17 February 2002
This is the second part of a series on probes of intelligence agencies and the FBI.
Part 1:
http://cryptome.org/tla-probes.htm
(1974-75)
Part 3:
http://cryptome.org/tla-probes3.htm
(1977-79)
Part 4:
http://cryptome.org/tla-probes4.htm
(2001-02)
Senate Establishes Intelligence Panel (1976)
President Ford Overhauls Intelligence Agencies (1976)
Divided Intelligence Panel Issues Final Report (1976)
Intelligence Leak Sidetracks Reform Efforts (1976)
Controls Sought on Domestic Intelligence (1976)
CQ Almanac, 1976, pp. 294-299.
Twenty years after the proposal was first considered, the Senate May 19 voted to establish a permanent Select Committee on Intelligence (S Res 400) to monitor the activities of the CIA and other federal intelligence agencies.
As finally realized, the committee was granted far more power than the original legislation, introduced by Mike Mansfield (D Mont.) in 1956, had proposed. (1956 Almanac P. 509)
Despite the heated controversy that surrounded the effort to establish it, the new committee won approval only three months after the special intelligence investigating panel, set up by the Senate in 1975, recommended that a strong oversight committee having legislative and budgetary authority be created. The panel said a permanent committee was needed to assure that the intelligence community did not in the future infringe on the liberties of the American people.
The 15-month investigation, headed by Frank Church (D Idaho), had charted a long history of abuses by the CIA, FBI and other agencies that included disclosures of illegal electronic surveillance, mail openings and assassination plots against foreign leaders. (1975 Almanac p. 387; see story this chapter on Church committee's final report.)
The House Jan. 29 refused to authorize the publication of its special intelligence committee's final report. This dispute stymied attempts in 1976 to set up a similar intelligence panel. (House committee's probe, intelligence report leak, see separate story this chapter.)
Committee Membership
Members of the 15-member committee were appointed May 20 by Majority Leader Mansfield and Minority Leader Hugh Scott (R Pa.). They were Democrats Daniel K. Inouye (Hawaii), chairman, Birch Bayh (Ind.), Adlai E. Stevenson III (Ill.), William D. Hathaway (Maine), Walter (Dee) Huddleston (Ky.), Joe Biden (Del.), Robert B. Morgan (N.C.) and Gary Hart (Colo.), and Republicans Howard H. Baker Jr. (Tenn.), ranking minority member, Clifford P. Case (N.J.), Mark O. Hatfield (Ore.), Barry Goldwater (Ariz.), Robert T. Stafford (Vt.), Strom Thurmond (S.C.) and Jake Gam (Utah).
The committee was given exclusive legislative and budget authorization authority over the CIA, but jurisdiction over the intelligence components of the FBI and the Defense Department had to be shared with the Judiciary and Armed Services Committees respectively.
In the case of shared jurisdiction, legislation approved by one panel would have to be referred to the other and then reported to the Senate floor within 30 days.
The new committee also was given authority to declassify sensitive information, but if the President objected to any disclosure, the matter would be referred to the full Senate for its decision.
Joint Jurisidiction
The legislative task of setting up the new committee proved to be a difficult one. The legislation, by order of the Senate, was considered by three different standing committees -- Government Operations, Judiciary and Rules and Administration -- with each submitting its own recommendations.
The Covernment Operations panel held a series of hearings in January that posed a number of questions about the organization and responsibilities of the proposed committee and drew conflicting answers from present and former government officials and members of Congress:
Questions Considered
Because of the sensitive role of the intelligence community as well as the disputes over how to institute congressional oversight procedures, some members suggested that to avoid mistakes Congress should establish an intelligence committee and allow it to resolve the procedural and jurisdictional issues.
Others maintained that Congress first of all had to have a firm grasp over the intelligence apparatus so that an oversight panel would know how and where the decisions were made.
Still others in Congress wanted to leave the monitoring of the intelligence community to the existing standing committees having jurisdiction over such matters: Appropriations, Armed Services, Foreign Relations.
None of the various committees' recommendations, as reported, won approval by the Senate. The version reported by Government Operations was unacceptable to the conservatives because it would have taken away from other panels, particularly Armed Services, much of their previous responsibility over intelligence monitoring.
The Rules and Administration version merely created another committee to study intelligence abuses. It was strongly opposed by most of the liberals in the Senate, who argued that the investigation had already been accomplished by the Church inquiry.
The deadlock forced Rules Chairman Howard W. Cannon (D Nev.) to devise a compromise after S Res 400 had been sent to the floor. Even the substitute was opposed by some of the conservatives, who tried to delete from it provisions giving the new committee joint legislative and budgetary authority -- along with the other committees -- over most of the intelligence agencies. But on the key vote during Senate debate their amendment was rejected, 31-63. It was the Cannon substitute that ultimately was approved.
S Res 400 Provisions
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With a mound of evidence of wrongdoing in government already available, Congress in 1976 turned its attention to legislative remedies that would: 1) alter existing laws governing intelligence and law enforcement operations; 2) improve congressional oversight of the CIA and the other agencies; 3) restructure the intelligence community and 4) restrict covert operations.
For example, disclosures in 1975 by the congressional intelligence investigating committees that the CIA secretly intervened in the internal political affairs of Chile over a 10year period and repeatedly attempted to assassinate Cuba's Fidel Castro, led some members to demand that the agency be restricted to its original mandate: intelligence gathering.
In 1974 Congress approved an amendment to the fiscal 1975 foreign aid bill (S 3394-PL 93-559) prohibiting the CIA's use of foreign assistance funds for overseas operations other than in intelligence gathering, unless the President found such expenditures necessary for national security and reported this to the "appropriate committees" in a "timely fashion."
Although the intelligence committees had been authorized to investigate abuses by the CIA and other federal agencies and make recommendations on ways to better control them and make them more accountable, only the relevant standing committees-Government Operations for reorganization matters, Armed Services for CIA and Defense Department intelligence activities, and Judiciary for the FBI-had the authority to draft legislation dealing with the reform proposals or make changes in existing law.
HEARINGS
The Senate Government Operations Committee, chaired by Abraham Ribicoff (D Conn.), Jan. 21 began nine days of hearings on S 2893 and other proposals to create a committee on intelligence oversight.
Testifying in favor of a new Senate panel to monitor the intelligence functions of the CIA, FBI, National Security Agency and other intelligence components of the federal government were Senate Majority Leader Mike Mansfield (D Mont.) and Frank Church (D Idaho), chairman of the Senate Select Intelligence Committee. Both called for an oversight panel that would: 1) have a rotating membership to assure the committee did not become defenders of the agencies being supervised; 2) consider all budgetary requests of the various intelligence agencies on an annual basis, and 3) receive reports from the executive branch on covert actions being planned before they were implemented by the CIA. The third proposal was the most controversial.
Congressional Veto Power
The two senators differed, however, on an important question raised by members of the Ribicoff committee: whether the intelligence panel should have the authority to set in motion a congressional veto of a covert operation proposed by the White House. Church maintained that it was the constitutional function of Congress to "advise" the executive branch on foreign activities, and that the legislative branch's involvement should stop at that point unless the President repeatedly ignored the committee's viewpoint. In that case, he said, Congress could restrain the executive through budgetary methods.
Mansfield on the other hand, declared that Congress should "be in on the take-off" of a covert plan. He told the committee that if the intelligence panel was opposed to a covert proposal, it should inform the administration and take the dispute to the Senate floor for a vote within 30 days.
Differing with both Mansfield and Church as well as with others on the Ribicoff committee, who favored a new oversight apparatus was John G. Tower (R Texas), vice chairman of the Senate Select Intelligence Committee, which recommended a permanent select intelligence committee.
Tower said that he "too, initially leaned toward the creation of a separate oversight committee," but "I am now Of the view that haste and simplicity may be the enemy of a solution." Tower asserted that the legislation being drafted to set up the committee began with the "assumption that existing committees are incompetent to pursue implementation of the findings and recommendations" for improved oversight.
Breaking with the bipartisan consensus that had existed previously on the Senate intelligence committee, Tower said he was "not prepared to accept the legislation as drafted ... because I believe serious analysis will reveal it to be both a premature and a simplistic solution to an extremely complicated set of problems."
The Senate Government Operations Committee was advised by soon-to-depart CIA Director William E. Colby Jan. 23 to set up only one panel. Colby insisted that a joint committee would be more likely to maintain secrecy and security.
In 1974 Congress adopted an amendment requiring the CIA to report any new plan for a covert operation to the eight committees in Congress that have access to intelligence community materials. "The result of the year's experience in my mind is clear," said Colby. "Every one of the new projects that were subjected to this process was leaked into the public domain."
Colby added that the "fewer members on an oversight committee the better" it would be for preventing the unauthorized disclosure of classified material.
Although some members had insisted that the amendment required the administration to submit a plan for covert operations to Congress before its implementation, others conceded that the language was ambiguous. CIA counsel Mitchell Rogovin told the House intelligence committee that the information did "not necessarily [have to be furnished] beforehand."
The cosponsors of S 2893 recommended that the President give prior notification of a covert operation to an oversight panel, which would then offer its views on the proposal. The President then might 1) modify the-program, 2) call it off or 3) go ahead with it.
The executive branch, however, opposed this procedure, fearing that leaks of new covert operations would be likely and that it would restrict the President's constitutional right to conduct foreign policy. Colby also objected to the procedure Jan. 23, maintaining that it would be "impractical during a congressional recess or a time of crisis."
The redeeming feature of the Church bill, according to some of its critics, was that it did not give a new intelligence unit veto power over covert operations planned by the administration. But others in Congress argued that notification without the opportunity to veto was only half a reform.
"We would usurp the role of the President as final arbiter of foreign policy," Church replied to such arguments Jan. 13. But if a President consistently ignored the committee's advice, "then the committee would have the remedy always available to Congress; it *ould control the purse strings and could pull up on them if it saw fit," he added.
Although Colby opposed the suggestion made by Government Operations members that the President give advance notice to a new joint committee before a covert plan was put into operation, he said that Congress already received this information promptly from the executive branch. "The day that the President decides, we call up [the committees] and make an initial notice," Colby said. "As soon as possible we notify them of what committees are involved, and then we are available for other questions."
Former Secretary of State Dean Rusk testified Jan. 22 that he preferred a joint intelligence committee because it "would be convenient for the executive branch." Quipped Rusk: "You could make a career of going to the Hill." Like Colby, Rusk oppc~sed giving the oversight panel a veto over covert activities, but he said prior notice might be permissible if "the committee is prepared to receive information and take care of it."
FBI Director Clarence M. Kelley, who testified Jan. 26, objected to proposals that would split oversight of the bureau between a new intelligence committee and the House and Senate Judiciary Committees, which review criminal matters. Kelley said he wanted a "centralized" review system in Congress that would help save the bureau's time and resources.
Leaks and Disclosures
Colby said that a single oversight committee for intelligence activities would help maintain control over official secrets. One committee with responsibility for oversight and for the authorization and appropriation of funds for intelligence activities would reduce the number of members given intelligence data, he said. Under the existing congressional procedure, eight committees have access to the CIA's and other intelligence agencies' documents. "The fewer members on oversight the better," Colby declared. "By limiting the number you increase a sense of self-discipline ... but in the end it is up to each house to discipline its own membership either by formal or informal procedures."
Sen. Bill Brock (R Tenn.) proposed that in the event any member of a committee of Congress leaked national security information, "he could be suspended when charges were brought by a bipartisan mix of at least one-fifth of the members until the charges were refuted; if they were proven, the person would be expelled from Congress."
Among bills pending in Congress that dealt with the secrecy issue was S 1, the Criminal Justice Reform Act of 1975 being considered by the Senate Judiciary Committee. One section of that bill made it a criminal offense for anyone to disclose the nation's military secrets to a foreign power "knowing" that they could be used to prejudice the safety or interests of the United States. (S 1, see Law Enforcement and Judiciary chapter introduction.)
