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

109. Memorandum From the Counsel of the Intelligence Oversight Board (DICK) to the Intelligence Oversight Board¹

Washington, September 17, 1980

SUBJECT

• IOB Meeting with Admiral Turner

Admiral Turner is scheduled to meet with the Board from 9:30 to 10:30 A.M. today.² Admiral Turner requested John McMahon, the Deputy Director for Operations, to attend as well. This meeting was arranged primarily to provide an opportunity for an exchange of views on intelligence and oversight issues generally, rather than as a briefing on any particular topic. The only specific matter which he was advised the Board wanted to discuss with him concerns covert action review and approval procedures. Background information concerning this subject, and other possible subjects of discussion, is set forth below.

I. Covert Action Review and Approval Procedures

A. Deficiencies in Current Practice

In its discussions with officials from the agencies involved during the past months, the Board has identified several deficiencies in the current covert action review and approval procedures. These include:

—Inadequate Inter-Agency Staffing of Covert Action Proposals before SCC Consideration. Under the Ford Administration’s OAG Guidelines,³ a Special Activities Working Group (SAWG) consisting of senior representatives of SCC principals met to consider all covert action proposals before consideration by the SCC. During the past 18 months, the SAWG has generally been abandoned as unnecessary and too cumbersome. A group consisting of David Aaron, Frank Carlucci, Robert Komer, and David Newsom has been meeting regularly for the past few months to review on-going SCC-approved activities, but they apparently do not consider covert action proposals. Lower level, “technical” inter-agency groups are sometimes called to consider particular covert action proposals on an ad hoc basis, but there is no regular inter-agency group that meets to consider all such proposals.

—Lack of Timely Distribution of Covert Action Proposals. The OAG Guidelines required that covert action proposals be distributed to SCC members at least 48 hours in advance of SCC meetings to permit adequate staffing within the member agencies. However, according to several sources (including, recently, Robert Komer) proposals have often been distributed one day or less before SCC meetings. At times they are distributed at the meetings themselves, which provides no opportunity for thoughtful consideration of the proposals by the SCC members.

—Inability of SCC Members to Review Covert Action Papers Before Submission to the President. After the SCC has recommended that a proposed covert action be approved, the proposal (or an NSC summary of it), the proposed finding, and the minutes of the SCC meeting recommending approval are submitted to the President. Both State Department and Justice Department officials have indicated that SCC members do not have an opportunity to review the proposal “package” before it is submitted to the President to ensure that the individual views of the members are reflected accurately or that the proposal itself is adequately characterized in accordance with the SCC’s discussion.

—Inability of SCC Members and Agencies to Review All Covert Action Papers After Approval by the President. After the President has approved a covert action, SCC principals do have access to the approved finding and minutes at NSC offices. They are not, however, provided with copies to retain in their departments. (One exception is the CIA, which receives copies of signed findings, but even the CIA has had difficulty obtaining copies of the minutes). According to one Justice Department official, the President’s marginal comments on proposal papers are sometimes read back to SCC members by Dr. Brzezinski, but they are not permitted to review the comments themselves.

The Board should explore with Admiral Turner: (a) the current practice with regard to each of the above-described areas; and (b) his views as to whether these areas constitute significant problems for SCC members generally and the CIA specifically. [NOTE: To my knowledge the CIA is not aware of the recent effort made within the State Department to formulate a new set of procedures governing covert action review and approval. This effort is described in a separate memorandum.⁴ Unless he indicates that he is aware of it, it may not be advisable to raise it with him, at least with respect to the IOB’s role.]

According to other CIA officials, the inability to review all covert action papers is of particular concern to the Agency. For example, the language of findings originally proposed by the CIA’s Covert Action Staff is sometimes changed by the SCC or the President. If the finding is changed, it may not track the underlying proposal papers that went forward from the CIA. The Covert Action Staff may therefore be in the position of being asked to implement an activity that differs from the one it originally proposed. Without access to the minutes, however, the Staff cannot adequately determine the basis for the changes. In addition, the CIA General Counsel needs a clear record of what the President actually approved in signing the covert action findings in order to advise operational personnel whether particular actions are permissible under existing findings, or whether a new finding is necessary.

The CIA General Counsel stated that until recently the CIA received only the signed Presidential finding and the proposal papers that originated in the Covert Action Staff but may have been altered by the SCC or President. Beyond these documents, he had to rely on the post-meeting notes of CIA officials who attended the meetings at which the findings were approved, and occasional access to portions of SCC minutes in order to determine whether a particular activity falls within the scope of an existing finding.

In order to more precisely define the limits of the proposed activity, the CIA began a few months ago to prepare “scope papers” to accompany the proposal papers reviewed by the SCC and the President. This paper summarizes the actual operations the CIA plans to undertake if the finding is approved by the President, and describes the projected costs, risks, and other factors which were required to be included in proposal papers under the OAG Guidelines.

