Foreign Relations of the United States, 1969–1976, Volume XXXVIII, Part 2, Organization and Management of Foreign Policy; Public Diplomacy, 1973–1976

74. Memorandum From John K. Matheny of the National Security Council Staff to the President’s Assistant for National Security Affairs (Scowcroft)¹

Washington, April 24, 1976.

SUBJECT

• Senate Select Committee (SSC) Report

After 15 months of investigation, two interim reports (assassination, Chile) and many headlines the SSC is ready to issue its final report.²

The following are the salients as of this morning:

—The report will be printed over the weekend and be available for distribution Monday³ morning (CIA will pick up a copy for us).

—There will be two sections, Domestic and Foreign, totalling some 2000 pages. There will be over 100 recommendations all told. Parts that have been changed substantially or deleted will be so marked “at the request of intelligence agencies”.

—The release of the report will be preceded by a short meeting of the full Committee at 10:00 a.m. on Monday, followed by a press conference at about 10:30. DCI Bush will appear briefly at this meeting to, once more, make his case for not releasing any budget figures (currently there are blank spaces in the final proofs where such figures appear).

On a parallel track, CIA informs me that they have pretty solid information regarding the latest version of S. Res. 400,⁴ as amended by the Rules Committee (to be reported out at the end of this month):

—An oversight committee would be established consisting of 11–12 members.

—The members would be drawn from (and serve concurrently on) the Judiciary, appropriations, armed services, and foreign relations committees.

—The committee would have no legislative or authorization powers but would have an investigative charter to include subpoena power.

Senator Church intends to take this version on directly on the floor of the Senate (armed of course with his “just released” 2000 page catalogue of “abuses, misdeeds and mismanagement”).

As you know, I have been working in a low key manner with CIA and the Select Committee staff to review those sections of the report most troublesome to us. To this end I have concentrated on the Foreign Intelligence section; I am not familiar with (nor was I given access to) the Domestic Intelligence section.

Other than the incalculable impact of detailing virtually our whole intelligence apparatus and tracing its development over the past 30 years, there are two specific areas that are of concern to us. The first are the usual political swipes endemic to a report of this type. I have summarized three examples (at Tab A)⁵ but, in general they are much less troublesome than those in the Pike report.⁶ Many are common knowledge and others seem so obvious as to beg the question of their relevance. It is interesting to note however that where I did encounter some “believable” ones (such as those at Tab A) I was singularly unsuccessful in dissuading the Committee staff to either modify or eliminate them.

The other concern is the Committee’s penchent for quoting from NSC documents (Bill Hyland spoke to Staff Director Bill Miller on this). We did in fact get most of the quotation marks deleted and/or the text paraphrased, and allusions to specific directives are now followed by characterizations of the text or paraphrased materials. It appears therefore that our FOI problems have not been unnecessarily complicated.

As bad as the initial impression of thumbing through the report might be, it was at lease twice as damaging prior to the interagency review process. The report has none of the exposé quality of the Pike report and is—given the liberal suasion of the Committee’s majority—quite a well done piece of factual reportage. Unfortunately, this moderate tone will serve to blunt any outrage that may have otherwise occurred from friendlies in the media—and perhaps even from Senators Goldwater, Tower, and Baker.⁷ There are several quotes from HAK testimony in the report but most are not harmful (those that were have been eliminated), and overall the treatment of the NSC is not as rough as anticipated.

The Report

The SSC report states that the purpose of its year long investigation was to determine “how necessarily secret activities of the U.S. Government can best function under the rule of law.” It asserts that U.S. intelligence activities have been carried on over the 30-year period since the end of World War II under the cloak of secrecy and largely without a positive statutory basis. Although the need for a strong national intelligence effort is acknowledged and the admission is made that by and large the intelligence community has performed responsibly, the allegation is made that there have indeed been significant abuses. To prevent such abuses in the future, the Committee asserts that it is necessary to 1) inform the American people as to the “nature and scope” of these activities [which will be done by virtue of the contents of the Committee’s final report], and 2) establish an explicit statutory basis for U.S. intelligence activities “commensurate with the existing rule of law.” What follows is roughly 2000 pages which, in essence, amount to a road map for discerning the “scope and nature” of the U.S. intelligence apparatus together with a legislative prescription for codifying the charter.

There are obvious problems with this approach.

