66. Memorandum From the Chairman of the Intelligence Oversight Board (Farmer) to President Carter1
- Would an Executive Order requirement that the IOB report to both the President and the Justice Department undermine its confidential operation?
The members of the Intelligence Oversight Board oppose the proposal of the Attorney General to amend the current draft of Executive Order 119052 to require that the IOB report to the Attorney General as well as the President certain analyses and recommendations prepared for the President. It is our judgment that such a requirement impairs the confidentiality of IOB advice to the President and opens it to excessive Congressional scrutiny and possibly to Freedom of Information processes.
The latest redraft of Executive Order 11905 provides that the IOB, as part of the White House staff, reports to the President only. President Ford’s Order requires the IOB to report to the Justice Department, as well as to the President, on matters which in the Board’s view raise serious questions of legality. The present redraft requires the IOB to forward to the Attorney General only those matters identified as legal issues in an intelligence agency’s report to the IOB. The Attorney General proposes to modify the current draft of the Executive Order, as outlined in his recent memorandum to you. Nevertheless, we recommend adoption of the current draft for the following reasons.
The Senate Intelligence Committee staff has indicated a desire that the IOB be more independent of the President and exercise its oversight function in some form of collaboration with the Committee. The Committee staff specifically cites the existing requirement for IOB reports to the Attorney General as the basis for treating the IOB as different from other White House staff and, therefore, more amenable to Congressional scrutiny. From a purely legal standpoint, the question of Congressional access to Presidential advisors is unclear.
There are no controlling court decisions. However, extensive precedent of a largely political nature does indicate consistent Congressional reluctance to demand access to the work and recommendations of the President’s personal staff.[Page 338]
You have told us that you wish the IOB to function as a small group of confidential advisors, not subject to direct dealings with Congress except in rare situations under specific Presidential instruction to do so. Furthermore, in your reorganization of the Executive Office you made a deliberate decision that the IOB should be a part of the White House Office. The IOB believes that decision would be undermined by imposing a formal reporting requirement on the IOB different from that of any other member of the White House staff.
The members of the IOB feel strongly that IOB advice to the President must enjoy the same kind of confidentiality as do communications between the President and other members of his White House staff. This is true whether the IOB’s report to the President concerns a matter raised by an intelligence agency, a matter uncovered by the IOB in the course of its oversight, or a matter referred to the IOB by the President. While the President’s Counsel frequently consults with the Attorney General on matters being prepared for Presidential consideration, such referrals are made on the basis of the Counsel’s own judgment and not as a result of a blanket requirement imposed by Executive Order to report all legal issues.
Under established procedures, the Counsel also automatically refers to the Attorney General any indications of criminal violations. This referral implements the general obligation of all Government officials to report crimes to the Justice Department. Therefore, it seems unnecessary and inappropriate for the Executive Order to address it again through a broad reporting requirement on all legal issues.
All indications are that the operation of Executive Branch oversight of intelligence activities will be raised when the Senate considers the upcoming legislation on the intelligence community, and that attempts will then be made to legislate some sort of relationship between the IOB and the Congressional oversight committees. In our opinion, such ties would lessen the effectiveness of the IOB as a Presidential instrument and should therefore be opposed. A continuation in the Executive Order of dual reporting requirements for the IOB would make it considerably more difficult to resist that type of legislation.