Because of the leaks of CIA activities and personnel lists during the intelligence investigations, the executive branch and a growing number in Congress had concluded that statutes had to be enacted that provided criminal penalties against executive branch employees and congressional aides who disclosed classified information. Members of Congress themselves might be subject to stricter internal disciplinary procedures.
"Our legal controls are not what they should be," according to Colby, who said Jan. 23 that the Justice Department and the CIA had drafted a secrecy law that would be submitted to Congress as soon as it was reviewed by the Office of Management and Budget. The law would cover executive branch and congressional staff members, who would have to take secrecy oaths before gaining access to classified information.
Both Church and Tower favored legal sanctions against government employees who released official secrets; and this position was shared by members of the Government Operations panel. Church also recommended Jan. 21 that in situations where a senator or staff member disclosed sensitive information, the case automatically would be referred to the Committee on Standards and Conduct, which then would investigate and recommend "appropriate action including, but not limited to, censure or removal from office."
Another controversy in the debate over the secrecy issue was the guidelines to follow if the proposed oversight committee wanted to disclose classified information that the President wished to keep concealed. Church had proposed a procedure, opposed by the executive branch, that would have allowed the Senate to be the arbiter.
After the President objected to a disclosure, the matter, under Church's proposal, would be referred to the full Senate for a vote during a closed session. The Senate could refer the matter back to the committee for reconsideration, but if the committee sent it back again to the floor, the issue would have to be decided by an up or down vote.
"There are some who say that once a matter is brought before the full Senate, it will no longer be secret," Church noted, but "in my view, once the Senate accepts ... [this process], it would respect the injunction of secrecy."
GOVERNMENT OPERATIONS REPORT
The Senate Government Operations Committee Feb. 24 voted 12-0 to approve a resolution establishing a Senate Intelligence Committee with budgetary authority and legislative oversight over foreign and domestic intelligence activities. The panel would consist of six Democrats and five Republicans, each serving for no more than six years. The report on S Res 400 was filed March 1 (S Rept 94-675).
The resolution provided for sanctions against senators and staff who leaked secret intelligence information and gave the Senate the power to disclose certain intelligence information over the objections of the President. It called for but did not require the President to consult with Congress before undertaking covert operations abroad. The resolution required the Senate Ethics Committee, at the request of five members of the proposed committee or 16 members of the Senate, to investigate any alleged disclosure of "lawful" intelligence information. If the Ethics Committee determined that "there has been a significant breach of confidentialitv or unauthorized disclosure" by a senator, it could recommend censure, removal from membership on the intelligence panel, or expulsion from the Senate. It could recommend that a staff member be fired for leaking information.
Under the resolution, the committee would inform the President of information which it wished to make public. The President would have five days to register any objection. In case of presidential objection, disclosure would require approval by a majority of the Senate; this could be requested by three members of the intelligence panel.
The resolution embodied many features of S 2893. A Senate aide told Congressional Quarterly that the measure had been changed to a resolution -- which would not require House or presidential action -- because of fears that the House, in turmoil over the leak of its Select Intelligence Committee's report, would be unable to act expeditiously on the legislation. He added that there was also concern that the executive branch might strongly oppose some features of the proposed procedure. (See separate story in this chapter on intelligence leak.)
REFERRAL TO OTHER COMMITTEES
After the Government Operations Committee reported the resolution, the Senate March 18 referred S Res 400 simultaneously to the Judiciary Committee and the Rules Committee. Judiciary was ordered to complete its review by March 29 and give its recommendations to Rules, and Rules was given until April 5 to make its report.
Members of the Judiciary Committee opposed the Government Operations version because it deprived the panel of its existing jurisdiction over the FBI.
An aide to John Glenn (D Ohio), a Government Operations Committee member, told CQ that liberals on the Judiciary Committee feared that an intelligence committee would pre-empt jurisdiction over possible infringements of civil liberties by the intelligence agencies. A member of the Judiciary Committee staff suggested that it would be better to have more than one committee scrutinize FBI activities since each would view them from a different perspective.
An aide to William V. Roth Jr. (R Del.), also a Government Operations member, insisted that S Res 400's provision restricting members and staff of the committee to sixyear terms would ensure that no single point of view would dominate the new committee.
The Judiciary Committee considered the resolution on March 25 and 30, approving S Res 400 with amendments on the latter date. The effect of Judiciary's recommendations was to delete the language granting jurisdiction over the intelligence activities of the Justice Department, including the FBI, to the new committee.
Two other committees informally considered the resolution during this period. The Armed Services Committee March 25 discussed the resolution's impact on its legislative jurisdiction, and the Foreign Relations Committee considered the measure March 30. A Foreign Relations staff memo to committee members maintained that under S Res 400 the new committee could be used by the executive branch as a shield against requests by Foreign Relations for information from the intelligence agencies.
RULES COMMITTEE ACTION
The Senate April 1 gave the Rules Committee an additional 25 days to complete its consideration of S Res 400. On March 31 and April 1, the committee held two days of hearings on the resolution.
On March 31 Armed Services Committee Chairman John C. Stennis (D Miss.) protested his committee's loss of jurisdiction under the proposal over the CIA and the intelligence activities of the Defense Department. He said that such a change would leave Armed Services "stripped to the bone" and that it would be impossible to isolate intelligence activities from the rest of the Pentagon's budget.
Defending the Armed Services Committee's past oversight of the CIA. he admitted being "ashamed, ashamed of what the CIA had done at home in one of its bad moments, but of course I knew nothing about it." But he insisted: "There's been more surveillance of the military part of CIA than appears on the surface."
Roman L. Hruska (R Neb.), ranking Republican on the Judiciary Committee, also objected to his committee's loss of jurisdiction under the proposal. Judiciary would lose its oversight of the FBI. "There is a real potential that a splitting of the oversight ... may create much confusion and result in conflicting congressional guidance to the agency."
CIA Director George Bush declined to comment on the jurisdictional dispute, saving only that the Senate should "concentrate oversight of foreign intelligence activities" into as few committees as possible. Bush opposed S Res 400 because of two provisions: one allowing members of the new intelligence committee to disclose secret information to other senators; the other allowing the full Senate upon a majority vote to disclose secret information over the objections of the President.
On April 1 Church insisted that no Senate committee would have its jurisdiction diminished by S Res 400. But he added that "neither the Armed Services Committee nor any other committee has the time, because of its other duties, or the necessary over-all jurisdiction, to attend to the nation's national intelligence system."
Church charged that the existing arrangement of congressional oversight of intelligence had "conspicuously failed." But Rules Committee Chairman Howard W. Cannon (D Nev.) replied that creation of the new intelligence committee would be "a knee-jerk reaction" to past abuses.
Rules Committee Report. By a 5-4 vote, the Rules and Administration Committee April 29 reported (S Rept 94770) a version of S Res 400 that all but gutted the recommendations of the Government Operations Committee. Rather than agreeing to set up a new intelligence panel with legislative and budgetary authority over the intelligence committee, the Rules Committee adopted a substitute offered by Cannon proposing that a Select Committee on Intelligence be established to continue "the excellent work commenced and accomplished" by the investigating panel headed by Church. The substitute was adopted by the same 5-4 vote.
The Rules Committee recommended that the proposed committee "give serious consideration and study to the desirabilitv of the ultimate establishment" of either a permanent Senate intelligence committee or a joint House-Senate panel.
Justifying its decision to reject the Government Operations version of S Res 400, the Rules Committee stated that to create a standing intelligence committee "at this time would be precipitate and unwise, and constitute an overreaction to the recently disclosed" illegal and unauthorized activities of federal intelligence agencies.
The Rules panel also opposed "tearing away" from the Armed Services, Foreign Relations and Judiciary Committees "their existing jurisdictions over intelligence activities ......
Voting for the substitute version of S Res 400 were Rules Committee Chairman Howard W. Cannon (D Nev.), Robert C. Bvrd (D W.Va.), James B. Allen (D Ala.), Hugh Scott (R Pa.) and Robert P. Griffin (R Mich.). Opposing the substitute were Claiborne Pell (D R.I.), Harrison A. Williams Jr. (D N.J.), Mark 0. Hatfield (R Ore.) and Dick Clark (D Iowa).
Filing minority views, the four opponents listed six reasons for adhering to the Government Operations' provisions: 1) to prevent violations of citizens' rights; 2) to ensure that the intelligence community was accountable to Congress; 3) to help restore the role of Congress as a co-equal branch of the federal government; 4) to improve the capability of the intelligence agencies; 5) to redefine the roles of the intelligence agencies and 6) to restore public trust in government institutions.
"What is needed is legislative action, not further study," the four opponents said. The investigation conducted by the Church committee produced 170 recommendations for reforming the intelligence community; the proposed select committee envisioned by the Rules Committee would be limited to conducting further investigations and making additional recommendations, they added.
The Senate adopted a compromise version of S Res 400 May 19 after a four-day debate by a 72-22 vote, thus establishing a permanent intelligence committee. Voting for the proposal were 52 Democrats and 20 Republicans; seven Democrats and 15 Republicans opposed it. (Vote 177, p. 27S)
Abraham Ribicoff (D Conn.), chairman of the Government Operations Committee, said at the outset of the debate that the Senate should not allow "jurisdictions of its own committees to overshadow the national interest." Many of the supporters of the new committee contended that Stennis' Armed Services Committee had not been effective in monitoring intelligence abuses.
Cannon Compromise
The version that ultimately passed was the product of a compromise that had been worked out informally May 10 and 11 bv Mansfield and other senators. It was introduced Mav 12 ~y Howard W. Cannon (D Nev.) and 28 cosponsors as a substitute for the version of S Res 400 reported April 29 by the Rules Committee.
Although the Cannon substitute was widely supported, it still was not acceptable to Stennis, Tower, Barry Goldwater I R Ariz.) and others, who insisted that the new panel should have no part in preparing the budgets and legislation of the Defense Intelligence Agency, the National Security Agency and related military intelligence components. All three were Armed Services members. Thev argued unsuccessfully that S Res 400 "would increase the potential for disclosure."
Tower and Stennis insisted that unless the Armed Services Committee was given exclusive legislative jurisdiction over the defense intelligence agencies, the nation's security would be jeopardized. But their amendment was rejected 31-63.
The Cannon substitute, thev said, would cause a "proliferation of involvement by Senate committees" and staff in defense matters, and this would lead to "greater disclosures" of secret projects and military spending figures.
The advantage of their amendment, Stennis said. was that it would 1) keep legislative jurisdiction over military intelligence in Armed Services, but give the new committee oversight and investigative duties. 2) eliminate the requirement for a separate authorization for military intelligence funds and, 3) avoid a report to the Budget ~ommittee bv the new panel on its estimated cost of military intelligence operations.
"There is a vast potential for mischief here," said Tower. "The popular fear in this country is not that the CIA and FBI are going to invade their rights.... The preponderance of American people believe, I feel, that we have disclosed too much, not too little, and the dangerous potential is here ...."
But many of the 63 opponents of the amendment asserted that it simply would have gutted the compromise resolution. About 80 to 90 per cent of the intelligence community's funds would be outside the jurisdiction of the select committee, they said. and giving the panel only an oversight role would be of little value. "Oversight without legislative authority would be toothless oversight." Walter (Dee) Huddleston (D Ky.) told the Senate.
Asserting that the resolution "doesn't take anything away from the Armed Services Committee." Sen. Church argued that if the amendment were approved, "it gets us right back to the problem we're trying to solve ... piecemeal jurisdiction among several committees. no one of which can do the job."
Voting for the amendment were 20 Republicans (a majority) and 11 Democrats, 10 of whom were from the South: 15 Republicans and 48 Democrats voted against it. (Vote 175, p. 27-S)
After the Tower-Stennis amendment was rejected, the Senate approved the Cannon substitute to H Res 400 by an 87-7 roll call. (Vote 176, P. 27-S)
S Res 400, as amended by the compromise, then was adopted 72-22.