The level of detail to which the “findings” are carried in order to justify the recommendations is totally unwarranted and in some cases irrelevant. In several instances statistical data is used of the type that is bound to whet the appetite of those who would, for whatever reason, exploit the more specific information that supports that data. Although many additional specifics were removed during the interagency review process, much is still left with which to build on; the net effect of which will be to generate a never-ending cry for “who?” “which names?” “where?”. In most cases the subject area could have been treated in a paragraph or two to include a reference to a classified appendix or addendum which more appropriately would be passed on to the proper Congressional oversight body.

Another problem is the Committee’s attempt at providing a public charter for activities which by their very nature have been relegated by the history of diplomatic discourse to the “seen, but not heard” category (espionage, covert financial or other assistance to friendly elements in other countries, recruitment of foreign nationals while in the U.S. as future agents-of-influence, etc.).

The reasons why these revelations and the use of such explicit statutory language jeopardize our future capability to continue certain intelligence operations are all too obvious. It would appear, however, that there are motivations for doing so other than those cited by the Committee. Committee members (and/or staff) do not believe that the Congress will move expeditiously, if at all, to exercise its oversight responsibilities without being put into a position publicly (by virtue of the report’s revelations) of having no choice but to face the “alarming pervasiveness” and “seeming extralegal nature” of the U.S. intelligence community. If the recommendations (which, if enacted would codify both the scope of activities and the chain of accountability) then appear to provide a prescription for curing these perceived ills, then the Committee will have done its job.

The obvious trouble with even this rationale is that, regardless of the public outcry, such comprehensive legislation as is recommended stands little chance of passing in a form remotely resembling the original. Therefore, one is driven to conclude that the motivation of those on the committee who know better is not workable legislation but something less altruistic. As long as the Committee’s rationale is construed in non-controversial but essentially meaningless terms such as “the public’s right to know” it of course has the advantage of appealing to whatever motives may exist within the Committee. Given this situation it would seem that our choices for response are pretty well dictated: we should avoid impugning motives and concentrate on expressing our concerns as to the net effect of publishing such detail, and point out that indeed the net effect might be quite different from that which was intended, given the noblest of motives.

The conclusions reached are that 1) covert action has been practiced indiscriminately and without adequate coordination and policy guidence, 2) the CIA is largely “unsupervised” in those areas most likely to get us in trouble at home and abroad (espionage and counterintelligence activities), 3) the Constitution requires public disclosure of intelligence community expenditures—at least in the aggregate.

Unfortunately, the prescriptions advocated for curing covert action abuses include bringing espionage and counterintelligence activities into the scope of specific NSC oversight responsibility, as well as expanding such specific oversight to include all covert action proposals, no matter how trivial or devoid of policy implications. In the case of budget disclosure, the SSC must of course explain first what the budget encompasses before a credible figure can be arrived at. In doing so, the Committee staff has drawn the rather naive conclusion that the diffuse nature of what appears to be a generically related endeavor—intelligence—dictates a re-ordering of management responsibilities within the Executive Branch (not to mention facilitating Congressional control through a combined authorizations process).

It is these three conclusions that provide the vehicles for all sorts of diverse “fixes” to the intelligence community—only some of which are directly related to Congressional oversight. Covert action ills are used to justify increased accountability up and down the chain of command—to the point of risking management paralysis by virtue of the vast increase in administrative workload on high level decision makers, not to mention increased risks of public disclosure. The Ambassador would be made an overt co-conspirator in any such activities in his country (which would now include all espionage and foreign recruitment activities), certain facets of covert action would be proscribed (assassination, interference with a democratic government and support to security forces who systematically violate human rights), and a written audit trail of approvals and dissents would be required in each case (presumably to be made available to Congress upon request). The “need” for budgetary candor drives everything from [2 lines not declassified] to the insistence that the DCI have full resource allocation authority over all national intelligence collection programs and extensive review authority over tactical intelligence resource allocation (although a satisfactory definition of tactical intelligence is not provided).

In summary, the Constitutional requirement for a public accounting of intelligence expenditures, the uncontrolled nature of covert operations and the lack of Executive branch supervision of CIA espionage and counterintelligence activities drive the perceived (by the Committee) need for a statutory basis for all U.S. intelligence activities. Within this framework a few pet grievances are evident (State control of a “rogue” CIA overseas, protection of academia and press above all else, White House interference in intelligence estimating processes), but most of these are manifestly obvious in the report’s text. A few of the recommendations relating directly to the NSC and its role under the 1947 Act and EO 11905⁸ are as follows:

The 1947 National Security Act and Related Legislation

—The Committee states that the 1947 Act is “no longer an adequate framework” for the conduct of U.S. intelligence activities. [It does not explicitly authorize espionage, covert action, paramilitary warfare.] There is no charter for NSA or DIA (and the CIA charter is inadequate), and the DCI’s charter to coordinate national intelligence is not an effective one.

