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

96. Memorandum From the Chairman of the Intelligence Oversight Board (Farmer) to Vice President Mondale¹

Washington, May 14, 1979

SUBJECT

• Presidential Standards for Review and Approval of Sensitive Collection and Counterintelligence Operations

The SCC agenda for Wednesday, May 16, includes consideration of Presidential standards for review and approval of sensitive collection operations pursuant to sections 1–303 and 1–306 of Executive Order 12036 and counterintelligence operations pursuant to section 1–304 of the Order. For the past six months, staff efforts to obtain agreement on the standards, or even basic principles, have been unsuccessful. The basic split has been between CIA on the one hand and Justice and State on the other.

I. BACKGROUND

During the latter stages of SCC consideration of what became Executive Order 12036, the SCC approved a provision requiring that sensitive collection operations be treated in a manner similar to that used for special activities (SCC approval or recommendations to the President on each proposed operation). On January 7, 1978, just prior to the signing of the Order, the Director of Central Intelligence sent a memorandum to the President recommending that the sensitive collection provision be changed to limit the role of the SCC in the approval process.² The memorandum was not coordinated with or even provided to the members of the SCC. The DCI’s justifications for limited SCC review were the security problems raised by revealing sensitive operations to all SCC members and a concern that a procedure for SCC approval of all operations would lead to legislation requiring congressional approval as well. Up to and including the present time, the DCI’s 1978 memorandum to the President has not been formally revealed to all the SCC members. The Secretary of State first learned of the existence of the memorandum in April 1979.

The President did not adopt the DCI’s suggested language for the Order. Instead, he informed the DCI and the SCC Chairman that he agreed with the suggested approach but preferred to include the details in Presidential standards rather than in the Executive Order. As an apparent consequence of the President’s decision, the Executive Order was rewritten into its current form:

1–303. Sensitive Foreign Intelligence Operations. Under standards established by the President, proposals for sensitive foreign intelligence collection operations shall be reported to the Chairman [of the SCC]³ by the Director of Central Intelligence for appropriate review and approval.

In June of 1978, the NSC asked the Attorney General for an opinion on the sensitive collection review procedures for the purpose of conducting an annual review. The resulting opinion discussed the history of the Executive Order, including the DCI’s January memorandum to the President (which was provided “in confidence” only to the Attorney General). The opinion concluded that the President had not adopted the limited approval and review procedure proposed by the DCI and that he was free, under the Executive Order, to either adopt the procedure or to establish a different procedure as he saw fit. A copy of the opinion is attached at Tab A.⁴

For more than six months after the Order had been signed, there was no apparent effort to draft the standards, despite the Executive Order requirement for Presidential standards and the President’s decision to include the details of the review and approval process instandards issued by him. In August 1978, the IOB met with the President and informed him that, in the absence of standards under the Order, sensitive collection operations were being approved by an informal procedure that did not necessarily include SCC consultation.⁵ We also indicated that while we had not found any abuse in this procedure, we felt that the procedure raised serious institutional problems. The President expressed surprise and invited the Board to draft the standards, but we deferred to the Intelligence Community.

Subsequently, CIA and Justice circulated a series of draft standards, but the staffs at State, Justice and CIA were unable to reach agreement. In March of this year, the Secretary of State circulated to the SCC members a memorandum calling for an SCC meeting on the matter and setting out certain principles that he believed should govern the Presidential standards. This memorandum was followed by a State Department draft of the standards which was circulated in April to the SCC members with a memorandum from the Secretary of State again calling for an SCC meeting. The State Department circulations are attached at Tab B.⁶

Throughout this period, there were also staff level discussions of Presidential standards for SCC approval of counterintelligence operations, pursuant to section 1–304(e) of the Executive Order. For your convenience, copies of the relevant Executive Order provision and the latest draft of the counterintelligence standards issues paper are attached at Tab C.⁷

II. SENSITIVE COLLECTION STANDARDS

The basic issue to be decided is the institutional role of the SCC in the review and approval of proposals for sensitive collection operations. Two different approaches for the SCC role have emerged from the staff discussions. The first, supported by the CIA, treats the SCC as a resource to be used in the review and approval process at the discretion of the SCC Chairman (Assistant for National Security Affairs). Under this approach, the Chairman would approve sensitive collection proposals and consult the SCC as he deems necessary. The second approach, supported by the State Department, gives the SCC control over the review and approval process. Under this approach, the SCC would approve all sensitive collection proposals except certain categories of “routine” operations, as determined by the SCC, which could be approved by the Chairman and reviewed quarterly by the SCC.

