Foreign Relations of the United States, 1977–1980, Volume XXVII, Western Europe

90. Memorandum From the President’s Assistant for National Security Affairs (Brzezinski) to President Carter¹

Washington, March 3, 1977

SUBJECT

• Army Special Operations Field Office in Berlin (SOFO)

A disagreement between the Department of Defense on one side and State, CIA and the Justice Department on the other has resulted in “suspension” of important electronic surveillance activities conducted by the Army’s Special Operations Field Office (SOFO) in Berlin.

Since 1947 SOFO has conducted wiretaps [less than 1 line not declassified] in the American sector of Berlin on behalf of U.S. [less than 1 line not declassified] and German law enforcement authorities for foreign intelligence, security and criminal investigation purposes. The Army, however, has long been anxious to drop these activities which it feels are outside its traditional role. The State Department and CIA have argued that SOFO activities are essential to meet U.S. responsibilities.

The Ford Administration commissioned a study of the problem by a special ad hoc NSC Committee (Tab A).² On the basis of this study, President Ford decided to keep SOFO in operation and had my predecessor issue a directive which included Justice Department approved measures intended to assure protection of the rights of U.S. citizens (Tab B).³ However, Attorney General Levi later reversed his position and raised serious legal questions about SOFO operations (Tab C).⁴ This was a personal action that ran counter to the advice of Justice Department lawyers and the last act in what had become an increasingly bitter struggle between Levi and the national security establishment. As a result, my predecessor reactivated the special interagency study group to review the problem again. (Tab D).⁵

The new interagency study was almost completed when Secretary Brown, unilaterally, “suspended” SOFO’s electronic surveillance operations.⁶ At my request he has submitted his views in writing (Tab E)⁷ which are a combination of the old Army arguments and his personal concern about political sensitivity. Secretary Brown believes that, if SOFO is to continue at all, it should be on the basis of (a) a personally signed Presidential Directive and (b) an Attorney General approval attesting to its legality. He also believes that SOFO presents a danger of scandal akin to that following the Army’s domestic surveillance of civilians in the 1960’s and, even if existing legal doubts could be resolved, the risks, when weighed against “marginal benefits” are high. The new interagency study (Tab F)⁸ concludes that you should issue a new Presidential Directive. The Attorney General has personally reviewed the recommended draft Directive and associated procedures and believes they “are lawful, and electronic surveillance [less than 1 line not declassified] conducted or requested by the Department of Army in Berlin pursuant to the Directive and procedures would likewise be lawful.” (Tab G).⁹

The political sensitivity and risk factor is less clear than the legal issue. It is hard, however, to understand Secretary Brown’s fear of “scandal” and embarrassment to you if the operation is legal and it can be demonstrated that prudent steps have been taken to protect the rights of U.S. persons. Unlike most surveillance situations, the local authorities [less than 1 line not declassified] in Berlin are aware of it and desire to see it continue. Moreover, Berlin is particularly vulnerable to terrorism, espionage, sabotage or substantial public disorder which could directly affect our position in the city and which can be directed against both military and civilian components of the U.S. military forces. Discontinuation of our monitoring activities would make more difficult the tasks of all Allied and German agencies charged with security and law enforcement functions in Berlin and could even result in a loss of confidence about American determination to discharge our responsibility in Berlin. U.S. access to other forms of intelligence information generated by our Allies could be limited and there could well be a reduction in intelligence cooperation with West German authorities.

On balance, I believe that this is one of those situations where you must take a certain amount of limited political risk to ensure that larger U.S. interests are served.

The remaining question is whether SOFO should continue to do the monitoring or, as Secretary Brown recommends, it should be taken over by a non-Defense agency. CIA is the only alternative, and it lacks the legal authority. The Army, as the occupying authority in the U.S. sector, has the necessary powers and responsibility.

RECOMMENDATION

That you sign the proposed Presidential Directive at Tab I¹⁰ directing the continuation of SOFO under the strict regulations and procedures approved by the Attorney General.¹¹

1. Source: Carter Library, National Security Council, Institutional Files, Box 6, PD–09 [1]. Secret; Sensitive. Sent for action.
2. Tab A was not attached. The conclusions of the ad hoc committee are summarized in Document 101, Foreign Relations, 1969–1976, Volume E–15, Part 1, Eastern Europe, 1973–1976.
3. Tab B, a copy of NSDM 335, August 13, 1976, is attached but not printed; see Document 102, Foreign Relations, 1969–1976, Volume E–15, Part 1, Eastern Europe, 1973–1976.
4. Tab C was not attached.
5. Tab D was not attached; see Document 105, Foreign Relations, 1969–1976, Volume E–15, Part 1, Eastern Europe, 1973–1976. In a February 16 memorandum to Brzezinski, Hoskinson reported that “Attorney General Bell, according to his staff, has decided that the Justice Department will take no official position on the Scowcroft requested study unless you revalidate the requirement. He apparently is not in the mood to reopen old Levi problems unless someone else thinks he should.” (Carter Library, National Security Council, Institutional Files, Box 6, PD–09 [1])
6. On January 29, Brown issued a memorandum to the Secretaries of the Military Departments, the JCS Chairman, the Director of Defense Research and Engineering, the Assistant Secretaries of Defense, the General Counsel, the Director of Planning and Evaluation, the Director of Telecommunications and Command and Control Systems, the Assistants to the Secretary of Defense, and the Directors of the Defense Agencies, that forbade unconsented telephone eavesdropping except as authorized by the Secretary of Defense or the Deputy Secretary of Defense. (Carter Library, National Security Council, Institutional Files, Box 6, PD–09 [1])
7. Tab E, a memorandum from Brown to Brzezinski, February 19, is attached but not printed.
8. Tab F, an interagency review of NSDM 335, undated, is attached but not printed. Borg sent it to Brzezinski under cover of a February 18 memorandum that noted: “It was prepared by a working group under the chairmanship of the Department of State, which included representatives of the Department of Defense, the Department of Justice, and the Central Intelligence Agency.” (Carter Library, National Security Council, Institutional Files, Box 6, PD–09 [1])
9. Tab G, a letter from Bell to Brzezinski, February 18, is attached but not printed.
10. Tab I was not attached.
11. In a March 4 memorandum to Vance, Brown, Turner and Bell, Carter wrote: “I am doubtful about the need for SOFO, [less than 1 line not declassified]. Please let me have, as quickly as possible, a brief assessment of a) need; b) propriety; c) responsible agency/[less than 1 line not declassified].” Under cover of a March 7 memorandum, Brzezinski sent copies of Carter’s memorandum to the addressees and indicated that they should respond by March 14. (Carter Library, National Security Council, Institutional Files, Box 6, PD–09 [1])