—The Act does not delineate an overall structure for the intelligence community and does not set clear and specific limits on community activities.

—The 1947 Act should be recast to include: statutory charters for the NSC, DCI and all elements of the intelligence community; a definition of basic purposes; and clearly defined limits and prohibitions. (This would be, in effect, E.O. 11905, in much greater detail, transformed into statute law.)

Comment: Our main concerns would be (1) the impracticability of changing a law, once enacted, to meet future management and organizational requirements, and (2) the level of explicitness necessary to describe each agency’s charter to the liking of civil libertarians.

The National Security Council and the Office of the President

—The Committee asserts that only a small fraction of covert action proposals are approved/reviewed by the NSC, and acknowledges that the newly formed OAG, although a step in the right direction, is not a workable mechanism as constituted if all covert action proposals are forwarded for review.

—Espionage and foreign counterintelligence activities are in many cases virtually indistinguishable from covert action in terms of their potential adverse impact on foreign policy, and therefore should also be reviewed by an appropriate NSC mechanism.

—Counterintelligence activities conducted in the U.S. should also be reviewed by an appropriate NSC level, although for different reasons (as a check against Constitutional encroachment, and to resolve CIA/FBI jurisdictional disputes).

—The newly formed CFI should act to provide muscle behind the DCI’s newly expanded charter under E.O. 11905.

—Past Presidents have had no effective oversight mechanism.

• The newly formed IOB is not yet in business and its effectiveness is therefore untested.

• The PFIAB, although useful, is not intended for that purpose.

• It is questionable to put faith in only one branch of government’s oversight mechanism; Congressional oversight is needed as well.

—The NSC should be empowered by statute to direct intelligence activities in the U.S. to include collection, counterintelligence and covert action.

—The Attorney General should be made an adviser to NSC to insure adherence to Constitutional rights while conducting intelligence activities.

—The CFI should be established by statute and include the Secretary of State as a member.⁹

—The OAG should be established by statute and considerably expanded to include jurisdiction over sensitive foreign collection activities (espionage). The Director of the Clandestine Service (DDO) would also be added as a member, and the Chairman of the group would be subject to Senate confirmation (if not already).

—The OAG would get “an adequate” staff to deal with the new requirement to approve all covert projects as well as to review all ongoing projects on an annual basis.¹⁰

—Congress would be notified prior to each project (no room for interpretation) and the DCI would be required to provide semi-annual reports on all projects to appropriate Congressional committees.

—In addition to an enhanced CFI and OAG, a new NSC Counter-Intelligence Committee should be established. This Committee, established by statute, would ensure conformity with statutory and Constitutional requirements in carrying out intelligence activities domestically, review agent recruitment both at home and overseas, and resolve jurisdictional disputes between CIA and FBI.

Comment: The net effect is that Congress would decree by statute both the nature of the NSC oversight mechanism and the structure of NSC Committees. The concerns are obvious. Aside from the problem, once again, of the unnecessarily explicit nature of NSC Committee charters, this approach constitutes a wholly unwarranted interference in Executive Branch management prerogatives.

The Director of Central Intelligence

—Recent efforts to give the DCI more power (i.e., the 5 November 1971 memo and EO 11905) should be expanded still further and enacted as statute law.

—Defense would become nothing more than a program manager for DCI allocated resources in peacetime, but would take over as the overall collection manager in time of war.

—Congress has a right to the full range of intelligence gathered by executive agencies and, in fact, Congress (in consultation with the President) should establish the overall composition of the national intelligence program.

—The DCI and his estimators (NIOs and DDI) should be split off from CIA (DDO, DDS&T, etc.) to insure a balanced approach to his enhanced resource management powers and to preserve his role as adviser to the President, not protector of CIA.

Comment: Our concerns, of course, would be the unnecessarily specific nature of the DCI’s statutory charter. The point could also be made that Congress should not have the primary power (“in consultation with the Executive”) to define the elements in our national intelligence programs when those programs are primarily designed to serve the President as both Commander-in-Chief of the Armed Forces and as chief foreign policy officer. The arguments concerning the DCI’s objectivity vis-à-vis the President and his role in defining national intelligence resource allocation can be noted as fair comment but rather ill timed in that the CFI has not yet had time to prove or disprove these arguments.

