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

86. Memorandum From the Chairman of the Intelligence Oversight Board (Farmer) to President Carter¹

Washington, May 25, 1978

SUBJECT

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

1. SUMMARY

At our last meeting, you asked the IOB to draft and coordinate with David Aaron guidelines implementing Section 3–4 of E.O. 12036, ensuring your control of the reporting process. You indicated that the guidelines should track your July 12, 1977, letter to former Senate Intelligence Committee Chairman Inouye,² and should preserve a cushion of time for you to review determinations and direct corrective action, with the benefit of independent staff judgment and analysis of the facts. The “Inouye letter” and pertinent portions of our briefing paper from that meeting are at Tab A.³

Proposed guidelines were sent to the CIA and the Justice Department and David Aaron for comment.⁴ Our discussion 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 extraordinary circumstances, this objective outweighs the benefit of reporting to Congress as rapidly as possible. You have indicated that you want 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.

However, CIA and, to a lesser extent, Justice have indicated that they consider speedy reporting to Congress paramount, even if as a result there might be little or no opportunity for meaningful Presidential review. We believe such an approach would preclude effective oversight at the White House level.

2. PROPOSED GUIDELINES

Guidelines tracking your letter to Senator Inouye are at Tab B.⁵ They would be implemented by a memorandum from you to the DCI, the Attorney General and the Secretary of Defense.⁶

Each agency would continue to report activities which raise questions of legality or propriety to the IOB, or in pressing situations, directly to you. In either case, you would first review determinations that an activity is illegal or improper, the proposed corrective action and the manner and timing of reporting to the Congress. Thereafter, Congress would be informed. Minor matters could be reported to the Congress immediately, and an agency head at any time could suspend a questionable activity pending formal determination.

3. CIA POSITION

The Board discussed the reporting issue at some length with Adm. Turner. He reconfirmed his view that the DCI should 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 your letter to Senator Inouye, and the Executive Order, as permitting agency heads to brief Congress on matters 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 to Congress matters which they deem to raise a question of legality or propriety, even if the CIA has not yet concluded they are illegal or improper.

4. JUSTICE POSITION

Attorney General Bell finds no legal problem with requiring that Congress be informed only after you determine the manner and timing of reporting to the Congress. However, he raises three policy concerns for your consideration: that the proposed guidelines would unduly burden you and retard reporting to Congress; that, in any event, it might be viewed by Congress as an attempt to thwart prompt, complete reporting; and that agency heads need to report major questions to Congress immediately, especially if a news story is imminent. The text of his comments is at Tab C.⁷

5. ISSUES

a. Should agencies report to Congress any matter which raises questions of legality and propriety, or only matters determined within the Executive Branch to have been abuses?

b. Should there be a specific deadline after which an agency may report to Congress, even if you have not yet reviewed whether an activity is improper or determined what corrective action is necessary, and how best to inform Congress?

c. Should a provision be made for agency heads to inform Congress about a problem immediately, without opportunity for effective Presidential review, if the agency believes the circumstances require exceptionally speedy notification of Congress?

The reporting scheme set forth in your letter to Senator Inouye answered each of these questions in the negative, and the IOB’s proposed guideline follows that scheme.

6. RECOMMENDATION

a. The IOB recommends that you send the memorandum at Tab B to the Attorney General, the DCI and the Secretary of Defense. David Aaron has reviewed the issues raised by the agencies and our proposed guidelines, and concurs in this recommendation.

b. However, in light of the concern expressed by the Attorney General and the DCI about the possible negative reaction of some congressional committee members, the Board has drafted an alternative version of the guidelines. This alternative version of the guidelines is at Tab D.⁸ The alternative imposes time limits for reporting to Congress unless you specifically direct a further deferral. Even if this approach is adopted, Governor Scranton, Senator Gore and I feel a rigid timetable would be unwise, in case you require more time to consult with allies to weigh the ramifications and to implement corrective action. The alternative provides for the IOB to obtain an additional 30-day deferral, without requiring your immediate staff to keep track of the running time or to request the deferral. If you have referred a matter to Dr. Brzezinski for further action, we would coordinate with the NSC to determine whether the additional 30-day deferral was necessary.

The alternative also contemplates emergencies when an agency head feels a matter must be reported to Congress more rapidly than provided for in this timetable. Nevertheless, he must flag his concern and then discuss the urgency with you or the IOB. There would be instances when despite public disclosure, you will want to defer testifying in detail to Congress. Even when committees are to be briefed immediately, you may want to inform the committee leadership yourself.

The IOB does not recommend this compromise. Although it addresses the concerns of the DCI and the Attorney General, it undercuts the Inouye letter and would substantially weaken your control over the reporting process. While there may be special emergencies handled on a case by case basis, if the guidelines specifically provide for immediate reporting to Congress, such an “exception” is likely to become “the rule.” Moreover, in our judgment, this compromise is unlikely to satisfy those members of Congress who might be critical of the guidelines recommended by the Board and the NSC.

7. ACTION

a. Send letters at Tab B which I have signed.

b. Send letters at Tab D which I have signed.

c. Revise as indicated.

d. Other.

1. Source: Carter Library, National Security Council, Institutional Files, 1977–1981, Box 11, PD 17 [2]. Unclassified. Carter wrote at the top of the page, “To Lipshutz—I prefer Inouye letter, but am willing for Stan or AG to see me personally if necessary to expedite reporting to Congress. JC.”
2. Not found.
3. Not found attached.
4. See Document 85.
5. Not found attached.
6. See Document 90.
7. Not found attached.
8. Not found attached.