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

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

Washington, August 17, 1978

SUBJECT

• Summary of your August 15 Meeting With the IOB

This memorandum responds to your request at our August 15 meeting² for a written summary of the principal categories of information and the degree of access to sensitive data which the Board considers essential in order to perform effectively the functions you have assigned to it.

Sensitive Collection Operations

Board access in this area includes both substantive information on specific activities and the authorization to examine the process by which projects are initiated, evaluated and approved.

We do not require the identities of individual sources. However, we believe it is necessary for us to receive on a regular basis detailed briefings on individual operations, identified by country and functional category of target, e.g., a French Cabinet official, a senior German labor union leader, a junior officer of the Italian Communist Party, etc., so that the Board can have a concrete and sophisticated understanding of the kinds of operations that are being run and the considerations that were weighed in the review process.³

Not only is this important in order to provide the Board sufficient background familiarity against which to evaluate specific operations from the standpoint of legality or propriety, but also for the purpose of judging whether the intelligence agencies have received proper authorization for ongoing collection activities, and whether activities treated as “sensitive collection” are in fact “covert actions” requiring compliance with Hughes-Ryan.⁴

Opinions of the Attorney General

Section 3–304 of Executive Order 12036 provides for the Attorney General to “inform the IOB of legal opinions affecting the operations of the Intelligence Community:”.

By memorandum to you of May 12, 1978, a copy of which is attached,⁵ we requested your concurrence for access to legal opinions issued to you and your Assistant for National Security Affairs, and outlined several examples of why such opinions are important to our work. On June 30, 1978, the Attorney General advised you by memorandum⁶ that “My policy on disclosure of such opinions to the IOB is to encourage such disclosure” and that “as President, you can appropriately waive that privilege (of confidentiality) not only for yourself but for all Executive Branch officials.” At the same time, he said that “Given the differing views that may exist within the intelligence agencies, I suggest that decisions on providing opinions to the IOB be made on a case-by-case basis rather than by adopting a blanket waiver of confidentiality.”

During the past few days, the Attorney General has informed me that he has given further thought to the matter, and believes that for the Board to serve you adequately it needs all opinions from all agencies. Therefore, he has decided to grant a blanket release to the Board of all legal opinions issued to him or subordinate agencies of the Department of Justice such as the FBI, and hopes that this action would serve as an example for other intelligence agencies. We also understand from Deputy Secretary Christopher that the Department of State has no objection to a blanket waiver of confidentiality for all Justice Department opinions on intelligence matters issued to the Department of State.

Furthermore, we want to suggest that as your confidential advisers and members of the White House Office it is appropriate for us to be aware of legal advice on intelligence matters which you or other members of your staff have received from the Attorney General. It would appear peculiar, in our view, to be forced to bargain on a case-by-case basis in an effort to learn of legal opinions from your Attorney General in the limited area in which we are serving as your staff.⁷

We request, therefore, that you grant to the IOB a general waiver of confidentiality for all legal opinions issued by the Department of Justice with respect to intelligence matters, including opinions to you and your National Security Adviser.

Guidelines for Reporting Abuses to Congress

You noted on a Board memorandum of May 25, 1978⁸ a preference for deferring agency reports of intelligence abuses until you had been able to review the matter after benefit of IOB staffing. However, you also indicated a willingness to permit the Director of Central Intelligence or the Attorney General to come to you directly if they felt circumstances required immediate reporting to Congress.

Draft guidelines implementing either alternative were submitted by the Board as part of its memorandum. We understand that a final version has been submitted to you by your Counsel.⁹

General Comments

One concept of oversight would have the Board function essentially as a “pressure valve,” to be activated only when necessary upon the surfacing of an intelligence abuse. Under this formulation, the Board would have a nominal need for sensitive data, and would have little or no requirement for access to ongoing operations on a continuing basis. Such a formulation does not square with our understanding of your desire for Executive oversight, although it may partially explain the resistance by the NSC and some intelligence agencies which the Board has met in acquiring data and in establishing its need to know. The Board’s primary role, which you have forcefully emphasized in meetings with the members, is to forewarn you of possible abuses so that potential wrongdoing may be avoided. A secondary, albeit important, role is to alert you to abuses which we believe exist, in sufficient time for you to take the initiative in implementing corrective measures.

We are mindful of your concern for safeguarding national security information and agree fully that access to such material should be determined on a strict basis of need to know. In our view, the Board’s “need to know” details of sensitive collection activities, and to have direct access to legal opinions regarding intelligence activities, derives entirely from the fact that if our judgment on propriety and legality is to be useful to you, it must be not only independent but also well informed.

The Board, consisting of three part-time and a single full-time professional staff person, is simply not equipped to struggle with intelligence agencies or the NSC on a case-by-case basis to justify its need to know. Unless the agencies are required by you to be forthcoming with respect to furnishing the Board with the kinds of information described above, the Board cannot perform adequately the functions assigned to it in the Executive Order and which you have amplified in our meetings with you.

The Board is not in the operational chain of approval for intelligence operations or production, and is therefore sometimes viewed by those directly in the process as a “second guesser” of officials whose responsibility is to initiate or conduct intelligence operations. A certain level of reluctance to share information with the Board is to be expected since its recommendation to you may result in your decision to terminate or modify some approved activity. Since the Board’s only function is to provide you with a judgment independent of the initiating agencies such as the NSC, or the operating agencies such as the CIA and the FBI, the potential value of the Board’s advice to you should be the factor which determines the Board’s right to access to classified information.¹⁰

1. Source: Carter Library, National Security Affairs, Brzezinski Material, Subject File, Box 29, Intelligence Oversight Board: 1/78–12/80. Top Secret; Sensitive. Carter wrote at the top of the memorandum, “To Farmer. J. cc: Zbig, Griffin [Bell].”
2. Minutes of this meeting were not found.
3. Carter wrote in the margin next to this paragraph, “Too specific. Each quarter Zbig will go over report with Chairman of IOB.”
4. See footnote 3, Document 80.
5. Attached but not printed.
6. The memorandum from the Attorney General to the President, June 30, is in the Carter Library, Staff Office Files, Counsel’s Office, Box 24, Intelligence Oversight Board: IOB Requests for Legal Opinions Rendered by the Department of Justice, 7–8/78.
7. Carter wrote in the margin adjacent to this paragraph, “AG will give you a summary of opinions to me. You can request individual legal opinions. If objection, you appeal to me.”
8. See Document 86.
9. Not found.
10. Underneath the final paragraph, Carter wrote, “Any allegation of impropriety from any source should be investigated by you. Come directly to me for assistance. I do not favor you, the FBI, the CIA nor anyone else monitoring ‛all legal opinions,’ ‛all intelligence sources,’ etc. on fishing expeditions. J.C.”