The Central Intelligence Agency

This section comprises the bulk of the findings and its narrative is used to explicate the reasons for the proposed expansion of the NSC oversight mechanism and the role of “counterveiling” agencies (State, FBI, Justice) to moderate the sometime aberrations inherent in an essentially “unsupervised” CIA. The Agency’s relations with the media, academia and its behavior overseas are discussed in some detail and many sensitive facts and figures are bandied about as if to establish the Committee’s bona fides. This section is by far the most troublesome in terms of unwarranted public disclosures (although CIA’s lobby has succeeded in moderating this section to a great extent). I recommend that our comments be limited to expressing support for CIA’s concerns (if stated) as to the unnecessary level of detail. (This section of course provides the grist for the seemingly radical recommendations concerning enhanced NSC oversight and jurisdiction.)

The Department of Defense

The overall thrust of the Committee re Defense is (1) to provide a statutory basis for NSA and DIA, and (2) to adjust SecDef budget authority to allow the DCI to manage a consolidated intelligence budget. The first operation is fairly straightforward and limited in its concept of execution only by the explicitness of each agency’s charter and, in the case of DIA, by the willingness of the JCS to relinquish some control (and resources) over the strategic estimating business (unlikely). The second recommendation, however, is offered with little more than a “hey, how about it” attitude and is embellished with no specifics. Our comments on the first subject are unnecessary and on the second subject would be characterized as “this is really a complex subject. Why don’t you leave it to the CFI and the follow-on oversight committee to work it out?”

The Department of State and Ambassadors

The Committee’s fetish here is twofold: (1) the FSO should, by virtue of his track record in collecting valuable intelligence, be appropriately trained and funded commensurate with his value; and (2) the CIA must be controlled overseas by the only non-intelligence entity who is in the position to do so, the Ambassador. I’ll leave the talking points on this one to you and will not attempt to suggest what they should be (both Church and Mondale, supported by Bill Miller and David Aaron, are adamant about ambassadorial prerogatives and obligations in this area).

Oversight and the Intelligence Budget

This is essentially a condensation of Al Quanbeck’s budget analysis as contained in his 90-page report on Defense Intelligence.¹¹ It calls for disclosure of an aggregate budget figure and then (until the President’s recent letter) proceeds to list that figure (along with others) and calls for a monitoring (by GAO) of all intelligence expenditures to insure that “priorities are appropriately balanced”. Bush’s pitch on Monday will no doubt be leave the decision to publish budget details up to the follow-on oversight committee [1½ lines not declassified].

General Recommendations

The Committee acknowledges the necessity to protect secrets and asks for standardized investigatory procedures for clearing both Executive and Legislative personnel. The Committee also notes the tendency for agency security forces to engage in law enforcement and calls for assurances that this will stop. The new oversight committee should also draft secrecy legislation to include penalties, appropriate definitions, and channels for dissent if abuses of the classification system are thought to have occurred. I would suggest we note only that the President has already forwarded secrecy protection legislation to the Hill and stands ready to work with the Congress on standardized background investigations and security clearance procedures.

In sum, although many specifics have been deleted during the review process, there are a lot of details that could still be made on security grounds and a few subject areas that could have been treated with greater circumspection in the interest of our foreign relations. There are several proposals that are downright unworkable (Ambassador/CIA overseas, OAG interface with Congressional committees, NSC span of control over intelligence activities, and intelligence budget restructuring, etc.). The effect over time of a 2000 page report detailing our intelligence structure and activities since World War II is inestimable. As a minimum, hostile propaganda machinery will be provided with enough grist for years to come. A greater danger is typified by a quote (loosely paraphrased) attributed by CIA to Senator Mathias¹² “No telling what Evans and Novak¹³ might come up with, if, on some rainy day, they decided to sit down and analyze this thing.”

Many of the details we have been able to delete to date may come out anyway under the pressure of intense media scrutiny during an election year. To the extent we can argue successfully before hand that “enough has been revealed” we stand a chance of at least temporizing this process. The following points are offered for your consideration:

—The connotation of much of the rationale supplied in the Report regarding CIA domestic objectives is that these activities (recruitment of foreign students, collecting information voluntarily offered by U.S. citizens) are “wrong” or illegal or morally repugnant. Although many times this rationale is either preceded or concluded by a paragraph which says it is okay to do this, such disclaimers will tend to get lost in the “news” of the revelations preceding it. To the end of effective oversight in areas where past practices in-and-of-themselves are necessary but in which excesses may have occurred, it would have been far more workable to supply the details to the follow-on committee confidentially, and recommend only that the potential for excesses or abuses exists and must be faced by the oversight committee. The point to be made is that the overall tone of the report suggests that people who cooperate with the CIA risk being taken advantage of or do so for some motive other than patriotism.

