Organization and Management of U.S. Foreign Policy, 1969–1972

201. Memorandum From James Gardner of the Bureau of Intelligence and Research to the Deputy Assistant Secretary of State for Inter-American Affairs (Hurwitch)¹

Washington, January 16, 1970.

SUBJECT

• Responsibility of CIA to Consult Department on Issues Arising from Intelligence Collection

You have asked for an exploration of the issues raised by CIA’s handling of [less than 1 line of source text not declassified], an item distributed in Washington [2 lines of source text not declassified].

[4 lines of source text not declassified] Mission chiefs in Buenos Aires, Montevideo, Lima, Rio de Janeiro, Sao Paulo, and Santiago were informed [less than 1 line of source text not declassified].

The Agency’s decision not to interfere was reached on its own, without consultation or coordination with the Department of State. You have stated that policy considerations were involved in this decision and that it should not have been reached without consultation with the Department.

The issue of the extent of CIA responsibility to the Department that is exemplified by this episode has never been clearly resolved. The Agency has held that its responsibility to consult on clandestine collection activities is confined to mission chiefs and does not include the Department. The history of this problem as it has developed over the years, does not in DDC’s view necessarily bear out the Agency’s contention. This history can be briefly and informally stated:

National Security Council Directive number 5 as adopted in 1958,² stated that “in a foreign area … the DCI shall, after consultation with the Secretary of State ensure that the senior U.S. representative …is appropriately advised of U.S. espionage and clandestine counter intelligence activities conducted in or from the area.”³ This language, which is echoed in DCID Number 5, 1959, was accepted by State Department representatives on the drafting committee on the understanding that it meant that sensitive collection activities that might have major repercussions should be undertaken only after clearance with the Department. State representatives understood that this view was shared by CIA representatives on the committee. Prior to the National Security Council meeting which adopted the directive, Acting Secretary Herter was advised by INR to accept the language in question on the basis of this understanding, but there is no record that he either did or did not make this condition clear. Since adoption of the provision by the NSC, Agency representatives, with rare exception, have held that their obligation to consult on clandestine collection activities runs only to the mission chief and does not reach the Department. Indeed, CIA did not consider that it was required to consult mission chiefs until President Kennedy’s letter of 1961 confirmed and clarified their authority. From time to time the issue has been debated by State and CIA elements, but there has been no authorization determination by the highest level of either agency of the precise nature of the Agency obligation.

Agency representatives, in defending the proposition that they are not required to consult the Department on clandestine collection activities, also maintain that they need not consult on issues stemming from but collateral to the intelligence collection process as long as these issues are discussed with appropriate mission chiefs. The agency’s failure to discuss with the Department its decision not to intervene [less than 1 line of source text not declassified] was an application of this doctrine.

This position has obvious difficulties. It would seem that no matter what the merits of the Agency position on collection activities, we could reasonably request that we be consulted when policy-related decisions are made on the basis of the information collected. A bureau-level informal approach, in which DDC would be glad to cooperate, would seem sufficient for the purpose and would probably be effective. The [less than 1 line of source text not declassified] case could be used as an apt illustration of the sort of problem on which the Department expects to be consulted.

To ask at this time that the Agency consult on the collection activities themselves would probably not be effective at the bureau level. The Agency is almost sure to balk, and the history of efforts in past years to gain the support of the top level of the Department in this cause does not encourage an assumption that it would be automatically forthcoming. There is indeed much opinion in the Department that the Ambassadorial level is the only one at which consultation should be obligatory; the Ambassador, in this view, is after all free to refer delicate problems to the Department if he wishes. The Agency is understandably most reluctant to discuss methods of collection and identities of informants; the fact that information about these matters occasionally would be directly relevant to policy decisions in the Department has not affected this Agency position.⁴ The problem has proved to be a difficult one; past efforts at its solution in DDC have had inconclusive results. Mr. Cline, INR’s new director, has had as you know extensive experience in intelligence collection and the problems that it involves. His expertise in this field will of course be of great value to Departmental consideration of the issue when it is decided that we should focus on it. It is one of a series of matters that DDC is currently discussing with Mr. Cline.⁵

1. Source: Department of State, INR/IL Historical Files, State/CIA Relations, 1970–1972. Secret. James R. Gardiner was in the office of INR’s Deputy Director for Coordination.
2. Not found.
3. All ellipses in the source text.
4. The DCI finds in the National Security Act of 1947 statutory mandate for assuming the responsibility for protecting intelligence sources. [Footnote in the source text.]
5. Responding to a query concerning coordination of intelligence activities from Assistant Secretary of State for African Affairs David Newsom, Wymberley Coerr (INR/DDC) stated in a June 3 memorandum: “Central to this problem is the question of the extent to which clandestine activities should be coordinated from Washington. The intelligence operators, because of President Kennedy’s and President Nixon’s letters to Chiefs of Mission, admit to a responsibility to keep Ambassadors appropriately advised on clandestine activities. They have not in practice agreed to any arrangement to coordinate such activities here in Washington. There are divided views in State on whether we should seek Washington coordination or work for firm coordination procedures by our ambassadors.” Written in the margin next to the last sentence is the following: “Ray [Cline] feels field coordination is probably best solution.” (Department of State, INR/IL Historical Files, State/CIA Relations, 1970–1972)