64. Letter From the Chairman of the Senate Select Committee on Intelligence (Inouye) and the Vice Chairman of the Senate Select Committee on Intelligence (Goldwater) to President Carter1
We are writing to explain in more detail the reasons for our request that the draft language we sent to you in our October 11, 1977, letter be included in the Executive Order governing the intelligence activities of the United States.2 Because we fully share your expressed views that this Executive Order should serve as a model or blue print for the statutory charters which are to follow, we believe it is of utmost importance to include the language that we sent to you for your study and consideration.
The provisions are fundamental. They are critically necessary for governance of secret activities and particularly secret intelligence activities. We agree with your view that in a Constitutional government the minimum safeguard for the protection of a democratic constitutional government such as ours to protect against the possible misuse of the power that accrues from the conduct of secret activities—secret activities which at best are reviewed by only a small number of especially delegated officials in both the Executive and Legislative branches—is a full awareness of the nature of Executive branch secret intelligence activities by the Legislative branch. We are jointly committed to strengthening the constitutional oversight mechanisms of both the Executive and Legislative branches. The failure over the past thirty years of oversight must not be repeated.
In discussions with those involved in the drafting of the Executive Order on Intelligence Activities in the Executive branch, the Committee has made it clear that we fully recognize there are gray areas in which the respective prerogatives and privileges of the Legislative and Executive branches may on occasion collide. We have made it clear that we recognize that there are two sides to the question of full and complete access to information: That just as there is a danger of a President or Attorney General misusing secret authorities, or that there is a danger of an illegal “plumbers” activity on the one hand, so too, on the other [Page 331] hand, there is a danger of an irresponsible Senator or committee in the Legislative branch. And that is why we have developed with Admiral Turner a clause to add to the basic S. Res. 4003 language as follows:
Consistent with the authorities and duties conferred by the Constitution upon the Executive and Legislative branches, the Director of Central Intelligence and the head of any department or agency of the United States involved in any intelligence activities shall: . . .
Further, the Committee recognizes that there are fragile and important sources and methods to be protected and that is why we have added to the language of S. Res. 400:
. . . Due consideration shall be given to the duties under law of the DCI to protect sources and methods.
And third, the Committee recognizes that the President should be allowed flexibility in the timing of reporting abuses to oversight committees. And that is why we have made the following modification:
report in a timely fashion [rather than immediately]
We would hope that our recommended language will be accepted as a whole because it is based upon a long history of events which goes back to the Second World War. Alternate language proposed by some lawyers in the Executive branch may seem at first glance neutral enough, but which in fact, if used, would trigger considerable opposition. The language that we have submitted to you for your consideration builds upon the understandings that were arrived at when the 1946 Atomic Energy Act4 was enacted, that were contained in the Senate Watergate inquiries and the inquiries into illegal and improper intelligence activities. The language cited earlier recognizes the fact that the President or perhaps the Legislature may have to take extraordinary steps to deal with emergency situations in which the security of the nation is at risk. It also fully recognizes that on rare occasions an impasse may occur between the Legislative and Executive branches which may require the Courts to decide as the Constitution provides.
The Committee has delayed its introduction of statutes governing intelligence activities until this framework Executive Order has been agreed upon and issued. We recognize that the process of enacting statutes will necessarily be a lengthy one. We are also in agreement with you that there are certain intelligence activities which should not be specified in detail in legislative charters. It is therefore all the more [Page 332] necessary to make it clear that we are in agreement that the oversight committees of the Congress should have full and complete access to information as set forth in the language that we have given to you. This language is based on thirty years of give and take between successive Administrations and Congresses. It contains key phrases which have been worked out carefully and after painful experience and debate, and should not be unhinged.
This recommended provision is fundamental to the success of our joint effort. We believe that it expresses the spirit of comity and our mutual conviction that meaningful and effective oversight of intelligence activities is a shared responsibility of both the Legislative and Executive branches and that to carry out this responsibility the Congress must have full access to information as set forth in the language we have sent to you. We, of course, would be happy to meet with you at any time to discuss these questions, should you wish.
With kind regards,
Aloha,
-
Daniel K.
Inouye
Chairman - Barry
Goldwater
Vice Chairman
- Source: Carter Library, National Security Council, Institutional Files, 1977–1981, Box 89, SCC036 Intelligence EO 11905, 10/18/77. No classification marking. Brackets are in the original.↩
- The letter commented on the proposed Executive Order on Intelligence Activities. (Ibid.)↩
- S. Res. 400, passed by the Senate in May 1976, established the Senate Select Committee on Intelligence.↩
- P.L. 79–585.↩