—In recommending improvements in the management of covert action (to include adding espionage, HUMINT and counterintelligence to direct NSC purview), the committee goes overboard in trying to correct every conceivable abuse by adding more and more layers of supervision and accountability. On the one hand a procedure, whether formalized or not, will probably not prevent a President from using his advisers and structuring his decision-making process in the way he wants. On the other hand, there is a point at which one must put some trust in the good faith efforts of its elected and appointed officials. In addition, many of the administrative safeguards present today (Intelligence Oversight Board, strengthened IG and General Counsel functions at CIA, rejuvenated PFIAB, strengthened management of covert action) were not in force earlier and should be given a chance to work and/or be modified in consultation with Congress. Such detailed legislation is both unnecessary and unwise at this point in time and certainly not conducive to effective management.

—The argument is made that Congress faces a dilemma in being informed of covert action programs but not being in a position to counsel against them if they do not agree (hence, the extraordinary means used in the case of Angola). Nowhere is the corollary to this point addressed, i.e., the Executive may brief a committee whose majority supports the action but who will not prevent the one or two members who might not support it from holding a press conference, reading their vote into the Congressional record or otherwise disclosing the operation. The point should be made that it is totally one-sided to expect a share in the responsibility for reviewing (and even approving) covert activities if there is not a commensurate sharing of the responsibility to go along with the decision if you are in the minority—assuming no impropriety is involved.

—EO 11905 addresses in some form or another most of the issues raised by the report. The argument—aside from what form of oversight Congress should exercise—then becomes one of whether legislation in areas other than those already proferred (electronic surveillance, secrecy protection) is necessary.

Depending on the press play surrounding the Report’s release I will work through Bud¹⁴ to assist Mike Duval in meeting any requirements we might have in supplying press guidance. My hope is that all the mileage is gone on this subject and that we can respond generally by observing that 1) there is nothing really new here, 2) the President’s Executive Order addresses most of the Committee’s concerns, 3) the Administration has supported legislation (electronic surveillance, mail opening, protection of secrets) where we felt it required, and 4) the Congress should now turn to exercising responsible oversight by working to insure that both EO 11905 and pending legislation is given a fair chance to work.

1. Source: Ford Library, National Security Adviser, John K. Matheny Files, Box 11, Senate Select Committee on Intelligence, Final Report. No classification marking. Scowcroft initialed the memorandum and wrote at the top of the page: “It’s hard to figure out what is the main thrust of all of this.” All brackets are in the original except those accounting for still-classified material. Kissinger received a similar analysis of the SSC report from INR, April 22. (National Archives, RG 59, Records of Henry A. Kissinger, Entry 5177, Box 19, Nodis Briefing Memos, 1976 (Folder 1))
2. Regarding the two interim reports on assassination and Chile, see footnote 2, Document 52, and footnote 6, Document 56. The final version of the Church Committee report was published by the U.S. Government Printing Office as a series of 14 individual reports, divided into 7 “volumes” of public testimony (covering the unauthorized storage of toxic agents by the CIA, the Huston Plan, abuses of the Internal Revenue Service during the Nixon administration, U.S. Government mail opening, the NSA and Fourth Amendment rights, the FBI, and covert action) and 7 “books” of Committee writings on the subjects investigated (covering foreign and military intelligence, intelligence activities and Americans’ rights, the John F. Kennedy assassination, as well as supplementary reports on these subjects).
3. April 26.
4. S. Res. 400, as approved by the Senate on May 19, established a 15-member Select Committee on Intelligence composed of 8 Democrats and 7 Republicans, and gave the new panel exclusive jurisdiction over the CIA and shared jurisdiction of the FBI, defense intelligence agencies and all other intelligence agencies with the appropriate standing committees. The intelligence agencies were required to keep the new committee “fully and currently informed” about their activities, but those activities were not subject to veto by the committee. In addition to subpoena authority, the Select Committee on Intelligence was given power to release classified information to the public if approved by a majority. The President had 5 days to approve any release; if he objected, the matter would be referred to the full Congress. (Congress and the Nation, Vol. IV, 1973–1976, pp. 190–191)
5. Not attached and not found.
6. For a summary, see Document 65.
7. Senators Barry Goldwater (R–Arizona), John Tower (R–Texas), and Howard H. Baker, Jr. (R–Tennessee).
8. Document 70.
9. Scowcroft underlined “Secretary of State” and placed a checkmark next to this paragraph.
10. Scowcroft placed a checkmark next to this and the following paragraph.
11. Not found.
12. Senator Charles M. Mathias, Jr. (R–Maryland).
13. Rowland Evans and Robert Novak, political columnists.
14. Robert McFarlane.