Foreign Relations of the United States, 1977–1980, Volume XXVIII, Organization and Management of Foreign Policy

102. Paper Prepared by the Working Group on Intelligence Charter Legislation¹

Washington, February 12, 1980

WORKING GROUP REPORT ON INTELLIGENCE CHARTER LEGISLATION

On February 8, 1980 Senators Huddleston, Bayh, Mathias and Goldwater, on behalf of the Senate Select Committee on Intelligence (SSCI), introduced a new comprehensive intelligence Charter bill, “The National Intelligence Act of 1980.”² Although the bill was not introduced as a joint Administration-SSCI product, in very large measure it reflects compromises and agreements reached between the SSCI staff and the Intelligence Charter Working Group (represented by its chairman).

The purpose of this report is to list what appear to the Working Group to be significant differences between the bill and the draft the Working Group would have recommended. A list of the key issues is set out in Section A, together with the Working Group’s recommendations. If the President approves the Working Group recommendations, these points will be transmitted to the SSCI as Administration positions, and the Administration will seek appropriate modification of the bill in the course of the legislative process.

In addition, a small number of points are still the subject of disagreement within the Executive Branch. These points are set forth in Section B of this report for resolution by the President. An issue paper on each of the issues within the Executive Branch is attached at Tab A.³

The discussions between the Working Group Chairman and the SSCI staff have been fast-moving in recent weeks. While the Working Group members have been kept fully informed of the evolution of the agreed provisions found in the SSCI bill, there has not been an opportunity for review of the draft by the Special Coordination Committee of the NSC. Nor has there been time for a thorough review of the draft in the light of last-minute compromises reached in order to reduce the number of issues requiring Presidential resolution. Consequently, even after determination of the Administration position on the issues presented in this report, a certain number of changes, largely technical in nature, may have to be made in the course of the legislative process. It is not anticipated that these changes would require further decisions by the President or that they would give rise to major disputes between the SSCI and the Administration.

A. REMAINING DIFFERENCES BETWEEN THE ADMINISTRATION AND THE SSCI

Set forth below are a series of points on which the Working Group feels that the Administration should take exception to provisions of the SSCI bill.

1. Prior Reporting to Congress of Special Activities

The bill requires (section 142) that the two congressional intelligence committees be kept “fully and currently informed” of all intelligence activities, including “any significant anticipated intelligence activities.” It also provides (section 125) that each high-risk special activity and each category of lower-risk special activity covered by a Presidential finding shall be considered a “significant anticipated intelligence activity,” thus requiring prior notice, except that for a period of forty-eight hours such prior notice may be limited to the chairmen and ranking minority members of the two oversight committees and the majority and minority leaders of the two Houses of Congress.

The Working Group recommends that the Administration take a firm position against any prior reporting requirement for special activities. The Working Group recommends that any accommodation of the congressional desire for prior notification of certain categories of major or long-term special activities be accomplished through legislative history and not through statutory language. The concepts of timely notification and the obligation to keep the committees “currently” informed should suffice to ensure that prompt notice of significant activities (ordinarily before the event) is given while retaining necessary Presidential flexibility to preserve security in exigent circumstances, especially when human lives are at stake.

2. Prior Reporting of Other Significant Intelligence Activities

As the bill is formulated, it would require prior reporting to the two intelligence committees of significant anticipated intelligence collection activities, in addition to special activities. This requirement, while found in Executive Order 12036, is not at present embodied in statutory law. The Working Group recommends that the Administration position be opposed to the inclusion of such a provision in the Charter bill, even were some form of prior reporting to be accepted for special activities. Foreign intelligence collection is a vital aspect of the President’s exercise of his responsibility for the conduct of foreign affairs and protection of the national security. In contrast to special activities, intelligence collection is more clearly within the ambit of exclusive Executive Branch authority. Furthermore, a statutory requirement to report sensitive collection activities in advance to the oversight committees would significantly restrict the flexibility now available to the President with regard to the collection of intelligence. It is, in our view, unnecessary to appropriate oversight, given the extensive oversight powers elsewhere provided to the two intelligence committees. As with special activities, a requirement to keep the Congress fully and currently informed would suffice without excessively impairing flexibility.