Other Amendments
In addition to the Tower-Stennis amendment, the Senate considered 11 other amendments during the four davs of action on S Res 400; nine were adopted, almost all of which were noncontroversial, and two were rejected.
May 13. By voice vote the Senate approved an amendment offered bv Charles H. Percy (R Ill.) to reduce from nine to eight years the length of time a senator could serve on the new committee. The purpose of the amendment was to align service periods on the new panel with the beginning of each new Congress.
Also approved by voice vote was an amendment proposed by Walter (Dee) Huddleston (D Ky.) perfecting the provision giving the Senate Standards and Conduct Committee authority to investigate unauthorized intelligence disclosures. The Kentuckv senator said the amendment would provide a certain amount of flexibility so that "unsubstantiated or frivolous matters" would not have to be referred to the full Senate. The amendment required the committee to report only those allegations "which it finds to be substantiated."
By a 75-17 vote, the Senate approved a modification to the substitute, which Cannon introduced himself, that reduced from 17 to 15 the number of members on the intelligence committee. (Vote 172, p. 26-S)
Cannon emphasized that a membership of 17 "tends to make a somewhat unwieldy committee," but Robert Morgan (D N.C.) and other opponents of the move argued that eight members, or a majority under the modification, would come from the four committees-Armed Services, Appropriations, Foreign Relations and Judiciary-that were supposed to provide oversight "when the intelligence abuses took place." (Vote 172, p. 26-S)
A fourth amendment offered May 13, by James Abourezk (D S.D.), would have given the committee more authority to disclose classified information, but it was tabled on a 77-13 roll call. (Vote 173, p. 26-S)
Abourezk said the disclosure language in the substitute was ambiguous and did not allow outvoted members of the panel a chance to appeal to the full Senate a vote by a majority of the committee blocking a move to disclose intelligence information. But Mansfield and others suggested that the proposal was too controversial. "I do not think this amendment has any place in this compromise, which a lot of us have worked awfully hard to achieve and to bring about the greatest degree of unanimity," Mansfield told the Senate.
May 17. On voice votes, the Senate adopted three noncontroversial
amendments. These were by:
May 18. By voice vote, the Senate adopted an amendment by Alan Cranston (D Calif.) requiring the President to "personally notify the select committee in writing" if he objected to the disclosure of any classified information the panel intended to make public.
Also by voice vote. the Senate approved an amendment bv Robert P. Griffin (R Mich.) clarifying language relating to notification bv the President of his objections to disclosure of classified material. The amendment called for the President to certify that a threat to national security was "of such gravity that it outweighs any public interest in disclosure."
Bv a 38-50 roll call, the Senate rejected a Taft amendment that would have prevented a senator from serving on the intelligence panel as well as on another "B" committee, beginning with the 96th Congress. (Under Senate rules, "B" committees are: District of Columbia, Post Office and Civil Service, Rules and Administration, Veterans' Affairs as well as the special, joint and select committees. The intelligence committee also was designated a "B" committee under S Res 400. (Vote 174, p. 27-S)
Taft argued that the amendment was necessarv because some members "with the greatest abilities" migh t choose not to serve on the intelligence panel if they found other committee work too time consuming. But Ribicoff opposed the measure, saying that it would "make it more difficult to find a suitable cross-section of the Senate to serve on the committee." He also pointed out that under Taft's proposal senators would have to give up their seniority on another "B" committee for eight years to serve on the new panel.
May 19. Before rejecting the Tower-Stennis amendment, the Senate by voice vote approved a proposal offered by Sam Nunn (D Ga.) that clarified the procedure for disclosing classified information. The amendment prohibited the committee from revealing any information the President wanted kept secret until the full Senate gave its consent.
CQ Almanac, 1976, pp. 300-302.
In the wake of the disclosures in 1975 by Congress and the Rockefeller Commission of a pattern of abuses and wrongdoing by the CIA and other intelligence agencies, President Ford Feb. 18 issued an executive order restructuring the federal government's foreign intelligence operations !nd establishing an oversight board to check on illegal or improper activities by such agencies in the United States.
On the same date, Ford submitted legislation to bar leaks of classified information by executive branch officials, but Congress took no action on his proposal during the session.
The 1975 disclosures had pointed up the need to delineate more clearly the lines of accountability and responsibility for the foreign intelligence policies implemented by the President. (Intelligence probe, Rockefeller Commission, 1975 Almanac pp. 387-390)
Ford's changes did not ban covert intelligence operations overseas, nor did they establish explicit guidelines for defining improper domestic actions.
The reorganization package contained three major components: 1) limitations on the domestic activities of U.S. foreign intelligence agencies; 2) an organizational restructuring of the U.S. intelligence community to ensure compliance with the new restrictions; 3) actions to better protect the security of classified information dealing with intelligence sources and methods.
Ford's proposal to bar intelligence leaks was introduced in the House Feb. 19 by Rep. Robert McClory (R Ill.) as HR 12006 and referred to the Armed Services Committee. No hearings were held on the bill in 1976. Companion legislation was never considered in the Senate either.
The Ford bill contained provisions that were similar to the espionage section in S 1, a measure to revise and reform the federal criminal code. FIR 12006 was narrower in the scope of information covered, but it applied to a wider range of activity. (S 1, see Law and Judiciary chapter introduction)
The prohibitions in S 1 extended to unauthorized release of "national defense information" and "classified information." The Ford bill covered only information on sources and methods of foreign intelligence gathering, not the substance of such intelligence. S 1 prohibited only the knowing release of secret information; HR 12006 held persons accountable for any such release, deliberate or otherwise. However, at a press conference on Feb. 18 Attorney General Edward H. Levi said the bill would not be applied in cases where a disclosure had been "entirely accidental."
Ford Bill
As drafted by the President, HR 12006 barred disclosure by any source of information on "intelligence sources and methods." (At the same time, he required, in his executive order, that all persons given access to such information sign an agreement that they would not leak it.)
Although the new measures applied only to executive branch employees, reporters asked presidential aides whether the new regulation might not facilitate the concealment of error or mismanagement behind an improper security classification. The administration spokesmen insisted that the new oversight system of agency inspectors general and the Intelligence Oversight Board would allow officials to challenge any improper actions without leaking information to the media.
Ford's proposals, which were submitted as amendments to the National Security
Act of 1947 (50 U.S.C. 403):
At the administration's briefing, Attorney General Edward H. Levi conceded that a person who published information released in violation of the proposed law could be questioned by a grand jury to determine the source of the information. Refusal to answer could risk imprisonment for contempt. But he said that this represented no change from the situation under existing law.
Existing criminal law set penalties only for release of certain kinds of classified information, including communications intelligence and atomic energy information. The law prohibited "knowing and willful" disclosure of such information "in any manner prejudicial to the safety or interest of the United States."
Other methods that have been employed by the executive branch to curb leaks have been 1) reliance on laws against the theft of government property, and 2) written promises by intelligence officials to observe the rules of the government's classification system governing access to secret information. In a 1972 suit against Victor Marchetti, a former CIA employee, the government won a court ruling that the written promise of secrecy had the legal effect of a perpetual contract, enforceable in the courts.
The sphere of legitimate foreign intelligence activity was explicitly defined by a formal "charter" for each agency. In addition, Ford's executive order prohibited or restricted certain activities.
Agency Charters
The executive order noted that some details of the agency mandates would be specified in classified documents "because of the sensitivity of the information and its relation to national security." Published highlights of some charters included:
Central Intelligence Agency: Authorized to gather foreign intelligence related to the national security, especially when not available through public sources; also responsible for intelligence on the foreign aspects of terrorism and narcotics traffic.
Three parts of the charter appeared to expand the agency's sphere of action. The executive orli permitted the CIA to carrv out covert operations at the direction of the President or the National Security Council. The section of the National Security Act under which covert operations previously were carried out permitted such action "as the National Security Council may ... direct."
The order gave the CIA responsibility for foreign counterintelligence outside the United States and "in the United States in coordination with the FBI subject to the approval of the Attorney General." In the past. primary responsibility for domestic counterintelligence had rested with the FBI.
The CIA also would be allowed to enter into research contracts with universities "provided CIA sponsorship is known to the appropriate senior officials of the academic institutions and to senior project officials." In 1967 President Johnson had prohibited CIA contracts with domestic institutions.
Department of Defense: Authorized to gather foreign military intelligence and to conduct analyses of foreign communications (signals intelligence).
The Defense Intelligence Agency (DIA) was retained as the intelligence source for the Secretary of Defense and the Joint Chief's of Staff. The House Select Intelligence Committee had recommended the DIA's abolition.
The order also continued the National Security Agency (NSA) as the organization for signals intelligence. The House select committee had recommended that the NSA be established his, law as an independent agency, apart from the Defense Department.
Federal Bureau of Investigation: Given responsibility for domestic collection of foreign intelligence and for domestic counterintelligence.
Other Agencies: Foreign intelligence responsibilities were specified for the Departments of State and Treasury and for the Energy Research and Development Agency.
Restrictions on Activities
The President placed no new restrictions on foreign covert operations. He reiterated his prohibition of political assassination and endorsed legislation to outlaw it.
The executive order prohibited a wide range of domestic activities by foreign intelligence agencies although several of the prohibitions allowed for exceptions as provided by law or by regulations of the Attorney General. According to the order, the list of restrictions authorized no activity not previously authorized and voided no restrictions which otherwise would be applicable. However, the President announced that he would seek legal authority for some activities which were illegal under existing law.
The restrictions did not apply to the FBI. The executive order required the Attorney General to issue guidelines for the foreign intelligence and counterintelligence activities of the FBI.
Major restrictions included:
Chain of Command
The underlying assumption of the President's changes was that the combination of explicit policy guidelines and clearly focused management responsibility would ensure close White House control of intelligence activity and that, in the event of wrongdoing, the responsible official would be held accountable. The administration did not specify what would happen to such an official in case illegal or improper actions were uncovered.
During the President's Feb. 17 news conference, he was asked whether a streamlined chain of command placing intelligence agencies more firmly under the control of the White House might not increase the risk that some future President would try to make improper use of the agencies.
"I think a President ought to be accountable," Ford replied. "And what we have sought to do ... is to make the process and the decision-making fall on the shoulders of the President, and he will be held accountable by the American people."
The new command structure had four components:
The National Security Council (NSC). According to the executive order, the reorganized NSC was to provide "guidance and direction to the development and formulation of national intelligence activities." More concretely, the NSC was required to review semi-annually the quality and timeliness of foreign intelligence. It also was required to assess the continued appropriateness of ongoing covert operations and sensitive information collection projects.
The Committee on Foreign Intelligence (CFI). A new body was established by Ford to control resource allocation within the intelligence community. This new Committee on Foreign Intelligence would be chaired by the Director of Central Intelligence; other members were the deputy secretary of defense for intelligence and the deputy assistant to the President for national security affairs. Any decision by the committee could be reviewed by the NSC on appeal by the Director of Central Intelligence or any member of the NSC.
The committee was given authority over budget preparation, reprograming and management policy of agencies producing "national intelligence." It was expressly denied authority over "tactical intelligence."
A White House aide told Congressional Quarterly that "national intelligence" related to the foreign policy and political goals of a nation, while "tactical intelligence" related to its combat-relevant military capabilities. He said that the Defense Department was "very sensitive" about giving any non-Pentagon agency control over tactical intelligence. He said that the mandate of the CFI was carefully drawn to ensure that it would have authority over that portion of the Defense Department's intelligence budget which went toward the production of intelligence relevant to high national policy. He noted that the committee was authorized to independently determine the precise scope of its mandate.
The Director of Central Intelligence (DCI). The director was designated the President's "primary adviser" on foreign intelligence. He was charged with developing national intelligence requirements and priorities, directing covert operations, and ensuring the propriety of White House requests for services from the intelligence community.
