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

94. Presidential Directive/NSC 9¹

Washington, March 30, 1977

TO

• The Secretary of State
• The Secretary of Defense
• The Attorney General
• The Director of Central Intelligence

SUBJECT

• Army Special Operations Field Office in Berlin (C)

I have reviewed the recommendations of the National Security Council² and have determined that the continuation of certain electronic surveillance [less than 1 line not declassified] in Berlin is important to the national security and to fulfilling this nation’s responsibilities as the occupying power in the United States sector in Berlin. Therefore:

1. Under the authority vested in me as President of the United States, I hereby authorize the Department of the Army, within the strict limits of this Directive, in Berlin to conduct electronic surveillance [1½ lines not declassified].

2. This authority shall be exercised on a strictly controlled and limited basis solely for the purpose of gathering significant foreign intelligence or counter-intelligence information or of supporting criminal investigations involving terrorism, illicit narcotics traffic, and other serious crimes affecting the security or public order of Berlin, the Federal Republic of Germany, the United States or its allies in Berlin.

3. This authority shall be exercised in strict conformity with the Constitution of the United States and applicable laws, regulations, and administrative procedures of the United States. I therefore direct the Attorney General of the United States to adopt procedures governing the conduct of electronic surveillance [less than 1 line not declassified] under this Directive to insure the lawfulness of these activities. These procedures shall include provision for obtaining a judicial warrant where deemed necessary by the Attorney General and shall require that, except in emergency situations, before a United States citizen or any group composed in substantial part of such citizens is made a target of any of these activities without a judicial warrant a finding be made by the Attorney General that there is probable cause to believe the citizen or group is an agent of a foreign power or foreign terrorist group engaged in hostile intelligence or terrorist activities and that significant foreign intelligence or counter-intelligence information is expected to be obtained. These procedures shall also include provision for minimizing the acquisition, retention, and dissemination of any communication, which involves a United States citizen or any group substantially composed of such citizens, not strictly necessary to the lawful functions of a proper governmental entity.

4. In addition to any requirements that may be imposed by the Attorney General’s procedures the following shall apply:

(a) No non-consensual electronic surveillance [less than 1 line not declassified] shall be instituted by the United States Army in Berlin on behalf of a United States agency without the approval of that agency at the level of Assistant Secretary or above or, in the case of a branch of the Armed Services, the Secretary or Under Secretary of that Service;

(b) [1 paragraph 10 lines not declassified]

(c) In emergency situations, the United States Chief of Mission, Berlin, or his designee may waive the requirements of (a) and (b) for a limited time, usually no longer than 48 hours.

5. The United States Army shall continue to be responsible for the provision, management, supervision, and control of these sensitive activities in the United States Sector, within the framework of Executive Orders 10608 and 11905.³

6. The United States Chief of Mission, Berlin, shall provide for such additional guidelines, procedures, and supervision consistent with this Directive as he determines appropriate and shall, in particular, be responsible for assuring that these and other sensitive methods of investigation are used in a manner consistent with the foreign relations interests of the United States and governmental responsibilities of the United States in Berlin.

7. The Central Intelligence Agency shall be responsible for advising on the appropriateness of electronic surveillance [less than 1 line not declassified] in foreign intelligence and counterintelligence cases under the standards enunciated in paragraph 2, above.

8. The United States Army shall be responsible for determining the adequacy of requests for electronic surveillance [less than 1 line not declassified] under applicable law, regulations, and procedures, and in cooperation with the Department of State, for the development and maintenance of an adequate regulatory regime appropriate to the special situation in Berlin.

9. NSDM 335⁴ is hereby rescinded.

Jimmy Carter

1. Source: Carter Library, National Security Council, Institutional Files, Box 1, PD/NSC 1–32 [1]. Secret; Sensitive. Telegram Tosec 30140 to Vance in Bonn, March 31, informed him that Carter had approved SOFO operations in the American sector of Berlin and that Vance could be the first to inform Schmidt, “which we hope will improve atmosphere of conversation.” (National Archives, RG 59, Central Foreign Policy File, N770002–0320 and P840076–0724) Telegram 5766 from Bonn, March 31, reported that Schmidt, who was gratified by the news, stated that the “most deplorable aspect of matter had been that FRG had not been consulted in advance.” (National Archives, RG 59, Central Foreign Policy File, N770002–0341 and P850050–2334)
2. See Document 93.
3. Reference is to Executive Orders 10608, “United States Authority and Functions in Germany,” May 5, 1955, and 11905, “United States Foreign Intelligence Activities,” February 18, 1976. (Federal Register, Volume 20, May 7, 1955, p. 3093 and Federal Register, Volume 41, February 19, 1976, p. 7703)
4. See footnote 3, Document 90.