42. Memorandum From the Director of the Bureau of Intelligence and Research (Hyland) to Secretary of State Kissinger1
SUBJECT
- Comments on the Rockefeller Report
I assume that some part or all of the report will be published quite soon.2 So the immediate problem is what stand the White House or the President takes on the report as a whole, how to deal with the specific recommendations, and how to deal with the related questions that inevitably will arise out of the report, especially the question of assassination.
I. Publication of the Report as a Whole
A case could be made for publication in two stages: (1) publish Part I, which includes all the findings and recommendations, and, (2) the follow up chapters which give the details later when all of the recommendations have been staffed and decided.
—The argument for this is that the summary focuses more on the constructive aspect, what is to be done in the way of remedial action, while the entire report only provides grist for the more gory details. There are tidbits scattered throughout the report that will make fascinating stories in the press, prompt all sorts of speculations and further inquiries e.g., what reporters were tapped, whose office was broken into, what files on what Congressmen still exist, who are the officials identified with Operation CHAOS, who are the police officials given [Page 105] gratuities, what defector was incarcerated, who died from LSD, etc., etc.
—On the other hand, failure to release the entire report (subject to some security deletions or rephrasing) will precipitate charges of cover up, and possibly stimulate inspired leaks to prove a point.
On balance, the prudent course would seem to be to publish all of the report at one time, and for the White House to try at the outset to set the tone and approach that the Executive Branch and the Congress should follow.
II. The Report as a Whole
A first reading of the full text suggests that the impact on the CIA is going to be very bad; the defenders of the agency are not going to find much ammunition, and the critics are going to have a field day, citing chapter and verse of various wrong doings.
—This will be offset in some degree by the very forthrightness of the report, which seems quite thorough and pulls few punches (there will be some carping over the bland euphemisms for “Illegal”).
I suspect that there will immediately be a polemical debate over whether the charges were “true” or not:
—The Administration’s position, assuming it supports the report, is contained in Chapter 3, which strikes the main, overall theme:
“A detailed analysis of the facts has convinced the Commission that the great majority of the CIA domestic activities comply with its statutory authority.”
—This refutes the initial charge of “massive” abuses; but it will probably only shift the debate to charges of systematic violations of the law over a long period.
The rebuttal, also in Chapter 3, is fourfold: (1) some activities should be criticized and not permitted to happen again; (2) some activities were initiated or ordered by Presidents; (3) some were in the doubtful area between those responsibilities delegated to the CIA by Congress or the NSC and those activities specifically prohibited; and, finally (4) some were plainly unlawful.
The other principal theme that should be emphasized is:
“The Agency’s own recent actions, undertaken for the most part in 1973 and 1974, have gone far to terminate the activities upon which this investigation has focused.”
In short, whatever statements or announcements that may be made at the time of publication, the following points need to be stressed:
1. The initial charges of “massive” illegalities have not been substantiated;
[Page 106]2. Those abuses that did occur were not part of a systematic pattern of disregard for the law or statutes, but were (a) in response to orders, (b) a byproduct of legitimate activities, or (c) in only some instances plainly illegal and inexplicable;
3. All abuses have been terminated;
4. The remaining problems, dealt with in some of the specific recommendations are either structural ones, of Agency supervision inside and out, clarity of its mandate or internal policing and discipline.
III. Recommendations
Obviously, the President cannot dispose of 30 recommendations in a few days. There is nothing to be gained by a wholesale endorsement of the recommendations, even though the bulk of them follow logically from the activities that were questionable or illegal.
The Commission identifies three areas of recommendations: (1) to clarify the doubt concerning the Agency’s authority; (2) to strengthen the Agency’s structure; and (3) to guard against recurrences of these improprieties.
At the time of publication the White House probably cannot avoid some comment on categories (1) and (3).
The President or the White House spokesman could and probably should endorse the Commission’s first three major recommendations:
1. To amend Section 403 of the NSC Act in order to make explicit that the CIA activities must be related to foreign intelligence; clarify the responsibility of the CIA to protect intelligence sources and methods from unauthorized disclosure and confirm the CIA’s existing authority to collect foreign intelligence in the US from willing sources.
2. To issue an Executive Order prohibiting the CIA from the collection of information about the domestic activities of US citizens, etc.
3. To recommend that the Congress consider establishing a Joint Intelligence Committee.
The White House could state that it will submit the Commission recommendations on proposed legislation to the Congress for consideration by the new select committees and that the President will issue an Executive Order within a few days.
Recommendations 4–11, deal with the Agency’s budget, the PFIAB, relations between CIA and the Justice Department and internal organization of CIA—These do not call for immediate comment, but pose no great problems per se.
Almost all the remaining recommendations can be characterized as strictures on what the Agency should do.
—For the bulk of them the White House might say that the President requested Mr. Colby to report to the President as soon as possible how he [Page 107] would carry out those recommendations that concern the internal workings of the Agency, i.e., issuing internal guidelines, ceasing and prohibiting in the future certain activities, etc.;
—The White House might also say that the Justice Department has been requested to make a proposal to the President as to how it would carry out those recommendations that concern them (Recommendation 14);
—Since Recommendation 30 calls for the DCI and the Director, FBI, to submit a report to the NSC on jurisdictional responsibilities, that report would also be requested by the White House.
There is at least one recommendation that is a non-starter. Recommendation 29 calls for establishing a civilian agency to oversee the civilian use of overhead intelligence photography in order to avoid concern that the CIA in the US is misusing a CIA developed system.
—To some extent this is being done, without arousing sensitivities.