The director was made responsible for developing programs to protect "intelligence sources, methods and analytical procedures," and for ensuring the existence of strong inspectors' general offices in the intelligence agencies. He also was named principal spokesman of the intelligence community before Congress.
Nominally, the DCI had been charged with leadership and oversight of the intelligence community ever since the CIA's creation in 1947, but his influence over agencies other than the CIA had been limited.
The Senior Official of Each Agency. These persons were charged with ensuring that there was full compliance with the executive order. They were required to provide a "strong and independent" inspector general's office to identify and report on unauthorized activity by agency officials.
Covert Operations
Ford's order did not prohibit covert operations other than assassination. But it reorganized the mechanism through which the President was advised on such questions in order to provide a more systematic decision process.
Replacing the 40 Committee, the NSC subcommittee that had previously managed covert operations, was the Operations Advisory Group (OAG). The new body was composed of the President's assistant for national security affairs, the Secretaries of State and Defense, the chairman of the Joint Chiefs of Staff and the DCI. Added to the OAG as "observers" were the Attorney General and the director of the Office of Management and Budget.
The OAG was required to advise the President on proposed covert operations and high-risk information collection plans.
The reorganization specifically allowed the OAG to advise the President onl,., after a formal meeting of all members and observers or their representatives.
Intelligence Oversight Board (IOB)
The President created a three-member Intelligence Oversight Board composed of private citizens appointed by the President. The purpose of the board was to superintend the work of the inspectors general of the intelligence agencies. But Ford did not establish any standards by which the board was to judge agency actions.
The board was to receive from the inspectors general reports of activities that "raise questions of legality or impropriety.- They were also charged with reviewing periodically the procedures of the inspectors general and the internal guidelines of each intelligence agency.
The board was to report every three months to the President and the Attornev General on its assessment of the community's internal oversight procedures.
The President's executive order did not specify the standards to be used in judging "impropriety." Presidential Counsellor John Marsh said at the administration briefing on the reorganization that the personal standards of the board members would apply. He said it was impossible to anticipate every eventuality.
CQ Almanac, 1976, pp. 303-308.
Wrapping up its 15-month investigation, the Senate Select Intelligence Committee, headed by Frank Church (D Idaho), April 26 recommended that Congress enact new charters for the CIA and other intelligence agencies to prevent the "abuses that have occurred in the past from occurring again."
In a 651-page final report, signed by nine of the committee's 11 members, the panel called for the creation of a new Senate intelligence oversight committee with powers to authorize all spending by the intelligence community each year. A compromise version of the committee's recommendations was established by the Senate May 19. (See separate story, this chapter.)
Comparison to Ford Plan
Other recommendations of the investigating committee, such as restricting the use of covert actions overseas, were not realized in 1976. In his Feb. 18 intelligence reorganization plan, President Ford called for a ban on assassination plots, but he did not place additional restrictions on other covert projects. The Church panel recommended that efforts to subvert democratic governments be forbidden.
By executive order, rather than through legislation, Ford had spelled out the missions of the CIA and related agencies. The select committee insisted that this should have been written into law to prevent alteration by a future President. (See separate story on Ford intelligence reorganization, Foreign Policy chapter)
'Overreaction'
Describing the final report as the "most detailed, complete and unprecedented ever conducted" of the intelligence community, panel member Walter F. Mondale (D Minn.) declared that if Congress failed to set up a permanent oversight committee, the nation would again have problems with its intelligence agencies.
But Sens. John G. Tower (R Texas) and Barry Goldwater (R Ariz.), the two members who refused to sign the final report, disagreed. Tower called the recommendations an "overreaction" by the majority and said they were "potentially dangerous" to the nation's security.
Before releasing its report, the panel voted 6-5 to let the full Senate decide whether the intelligence budget for fiscal 1976 should be made public. This last-minute vote underscored the difficulties the committee had faced during its investigation in reaching a consensus on what areas to investigate and on the final recommendations. (Fiscal 1977 intelligence budget, see Pentagon funding, Budget and Appropriations chapter.)
Domestic Spying
On April 28 the Church committee released a second volume of the report, pinpointing domestic spying abuses by the FBI, the IRS and other agencies over a 40-year period. "Intelligence agencies have served the political and personal objectives of Presidents and other high officials," the report stated. Six volumes of the final report eventually were released.
The committee's 396-page second volume tracked a pattern of FBI misdeeds -- beginning with the Roosevelt administration -- when the agency was ordered by the President to compile lists of citizens who cabled the White House protesting FDR's war policies.
Past Administrations Pressured CIA Directors To Make Intelligence Fit White House PoliciesDirectors of Central Intelligence (DCIs) have been pressured by Presidents and other policy-makers to produce intelligence estimates that would support certain policies, said the Senate Select Intelligence Committee in its final report. It pointed out that the Directorate of Central Intelligence had been created in 1947 to ensure that the intelligence community would provide the President with information free from the vested interests of executive departments. But in practice, the DCI has been confronted with various forms of pressure from recent administrations. Intelligence PoliticsThe committee observed that the director provided intelligence for "Cabinet officers who often have vested interests in a particular foreign policy [State Department I or the acquisition of a new weapons system [Defense Department]." It added that there was a tendency for the President and his advisers to "want confirmation that their policies are succeeding." In June 1969, according to testimony reported by the committee, the Nixon administration made "a subtle and indirect effort" to reverse the intelligence evaluation made bv Richard Helms, the director of Central Intelligence at the time, that a new missile being tested bv the Soviet Union-the SS-9-did not carry multiple warhead missiles (MIRVs). The White House was seeking support for the construction of an anti-ballistic missile (ABM) svstem. It was also resisting pressure from Senate libera~ls to negotiate a moratorium on development of MIRVs by the United States and the Soviet Union. (ABM, 1969 Almanac p. 1090) Three months later, according to the committee, Helms deleted from an intelligence report, known as a national intelligence estimate (NIE), a judgment that the Soviet Union was not likely to seek the capability to destroy U.S. strategic forces in a first strike. Helms acted after being informed by an assistant to then-Defense Secretary Melvin R. Laird that the statement contradicted the Secretary's public position. The committee also reported that in 1970, before and during the incursion inta Cambodia by U.S. and South Vietnamese troops, Helms withheld from distribution intelligence estimates that the U.S. action would not thwart North Vietnam's efforts to control Indochina. (Cambodia, 1970 Almanac pp. 933, 939) According to the committee, Helms and others denied during the panel's investigations that either instance represented a tailoring of the intelligence product to meet political demands. But the committee concluded that "most DCls have been reluctant to engage in a confrontation with [other members of the intelligence communityl over substantive findings in national intelligence documents." The report cited the testimony of John Huizenga, who had chaired the board of national intelligence estimates. "When intelligence producers have a general feeling that they are working in a hostile climate," he said, "what really happens is not so much that they tailor the product to please,...but more likely. they avoid the treatment of difficult issues." Intelligence OverkillThe committee concluded that the intelligence community concentrated too heavily on collecting information and on observing "current events," at the expense of analyzing information and considering long-range problems in depth. Both problems, according to the committee. reflected demands made on the communitv by policy-makers. Oolicy-makers tended to treat every piece of intelligence information as important, said the report. "Instead of articulating priorities, they demanded information about everything." In response to the demands, intelligence analysts felt "that they have to cover every possible topic, with little regard for its relevance to U.S. foreign policy interests." In the end, according to the report, both intelligence analysts and policy-makers were swamped with information. Analysts became prisoners of "the 'jigsaw theory' of intefligence-that one little scrap might be the missing piece .11 Policy-makers were "inundated with intelligence reporting.... There is simply too much to read, from too many sources," the committee concluded. Policy-makers' demands led the intelligence community to devote too much time and energy to covering events on a day-to-day basis. the committee said. It added that this led to a "tendency to focus myopically on the latest piece of information without svstematic consideration of the accumulated body of integrated evidence." The panel concluded that this process weakened the intelligence community's ability both to warn policymakers of impending crises and to recognize long-term trends. Covert Operations: Chile, LaosThe committee said that covert action. which had begun in the late 1940s as "limited ad hoc responses" to the Soviet threat to Europe during the Cold War, had become "a routine program of influencing governments and covertly exercising power-involving literaliv hundreds of projects each year." The committee concluded that covert actions tended to be successful when they had been launched in support of "policies which have emerged from a national debate and the established processes of government." It cited covert support to anti-Communist forces in Western Europe in the late 1940s as an example of such actions. But the committee warned against -a temptation on the part of the executive branch to resort to covert operations in order to avoid bureaucratic. congressional and public debate." It pointed to the CIA's "secret war" in Laos and the campaign against the government of Marxist President Salvador Allende in Chile as examples of cases where covert action had been used as a "convenience." The committee judged paramilitary operations to be "on balance ... a failure." It argued that in four of the five cases studied by the committee, the paramilitary operat ion had either failed in its objective or had lost its covert aspect so that U.S. involvement became apparent. The "secret war" in Laos was cited by the committee as an example of a paramilitary operation that had lost its covert quality after it was officially disclosed during hearings in 1969 by the Senate Foreign Relations Committee. But the report noted that administration witnesses at the time had claimed that the Laos operation was a great success because it had put pressure on North Vietnamese supply lines during the U.S. military effort in Vietnam. (Laos involuement, 1969 Almanac PP. 84, 443. 460, 997, 1001) Use of Scholars, Clergy, MediaThe CIA currently was using "several hundred" American college administrators, faculty members and graduate students to write propaganda material and to provide leads for the agency, the committee revealed. The contacts were located on more than 100 American college and university campuses; at the majority of them no one-other than the individual contact was aware of the CIA link. The committee did not propose that these contacts be terminated: but it recommended that university officials be informed of clandestine CIA relationships on their campuses and that personnel who did not know they were working for the CIA be informed. On Feb. 11 the CIA announced that it would no longer hire any accredited American journalists for intelligence gathering or for preparing propaganda. At the time. the CIA employed about 50 journalists, according to the committee, but fewer than one-half of these were to be terminated. In the past. more than a dozen U.S. news organizations and commercial publishing houses provided cover for CIA agents abroad, the report said. The committee recommended that the Feb. I I CIA directive be written into law because, it said. it was concerned that the use of American journalists for clandestine operations was a threat to the integrity of the press. The CIA informed the committee that 21 religious personnel had in the past participated in covert actions or clandestine collection schemes for the CIA, but that as of Feb. 11 the agency had no relationship with any American clergyman and that the practice had been halted. |
The release April 26 of the 651-page report (S Rept 94-755, Book D on U.S. foreign and military operations culminated the Senate's 15-month investigation of the nation's intelligence community. "The select committee has conducted the only thorough investigation ever made of United States intelligence," according to the document.
The probe was authorized by S Res 21, approved by the Senate on Jan. 27, 1975. The measure established an 11member panel to determine whether the CIA, FBI and other U.S. law enforcement and intelligence agenies had engaged in "illegal, improper or unethical activities" as charged in press reports published in late 1974 and 1975.
The panel also was expected to determine 1) whether existing laws governing intelligence and law enforcement operations were adequate, 2) whether current congressional oversight of the agencies was satisfactory and 3) to what extent overt and covert intelligence actions in the United States and overseas were necessary.
Accordingly, the panel divided its inquiry into two areas: an investigation of allegations of wrong-doing and an examination of the agencies themselves.
The committee said that it concentrated its energies oD the six executive branch groups that dealt with intelligence: 1) the Central Intelligence Agency, 2) the counterintelligence activities of the Federal Bureau of Investigation, 3) the National Security Agency, 4) the national intelligence components of the Department of Defense, 5) the National Security Council and 6) the intelligence activities of the State Department.
The final report disclosed little that had not been revealed by the panel in the course of its investigation. The committee, over a 15-month period, had chronicled a long list of intelligence abuses: surveillance of U.S. citizens. political spying, drug experimentation on citizens. opening of the U.S. mails, assassination plots, covert projects to topple governments and efforts to disrupt protest groups.