3. Absence of Intelligence Source and Method Protection in the Oversight Process

The bill does not include in the congressional oversight section (section 142) a key phrase that the Working Group considers it essential to insert as a condition to the Executive Branch’s obligation to keep the oversight committees informed. This is that such obligation should be “consistent with all applicable authority and duties, including those conferred by the Constitution upon the Executive and Legislative Branches and by law to protect sources and methods.” The underlined words are not included in the SSCI bill. The function of this phrase is to provide authority for withholding from the oversight committees extremely sensitive information, such as the true identities of agents or information furnished by foreign liaison services who do not wish it shared with the Legislative Branch of our government. Without a clear statutory basis for protecting such information, the ability of the intelligence agencies to deal with sources and foreign governments would be impaired. The information in question is not of the kind required for proper oversight. Moreover, the phrase at issue is included in section 3–4 of E.O. 12036. Failure to include it in the Charter bill, therefore, would be a retreat for the Executive Branch from present oversight arrangements.

4. Prohibition on Cover Use of Certain Institutions

The Working Group understands that in the President’s meeting with Senator Huddleston it was agreed that restrictions on the use of academics, clerics and journalists would be replaced with hortatory language requiring regulations to protect the integrity of professions in general.⁴ The SSCI bill, however, continues (in section 132(b)) to contain detailed restrictions on the cover use of United States religious, media and academic institutions and exchange programs; the hortatory language applies only to operational use of members of the various professions. The Working Group feels that the general approach requiring regulations to preserve the integrity of all professions would take care sufficiently of both cover and operational use, and accordingly recommends that the Administration support deletion of the SSCI bill’s detailed restrictions on the cover use of certain institutions.

While cover use should be kept to an absolute minimum, circumstances are conceivable in which such use would be the only plausible cover available in a situation of the highest urgency and national importance. A blanket prohibition in such circumstances would either lead to the loss of essential intelligence or require the government to engage in unlawful activity. The Working Group recommends that the Administration seek deletion of section 132(b) of the SSCI bill.

5. Wartime Waiver

The SSCI bill contains no general provision permitting the President to waive restrictions on intelligence activities in time of war, although there is a limited war-time waiver provision with respect to the prohibition on cover use of certain institutions. The Working Group recommends that the Administration support the inclusion of a general war-time waiver provision to read as follows:

“(a) The President may waive any or all of the restrictions on intelligence activities set forth in this Act during any period—

(1) in which the United States is engaged in war declared by Act of Congress; or

(2) covered by a report from the President to the Congress under the War Powers Resolution, 87 Stat. 555, to the extent necessary to carry out the activity that is the subject of the report.

(b) When the President utilizes the waiver authority under this section, the President shall notify the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate in a timely manner and inform those committees of the facts and circumstances requiring the waiver.”

Although considerably improved over S. 2525, the SSCI bill still contains a variety of restrictions and requirements, both procedural and substantive, whose full impact cannot be anticipated or fully understood. In time of war, these restrictions and procedures may prove to impede necessary action, forcing the President to choose between danger to the national security and deliberate violation of the law. The limited waiver proposed by the Working Group would deal with these exigent circumstances, while at the same time preventing any potential abuse by requiring notification to the two oversight committees.

6. FOIA Amendment

The SSCI bill provides (section 421(d)) an exemption from the Freedom of Information Act for certain CIA operational and technical files, except in the case of “first person” requests by United States persons. This provision, while acceptable to CIA, fails to provide any relief for the NSA and other Intelligence Community components that also have confronted serious problems under the FOIA. The Working Group prefers the formulation proposed by the Director of Central Intelligence, under which the DCI would be empowered to designate operational and technical files not only within the CIA but in any component of the Intelligence Community, and thereby exempt such files from the FOIA except in the case of first person requests. Language for this purpose is set forth at Tab B.⁵ The Working Group recommends that the Administration support modification of the SSCI bill to accomplish this broader FOIA relief.