The first approach would establish a procedure similar to that now in effect. The current procedure, as it has been described to us by Stan and Zbig, bears an unfortunate resemblance to the practice of the Forty Committee that was criticized by the Senate Select Committee on Intelligence.⁸ With the exception of certain technical collection operations, sensitive collection proposals are reported to the SCC Chairman at the sole discretion of the Director of Central Intelligence. The DCI’s reports are usually oral rather than written. The Chairman then determines whether the Secretary of State should be informed (again orally) and whether the proposal should be referred to the SCC or whether to inform the President. As far as we can tell, there are no existing guidelines or standard for determining when the DCI consults with the SCC Chairman or when the Chairman consults with some or all of the members of the SCC. Last year, the SCC conducted an annual review of sensitive collection operations.⁹ Brief written summaries were distributed at the outset of the meeting and collected at the end. Without any prior consideration or staff support, the SCC was asked to review and approve the current operations. At least some of the members present at the meeting were concerned that they did not really know what they had approved.

The Intelligence Oversight Board feels very strongly that the current process should not be perpetuated in the Presidential standards. Under the Executive Order, the members of the SCC, when meeting for the purpose of considering sensitive collection proposals, are the Secretary of State, the Secretary of Defense and the Attorney General, as well as the President’s Assistant for National Security Affairs and the DCI. We believe that the potential for embarrassment to the United States and the other considerations that determine the sensitivity of certain collection operations require the considered judgment and approval of the President’s senior advisers on foreign policy, national security and law. The DCI, and to a lesser extent, the President’s Assistant for National Security Affairs are expected to act as advocates for collection activities that they perceive as necessary to meet the Nation’s needs for reliable foreign intelligence. The responsibilities assigned to each generate institutional pressures to undertake collection activities. In order to assure that factors other than the need for foreign intelligence are given full and careful consideration, proposals for sensitive collection operations should be presented to and approved by the SCC.

The specific issues that should be decided by the SCC are as follows:

1. Determination of Which Collection Operations Qualify as Sensitive: There is general agreement that the DCI’s discretion to report proposals for collection operations should be guided by general considerations tending to define sensitive operations. The State Department and the CIA disagree, however, on whether the Presidential standards should also include specific designations of types of proposed operations that are inherently sensitive and should always be reported. (One commonly cited example is an operation in which a head of state is a target or source.)

The Board believes that the DCI’s discretion should be guided both by carefully defined criteria that will always require a report and by factors to be considered in determining whether to report operations not covered by the mandatory reporting criteria. In the staff discussions, the issue of mandatory reporting criteria has received more attention than is warranted, possibly because of a belief that such criteria imply a lack of faith in the judgment of the official responsible for reporting. We believe that the issue should be resolved in terms of the best method for structuring the decision-making process rather than in terms of the personalities currently involved in that process. Mandatory reporting criteria give some precision to an otherwise imprecise process and should therefore be included.

2. Form of Reporting: State and CIA disagree on whether sensitive collection proposals should be reported orally or in writing and on whether the DCI should be permitted to report categories of proposed operations rather than each specific proposal.

We strongly believe that the Presidential standards should include a requirement for reporting proposals in writing. Written proposals create a record of what was proposed and, therefore, of what was approved. A written record not only promotes careful consideration and establishes accountability, but also assists the DCI if it later becomes necessary for him to determine whether changed circumstances are consistent with an operation that has been approved. We are aware that a written document increases the risk of compromise of an operation and address that problem in the discussion of security procedures below.

