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

108. Memorandum From the Chairman of the Intelligence Oversight Board (Farmer) to President Carter ¹

Washington, May 15, 1980

SUBJECT

• Issues for IOB Meeting with the President, May 19, 1980

On March 24, 1980, the Intelligence Oversight Board received a memorandum from Dr. Brzezinski (Tab A)² in response to the Board’s letter to you of March 13, 1980 (Tab B).³ Dr. Brzezinski’s memorandum, copies of which were circulated by the NSC to the CIA and the Justice Department, fundamentally changes the intelligence oversight procedures established by Executive Order 12036.

Under the second paragraph of the NSC memorandum, intelligence activities which intelligence officials believe raise questions of legality or propriety would not be reported to the IOB, as the Executive Order requires, if they fall within the category of “the most exceptional cases.” This new category of “exceptional cases” is not defined, although the memorandum indicates that the decision not to report to the Board will “often,” but not always, be made with the advice of the Attorney General. The role of the Attorney General is also not defined or described.

We wish to discuss with you the serious damage to the oversight system which, in our view, results from the NSC memorandum, including:

• —the serious injury to the Executive Branch oversight system that we believe an exception to the Executive Order reporting requirements would cause;
• —the potential embarrassment to the Administration which could result from a secret document that alters reporting procedures mandated by Executive Order; and⁴
• —the memorandum’s suggestion to the Intelligence Community that the Board no longer enjoys an independent, direct relationship with you.

I. Damage Resulting from the March 24 NSC Memorandum

A. Serious Injury to the Executive Branch Oversight System

Executive Order 12036 includes no exceptions to the unambiguous requirement that Intelligence Community officials report to the IOB “any intelligence activities of their organizations which raise questions of legality or propriety.” A procedure permitting exceptions to the Order’s reporting requirement would prevent the Board from assisting you in a meaningful way. Under such a procedure, the IOB would be unable to ascertain the extent to which agencies are not reporting intelligence activities that raise questions of legality or propriety, thereby compounding the severe difficulties the Board has already experienced with some agencies in attempting to serve you.⁵

If activities raising questions of legality or propriety are not reported to the IOB, you may be denied the assurance that these questions are fully explored and, if serious, presented to you. Members of the NSC as well as the Intelligence Community are under very real institutional pressures to implement intelligence operations they believe are necessary to meet national security requirements. They may neither recognize nor appreciate the significance of the underlying questions of legality or propriety. The members of the Board, on the other hand, are free from such institutional pressures; indeed, the Board’s charter requires that Board members have no operational or employment relationship with the Intelligence Community.

An exception to the reporting requirement would also permit intelligence agencies to control the Board’s access to information the Board deems necessary to carry out its oversight functions. If questionable intelligence activities are excepted from the reporting requirement, requests by the Board for information could be blocked by the assertion that the requested information relates to an excepted activity. The Board would have to accept the agency’s assertion without the independent examination contemplated by the Executive Order since it could not review the denied information in order to determine the validity of the agency’s refusal. Furthermore, because intelligence operations are often inter-connected, information concerning non-excepted activities may be denied by agency operators who feel justified in interpreting the operational scope of the exception more broadly than you intended.⁶

In addition to its effect on the Board’s oversight function, an exception to the reporting requirement of E.O. 12036 would undermine the oversight function of Inspectors General and General Counsel within the intelligence agencies. The Order requires Inspectors General and General Counsel to report any intelligence activities they believe raise a question of legality or propriety.

A system that includes exceptions to the general reporting obligation would require agency oversight officials to report first to their agency head to satisfy themselves that they were not inadvertently reporting an excepted activity.⁷ A General Counsel or Inspector General who is instructed not to report an excepted activity would be placed in the position of ignoring the Order’s unambiguous reporting obligations without direct knowledge of the operational scope of the exception.⁸

Oversight officials in the agencies could also encounter denials of access to information essential to their oversight responsibilities. Operational personnel within an intelligence agency could limit the access of an Inspector General or General Counsel by claiming that the requested information concerned an excepted activity. There would therefore be no independent examination, by officials outside the operating components, of excepted intelligence activities.

We are convinced that the alteration of the Executive Order reporting requirements, if permitted to stand, would confuse and complicate, if not entirely defeat, the already difficult task of providing effective Executive Branch oversight of intelligence activities, and would create an environment favorable to abuse. Moreover, we question the apparent assumption that such an exception would significantly improve security, citing the record of the Board in this respect.

B. Variance Between Public and Congressional Expectations and the Actual Operation of the Executive Branch Oversight System

Dr. Brzezinski’s March 24 memorandum modifies Executive Order 12036 by curtailing the reporting obligations the Order imposes on intelligence officials. The Board believes that a secret, internal Executive Branch memorandum from the Assistant for National Security Affairs is an inappropriate method of amending the Order. Neither the Congress nor the public is informed, nor has any reason to assume, that the system of Executive Branch oversight operates in other than strict accordance with the Order’s published terms.