The committee staff of 100, including 60 professionals, assisted the committee members in the inquiry, which involved more than 800 interviews, over 250 executive hearings and 110,000 pages of documentation, according to the report.
The committee complained that despite its legal mandate and its subpoena power to investigate the intelligence agencies, "in no instance has the committee been able to examine the agencies' files on its own. In all the agencies.... documents and evidence have been presented through the filter of the agency itself." In some cases, the committee said it was denied data by the executive branch.
The Senate committee's report on foreign and military intelligence pinpointed
the following problem areas that it said needed "urgent" attention:
The fundamental issue the committee said it faced during the investigation was how the requirements of American democracy could be balanced in intelligence matters against the need for secrecy.
In trying to reconcile the two, the panel said it found itself in a "difficult dilemma": As an investigating committee, it could not recommend legislation on some of the matters that came to its attention. On the other hand, because of the secrecy required, the committee could not "publicy present the full case as to why its recommendations are essential."
Secret InformationAt the insistence of the intelligence agencies, information on "Cover," "Espionage" and "Budgetary Oversight" were not included in the published version of the Select Intelligence Committee's final report. Also excised from the public version were sections on covert action that dealt with the techniques of such operations and with the procedure by which they were approved. Deleted from the chapter on the State Department's intelligence activities was a section dealing with the cover provided by the department to intelligence agents from other U.S. agencies. In addition to material that was deleted, portions of the chapter describing the CIA's use of U.S. academic and religious institutions and the communications media were rewritten at the request of the agency. Those portions of the report were printed in italics. The material deleted from the public report, or appearing only in abridged form, was deposited with the permanent Senate intelligence committee. It was made available to members of the Senate -- but not their staffs. |
The committee's 87 proposals covering foreign and military intelligence operations fell into four categories: 1) new laws to define the activities and organization of the intelligence community; 2) reviews of intelligence operations by the executive branch; 3) restrictions on certain intelligence activities, and 4) congressional oversight procedures.
Statutory Authority. The committee pointed out that the 1947 National Security Act, which established the CIA, did not provide a comprehensive charter for the agerim For example, it did not explicitly authorize espionage, covert action or paramilitary warfare.
In addition, the other key intelligence agencies -- the National Security Agency and the Defense Intelligence Agency -- did not have charters.
The committee recommended legislation that would:
Executive Review. The committee proposed that the executive branch review and approve all covert action projects, "however small," before they were put into operation.
As part of his Feb. 18 intelligence reorganization plan, President Ford established a mechanism through which he would be advised of covert operations as a way of providing a more svstematic decision process. The 40 Committee, a National Security Council subcommittee that previously managed covert operations, was renamed the Operations Advisory Group (OAG); it was required to advise the President on proposed covert operations and high-risk information collection plans.
Although the select committee found the new panel "desirable," it noted that under the new system the group's members were Cabinet officers "who have even less time than their principal deputies, who previously conducted the 40 Committee's work," for intelligence oversight.
The committee recommended that the group should be provided with adequate staff to assist it in conducting thorough reviews of covert actions. In addition, the panel proposed that the Secretary of State be designated by law as the principal administration spokesman to Congress on the policies and purposes underlying covert projects.
The committee called for the establishment by law of a counterintelligence committee, headed by the Attorney General, to coordinate and review foreign operations as well as the clandestine collection of foreign intelligence within the United States by both the CIA and the FBI. "The goal would be to ensure strict conformity with statutory and constitutional requirements," the report said.
In a proposal that did not differ significantly from the President's Feb. 18 reorganization, the Church panel recommended that the Director of Central Intelligence (DCI), which had had nominal leadership and oversight of the intelligence community since 1947, be given authority for establishing national intelligence requirements, preparing the national intelligence budget and providing guidance for U.S. intelligence operations.
"While President Ford's executive order is a step in the right direction," the Church committee report said, "the DCI's responsibility over intelligence activities should be enhanced and spelled out clearly in detail by statute." The President should not continue to define the director's responsibilities through executive orders and directives, the panel added.
Although the panel was not insistent, it suggested that the DCI be separated from direct responsibility over the CIA because "the DCI's new span of control-both the entire intelligence community and the entire CIA-may be too great for him to exercise effective detailed supervision of clandestine activities."
During its long investigation, the committee found that internal reviews of intelligence agency programs had not been effective because the inspector general and general counsel within each agency often did not have access to essential information. The panel r-ecommended that the officials be given unrestricted access to critical data and that annual reports on their investigations be furnished to Congress.
Covert Activities. Between 1961 and 1975 the CIA had conducted 900 major covert action projects plus several thousand smaller operations, according to the report, which added that the secrecy which covert action required meant that the public could not determine whether such actions were consistent with established foreign policy goals. This secrecy, the committee said, has allowed covert actions to take place that were inconsistent with basic U.S. traditions and values.
The panel said it had "given serious consideration" to banning all forms of covert activity, but that this was discarded. The nation, it concluded, "should maintain the capability to react through covert action when no other means will suffice to meet extraordinary circumstances involving grave threats to U.S. national security." The committee did not specify what circumstances might call for covert projects.
The following recommendations were made by the committee majority for the
control of covert operations:
Congressional Oversight. The intelligence community's immunity from congressional oversight had been a basic reason for its failures, inefficiencies and misdeeds, according to Church.
As the centerpiece of its recommendations, the committee proposed that a new congressional oversight panel be given authority to consider and approve a "national intelligence budget" each year. The total amount then would be made public.
By disclosing the amount, public speculation about overall intelligence costs would be stopped, the public would be assured that funds appropriated for other government agencies were actually intended for those agencies and both Congress and the public would be able to assess overall priorities in government spending, the report stated.
Although the committee deleted the cost of U.S. intelligence activities for fiscal 1976 from its report, the panel noted that the budget amounted to "about three per cent of the total federal budget." (This would be about $11.2-billion calculated on a fiscal 1976 spending estimate of $373.5-million.)
Besides recommending that the intelligence budget be authorized separately each year, a majority of the committee said congressional oversight of intelligence agencies could be improved by requiring 1) prior notice of significant covert operations, 2) approval by Congress of the use of U.S. combatants in paramilitary activities and 3) prompt reporting by the agencies of cases of wrongdoing within their jurisdictions.
Specific Agencies
The CIA. Eighteen of the committee's recommendations dealt specifically
with the CIA. To clear up ambiguities in the 1947 National Security Act relating
to the agency, the committee proposed that a new charter be established "which
makes clear that its activities must be related to foreign intelligence."
The CIA would be given the following missions:
In carrying out its foreign intelligence mission, the CIA would be permitted to operate within the United States so long as it did not violate the Constitution or federal. state and local laws. "'hat the committee had in mind was protecting the U.S. government from infiltration by foreign agents -- a threat that is "real." More than a thousand Soviet officials are on permanent assignment in the United States, the panel disclosed, and among these. 40 per cent have been identified as members of the KGB or GRU, the Soviet civilian and military intelligence departments.
The committee voiced concern over the adequacy of the CIA's intelligence analysis procedures: "the agency's intelligence resources are overwhelmingly devoted to the collection of intelligence: the system is inundated with raw intelligence; the individual [dAl analyst responsible for producing -finished intelligence has difficulty dealing with the sheer volume of information."
In a crisis situation, analysts tend to focus on the latest piece of evidence at the expense of the longer view, the committee said. "The intelligence community staff saw this tendency as one reason why the Cyprus coup in July 1974 was not foreseen."
The panel recommended that greater emphasis be placed by the CIA on developing new tools and methods of analysis.
Defense Department. Like President Ford, the Church committee recommended that the Defense Intelligence Agency (DIA) and the National Security Agency (NSA), both Pentagon organizations, be retained.
The Senate committee, however, proposed that Congress set out the responsibilities of the two agencies in legislative charters. The basic function of the NSA is collecting and processing foreign communications and signals as well as supervising the cryptography of all U.S. intelligence agencies. There is a "compelling need" for an NSA charter to spell out limitations which will protect individual constitutional rights, the committee stated. (During the panel's investigation of intelligence abuses, it was disclosed that the agency monitored most cable and electronic traffic between the United States and foreign nations, including routine communications of private citizens.)
Although the committee found that the DIA was needed to provide tactical intelligence required by the Joint Chiefs of Staff, the panel complained that it "has not fulfilled expectations that it would provide a coordinating mechanism for all defense intelligence activities and information." The agency's existence has not led to a "diminution in the size of the separate military intelligence services that was hoped for," the panel noted.
Recommended by the committee were 1) organizational steps to bring the DIA closer to the top Pentagon leadership and 2) greater effort to improve the caliber of the agency's analysts.
State Department. In 1974 Congress approved legislation (PL 93-475) that made ambassadors responsible for directing, coordinating and supervising all U.S. government employees, including intelligence personnel, within their assigned countries. But "instructions implementing this law have still not been issued by any quarter of the executive branch," the report said; this should be done "promptly."
Although ambassadors generally have knowledge of covert action projects undertaken in their assigned countries, they are not informed about espionage or counterintelligence operations directed at foreign governments, the committee found, and "often ambassadors do not want to know the specifics of such operations."
The reluctance of ambassadors to exercise their authority in intelligence matters was traced by the committee to the State Department, which "has not encouraged them to do so." The committee concluded that the role of ambassadors constituted a "central element in the control and improvement in America's intelligence operations overseas."
Additional Views
Nine committee members attached additional and dissenting views to the committee report. The panel's recommendations were supported by four of them. Three of the members warned that those proposals would unduly restrict the workings of the intelligence community.
Committee Chairman Church said that he favored more severe restrictions on covert operations than a majority of the committee was willing to endorse. "We have gained little, and lost a great deal, by our past policy of compulsive interventionism," he warned. "Above all, we have lost ... the good name and reputation of the United States from which we once drew a unique capacity to exercise matchless moral leadership."
He blamed the previous policy on "the fantasy that it lay within our power to control other countries through the covert manipulation of their affairs ... the illusion of American omnipotence."
Conceding the possibility of "a dire emergency when timely clandestine action... might avert a nuclear holocaust," he urged that such cases be handled on an ad hoc basis through the Department of State. He warned against maintaining "a regiment of cloak-and-dagger men, earning their campaign ribbons-and, indeed, their promotions-by planning new exploits throughout the world."
Walter F. Mondale (D Minn.), Gary Hart (D Colo.) and Philip A. Hart (D Mich.) complained that, in reviewing the committee report, the CIA "used the classification stamp not for security, but to censor material that would be embarrassing, inconvenient or likely to provoke an adverse public reaction to CIA activities,"
Because of CIA objections, they pointed out, the committee was unable to disclose its in-depth case studies of covert action, "which paint a picture of the high political costs and generally meager benefits of covert programs." They also said that, at the agency's insistence, the report's discussion of the CIA's use of U.S. scholars in clandestine operations had become "so diluted, that its scope and impact on American academic institutions is no longer clear."
Vice Chaiiman Tower said the committee's "183 separate recommendations proposing new, detailed statutes and reporting procedures not only exceed the number and scope of documented abuses, but represent over-reaction." He said they would "unnecessarily limit the effectiveness" of the intelligence community and warned against making the community "fit for employment only in an ideal world."
He criticized the general thrust of the panel's recommendations as "coming dangerously close to being a blueprint for authorizing congressional management" of the intelligence community's day-to-day affairs, a task for which the legislative branch was "ill-suited," he said.
Specifically, Tower challenged the committee's recommendation that Congress receive prior notification of covert operations, calling it "neither feasible nor consistent with ... the separation of powers." He also criticized the committee's recommendations that electronic surveillance be allowed only in cases involving suspected violations of criminal statutes, noting that the committee itself recognized that this standard "offered inadequate coverage" of modern espionage operations.
Barry Goldwater (R Ariz.) described the committee's work as "an outgrowth of a period in which disillusionment, dismay and disaffection were all too prevalent in America." He said he refused to sign the report in the belief that it would "cause severe embarrassment, if not grave harm, to the nation's foreign policy."
