100. Letter From the Chairman of the Senate Select Committee on Intelligence (Bayh), the Chairman of the Subcommittee on Charters and Guidelines (Huddleston), and the Vice Chairman of the Subcommittee on Charters and Guidelines (Mathias) to President Carter 1
As we agreed at a meeting with you in the White House shortly after you took office as President,2 the Senate Select Committee on Intelligence has been working with the Vice President, the Director of Central Intelligence, the Secretary of State, the Secretary of Defense, the Attorney General, and other officials whom you designated to arrive at an agreed upon charter for the governance of intelligence activities of the United States. At your direction, we assisted you in drafting an interim Executive Order, Executive Order 12036, which is serving as the principal legal authority for intelligence activities until a statutory charter is completed.
The Committee has worked carefully and has tried to test every proposition against constitutional requirements and practical necessity. We have held three sets of hearings on charters alone, and have had hundreds of meetings at the staff level on issues raised by particular provisions of an intelligence charter.
At the meeting with Vice President Mondale which took place on January 22, 1980,3 we were able to narrow the areas of disagreement to two issues. The first concerns the heart of an effective oversight system, namely full access to information, while the second remaining issue affects a prohibition on the paid operational use of persons who are members of certain historically protected institutions.
The first issue of possible disagreement is over the right of the oversight committees to have full and complete information. Since 1976, the Senate Select Committee on Intelligence has functioned under the provision in Executive Order 12036. (These provisions are included as an attachment4 and should be carefully reviewed along with the statutory provision we believe is required for effective oversight.)[Page 436]
We all recognize that effective oversight requires timely and full information. Such necessary information should be available whenever it can be most useful. As a matter of practice, with your full support, the Committee has been able to work out with the Intelligence Community the kinds of information it believes it needs, the degree of detail it believes necessary, and when such information should be supplied. In some cases the information required is very general in nature, in other instances extremely detailed; in most instances the information is supplied on a timely and current basis, while in some instances, such as covert action, some collection programs and certain technical areas, we have asked for and received information prior to implementation. The process has worked very well, thus far, and we believe it is in the nation’s interest to institutionalize this process in law. We fully support the view that the Hughes-Ryan Amendment5 should be amended to limit notifications of Presidential approvals of covert action to the Intelligence Committees of the House and Senate, provided that the two Intelligence Committees are fully and currently informed, including notification of covert action prior to implementation.
As to sensitive sources and methods, the Committee has worked very hard to create a secure environment for the protection of extremely sensitive information. We have had occasion to examine, when required, sensitive sources and methods, names of agents, details of technical systems, the precise nature of liaison relationships and are proud to say that we have done so in a way that protects this sensitive information. At the same time, the Committee has been restrained. We have not generally sought information about the precise names of agents or the details of extremely sensitive systems unless we believed it was necessary to do so. Where there were disputes, we have been able, thus far, to work them out. But the Committee believes it is necessary to have it clearly stated in a statute that there is a right to any and all information concerning intelligence activities, including prior notice of significant activities.
We recognize, however, that the President has duties and prerogatives conferred by the Constitution and we have taken account of this in the opening phrase of Section 152 of the charter, which states:
Consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches, . . . .
Further, we recognize that the President should have the right to decide in what ways information should be given to the oversight committees, and whether the President wants to give them directly himself, through the Director of Central Intelligence or through some other means. We have provided for this in Section 152(e), which reads as follows:
The President may establish such procedures as the President determines may be necessary to carry out the provisions of this section.
The Committee is unanimous in its belief that it must have the right of full access to information if there is to be effective oversight. The necessity to engage in secret activities poses special problems for an open, democratic society. We all agree that secret activities are necessary. The protection necessary to assure that secret activities will be conducted in accord with the Constitution is effective oversight. Full access to timely information and prior notice of significant activities are the sine qua non. Without it there can be no assurance that careful scrutiny of intelligence activities will be given by the Legislative branch.
The second issue concerns a prohibition on the use of academics, clerics and the media. The Committee’s provision would prohibit certain paid or operational relationships between members of these professions and the agencies of the Intelligence Community. It would not prohibit voluntary relationships. A number of members of the Committee believe that these professions deserve special protection because of their close symbolic and institutional identification with rights of free expression protected by the First Amendment.
The issue is whether the need for paid operational use of clergymen, academics and journalists outweighs the need to protect the integrity of their professions. If, in your opinion, it does, we would be prepared to consider the drafting of a waiver provision permitting an exception in situations where a vital national interest is at stake.
We would like to discuss these issues with you personally before you come to a decision. You have already very generously invited us to come to you directly whenever we felt there was an issue of crucial importance with regard to the drafting of a charter governing the intelligence activities of the United States. We believe that the importance of these issues requires such a discussion with you.
We want to thank you for the firm support that you personally have provided in furthering the completion of this effort. We are appreciative of the cooperation that Vice President Mondale, his chief aides, Admiral Turner, Secretary Vance, Secretary Brown, Attorney General Bell and now Attorney General Civiletti and their associates have shown in working with the Senate Select Committee on Intelligence to arrive at a consensus on how the intelligence activities of the United [Page 438] States should be governed. The effort to place these vital activities within a constitutional framework has not been easy. With a little more effort, we believe that we can come to agreement on legislation that will serve the country well.
With kind regards,
Chairman, Subcommittee on Charters and Guidelines
Vice Chairman, Subcommittee on Charters and Guidelines