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

84. Summary of Conclusions of a Special Coordination Committee Meeting¹

Washington, May 15, 1978, 4:30–6:00 p.m.

SUBJECT

• Legislative Charters for Intelligence Community

PARTICIPANTS

• State

  • Ben Read, Under Secretary for Admin
  • Herbert Hansell, Legal Adviser

• Defense

  • Secretary Harold Brown
  • Deanne Siemer, General Counsel

• JCS

  • General William Smith

• Justice

  • Attorney General Griffin Bell
  • John Harmon, Assistant Attorney General, Office of Legal Counsel

• NSA

  • Vice Admiral Bobby Inman

• White House

  • David Aaron (Acting Chairman)

• NSC

  • Samuel Hoskinson
  • Robert Rosenberg

• CIA

  • Admiral Stansfield Turner
  • Frank Carlucci, Deputy Director
  • Tony Lapham, General Counsel

• OMB

  • Randy Jayne, Associate Director for National Security and International Affairs

• FBI

  • Director William H. Webster
  • John Hotis, Inspector, FBI

SUMMARY OF CONCLUSIONS

The SCC met to begin its consideration of S2525 introduced by the Senate Select Committee on Intelligence (SSCI). Issue papers had been prepared by a special Senior Working Group and reviewed by the National Foreign Intelligence Board. The agenda included consideration of a statement of charter legislation principles, Title VI (NSA), Title V (FBI), Title IV (CIA) and Title III (Foreign Intelligence Surveillance).

A set of revised charter legislation principles were approved in substance (revised list attached). It was agreed that the principles should provide a broad framework for subsequent discussion with Congress. All dealings with Congress will be conducted within the context of these principles.

NSA’s proposed charter (Title IV) was endorsed subject to the working out with the SSCI a number of secondary technical changes and modifications. State receded on a clarification it has proposed relating to 22 USC 2680a, involving the need for Ambassadorial cognizance of NSA field operations, and agreed to work out its possible problem at the staff level.

The FBI’s proposed charter (Title V) was endorsed subject to the modifications set forth in the issue paper prepared by the Bureau. Director Webster said that the Title V provided a very positive statement of the FBI’s foreign intelligence and counterintelligence role. He foresaw no basic changes in this area. Concern was expressed that the distinction between counterintelligence and law enforcement should not be drawn so rigidly as to preclude necessary flexibility in this area.

CIA’s proposed charter (Title IV) was endorsed in principle. The following additional judgments were reached:

—The SCC should consider the need for additional legislation dealing with the overall problem of unauthorized disclosure of national security information. Justice should prepare through the Senior Working Group an issues paper for early SCC consideration.

—Any language that appears to reserve to the Congress not just oversight responsibility but also operational authority with respect to the intelligence functions should strongly be opposed. The Attorney General opined that such language would raise grave constitutional issues.

—It is politically unwise to include language in Title IV expressly authorizing other departments and agencies to assist CIA with cover arrangements. This is better handled by classified Presidential directives.

—Language that appears to condition intelligence collection authority on prior determinations that the information to be collected is not available from overt sources should be opposed as impractical.

—State’s proposal to require liaison functions to be conducted “in consultation with the Secretary of State” was reserved for consideration with Title I.

—State receded on a clarification it had proposed relating to 22 USC 2680a involving the need for Ambassadorial cognizance of CIA field operations, and agreed to work out its possible problem at the staff level.

The foreign intelligence surveillance issues posed in Title III were resolved as follows:

—Physical searches and mail openings should be reserved for SCC consideration when the other restrictions issues of Titles I and II are on the agenda. All restrictions topics should be considered as a whole.

—The Administration’s position on electronic surveillance for foreign intelligence purposes within the U.S. is adequately reflected in the current bill on this subject before Congress.² Nothing else remains to be done except to continue to work for the bill’s enactment.

—There was difference of opinion over how to proceed on the issue of electronic surveillance directed against U.S. persons abroad. The Attorney General felt strongly that nothing should move forward on the subject until the fate of domestic counterpart bill before Congress is settled.³ He recalled that the President had some time ago agreed to this strategy.⁴ Others could see some tactical political advantage in proceeding to resolve all the outstanding electronic surveillance issues now and discuss them with Congress, either together with or after discussion on Titles IV, V, VI. Since the issues paper on this subject needs further working level review, it was agreed to pursue this subject at the next SCC meeting on S2525.