He attacked the committee's staff report on covert action in Chile, released Dec. 4, 1975, for omitting information that, he said, would permit "the American public to understand why anti-Allende operations were undertaken bv three successive U.S. administrations." He conceded that "there may have been some mistakes in the conduct of our affairs in Chile," but he insisted that "the threat of a Communist dictatorship under Allende was very real."
Goldwater warned that disclosure of the annual amount spent on intelligence activities, as recommended by the committee, would lead to pressures for a more detailed accounting that would provide valuable information to the nation's opponents. Also, he argued, U.S. allies would view publication of a total figure as "one more signal that America is unable to protect its secrets" and would shy away from cooperating with U.S. intelligence agencies for fear of ultimate exposure.
He said that covert operations should not be limited to cases directly involving "vital- U.S. interests. He maintained tnat the importance of covert operations lay in their ability to prevent the emergence of a crisis in which vital U.S. interests would be threatened.
Unlike Tower and Goldwater, Howard H. Baker Jr. (R Tenn.) signed the committee report, but he joined them in concluding that some of the committee's proposals would "impose undue- restrictions upon vital and legitimate intelligence functions."
He warned that some of the committee's recommendations would increase the bureaucratic complexity of the intelligence community without improving its efficiency.
He approved the disclosure of the total cost of U.S. intelligence operations, but insisted that no further breakdown be provided. The nation needed to maintain an "infrastructure" of covert operatives, he said, so that "the United States can predict and prevent actions abroad which are inimical to our national interests." He said the proper degree of congressional oversight could be ensured by requiring that the President keep Congress "fully and currently informed" of covert operations.
CQ Almanac, 1976, pp. 330-338.
The aftermath of the 1975 investigation into abuses and wrongdoing by federal intelligence agencies was as chaotic in the House as it was serene in the Senate. After its stormy, four-month probe of the U.S. intelligence community was concluded, the House Select Intelligence Committee voted 9-4 on Jan. 23, 1976, to release a 238-page final report.
This action was taken despite administration objections that the report contained information that would harm the national security if made public. The panel's inquiry had been marked by repeated clashes with the executive branch in 1975 over access to classified materials.
A minority on the committee disagreed with the decision to release the full report, and so did many members of the House generally. On Jan. 29, after the White House had exerted great pressure to reverse the intelligence committee's decision, the House voted 246-124 not to make the report public until it had been "certified by the President as not containing information which would adversely affect the intelligence activities of the CIA or other federal agencies."
The House action had followed publication Jan. 26 of a summary of the report, which had been leaked to The New York Times. The leak was vigorously criticized by the White House and many lawmakers.
But this was just the beginning of a year-long dispute over the information classification issue. Thirteen days later, on Feb. 11, a New York weekly newspaper, The Village Voice, disregarded the will of the House opposing release and published excerpts of the secret report in a 24page supplement.
Two days later, CBS News reporter Daniel Schorr confirmed reports that he was the one who had supplied the copy of the report published by The Village Voice. But he refused to reveal who leaked the document to him.
The paper's publication set off a furor in Congress and the executive branch. A member of the House Armed Services Committee announced that he would seek contempt of Congress proceedings against Schorr, and the Justice Department disclosed that it was studying whether there had been any violations of the espionage or other federal laws.
On Feb. 17 the House voted 269-115 to require the House Standards of Official Conduct Committee to investigate the circumstances surrounding publications of the report. There followed a series of hearings by the panel in July. But the ethics committee was unable to establish the leak's source. In August Schorr was subpoenaed to testify on his role in the publication of the leak.
Although Schorr appeared before the panel in September, he continued to refuse to disclose the source of the leak or to cooperate with the committee's investigation. Despite grumblings from some members of the committee that Schorr's behavior was contemptuous and reprehensible, and warranted some form of punishment, the ethics panel voted 5-6 on Sept. 22 against recommending that the House seek to prosecute the CBS newsman.
One casualty of the events surrounding the intelligence report leak was the failure of the House to establish a permanent intelligence oversight committee similar to that instituted by the Senate. Another result was the year-long embarrassment to the House caused by the failure of the ethics committee to discover the source of the leak. Finally, the subpoena of Schorr raised basic First Amendment questions that were left unanswered.
The select committee, as its final act, drew up a comprehensive list of recommendations to reform the federal government's intelligence apparatus, but the reaction to the leak of the committee's findings on CIA and other agency abuses destroyed any hope of enacting such extensive reforms during the remainder of the session.
Congress and Classification: A Continuing DisputeShould the House take up in a future Congress the ethics committee's suggestion that it revise its procedures for handling classified information, it could choose as its point of departure the recommendations of any of three congressional committees that have proposed such reforms since 1974. A major dispute with the executive branch would likely arise over claims by the House of authority to release, despite objections of the administration, information classified secret by an executive agency. All three recent congressional proposals, summarized below, have provided a mechanism for such disclosure. 1. House Select Committee on Committees (Bolling committee). In its 1974 proposal for reorganizing the House committee structure, which was ultimately rejected by the House, the Bolling committee, named after its chairman Richard Bolling (D Mo.), recommended in its report (H Rept 93-916, Pt. H) that the House approve a set of rules governing the use of classified information that would "give the same quality of protection as is afforded by the executive branch, but not ... tie the hands of the House when overriding considerations of national policy require a change from the restrictions imposed on such information by its originators in the executive branch. " The panel discussed the possibility of establishing an intelligence subcommittee of the House International Relations Committee to parallel the intelligence panel already existing in the House Armed Services Committee. The two subcommittees meeting jointly would constitute a special committee on intelligence with responsibility for oversight of classified information held by the House. If a member or any committee felt that an item of information was improperly classified, it could, after requesting reclassification (or declassification) by the originating government agency, ask the intelligence committee to change the classification of the information. If the committee agreed to the request, and if the Speaker and minority leader concurred in the decision, the change would be made. If the decision were adverse, an appeal could be taken to the floor of the House in a closed session. (1974 Almanac p. 634) 2. House Select Committee on Intelligence. While the storm was brewing over the unauthorized release of its report, the Select Intelligence Committee in Februarv released a list of 20 recommendations to curb abuses by intelligence agencies and to improve congressional over,sight of the intelligence community. Included was a provision to allow any committee to release any information or document in its possession by majority vote. If the committee voted against release of any item of information, any member could, if supported by a petition of one-fifth of the members of the House, demand a secret session of the House at which he could appeal for release of the information. (Details, first page of this story) 3. Senate Intelligence Committee. The resolution (S Res 400) adopted May 19 that established a permanent Select Committee on Intelligence also included a procedure for congressional declassification of executive branch secrets. By majority vote, the new panel could release information if the President did not object to the committee's decision within five days. If the President objected in writing, the committee could refer the matter to the Senate, which could: 1) approve the disclosure in full or in part; 2) disapprove disclosure; or 3) refer the matter back to the select committee. (See separate story this chapter.) |
A permanent House intelligence committee with legislative, budgetary and supervisory authority over all U.S. domestic and foreign intelligence activities was recommended by the House Select Intelligence Committee as its final act. The committee was disbanded Feb. 11.
The proposal was one of 20 adopted by the select committee on a 9-4 vote Feb. 10. The panel did 'not have jurisdiction over drafting the legislation to implement the proposals. The report on the recommendations was riled Feb. 11 (H Rept 94-833).
Several of the committee's key proposals were aimed at strengthening congressional control over the intelligence agencies through better oversight of their budgets. Besides vesting the authority to consider the agencies' budget requests in the new standing committee, the panel called for each agency's intelligence expenditures to be disclosed in the President's annual budgets as a single sum. It also recommended that any transfer or reprogramming of appropriated funds or the expenditure of contingency funds for intelligence operations be subject to approval by the new committee and other appropriate committees.
The committee recommended that the General Accounting Office be empowered to conduct a management and financial audit of all intelligence agencies unhindered by any executive branch security classification system. The proposal specifically said the GAO should have the authority to cover "vouchered funds"-those that could be expended at the sole discretion of an agency director. The committee also called for the strengthening of the CIA's internal audit procedures.
Covert Operations
The panel called for the creation by statute of a Foreign Operations Subcommittee within the National Security Council to advise the President on proposed covert operations and hazardous intelligence collecting activities.
The members of the subcommittee, which automatically were to include the U.S. ambassador for the affected country as well as the assistant secretary of state for the region, would be required to submit to the President individual, written assessments of each clandestine proposal.
Within 48 hours of initial approval by the President of any covert
operation:
Assassinations and paramilitary activities were prohibited except in time of war, according to the committee recommendations, and any covert operation could be authorized for no longer than 12 months from the initial approval by the NSC panel.
Classified Information
Enactment of a system of information classification that would provide a method for regular declassification was recommended.
The committee also called for amending the National Security Act of 1947 to permit full disclosure of intelligence-related information to appropriate committees of Congress. It recommended a procedure by which a new intelligence committee or the House could vote to declassify information.
Intelligence Reorganization
The committee recommended that the Director of Central Intelligence be separated
from the CIA -- for which he currently was directly responsible -- to better
coordinate and oversee the entire foreign intelligence community "with a
view to eliminating duplication in collection and promoting competition in
analysis." Other recommendations called for:
The committee recommended severe restrictions on domestic activities by U.S. foreign and military intelligence agencies. It also proposed that judicial warrants be issued before the FBI could infiltrate any group, and called for regulations limiting the investigation of terrorist groups to specific violations of criminal law within the FBI's jurisdiction.
HOUSE INACTION
The House took no action on any of these proposals during the session. However, some of the committee's recommendations related to action taken by President Ford in his intelligence reorganization in February. Separate legislation (HR 12750, S 3197) dealing with controls on domestic wiretapping within the United States was introduced in the House and Senate, but was not passed. (See Ford intelligence reorganization story this chapter; wiretapping bill, Law and Judiciary chapter.)
Siding with the Ford administration rather than with its own select intelligence committee, the House Jan. 29 by a decisive 246-124 vote blocked the panel from releasing its 338-page investigative report on the CIA and other intelligence agencies.
On the vote, 119 Republicans and 127 Democrats, majorities of both parties, voted to block the report; two Republicans and 122 Democrats voted not to. (Vote 19, p. 6-H)
The House vote came on an amendment to a resolution (H Res 982) reported by the Rules Committee authorizing the committee to file the report by Jan. 30 and its recommendations for improved oversight of the intelligence community by Feb. 11. Proposed by Rules Committee member John Young (D Texas), the amendment stated that the committee could not release a report containing classified material until it "has been certified by the President as not containing information which would adversely affect the intelligence activities of the CIA" or other agencies.
Committee Vote
The Rules Committee Jah. 28 had adopted Young's proposal by a 9-7 vote and attached it to the resolution specifying release dates.
Otis G. Pike (D N.Y.), chairman of the select intelligence committee, was undecided on what course he should then take: whether to submit the disputed report to the President or kill the study entirely. Favoring the latter course, which prevented an official release of the study, Pike declared that the October 1975 agreement between the administration and the committee "did not apply to our final report." Pike added that he would never have agreed to that because it would have allowed the executive branch to "censor the report."
But other members of the committee had disagreed with its Jan. 23 decision to publish the report with sections of classified material included, reportedly dealing mainly with Angola and Italy. Dale Milford ( ' D Texas), who along with three others on the 13-member committee opposed publication, told the House during debate on H Res 982: "The issue is, can nine members of the House release information unilaterally."
Robert McClory (R Ill.), ranking minority member of the panel, maintained that releasing the report without deletions would be a violation of the "solemn agreement" reached with the President in 1975.
"I do not interpret the mandate given to our select committee to permit it to undertake unilaterally to declassify secret information he added.
But defenders of the report appeared to disagree with this assertion-the underlying issue of the contrbversy. "Our choice today is whether or not to continue hiding shameful conduct and faulty judgment," said James P. Johnson of Colorado, the one Republican on the Pike committee who voted Jan. 23 for the report's release. "It is not the national security that is involved; it is the national shame."