The existence of a memorandum which secretly modifies the oversight provisions of E.O. 12036 is therefore a potential source of embarrassment to the Administration. Circulation of the memorandum to the CIA and the Department of Justice increases the risk of an embarrassing disclosure.

C. IOB Relationship with the President

In both public statements and in statements made privately to the IOB, you have emphasized that the Board reports directly, confidentially, and exclusively to you. A direct channel of communication between the Board and the President, independent of the Intelligence Community or the NSC, is central to the integrity of the oversight function of the Board. Specific experience has proven that the agencies’ appreciation of the Board’s direct and confidential relationship with you is the keystone of the IOB’s ability to gain access to information required to serve you effectively.

We believe that the NSC’s issuance and circulation of its March 24 memorandum, unless corrected, will undermine the Intelligence Community’s perception of the IOB’s relationship with you and, consequently, the capacity of the Board to discharge its oversight responsibilities. The NSC memorandum, written in response to the Board’s request for a meeting with you, raised for the first time the fundamental issue of a revision of the Executive Order reporting procedures. However, the staffing did not include the IOB’s views on proposed changes to the reporting system or even consultation with the IOB about the consequences of these changes.

The use of the NSC, without IOB involvement, as the staffing mechanism and as an intermediary for communications between you and the Board compromises the independence of the Board from the Intelligence Community and the NSC.⁹ Moreover, the failure of the pre-decisional staff memoranda to consider the effect that a modified reporting system would have on oversight officials below the level of the IOB, as noted above, illustrates the problems that will arise if the Board is by-passed and therefore prevented from giving you full and confidential advice on oversight matters, as required by Executive Order 12036.

II. Possible Means to Remedy the Damage Resulting from the Dissemination of the March 24 NSC Memorandum

A. Retain and Reaffirm the Executive Order Reporting Requirements

One option for remedying the damage resulting from the March 24 NSC memorandum is to retain and reaffirm, without exceptions, the existing requirements in Executive Order 12036 that intelligence officials report to the IOB any intelligence activities raising questions of legality or propriety. This is the only course of action which avoids all of the serious problems discussed above.

Because the NSC memorandum establishing an exception to the reporting requirement has already been circulated, it would be necessary to disavow that memorandum. For this purpose, we have attached a draft letter from you to the heads of intelligence agencies (Tab C)¹⁰ which reaffirms your support of the Executive Branch oversight system, including the Executive Order reporting requirements, without directly referring to the NSC memorandum. Circulation of such a letter would also permit you to disclaim the suggestion of a secret modification of the Executive Order in the event that Congress learns of the NSC memorandum.

B. Amend Executive Order 12036 to Make the IOB an Advisory Rather than Oversight Board

Another option would be formal amendment of Executive Order 12036 transforming the Board into an advisory body which considers only matters referred to it by you on an ad hoc basis.

While this would reconcile public and Congressional understanding of the Board’s role and its actual responsibilities, we do not feel that an IOB with an advisory role would serve a purpose useful to you. It is our firm belief that without an IOB possessing the authorities conferred on it by the Executive Order and the operating prerogatives presently granted by you to the Board, such as direct and confidential access to the President, an effective Executive Branch oversight system will cease to exist.

Recommendation

We strongly recommend option A as the only course which would preserve an effective Executive Branch system of intelligence oversight.¹¹

1. Source: Carter Library, National Security Affairs, Brzezinski Material, Subject File, Box 29, Intelligence Oversight Board, 1/78–12/80. Secret.
2. Not found attached, but printed as Document 107.
3. Not found attached, but printed as Document 104.
4. Adjacent to this paragraph, an unknown hand wrote, “Legal point?”
5. An unknown hand underlined the portion of this sentence beginning with “the severe difficulties” to the end. A question mark was written adjacent to the sentence.
6. An unknown hand wrote “WORST CASE SCENARIO” adjacent to the final sentence of this paragraph.
7. An unknown hand underlined the portion of this sentence beginning with “require agency oversight” to the end. In the adjacent margin, written in an unknown hand is the notation, “what do they do now?”
8. Written at the top of the page above this paragraph in an unknown hand are these notations: “‛IOB is focused on the past not the future.’” “CIA–IG—On ad hoc matters—may or may not inform DCI—the more obvious the case, the more likely it would be that DCI would be told ‛a non-issue.’” “Annual & quarterly reports are sent to DCI by IG on drop-copy basis.”
9. Adjacent to this sentence in the left margin is written in an unknown hand, “President asked for this.” The same hand underlined “independence of the Board from” and “the NSC” and wrote adjacent to the sentence in the right margin, “EO puts it subordinate to NSC.”
10. Not found attached.
11. Carter met with the Intelligence Oversight Board on May 19 from 1:34 to 2:06 p.m. (Carter Library, Presidential Materials, President’s Daily Diary) No minutes of the meeting were found.