66. Memorandum From Attorney General Levi to President Ford1

In the meeting of the National Security Council at which we discussed improvements in our foreign intelligence activities,2 you asked for my suggestions as to what changes should be accomplished by legislation. In my view, the state of the law is unsatisfactory in several respects. There is a notable absence of specific statutory bases for much of the organization of and functions performed by the intelligence agencies. While I do not believe it necessary to propose a statutory scheme covering all of the responsibilities of the agencies—much has been and can be done by executive order—a specific statutory basis for some of these functions would clearly be advisable.

The Department of Justice, as you know, has been working on guidelines to govern the intelligence and investigative activities of the Federal Bureau of Investigation. Some of these guidelines should be enacted into law. At your direction, we are also drafting guidelines for the electronic interception of communications by the National Security Agency. I believe that there should be a statutory basis for this activity and we intend to work with the Department of Defense in drafting legislation to this end.

We are prepared, at this time, to recommend to you two major legislative proposals giving statutory legitimacy to important national intelligence functions, and two others dealing with other aspects of intelligence operations. In our view they should all be enacted into law as soon as possible.

(1) Electronic Surveillance. As you will recall from our earlier discussions as well as our memorandum of September 12, 1975,3 the state of the law covering warrantless electronic interception of communications is unsatisfactory. No Supreme Court opinion explicitly affirms the authority of the President to authorize such activity; and while two Court of Appeals opinions (from different circuits) have done so, a dictum by plurality of judges in another Court of Appeals strongly asserts the opposite. Certain features of the authority for warrantless electronic surveillance have not been addressed by the courts—for example, the use of surreptitious entry to implant a microphone.

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It is in my judgment essential to propose legislation which would create a special procedure for seeking a judicial warrant authorizing the use of electronic surveillance for foreign intelligence purposes. The bill which we have drafted (Tab A)4 would apply only to the interception of wire and oral communications to or from persons in the United States (i.e., wiretaps or microphone overhearings) as well as the interception of radio communications both transmitted and received wholly within the United States. (The last limitation excludes NSA’s operation, which should be the subject of a separate bill.)

Under the special warrant procedures we have developed, the Attorney General must approve application to a special judge designated by the Chief Justice for this purpose. This judge is not charged with determining whether the information sought is important to the nation’s security or foreign policy; that matter is certified to him by an Executive official. The primary issue for the judge to decide is whether there is probable cause to believe that the target of the surveillance is an agent of a foreign power.

In my view, much of the cynicism and mistrust of the intelligence agencies stems from the belief—wrong though it is—that covert surveillance abounds within the United States, conducted by agencies indiscriminately and without regard for the rights of the citizen. While we have attempted to dispel this impression through testimony and speeches, only legislation establishing a warrant procedure will ease the suspicion about the legitimate use of this technique. Furthermore, a judicial warrant procedure will not, we believe, hamper the use of this significant tool. Indeed, because the legal shoals are presently not clearly marked, our policy in approving electronic surveillance has been more restrictive than that which would apply if the scope of the authority was delineated.

(2) Mail Openings. The current legal status of warrantless mail openings is exceedingly confused. It appears to be the congressional intent, and may well be the law, that no warrantless openings of domestic first-class mail can occur, even for national security reasons, without judicial warrant. For this reason, a mail opening statute may well be essential not only to regularize but positively to enable certain essential, [Page 212] national security operations. The statute we propose (Tab B)5 would establish a special warrant procedure authorizing the opening of mail for foreign intelligence purposes only where there is probable cause to believe that the sender or recipient is an agent of a foreign power who is engaged in spying, sabotage or terrorist activities. The procedures—including the absence of judicial judgment as to the national security justification—are similar to those contained in the electronic surveillance bill.

(3) Assassination of Foreign Officials. There is currently no Federal law prohibiting an American citizen or, indeed, a government employee from assassinating a public official of a foreign country outside the United States. You have publicly expressed your concern over the possible existence of such a practice.

We propose that you give enthusiastic administration support to the legislation proposed by the Senate Intelligence Committee (Tab C)6 to meet this problem. It is in our view a sensible and extremely limited statute, and we think it is desirable to establish a record of supporting the product of the recent congressional investigation where that product is, indeed, a satisfactory one. The legislation would only apply to assassinations by officers or employees of the United States, for political purposes, with respect to foreign officials of a country with which the United States is not at war [or?] against which troops have not been committed pursuant to the War Powers Resolution. Moreover, the legislative history of the bill contained in the Senate committee report, the relevant portion which is under Tab D,7 leaves open the possibility of a special Presidential power, even to ignore the narrow restrictions of the bill where the national security overwhelmingly dictates.

(4) Protection of Intelligence Sources and Methods. There is a compelling need for statutory protection of the sources and methods of the intelligence agencies. Existing criminal provisions are deficient because the burden of proof requires the disclosure in open court of the very secrets the government is trying to protect. Further, there is no statutory authority for seeking an injunction to enjoin the disclosure of information important to our nation’s security before the damage is done.

Legislation has been drafted, primarily by the Central Intelligence Agency with the assistance of the Department of Justice, to provide [Page 213] protection for our secret intelligence sources and methods.8 This bill would make it a crime for anyone who has been entrusted with sensitive information concerning intelligence sources and methods by virtue of his position as an officer or employee of the government or as a government contractor to disclose such information to one not authorized to receive it. In order to provide adequate safeguards to an accused, to prevent damaging disclosures during the course of prosecution, and to prevent prosecution with respect to information unreasonably classified, the legislation provides for in camera review by the court of the validity of the classification. The legislation also provides for injunctive relief in those instances where unauthorized disclosure is threatened and serious damage to the intelligence collection effort would result. I have been informed that this proposal has already been cleared as an administration proposal.

Edward H. Levi
  1. Source: Ford Library, Philip W. Buchen Files, Box 111, Intelligence Investigations/Reorganization Numbered Files, Reorganization (12). No classification marking.
  2. Presumably a reference to the intelligence reorganization meeting on January 10. For a summary of the discussion, see Document 64.
  3. Not found.
  4. Attached but not printed. On March 23, H.R. 12750 was introduced by Representative Peter W. Rodino, Jr. (D–New Jersey), requiring each application for electronic surveillance for foreign intelligence purposes to be approved by the Attorney General. Moreover, the Chief Justice of the Supreme Court was required to appoint seven district court judges to hear applications and grant orders for electronic surveillance for foreign intelligence purposes anywhere in the United States. The bill was referred to the House Committee on the Judiciary, but advanced no further.
  5. Attached but not printed. Legislation was proposed as H.R. 14284 by Representative Charles A. Mosher (R–Ohio) on June 9, but did not advance beyond the House Committee on the Judiciary.
  6. Attached but not printed. The legislation (S. 2825), introduced by Church on December 18, did not advance beyond the Senate Committee on the Judiciary. However, a provision prohibiting the assassination of foreign officials was included in Executive Order 11905, February 18, Document 70.
  7. Attached but not printed.
  8. See footnote 5, Document 63.