Johnson, challenging the classification system, said it was "used to hide from the American people conduct which the government is ashamed to release." Declared Richard Bolling (D Mo.): "A vote for the Young amendment... destroys any hope ... of the House ever exercising any effective oversight of executive activities that involve secrecy."
After the House approved the Young amendment, H Res 982 was approved by voice vote. In a statement later released by the White House, President Ford said he was "pleased" that the House "has taken proper and responsible action to safeguard classified foreign intelligence."
New York Times Disclosures
The House action followed the publication Jan. 26 of a summary of certain portions of the intelligence committee's report leaked to The New York Times. The leak had drawn sharp criticism from many lawmakers and executive officials, becoming an issue itself during debate on H Res 982.
The President's press secretary, Ron Nessen, had said before the House debate that the "unauthorized release raises serious questions about how classified material can be handled by Congress when national security is at stake."
But A. Searle Field, director of the intelligence committee's staff, had maintained that he was "as gertain as I can be" that the leak did not come from the committee, and that it may have originated with the executive branch itself; several federal agencies had been provided with copies of the final report.
As for the contents of the staff report, outgoing CIA Director William E.Colby denounced the Jan. 26 Times story as "totally biased and a disservice to our nation, giving a thoroughly wrong impression of American intelligence." The CIA's special counsel, Mitchell Rogovin, earlier had written Pike that the staff report was "an unrelenting indictment couched in biased, pejorative and factually erroneous terms."
Among the disclosures contained in the intelligence report as leaked to the
Times were the following:
On Feb. 11, the day the Select Intelligence Committee filed its recommendations on intelligence reforms, the New York-based magazine The Village Voice published excerpts of the panel's secret report in a 24-page supplement.
The published excerpts, apparently taken from one of the drafts through which the report had passed, indicted U.S. intelligence methods as inefficient and ineffective and said that most of the CIA's covert operations appeared to lack any overall coherence with a master plan. The excerpts condemned Secretary of State Henry A. Kissinger for having a "passion for secrecy" and for obstructing the select committee's investigation.
On Feb. 12, Kissinger assailed the committee report as a "malicious lie."
He said that material supplied to the committee had been used "in a tendentious,
misleading and totally irresponsible fashion." President Ford offered House
Speaker Carl Albert (D Okla.) "the full resources and services of the executive
branch" to trace the source of the leak. A White House spokesman denied that
the offer was an attempt to put pressure on the Speaker. He said Ford was
offering the assistance only because:
Some members of the select committee suggested that the report might have been leaked by the executive branch ' "I can't conceive of anyone on the committee or its staff who would want it to come out in this manner," said Chairman Otis G. Pike (D N.Y.). "It would be to the CIA's advantage to leak it to that publication," he added. "All the leaks make the committee look bad from the long-term view of Congress' wish to oversee the intelligence community."
Intelligence Report
In the version of the report published in The Village Voice, which was nearly identical to the final version, the committee strongly criticized the U.S. intelligence community for failing to give the President timely warning of several previous international crises including the Soviet Union's invasion of Czechoslovakia in 1968, the October 1973 Middle East War and military coups in Cyprus (1974) and Portugal (1975). It charged that Secretary of State Henry A. Kissinger had shrouded foreign policy-making in a secrecy that "may ... have thwarted effective intelligence analysis." The Secretary had issued statements "at variance with the facts," according to the panel, in regard to his handling of possible Soviet violations of the first strategic arms limitation agreement.
The committee concluded that the pattern of covert overseas operations engaged in by U.S. intelligence agencies reflected "a general lack of a long-term direction in U.S. foreign policy." It called the operations "a band-aid approach, substituting short-term remedies for problems which required long-term cures."
The panel estimated that the amount spent on intelligence operations was "at least three to four times the amount reported to Congress." It warned that intelligence expenditures amounted to "more than $10-billion being spent by a handful of people, with little independent supervision, with inadequate controls, even less auditing and an overabundance of secrecy."
Schorr Confirms Role
On Feb. 13 CBS reporter Daniel Schorr confirmed widely published reports that he had transmitted the Pike report to The Village Voice. He said he had obtained a copy of the document when its publication was assumed to be imminent. When the House voted to block publication, he said: "I decided that with so much of the contents already known, I could not be the one responsible for suppressing the report."
On Feb. 15 Samuel S. Stratton (D N.Y.) announced that he would seek contempt of Congress proceedings against Schorr. "This is not a case of freedom of the press, " said Stratton, but rather "clear defiance of the mandate of the House of Representatives."
A Justice Department spokesman announced on Feb. 17 that the department was looking into the case to determine whether there was any reason for an investigation of a possible violation of law. He said that besides the espionage statutes, the department was considering the relevance of statutes prohibiting theft of government property.
The House Feb. 19 adopted a resolution (H Res 1042) requiring the House Standards of Official Conduct Committee -- the ethics committee -- to investigate the circumstances surrounding The Village Voice's publication of the Select Intelligence Committee's final report. The resolution referred specifically to Schorr's alleged involvement in the leak, which it said "may be in contempt of, or a breach of the privileges of, this House." H Res 1042 had been introduced by Stratton the same day as a privileged resolution, requiring immediate floor action.
During debate on the resolution, Stratton said its adoption was necessary to show that the House recognized "the danger that these leaks pose, and that we are prepared to do our constitutional duty ... to protect our people." He said that a vote for the resolution did not foreclose the case against Schorr.
In opposition to the resolution, Bob Eckhardt (D Texas) said he was "willing to join in an inquiry, but I am not willing to join in an inquisition." Majority Leader Thomas P. O'Neill Jr. (D Mass.) objected that the measure was brought directly to the floor as a privileged resolution instead of being referred to and reported from the House Rules Committee. He offered a motion to refer it to the committee, but it was rejected by a 172-219 vote. The House then went on to adopt the resolution, 269-115. (Votes 43, 44, P. 14-H)
Subpoena Power Granted
The House March 3 by a 321-85 vote approved a resolution (H Res 1054) giving the Committee on Standards of Official Conduct far-reaching subpoena power in its investigation of the unauthorized publication of the final report. (Vote 54, p. 18-H)
Under House rules, the ethics committee's subpoena power extended only to members, officers and employees of the House. H Res 1042 gave it no special subpoena powers, so on Feb. 25 Committee Chairman John J. Flynt Jr. (D Ga.) introduced H Res 1054, authorizing the panel for purposes of the investigation to subpoena "such witnesses and ... documents as it deems necessary."
On March 2 the Rules Committee heard testimony on the resolution from Flynt and the ethics committee's ranking Republican, Floyd Spence (R S.C.). John B. Anderson (R Ill.) expressed hope that the new authority "would not be used to bring in a lot of [reporters] and ask their sources." F1vnt emphasized that the investigation was not directed at any individual, but he insisted the House had given the panel an overwhelming mandate "to investigate the entire circumstances of the leak."
The Rules Committee ordered the resolution reported by voice vote. The report (H Rept 94-865) was filed the same day.
When the resolution was taken up March 3, floor managers John Young (D Texas) and James H. (Jimmy) Quillen (R Tenn.) briefly urged its passage. Stewart B. McKinnev (R Conn.) said the leak had jeopardized the credibility of a Congress that "wants to have more to do with foreign policy ... [and] intelligence." He added, "It is for us to show that we can clean our own house."
Young then moved the previous question to end debate and the motion carried, 306-99. (Vote 53, p. 18-H)
Several members protested that they had intended to debate the resolution but had misunderstood the parliamentary situation. Young asked for unanimous consent to permit an hour's debate, but F. Edward Hebert (D La.) objected, preventing any further discussion.
The House then passed H Res 1054 by a margin of almost 4 to 1, greater than the margin by which the House had originally ordered the investigation.
Funds Authorized
On March 2, the ethics committee requested $350,000 to conduct its inquiry -- 10 times the committee's total authorization for fiscal 1975.
The ethics committee had never formally investigated anyone. In 1975 it spent $13,600 of an authorized $35,000 and had five staff members.
On March 4, Flynt announced that the panel would hire 10 investigators and at least three lawyers with the new funds. The committee already had hired a retired FBI inspector, David Bowers, to direct the investigation.
But the House Administration Committee's Subcommittee on Accounts March 22 cut the request by more than 50 per cent, recommending only $150,000 of the $350,000 asked for. It earmarked $75,000 of that amount for legal counsel for witnesses subpoenaed by the ethics committee.
During hearings conducted by the Accounts Subcommittee on the funding request March 16, ethics committee Chairman John J. Flynt Jr. (D Ga.) explained that although the panel was authorized under the rules of the House to hire 21 staffers, it needed authority to contract for investigative staff on a per them basis.
The ethics committee request was for the hiring of approximately 10 investigators at $ 100 per day for 110 days and for 1,000 hours of legal advice at an average cost of $75 per hour. Flynt emphasized that the committee did not expect to use the entire request. He said, however, it might be necessarv to interview as many as 400 persons in the course of the inquiry.
Michael J. Harrington (D Mass.) appeared before the subcommittee to recommend that the funding request be reduced. He argued that the ethics committee, which in 1975 considered but later dropped a complaint against him for unauthorized disclosure of classified information, was biased toward discrediting the intelligence committee. He pointed out that rive of the 12 members of the panel were also members of the Armed Services Committee. (Harrington censure, 1975 Almanac p. 401)
Ironically, on the same day that the Accounts Subcommittee acted, Dale Milford (D Texas), a member of the House intelligence committee who had supported the embargo of that panel's report, introduced a resolution (H Res 1100) to release the document. He said that "substantially all of the bits and pieces" of sensitive, classified information had been included in the published excerpts. "Therefore," he concluded, "the data is no longer secret."
On March 29 the House approved the $150,000 authorization (H Res 1060) for the ethics committee recommended by the House Administration Committee. The vote was 278-87. (Vote 99, p. 32-H)
Samuel L. Devine (R Ohio), author of the amendment cutting $200,000 from the ethics panel's original request, emphasized that "there was no intention whatsoever to restrict the investigation." He said he was "totally confident" that the House would grant whatever money the committee felt was "reasonably necessary."
Bella S. Abzug (D N.Y.) argued against funding the investigation, which she called a "very serious invasion of the freedom of the press." She pointed out that several media outlets including The New York Times, The Washington Post, NBC, CBS and PBS had carried "full and complete reports" of the intelligence committee report before the House voted to embargo release of the document. "Are all of these organizations to be investigated to determine their sources?" she demanded to know.
"It would be far preferable," she added, "if the House were to begin thinking about how it is going to bring the CIA, FBI and other agencies under control.... That is what we should be concentrating on, not the leak of the report."
Michael J. Harrington (D Mass.) agreed: We find ourselves obsessed with "distracting attention from what has gone wrong in the intelligence field in the last 30 years" to "finding out whether we can be trusted with secrets, most of which should not have been made secret to begin with."
Harrington pointed to the publication in the journal Foreign Policy of memoranda of conversations between Secretary of State Henry A. Kissinger and Middle East heads of government as evidence that "the executive ... leaks at random and at will and this is a part of how they conduct their business."
Wayne L. Hays (D Ohio), chairman of the Administration Committee, insisted that freedom of the press was not at issue. "As I understand it," he said, "Mr. Schorr tried to peddle this information for money.... One can exhort and go on about freedom of the press and freedom of speech," he concluded, "but when a price tag is put on it, that sort of changes the complexion of it."
July Hearings
In public hearings July 19-21 various members and staff of the ethics committee charged that the intelligence committee had failed to take adequate steps to preserve the secrecy of classified information received from the executive brancii during the Pike committee's probe of U.S. intelligence agencies.
During the course of the hearings, the committee questioned under oath members and staff of the intelligence panel on their personal handling of the successive drafts of the committee's final report. But several members of the ethics committee expressed a reluctance to interrogate Schorr or other reporters known to have had access to the report. They preferred not to set off a debate on freedom of the press and journalists' claim of a right to preserve the anonymity of their sources.