The following procedural and administrative decisions were reached:

—After the President has reviewed the results of this meeting, senior staff level discussions should be opened with the Senate Select Committee on Intelligence per the President’s commitment. The DCI will act as the overall coordinator and strategist of these discussions for the Administration’s side, although it is anticipated that the General Counsels and technical experts will take the lead for their individual agency charters. Status reports will be provided to all SCC members on a timely basis.

—The next order of SCC business on S2525 should be the Title I community organization sections. Issues papers should be prepared to allow for an SCC meeting within a month.

—The Senior Working Group should begin work as soon as possible on a new draft restrictions title.

—The SCC will be the principal interagency coordination body on S2525. OMB’s Legislative Reference Service will provide to the SCC a list of specific paragraphs it proposes to circulate to agencies and departments who have an interest but are not represented at the SCC.

Attachment

Paper Prepared by the National Security Council Staff⁵

Washington, undated

INTELLIGENCE CHARTER LEGISLATION PRINCIPLES

1. The Executive Order should provide the basic foundation for the intelligence charter legislation. The treatment accorded substantive issues appearing in both Executive Order 12036 and S. 2525 should not be in conflict.

2. Clear, concise, and reasonable authorities, responsibilities and limitations should be utilized to provide a readily understandable and nonburdensome guide for intelligence officers and employees. Excessively detailed authorities or restrictions may cause unintended results or preclude necessary and appropriate intelligence activities.

3. The balance between executive branch responsibility to execute the laws and the responsibility of Congress to enact laws must be maintained.

4. General oversight and reporting requirements should ensure that Congress receives necessary information but does not obstruct the normal functioning of the Intelligence Community. While restrictions and oversight provisions are complementary, excess in either area could frustrate legitimate intelligence activities.

5. The implications of the organization of the Intelligence Community as set forth in S.2525, particularly the relationships between the various entities, must be considered carefully.

6. The bill should not specifically require reporting of liaison relationships and necessary information in this regard should be obtainable under general reporting requirements.

7. The question of adequate statutory protection for intelligence sources and methods should be addressed and resolved in this legislative effort.

1. Source: Carter Library, National Security Council, Institutional Files, 1977–1981, Box 11, PD 17 [5]. Secret. The meeting was held in the White House Situation Room. Carter initialed at the top of the page. In a May 12 memorandum to Brzezinski, Hoskinson wrote, “This is the first meeting of the SCC to consider the intelligence charter legislative problem. We started the wheels in motion for this review of S2525 some time ago, but it took the President’s recent meeting with Senators Bayh and Huddleston to really activate Stan Turner. As you will recall, the Senators hoped to hustle us into intensive talks designed to settle very quickly what they felt were only a few significant points of difference. The President, however, lectured them on the ‛voluminous and detailed’ nature of S2525, the ‛changing mood’ in the country, the need to ‛retain flexibility’ and about the ‛difficult political position’ they had put him in.” (Carter Library, National Security Affairs, Brzezinski Material, Brzezinski Office File, Box 96, Subject Chron, Intelligence (Charter Legislation), 2/77–5/78) Carter met with Senators Huddleston and Bayh, Secretary Brown, and Turner on April 26 from 11:03 to 11:40 a.m. (Carter Library, Presidential Materials, President’s Daily Diary) S. 2525, “National Intelligence Reorganization and Reform Act,” was introduced in the Senate on February 9 and referred to the Senate Select Committee on Intelligence. Documentation on this proposed bill, which is substantial, is in the Carter Library, National Security Council, Institutional Files, 1977–1981, Boxes 94–104 & 121–122, files on Intelligence Charter; Carter Library, National Security Affairs, Brzezinski Material, Brzezinski Office File, Boxes 96–97, files on Intelligence (Charter Legislation); and Carter Library, National Security Affairs, Staff Material, Office File, Boxes 135–136, files on Intelligence Charter.
2. A reference to S. 1566, passed by the Senate on April 20. Carter signed P.L. 95–511, Foreign Intelligence Surveillance Act of 1978, on October 25. It provided for executive authority for electronic surveillance when necessary for national security.
3. A reference to S. 2525.
4. See Document 60.
5. No classification marking.