—There could be a problem if a civilian agency can make claims on the capacity of a system that is overwhelmingly important to strategic and tactical intelligence. The result would be a conflict between domestic and intelligence priorities. You may want to read the chapter that deals with David Young and the Nixon White House.
The Commission conclusion states on page 32:
“Finally, the Commission concludes that the requests for assistance by the White House reflect a pattern for actual and attempted misuse of the CIA by the Nixon Administration.”
The Commission recommends (26) that a single and exclusive high-level channel should be established for transmission of all White House requests to the Agency. This channel should be run by an officer of the NSC staff designated by the President and the office of the Director or his deputy.”
—This strikes me as almost totally impractical, unless “requests” are defined to mean only operations. Obviously, you do not want to restrict the normal working relations on such things as SALT.
IV. Related Questions
Assassinations
My own view is that the domestic “abuses” are becoming old news, and the new frontier is the assassinations scandal.
—The report is a time bomb on this subject; it admits a lack of time, and dumps the issue in the President’s lap.
—This raises the immediate questions: how will the President proceed? Will he conduct his own investigation, will he simply turn it over [Page 108] to the Church Committee, which is already off and running, or will he ask the Rockefeller Commission to resume its work.
—Some answer is obviously going to be required as soon as the report is published.
—There is considerable merit in asking the Commission to resume or continue its work (or at least do a staff study). It has a structure and staff and could finish fairly soon, thus providing some Executive Branch mechanism to deal with a very explosive issue.
—The alternatives have drawbacks: the Church Committee will proceed in any case, but the initiative and control shifts to the Congress.
—A Presidential investigation by the White House is simply impractical; finding a new Commission is also inefficient and loses time. In any case, the ultimate issue is not whether the CIA was involved but whether it was acting under Presidential mandate or on its own. Finally the office of the President has a moral obligation to past Presidents to clarify the record within the Executive Branch and only the White House has the key files.
Prosecution for Offenses
The question has already been raised of possible prosecution: There are numerous instances throughout the report of criminal offenses; at least one death is reported.
The choices are:
(1) To turn over the report to the Justice Department and let nature take its course;
- —this would probably mean also turning over supporting material, names and places, etc.,
- —it may be a breach of the Commission’s procedures to encourage prosecution, but this will be a thin reed,
- —it would seem very likely that the net result would be some prosecution,
- —there is even an outside chance that previous DCIs could be prosecuted.
(2) The alternative is to take a high road, and state that the Commission’s purpose was to examine the institutional questions, as well as an individual’s mistakes, and that an ex post facto investigation of Justice would not serve any constructive purpose—with the emphases on a constructive end of the Commission’s work.
—This may not be legally or politically sustainable, but the alternative is messy and probably unjust.
Disposition of the Committee Records
The Church Committee obviously will sustain pressure to have the White House turn over documents available to the Commission.
[Page 109]—The best position is to negotiate ad hoc and case by case, rather than take the political heat of opposing such a request outright, or granting them total access.
—Personal interviews and so forth ought to be protected while documentary evidence might be supplied, since the Committee can easily subpoena it by name from the Agency.
What Next
One question that will keep recurring is what does the Administration expect out of the Church Committee and, in light of the Rockefeller Commission Report, will there be a shake up or reforming of the Intelligence Community?
—There is a danger of rehashing every past mistake—whether in domestic activities, covert action, or even assassinations.
—The Church Committee, in particular, seems to be preoccupied with past sins; since the Rockefeller Commission has already made an investigation of domestic abuse this leaves only operations to be investigated; judging from the Church Committee’s shopping list, we will soon be on dangerous ground since our foreign relations are bound to be affected by rehashing Vietnam, Cuba, the Dominican Republic, Laos, Congo, Indonesia, Greece.
The Kennedy Assassination
The Chapter on this is really first rate, and deserves some special mention because it lays to rest the continuing nuttiness on this subject.3
- Source: Library of Congress, Manuscript Division, Kissinger Papers, Box CL 405, Department of State, Commissions—Commission on CIA Activities Within the U.S. (Rockefeller Commission), Chron File, June 1975. Secret; Sensitive.↩
- In a June 4 memorandum to Scowcroft, McFarlane wrote that the Rockefeller Commission had completed its work and produced a rough draft of its final report. McFarlane stated that it would be “imprudent” to discuss releasing the report until it had been reviewed. (Ford Library, National Security Adviser, Robert C. McFarlane Files, Box 2, Rockefeller Commission—Report) On June 5, President Ford discussed with Kissinger and Scowcroft the timing of the report’s release and Rockefeller’s view that it be released immediately. On this, Kissinger stated that the Vice President “has to be slowed down.” (Memorandum of conversation; ibid., Memoranda of Conversations, Box 12, June 5, 1975, Ford, Kissinger) The complete 299-page Report to the President by the Commission on CIA Activities Within the United States was ultimately released to the public on June 10. Organized in four parts and including seven appendices, the report covers the CIA’s role and authority and its supervision and control, with individual chapters on CIA domestic operations and a summary of the Commission’s main findings, conclusions, and recommendations. (Report to the President by the Commission on CIA Activities Within the United States, Washington: U.S. Government Printing Office, 1975)↩
- On June 11, President Ford issued a memorandum to the Secretaries of State and Defense, the Attorney General, and the Director of Central Intelligence Agency on the Rockefeller Commission’s report, noting his belief that the report established “a sound basis for addressing structural and other possible weaknesses in the Operation of the CIA and other intelligence bodies.” He requested them to review the report and provide him with comments and recommendations. The same day, he asked the Attorney General to review the report for evidence of illegal activities. Both memoranda were released on June 12. (Public Papers: Ford, 1975, Book I, pp. 809–810)↩