In July, I was informed that only one scope paper had actually been seen by the President. The CIA had prepared others, but these had been “intercepted” by the NSC Staff before reaching the President. Unless the papers are seen by the President, they cannot help to define the scope of the activity he actually approved. When the CIA discussed these “interceptions” with the NSC Staff, the staff gave its assurance that it would begin to distribute SCC minutes to the Agency.

One particular matter that could be discussed with Admiral Turner, therefore, is the current status of the “scope paper” procedure. He could also be asked whether the Covert Action Staff and General Counsel have been regularly provided with necessary SCC minutes since the NSC assurance to do so on a regular basis.

In general, the Board should keep in mind that the problems with current covert action review and approval practices have been identified as originating in the NSC Staff, not the CIA. At the staff level, the CIA has attempted to cooperate with other agencies to the maximum extent possible, and has shown considerable sensitivity to complying with SCC and Presidential instructions.

B. State-CIA Agreement on Proposal Coordination

At the last Board meeting, it was reported that the State Department and the CIA had recently reached an agreement concerning coordination of covert action proposals between those two agencies during the development stage of the proposals.⁵ A copy of this agreement, called “Guidelines for Covert Action Proposals,” is attached for reference at Tab A.⁶ These guidelines have now been issued internally within CIA and communicated to Ambassadors by the State Department.

The new Guidelines state that it is CIA’s “intent to engage in maximum consultation with all interested parties during the development of the proposal, including consultations with the Department of State and the NSC and, as appropriate, other agencies. . . .” With respect to the State Department, these consultations will include the State regional bureau, INR, the Under Secretary for Political Affairs, and (except in “time-urgent situations”) Ambassadors. The Guidelines also require CIA to submit covert action proposals and draft findings to the SCC Chairman (the National Security Advisor) at least two business days prior to the SCC meeting at which it will be considered.

These Guidelines should help to remedy most of the State-CIA coordination problems that have arisen in the past. In addition to complimenting Admiral Turner on the guidelines, the Board may wish to ask him how they are working thus far (it may be too early to tell); how they will apply to “appropriate” consultations with agencies other than State; and whether they have been endorsed by the NSC or full SCC.

The Board should also be aware that these new Guidelines do not address such areas of central concern as the inability of SCC members to review covert action papers before or after submission to the President. With respect to the advance distribution of covert action proposals papers before SCC meetings, moreover, these procedures may actually augment the current problem rather than cure it.

C. Adoption of OAG Guidelines by the SCC

For the Board’s information, a document was recently located in the files of the CIA’s Covert Action Staff which I believe confirms the SCC’s adoption of the Ford Administration OAG Guidelines. It is a memorandum, dated January 28, 1977, from Dr. Brzezinski to the DCI,⁷ Subject: “SCC Meeting of 26 January 1977.” It reads in relevant part:

“The following records for the official record the decisions of the NSC Special Coordination Committee on 26 January 1977 for which you are responsible for implementation.”

“The full responsibilities, functions, and procedures of the predecessor Operations Advisory Group (OAG), including provisions that principals are expected to attend meetings, are to be assumed by the SCC. The Attorney General advised that he would report at the next meeting on proposed revisions of E.O. 11905 to implement this decision.”

The OAG Guidelines were originally adopted in July 1976 to govern the conduct of OAG business. As noted above, they provided for an inter-agency working group to consider covert action proposals before full SCC consideration; require that proposals be disseminated at least 48 hours before meetings; specify the information which must be included in proposals submitted both to the OAG and to the President, and provide for temporary retention of documents to meet “current needs.” They do not address the questions of review of proposal documents before submission to the President, or review of Presidential documents after his approval. These guidelines were supplemented by a separate document entitled “Special Activity Review and Approval Criteria,”⁸ which describes the covert activities that must be reviewed by the OAG because they require a Presidential finding or because they involve significant changes in previously approved activities.

The OAG Guidelines and supplemental criteria have been incorporated in internal CIA procedures. It is my understanding that John McMahon is prepared to brief the Board on these and other internal CIA regulations pertaining to covert actions. (Copies of the OAG Guidelines are not included as tabs but will be available for your review at the meeting.)

II. Sensitive Collection Review and Approval Procedures

John McMahon is also apparently prepared to brief the Board on current sensitive collection review and approval procedures. Even if the Board does not wish to re-open this matter at this time, it may be valuable to get an up-date on review and approval practices.

As decided in part by the President last year, the current procedure is as follows: the DCI reports sensitive collection proposals to the SCC Chairman (Dr. Brzezinski) either orally or in writing; the SCC Chairman consults with the Secretaries of State and Defense before exercising his discretion to approve the proposals or refer them to the SCC, any SCC member, or to the President for review and approval; and the DCI briefs the SCC annually on ongoing activities which he regards as politically sensitive, with the scope of the review determined by the SCC Chairman.

