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  4. Document 36

36. Summary of Conclusions of a Special Coordination Committee Meeting1

Washington, April 14, 1977, 9:00–10:15 a.m.

SUBJECT

  • Consideration of Attorney General’s PRM/NSC–11 Subcommittee report on “Foreign Intelligence Electronic Surveillance Legislation”

PARTICIPANTS

  • The Vice President Denis Clift

  • State

    • Secretary Cyrus Vance
    • Harold Saunders

  • NSA

    • Benson K. Buffham
    • Gerard Burke

  • Justice

    • Attorney General Griffin Bell
    • John Harmon
    • Michael Kelly
    • William Funk
    • Frederick Baron
  • The Vice PresidentDenis Clift

  • Defense

    • Secretary Harold Brown
    • Charles Duncan, Jr.
    • Deanne Siemer
    • Robert T. Andrews

  • CIA

    • Stansfield Turner
    • Anthony Lapham

  • NSC

    • Dr. Zbiginiew Brzezinski
    • David Aaron
    • Samuel Hoskinson
    • Robert Rosenberg

SUMMARY OF CONCLUSIONS

Dr. Brzezinski opened the meeting with commendation for the subcommittee’s efforts, noting that they concluded that the Administration should introduce legislation on this subject. Failure to do so promptly will result in unilateral and potentially counterproductive initiatives by members of Congress. Each of the seven issues and conclusions discussed follow:

1. Should the bill include authorization for physical search? It was agreed that physical searches should not be included in this bill but that this problem should be studied further as part of PRM/NSC–11.

2. Should the bill be expanded to cover electronic surveillance of U.S. persons overseas? The Subcommittee had recommended that it should not, but that Justice should work on separate overseas legislation, which might include judicial warrant procedures. The Attorney General, Secretaries of State and Defense and DCI all expressed concern [Page 138] that the application of warrants to electronic surveillance operations abroad would severely complicate our problems in dealing with foreign intelligence services and result in exposure of liaison relationships or in denial of cooperation by foreign services who feared “leaks.” The Vice President disagreed on the basis that the Constitution follows Americans abroad and without this provision, the Administration will face serious credibility in Congress. The group deferred a conclusion and remanded this issue back to the subcommittee for research on how liaison relationships might be protected prior to Monday 18 April.

3. Should the bill include communications intelligence and, if so, in what way? The subcommittee had recommended that the bill authorize without a warrant NSA’s activities [less than 1 line not declassified] which are directed solely against foreign powers and non-U.S. persons. The Attorney General and the Vice President dissented, proposing that special one-year and limited judicial warrants be required. The Secretary of Defense and DCI supported the Subcommittee recommendation, noting that this effort is directed only against foreign powers, with minimization procedures approved by the Attorney General to protect incidental intercept of U.S. persons, and that to involve the judicial branch would either be cosmetic in nature, or would tie our hands so much that the sources would dry up waiting for approval. Secretary Vance questioned what warrants would really accomplish but was inclined to agree with the Attorney General and Vice President. The group deferred a conclusion pending a further research by the Subcommittee due 18 April.

4. Should an explicit reservation of Presidential powers be included in this bill? The group unanimously agreed that no reference to Presidential powers should be within the bill.

5. What should be the standards for targeting a U.S. person? The subcommittee, with all principals except the Vice President concurring, concluded that a U.S. person should be able to be targeted if he engages in criminal activity related to clandestine intelligence, sabotage or terrorism or if he engages in non-criminal activity which clearly evidences activities on behalf of a foreign intelligence service which threaten the national security or our foreign relations. While acceding to the majority, the Vice President asked the Attorney General to separately look at changes to the criminal law which would enable us to target U.S. persons without going beyond criminal standards.

6. Should the Executive Branch certification to the judge, when U.S. persons are targeted, that the information sought is properly foreign intelligence be subject to judicial scrutiny? The subcommittee recommended and the principals unanimously concluded that the judge should be able to review the certification only to determine if it is clearly erroneous.

7. What should be the standard for disclosure of sensitive information on judicial proceedings? The subcommittee recommended and the [Page 139] principals unanimously concluded judicial review should be limited to a finding as to whether certification was clearly erroneous.

It was agreed that one last attempt would be made to resolve issues 2 and 3 prior to 18 April and subsequent review by the President.

Zbigniew Brzezinski
  1. Source: Carter Library, National Security Council, Institutional Files, 1977–1981, Box 85, SCC011 Intelligence Structure and Mission, 4/14/77. Top Secret; Sensitive. The meeting took place in the Situation Room. The version of the subcommittee report under discussion was not found.↩