57. Memorandum From the Director of the Bureau of Research and Intelligence (Hyland) to Secretary of State Kissinger1

SUBJECT

  • Pike Committee Subpoenas

Attached is a description of the 7 subpoenas: 5 to the NSC, one to State and one to CIA (Tab A).2

1. 40 Committee records of decisions since January 1965 (sic):

—the committee has a sanitized list of projects approved;

—we could stand on this, on the grounds that no full list can be supplied because of sensitivity;

—unfortunately, decisions as opposed to recommendations, are difficult to refuse; the President could probably not invoke executive privilege (leaving aside the question of whether he would want to);

—on the other hand, there is the separation of powers argument, butressed by the fact that major decisions have already been briefed through the Congressional oversight mechanism.

My view is that the reply ought to be that the Committee has the sanitized material, and that we would have to treat each issue on its merits; i.e., give them decisions in the hands of the Church Committee, or already briefed to the Pike Committee: [less than 1 line not declassified] Kurds, perhaps Angola.

2. Documents furnished by agencies to NSC relating to adherence to SALT agreements:

—The President (NSC) receives a quarterly “monitoring report”; it is highly classified but rather factual; this could be the answer to the subpoena.

—There is probably a mass of memos on compliance; since most of this is virtually in the public domain, some of them might qualify.

The basic problem here, however, is the next phase: clearly this is a politically inspired request, fishing in the troubled waters of détente, SALT, Schlesinger, violations, etc. Thus, a total turn down guarantees a new round of wild stories, and continuing publicity for Pike, and potential problems on SALT itself.

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My view, therefore, is that we ought to respond by giving the quarterly monitoring reports only.

3. CIA/IRS (an unrelated problem).

4. Minutes of NSC Intelligence Committee Working Group.

5. All WSAG meeting minutes relating to the October war, the Cyprus crisis and the Portugal coup.

—Both of the above clearly warrant executive privilege and should be confronted frontally and denied.

6. All intelligence reports furnished to the NSC by CIA, DIA and NSA between October 15, 1973 and October 28, 1973, relating to the 1973 Middle East war and the military activities of the Soviet Union.

—Though a major task, there is no plausible reason for denial, and this could be done.

7. “All documents relating to State Department’s recommending covert action to the NSC and the 40 Committee and its predecessor committees from January 20, 1961 to the present.” (Tab B)3

—The Department must refuse to provide what are, in effect, recommendations to the President. But even so, there are two problems:

(1) taken literally, this subpoena could require us to provide “all documents relating to recommendations”, and that could include a mountain of second-level memoranda; we will have to broaden the interpretation of “recommendation” to include our supporting material; and

(2) if we deny the material we have two legal answers: (a) to claim that the subpoena is misdirected because our recommendations are the property of the 40 Committee, or (b) to claim that we cannot supply recommendations to the President, invoking a Departmental privilege.

In any case, we need to have a legal position before Tuesday4 morning 10:00, when the subpoena falls due.

Recommendations:

1. That the Office of the Legal Adviser prepare a reply stating the Department of State recommendations to the NSC and 40 Committee can only be released by those bodies.5

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2. That, in the discussion of Jack Marsh’s coordinating group, the Department of State representative argue in favor of invoking executive privilege on minutes of meetings of the 40 Committee, the NSCIC, and the WSAG.6

3. That we support a reply on SALT limited to intelligence reports.7

4. That we urge a sanitized response on all 40 Committee decisions, except those already briefed to the Pike Committee.

  1. Source: Library of Congress, Manuscript Division, Kissinger Papers, Box CL 411, Subject File, Congressional Hearings, House of Representatives Select Committee on Intelligence (Pike Committee), Chronological File, November 1975. Secret; Sensitive.
  2. Attached but not printed. The Pike Committee issued subpoenas on November 6 for the seven categories of records summarized here.
  3. Tab B was not found attached.
  4. November 11.
  5. Kissinger neither approved nor disapproved the recommendation. However, in a letter to Pike on November 14, the Acting Legal Adviser of the Department of State, George H. Aldrich, stated that the President had instructed the Secretary of State not to comply with the Committee’s subpoena for documents relating to State Department covert action recommendations to the NSC and 40 Committee “for the reason that it would be contrary to the public interest and incompatible with the sound functioning of the Executive branch to produce the documents requested.” (Library of Congress, Manuscript Division, Kissinger Papers, Box CL 411, Subject File, Congressional Hearings, House of Representatives Select Committee on Intelligence (Pike Committee), Chronological File, November 1975)
  6. Kissinger neither approved nor disapproved the recommendation. However, in a memorandum to President Ford, November 13, Marsh noted that the Department “has declined to turn over” the subpoenaed documents to the Committee, “pointing out that they were sent to the White House and therefore the decision must be made here.” On the memorandum, Ford approved the invocation of executive privilege in withholding the subpoenaed documents on Department of State covert action recommendations. (Ford Library, President’s Handwriting File, Box 31, National Security Intelligence (8))
  7. Kissinger neither approved nor disapproved recommendations 3 and 4.