7. Protection of Identities

The SSCI bill contains a provision establishing criminal penalties for disclosure of the identity of an undercover intelligence officer or agent (Title VII). The provision, however, would apply only to a person who had authorized access to classified information and would not cover aiders, abettors, accomplices or conspirators who knowingly assisted in the commission of the offense. The Working Group considers this provision inadequate and recommends that the Administration support a more extensive provision. There is disagreement, however, between CIA and the Department of Justice as to the scope of the substitute provision the Administration should support. An issue paper on this point is included in Tab A. The Working Group proposes that the Administration advance whichever of the alternate formulations is chosen by the President.

8. Foreign Intelligence Surveillance Act⁶

The SSCI bill contains amendments to the Foreign Intelligence Surveillance Act (FISA) for purposes of including physical searches in its scope. The Working Group feels that the Administration should not support a legislative proposal dealing with the FISA without at the same time taking account of significant inadequacies in the FISA that have become apparent since its enactment. The changes required to remedy these problems are:

a. Modification of the targeting standards to permit targeting of dual nationals who occupy senior positions in the government or military forces of foreign governments, while at the same time retaining United States citizenship. Frequently the activity of such persons when they visit the United States on official business is not such as to bring them under the quasi-criminal targeting standard now found in the FISA.

b. Modification of the targeting standards to permit targeting of former senior foreign government officials even if they are not acting in the United States as members of a foreign government or faction. Again, this problem was not anticipated at the time the FISA was passed, but various situations have arisen in which it is clear that a former foreign government official (such as a deposed head of state) who is present in the United States may have significant foreign intelligence information. Under present law such an official can be targeted only if a member of a foreign faction or government.

c. Clarification of the FISA to make it clear that the Attorney General, in authorizing the limited category of surveillances not subject to court order, has the same power as the court to authorize non-consensual entry of premises to effectuate the surveillance.

d. Extension of the emergency surveillance period from twenty-four to forty-eight hours. Recent experience indicates that the twenty-four-hour period is inadequate, leading to the necessity of delaying implementation of emergency surveillances.

A classified memorandum from the National Security Agency setting forth reasons for these changes to the FISA is attached at Tab C.⁷

B. DIFFERENCES REQUIRING RESOLUTION WITHIN THE EXECUTIVE BRANCH

Attached at Tab A are seven issues papers describing issues that require resolution by the President and as to which there is not unanimity among the departments and agencies represented on the Working Group. These issues are:

1. Should the provisions imposing criminal penalties for unauthorized disclosure of identities of intelligence personnel follow the Justice Department or the CIA version.

2. Should positive foreign intelligence collection directed against United States persons by extraordinary techniques be authorized only if the court finds that the intelligence sought is “significant” foreign intelligence.

3. Should CIA and NSA employees serving overseas receive benefits comparable to State Department employees.

4. Should NSA overseas employees be provided special retirement benefits equivalent to the CIA retirement system.

5. Should the Intelligence Oversight Board be given express authority to review the internal practices, procedures and guidelines of the intelligence agencies.

6. Should the bill contain a requirement that entity heads report to the Intelligence Oversight Board intelligence matters specified by the President.

7. Should the Central Intelligence Agency have statutory authority to obtain data collected by other entities of the Intelligence Community, including data obtained by technical collection systems, for purposes of processing and analysis.

In closing, it should be again emphasized that this report and the agreed portions of the SSCI bill have undergone numerous last-minute changes. Consequently, there may be further issues internal to the Executive Branch or between the Administration and the SSCI. In addition, there is the unavoidable risk that compromises reached under some time pressure will appear unacceptable to the parties upon later reflection.

Daniel B. Silver
General Counsel, CIA
Chairman, Intelligence Charter Working Group

1. Source: Carter Library, National Security Council, Institutional Files, 1977–1981, Box 11, PD 17 [4]. No classification marking.
2. S. 2284 was introduced in the Senate on February 8 and referred to the Senate Select Committee on Intelligence.
3. Not found attached.
4. See Document 101.
5. Not found attached.
6. P.L. 95–511.
7. Not found attached.