Categorical reporting can be a useful device and should be permitted by the standards. If a group of operations are substantially similar (in terms of the type of target, risks of exposure, benefits to be derived, and potential effects of compromise) categorical reporting can permit careful consideration while at the same time avoid repetitive and time-consuming reporting and approval of specific operations. But categorical reporting should not inadvertently become a mechanism for obscuring differences among proposed operations or limiting the flow of relevant information to the Chairman and members of the SCC. The standards should therefore include a provision for the SCC to determine when categorical reporting will be permitted.

3. Approval and Review by the SCC: The issue here is whether the standards should require SCC approval of sensitive collection proposals or permit the Chairman of the SCC to approve proposals and consult the SCC as he deems necessary. For the reasons stated above, the Board believes that the SCC should be the approving authority. Although the issue has not been raised by either CIA or State, the Board believes that the standards should include a specific provision for advance distribution of written proposals to the SCC so that the SCC members will have both the time and staff support necessary to carry out their approval and review responsibilities.

The Board does not disagree with a procedure that permits delegation of limited approval authority to the SCC Chairman. Depending upon the types of operations that are proposed and reported by the DCI, there may be categories of operations that are “routine” in that they are clearly consistent with established policy and do not involve high risk or especially serious consequences of exposure. To preserve flexibility and conserve the time of the SCC members, the Board believes that the standards should include a provision for the SCC to stipulate categories of proposals for “routine” operations that can be approved by the Chairman of the SCC. The Chairman’s approval of “routine” operations should not, however, completely replace the SCC process. We believe that the SCC members should review, on a quarterly basis, all proposals that have not received advance SCC approval.

4. Annual Review by the SCC: Section 1–306 of the Executive Order includes a separate requirement for an annual review by the SCC and a report to the NSC. If the issues described above are resolved as recommended, it should not be necessary to include detailed requirements for the annual review. The Department of State believes that the annual review should include a sampling procedure to evaluate the DCI’s characterization of operations as “sensitive.” The Board agrees with the State Department on this issue.

5. Security of Information Concerning Sensitive Collection Operations: There is no dispute that strict security procedures are required because of the extreme sensitivity of the information involved. We support the inclusion of security procedures in the Presidential standards. Security procedures should not, however, undermine the SCC approval and review process. In prior Administrations, security concerns have been used as a rationalization for engaging in cursory consultation (either by telephone or in informal conversations), for limiting the information provided to concerned Cabinet officials or for entirely bypassing established approval and review procedures. We believe that any formulation of security procedures should be based on the principle of control, rather than elimination, of written documents and of control, rather than denial, of information to the SCC members.

III. COUNTERINTELLIGENCE STANDARDS

The issues for SCC review and approval of counterintelligence operations are similar to those described above for sensitive collection operations. The issues paper at Tab C adequately describes the issues and options.

The Board favors substantive standards that include a clear statement as to the types of counterintelligence operations that must be reported to and approved by the SCC. The Board also favors procedures for the reporting, review and approval of counterintelligence operations similar to the procedures that apply to sensitive collection operations.

1. Source: Carter Library, National Security Affairs, Staff Material, President’s Intelligence Oversight Board, Box 2, Meeting 5/16/79. Secret.
2. See Document 72.
3. Brackets are in the original.
4. Not found attached.
5. See Document 88.
6. Not found attached. Neither the CIA/Justice draft nor the March State Department memorandum was found.
7. Not found attached.
8. The 40 Committee, named after National Security Decision Memorandum 40, February 17, 1970, reviewed and approved covert action proposals. For the text of NSDM 40, see Foreign Relations, 1969–1976, vol. II, Organization and Management of U.S. Foreign Policy, 1969–1972, Document 203. According to the Church Committee Final Report (see footnote 5, Document 41), the 40 Committee considered only about 25 percent of the CIA’s individual covert action projects, and Congress received briefings on only a few proposed projects.
9. Not further identified.