The Board may wish to ask how many sensitive collection proposals have been submitted in writing rather than orally; how often sensitive collection proposals are referred to the SCC or an SCC member rather than the President; and how long and detailed the annual briefings have been. (According to one account, the entire annual briefing for both on-going covert actions and sensitive collections lasted twenty minutes.)

III. E.O. 12036 Procedures

All of the Attorney General-approved procedures mandated by E.O. 12036 that apply to the CIA have now been implemented. The CIA General Counsel’s Office is sponsoring a continuing series of three-day training sessions with operational personnel to educate CIA employees in the requirements of the new procedures. In addition, the General Counsel’s office recently completed a handbook for employees on the 12036 procedures which is both comprehensive and comprehensible. I feel it would be appropriate for the Board to support and encourage activities such as these in its meeting with Admiral Turner.

One question that the Board may wish to pose to Admiral Turner is whether, in his view, any of the 12036 procedures have unduly interfered with operational requirements. If the Board does want to explore this area, it should be aware that the CIA General Counsel’s Office recently submitted to the Justice Department a set of proposed revisions to the 12036 procedures. (These are summarized in Item 9 of the Board’s briefing book.)⁹ These proposed revisions are relatively minor in nature; none would result in a structural change of the current procedures.

IV. IOB–CIA “Relations”

In general, I have found the CIA officials with whom I have dealt to be very cooperative in terms of providing information, access to information, and copies of documents necessary for the Board’s review of particular activities or internal procedures. The primary unresolved issue concerns the reporting of activities raising questions of legality or propriety that also fit the “most exceptional cases” exception contained in Dr. Brzezinski’s March 24 memorandum, a copy of which was sent to the DCI.¹⁰ Even though the resolution of this issue is essentially an internal White House issue, the Board may wish to ask Admiral Turner whether there have been any additional activities that he has not reported to the Board under this exception.

It may also be recalled that Admiral Turner’s January 31, 1980, annual report to the Board (Tab B)¹¹ further interpreted his reporting obligation under E.O. 12036 as limited to activities that he considered to be illegal or improper, and to “any significant intelligence activity that raises serious issues of legality or propriety. . . .” He also declined to specify the senior officials with whom he consulted in preparing his request.

A clarification of the correct Executive Order reporting standard was contained in a letter sent to Admiral Turner by the IOB Chairman in April (Tab C).¹² As noted in the letter, the CIA General Counsel expressed his agreement with this clarification on Admiral Turner’s behalf. (No agreement was reached with respect to the specification of senior officials with whom he consulted in connection with the annual report.) Because the reporting standard clarification was not discussed directly with Admiral Turner, I believe it would not be inappropriate for the Board to reiterate its understanding of the Executive Order standard and confirm that Admiral Turner in fact agrees with the Board’s clarification.

V. APEX/ROYAL

Over the past two years, the CIA and NSC Staff have developed a new security classification program known as “APEX.” The APEX system has four components by which access to compartmented intelligence information is controlled. Of these, the highest compartment is labelled “Royal.” According to a classified brochure issued by the DCI, Royal material consists of extremely sensitive substantive intelligence information. The brochure states that:

“The highly sensitive and critical nature of the material included in ROYAL dictates that its distribution be severely limited, distinctly selective, and tightly controlled. Departments and agencies originating ROYAL materials will disseminate such material only to specific individuals by name. Personnel authorized to receive ROYAL material will be determined by NFIB Principals or their designated representatives.”

Contrary to some recent press accounts, this system has not yet been implemented. The current target date is January 1981, but it is likely to be pushed back even further.

The Board may wish to discuss with Admiral Turner what consideration was given to the needs of intelligence oversight in developing this system, and specifically, what procedures will exist to ensure that the Board’s access to ROYAL-designated documents will not be curtailed.

1. Source: Carter Library, National Security Affairs, Staff Material, President’s Intelligence Oversight Board, Box 3, Meeting 9/17/80. Secret.
2. No minutes of this meeting were found.
3. The OAG Guidelines were sent under a July 19, 1976, covering memorandum from Scowcroft to Secretary of State Kissinger, Secretary of Defense Rumsfeld, JCS Chairman General Brown, and DCI Bush. (National Security Council, Ford Administration Intelligence Files, Operations Advisory Group (OAG), 30 Jun 1976–Jan 1977)
4. Not found. Brackets are in the original.
5. Presumably the IOB meeting on June 13. No minutes of this meeting were found. However, the covert action briefing paper distributed prior to the meeting by James Dick to the Intelligence Oversight Board, June 13, is in the Carter Library, National Security Affairs, Staff Material, President’s Intelligence Oversight Board, Box 3, Meeting 12/15/1980.
6. Not found attached.
7. Not found.
8. See Document 80 in Foreign Relations, 1969–1976, vol. XXXVIII, Part 2, Organization and Management of Foreign Policy; Public Diplomacy, 1973–1976.
9. Not found.
10. See Document 107.
11. Not found attached, but see Document 103.
12. Not found attached.