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

85. Memorandum From the Chairman of the Intelligence Oversight Board (Farmer) to the President’s Deputy Assistant for National Security Affairs (Aaron)¹

Washington, May 15, 1978

SUBJECT

• Guidelines on Reporting to Congress Under E.O. 12036

At our last meeting with the President,² he asked the IOB to draft guidelines implementing Section 3–4 of E.O. 12036, which would ensure his control of the reporting process, as outlined in his July 12, 1977 letter to former SSCI Chairman Inouye.³

Our discussion of this issue with the agencies reveals a fundamental difference of approach. The Board feels that the paramount principle is Presidential control of the Executive oversight process and of reporting to Congress, and that except for special circumstances this objective outweighs the interest of reporting to Congress as rapidly as possible. Based on the President’s comments on the issue, we believe he needs and wants adequate opportunity to consider proposed remedies and the timing of informing Congress from the Presidential perspective, under consistent standards and free from institutional pressures at the agency level. (See attached excerpt from IOB briefing paper for the President.)⁴ The opposing view, particularly in the case of the CIA, is that the speed with which an agency head reports to Congress is paramount, even if it might mean little or no opportunity for Presidential review. This approach undercuts the concept of prior internal Executive Branch oversight for the President.

Draft guidelines, in the form of a memorandum from the President, were sent to the CIA and the Justice Department for comment. That draft is at Tab A.⁵ It provides for each agency to continue to report activities which raise questions of legality or propriety to the IOB, or in pressing situations, directly to the President. In either case, the President would review determinations that an activity is illegal or improper, proposed corrective action and the manner and timing of reporting to the Congress, before Congress was informed. Very minor matters could be reported to the Congress immediately, and an agency head “at any time” could suspend a questionable activity pending formal determination.

The CIA General Counsel, Tony Lapham, responded with several reservations to the Board draft.⁶ His primary reservation was that the first draft would result in a matter being reported to the Congress only if the IOB decided to refer it to the President “and then only in a manner and at a time specified by the President on a case by case basis.” He said agency heads feel personally responsible to ensure that at some point improper or illegal activity is reported to Congress. He also suggested that this would be unacceptable to the congressional committees. In order to reassure agency heads and Congress, Lapham raised the possibility of a 30-day waiting period from the date a matter is reported to the IOB, during which notification of Congress would be deferred in order to permit review for the President and any required corrective action.

The entire Board subsequently discussed the issue at some length with Adm. Turner. He reconfirmed his view that the DCI must be free to go directly to the Congress as soon as he thinks it is appropriate. Adm. Turner said that both he and the congressional committees understand the Inouye letter, and the Executive Order, to call for prompt briefing on all questions of legality and propriety without necessarily waiting for prior Presidential review.

Moreover, it is now clear that the CIA is not following the standard set by E.O. 12036 in what they do report to Congress. Section 3–4, like the Inouye letter, authorizes reporting to Congress when there has been a determination that an activity is in fact illegal or improper. However, the CIA has been reporting matters if there is a question of legality or propriety, even before such a determination has been made.

On May 10, the IOB received a response from the Attorney General.⁷ He sees no legal problem with requiring that Congress be informed only after the President determines “the manner and timing of reporting to the Congress.” However, he said three policy problems should be brought to the President’s attention: that the procedure would burden the President and retard reporting to Congress; that our first draft might be viewed by Congress as an attempt to thwart prompt and complete reporting; and that agency heads might wish to report major questions immediately especially if a news story is imminent. The Attorney General wrote that “In such instances, the prompt report to Congress is in the President’s best interests and there may be no time to clear this decision with the President.”

We also discussed the matter with Bob Lipshutz, including the possibilities of modifications reflecting the concern raised by CIA.

There are three separate issues for the President to decide:

• 1. Will agencies report matters which raise questions, or only those determined to have been abuses?
• 2. Should there be a definite time after which an agency may report to Congress even if the President has not yet decided whether he feels the activity is improper, what corrective action to take, or how best to inform Congress?
• 3. Should a provision be made for agency heads to inform Congress immediately, without adequate opportunity for prior Presidential review, if a major problem is about to become public or otherwise seems to require especially speedy notification of Congress?

Our revised draft, which addresses these issues, is at Tab B.⁸ The new material is italicized. First, it makes clear that the agency would only report to Congress activities on which the agency has taken a position that an impropriety or illegality has occurred. If this is not what the President intended, the opening sentence of paragraph 4 should be modified accordingly.

Second, our revised draft provides for a waiting period and permits the agency heads thereafter to report the matter to Congress. While the 30-day time period suggested by the CIA General Counsel is adopted, Governor Scranton, Senator Gore and I all feel it is important to avoid an excessively rigid timetable. Flexibility should be preserved in case the nature of the matter requires more extensive review for the President to be able to know the full ramifications of the issue, to have approved a particular form of corrective action, or to complete additional consultation within the Government or with our allies which might be desirable prior to congressional investigation of the matter. Accordingly, this draft provides for the IOB to obtain an additional 30-day deferral, without requiring the President’s immediate staff to keep track of the running time or to request the deferral.

Third, the revision also recognizes the possibility that an agency head may feel compelled to report some matters to Congress more rapidly than provided for in this timetable. In that case, the draft still requires the agency to flag its concern and then to discuss the urgency with the President or the IOB. The President should still retain control of the process. There conceivably could be instances when despite public disclosure of a controversy, he will want to defer testifying in detail to Congress until he has explored alternative solutions, consulted with allies, etc. Even if the committees are to be briefed almost immediately, it is particularly in such situations that he may want to inform the committee leadership himself.

We think this revised version, while modifying the scheme set forth by the President in his letter to Chairman Inouye, meets the main concerns raised by the Attorney General and the CIA. We request that following your consideration of these issues and any further discussions you may wish to have with the Justice Department and the DCI, an appropriate draft or alternative drafts be prepared for the President’s review in the near future.

1. Source: Carter Library, National Security Council, Institutional Files, 1977–1981, PD 17 [5]. Unclassified.
2. A February 7 memorandum from Farmer to Carter in preparation for their February 9 meeting is ibid. Minutes of this meeting were not found.
3. See Document 58.
4. Attached but not printed.
5. Attached but not printed.
6. Not found.
7. Not found.
8. Attached but not printed.