F. Edward Hebert (D La.), himself a former journalist, said he would never ask a reporter to reveal a source. But he accused Schorr of seeking a confrontation with the ethics committee. which could lead to his citation for contempt of Congress. "I never met a reporter in my life who didn't want to go to jail," said Hebert.
Flynt Statement. In a statement opening the public hearings July 19, ethics committee Chairman Flynt said "unauthorized disclosure of classified information jeopardizes the credibility of the House and threatens the very ability of the House to deal with foreign policy, international affairs and intelligence operations."
He said that the panel sought to make recommendations concerning "whether more effective security procedures can be designed to enable the House to carry out a larger role in this nation's foreign policy and the oversight of intelligence operations."
David W. Bowers, a retired FBI agent with 25 years of experience, who directed the ethics panel's probe of the leak, presented a 52-page report of his staffs investigation. Bowers said that Schorr apparently received access to a copy of the report on or about Jan. 25. At that time, several variants of the draft report were in circulation within the intelligence committee and in the executive branch as a result of the committee's last-minute revisions made by its staff on Jan. 19. On the weekend in question, according to Bowers, members and staff of the intelligence committee possessed 19 copies, plus the original, of the report's final draft. He said that 40 copies existed within the executive branch, including 23 at the CIA and seven at the White House.
Many of these copies were, allegedly, destroyed. A comparison of 11 copies made available to the ethics committee staff with the version appearing in The Village Voice revealed that none of them matched the text as published by the paper. Bowers said the copy most closely matching the newspaper's version belonged to an intelligence committee member, but the newspaper version contained one page missing from that member's copy.
Bowers said that the investigation was hampered by what he considered to be loose security in the intelligence committee's handling of drafts of the report. "There was no specific control system," he said. "Copies of the draft contained no identification whatever. They were not numbered, nor were they charged out so they could be accounted for."
The ethics committee's interrogation of members of the intelligence panel recapitulated the debate, which had dogged the intelligence panel's final weeks, over the competence of a congressional committee to override an executive agency's classification of information on grounds that its release would be harmful to national security. A clear majority of the ethics committee, including Chairman Flynt, Charles E. Bennett (D Fla.), Floyd Spence (R S.C.) and James H. (Jimmy) Quillen (R Tenn.) supported the administration's contention that such action risked inadvertent exposure of information that would harm the national interest. Onlv Thomas S. Foley (D Wash.) displayed strong skepticism of the position taken by the executive branch.
Intelligence Panel Members. Members of the intelligence committee queried during the three days of the hearings reflected a rather consistent 9-4 split in that committee on questions relating to its conflict with the executive branch over access to classified information and subsequent release of that information. Intelligence Committee Chairman Otis G. Pike (D N.Y.), Les Aspin (D Wis.) and Philip H. Hayes (D Ind.) all of whom had voted to release the panel's final report, defended their actions. Ranking Republican Robert McClory (R Ill.) and Dale Milford (D Texas), who had voted against the release, faulted the Pike committee for lax security and disregard of executive branch classification decisions.
The ethics committee majority argued that the release of such information, which was, in itself, harmless, could provide a trained intelligence analyst with clues revealing matters harmful to the national security. Milford asserted that the publication of the committee's report contained "bits and pieces" of classified information that, when published in The Village Voice, "seriously jeopardized ongoing intelligence operations." The ethics committee majority argued that only those officials of the executive branch who classified information in the first place were in a position to judge the effect of declassifying it.
Supporters of the report's release argued that the intelligence committee was bound by its congressional mandate to investigate improper actions by the agencies that had classified the information in dispute. Pike said the committee's report "showed a tremendous breakdown in the intelligence system and they wanted to keep it secret." He maintained that the alleged intelligence breakdown was "not as dangerous to reveal as to conceal: if we conceal it we can't cure it."
Asked by Flynt whether he felt Congress was bound by executive branch decisions to classify information, Pike called the question "a tough one; prima facie, the answer is yes, but...you can't abandon all judgment when you run into a rubber stamp."
Questioned as to whether he had the expertise necessary to decide which information could be released by the intelligence panel, Hayes said he had understood the gravity of the matters to be weighed in making the decision. Challenged by Spence, who said the fact of Hayes' election to Congress did not give him the necessary expertise, Hayes replied: "It gave me the responsibility."
Schorr Subpoena
The ethics committee voted 8-4 on Aug. 25 to subpoena Schorr to testify on his role in the unauthorized publication of the intelligence report.
After the subpoena was voted, Schorr said that he would appear Sept. 15, as requested, but that "under no circumstances" would he reveal the source of the leak.
The subpoena motion was introduced by Charles E. Bennett (D Fla.). Also voting in favor were Democrats John J. Flynt (Ga.) and Olin E. Teague (Texas) and Republicans Floyd Spence (S.C.), James H. (Jimmy) Quillen (Tenn.), Edward Hutchinson (Mich.), Donald J. Mitchell (N.Y.) and Thad Cochran (Miss.).
Voting against the subpoena were Democrats Melvin Price (Ill.), F. Edward Hebert (La.) and Thomas S. Folev (Wash.) and Republican Albert H. Quie (Minn.).
Hebert had repeatedly warned the committee during the July hearings that a subpoena would play into Schorr's hands. He said that Schorr would refuse to answer the committee's questions in hopes of going to jail and becoming a martyr.
The ethics committee also voted 8-3 to subpoena the following three officials of New York magazine, which owned The Village Voice: Editor Clay S. Felker, Senior Editorial Director Shelly Zalaznick and Contributing Editor Aaron Latham.
First Amendment Cited
In a clash over basic constitutional principles, CBS newsman Daniel Schorr confronted the House Standards of Official Conduct Committee Sept. 15 with a flat refusal to assist the panel in its investigation of the unauthorized disclosure of the Select Intelligence Committee's final report.
Nine times Schorr refused to answer questions by members of the panel or by its special counsel, John f. Marshall, citing First Amendment guarantees of freedom of the press. Each time, committee Chairman John J. Flynt Jr. (D Ga.) recited the grounds for the panel's inquiry into the leak and warned the journalist that refusal to answer "will be deemed by this committee to constitute a willful failure to answer a question pertinent to the subject under inquiry," laying him open to a contempt of Congress citation. Each time. Schorr refused to answer, once regarding a question as to his conversations with big wife and his attorney about the leak.
Schorr and three other witnesses appeared under subpoena on the last day of scheduled hearings in the ethics committee's five-month-long probe of the intelligence report leak. Four other witnesses had testified on Sept. 14.
No Information Uncovered
In its interrogation of Schorr and three editors of New York magazine, the parent publication of The Village Voice, the ethics committee uncovered no new information relevant to the identification of Schorr's source. The witnesses were questioned about potentially distinctive markings on the leaked copy of the draft report that might have identified its source, but apparently to no avail.
Sheldon Zalaznik, one of the New York editors, disclosed that he and his colleagues had destroyed their Xeroxed copies of the leaked draft, anticipating the possibility of a later investigation of the leak. "It seemed prudent to do what we possibly could to avoid, even inadvertently, compromising the integrity of anybody's sources." Zalaznik said he burned his two copies of the report in his charcoal grill.
Another New York editor, Aaron Latham, refused to answer two questions after being warned by Flynt that he risked citation for contempt. Also questioned was Clay Felker, publisher of the magazine, who supported Schorr's refusal to divulge his source.
In a lengthy executive session Sept. 14, the committee interrogated three former members of the intelligence committee staff and an aide to intelligence committee member Ronald V. Dellums (D Calif.), all of whom denied leaking the report when they testified earlier in open session. Reportedly, the ethics committee's suspicions focused on Dellums' aide, who had admitted having in his possession a copy of the draft report over the weekend in which Schorr obtained a copy. But the aide had testified that he was working on the document for Dellums and that he had not given it to Schorr.
Opening Statement
In his opening statement, Schorr declined to give the panel his copy of the intelligence committee report because examination of the specific copy used could lead to discovery of the source, he said. "I consider it a matter of professional conscience as well as constitutional right not to assist in discovering the source," he said.
He argued that he had received the information only because of assurances that he would keep the source confidential. Violation of that confidence would, he insisted, "dry up many future sources for many future reporters." The reporter and the news organization would be the immediate losers, he continued, but "the ultimate losers would be the American people and their free institutions." Schorr repeatedly refused to answer any question relating to his sources, maintaining that an answer to any one of them might later be construed by a court as a waiver of his right to preserve the confidentiality of his source.
He also refused to give the committee his working notes for CBS News relating to his coverage of the House Intelligence Committee, or to discuss the internal editorial operations of CBS News. "If it were known that it would be possible in retrospect for a congressional committee or any governmental body to look back over the shoulder of those who are engaged in preparing news for dissemination, the effect would be chilling."
He pointed out that in 1971 CBS President Frank Stanton had declined on these grounds to provide information subpoenaed by the House Commerce Committee, which was investigating alleged bias in the production of the television documentary, "The Selling of the Pentagon." The House had rejected, 226-181, the recommendation of the Commerce Committee that Stanton be cited for contempt. (1971 Almanac p. 801)
Members of the committee argued that investigation of the leak was essential to effective congressional oversight of the government's intelligence agencies. "Congress must be able to take a look at what the intelligence agencies are doing," insisted Rep. Mitchell, "to prevent abuses.... But in order to do that ... we must be able to keep secrets."
Schorr conceded that the House had a right to plug its leaks. But he insisted that there was a "necessary tension" between the roles of government and the press. "The function of the press," he said, "is to expose secrets of government and to let the people know everything it was doing. How in God's name can we expose the secrets of the government ... if we can only expose what you say we can expose?"
Subpoena Dropped
The ethics committee Sept. 22 voted 5-6 against recommending that the House seek to prosecute Schorr for his refusal to give the panel his copies of the draft report of the House Select Intelligence Committee.
The motion to prosecute the reporter, offered by Edward Hutchinson (R Mich.), was also supported by committee Chairman John J. Flynt Jr. (D Ga.), Donald J. Mitchell (R N.Y.), James H. (Jimmy) Quillen (11 Tenn.) and Floyd Spence (R S.C.). Voting against the motion were Democrats Charles E. Bennett (Fla.), Thomas S. Foley (Wash.), F. Edward Hebert (La.) and Melvin Price (Ill.) and Republicans Thad Cochran (Miss.) and Albert H. Quie (Minn.).
The committee's other member, Olin E. Teague (D Texas), was not present.
The committee then turned down, 4-7, a motion by Cochran to recommend cancellation of Schorr's House press credentials for the remainder of the session. Cochran insisted that the House had a duty to protect the integrity of its own proceedings and that, if the committee did nothing, it would in effect condone Schorr's disregard of the House decision not to release the intelligence report. But Foley objected. Approval of the motion, he said, would mean that "the House can withdraw a newsman's credentials whenever it doesn't like a story." Bennett, Cochran, Hutchinson and Mitchell voted for the motion, and Flynt, Foley, Hebert, Price, Quie, Quillen and Spence voted against it.
By a 9-1 vote the panel then approved a Foley motion to release from the committee's subpoena Schorr and the three other reporters who were involved in the publication of the report. The motion also said that the committee took no position on Schorr's claim that he had a constitutional right, guaranteed by the First Amendment, not to reveal his source. Only Hutchinson voted against the motion. Price left the meeting before the vote.
Bennett then moved that the committee formally resolve not to recommend contempt-of-Congress proceedings against Schorr, but this failed by a 5-5 tie vote. Voting "aye" were Bennett, Foley, Hebert, Quie and Quillen; voting in the negative were Cochran, Flynt, Hutchinson, Mitchell and Spence.
Despite the 5-5 vote, Foley later told reporters that the committee's actions Sept. 22 ended its five-month-long search for the source of the intelligence report leak.
If the committee had recommended and the House voted for a contempt-of-Congress citation, Schorr would have faced conviction on nine counts of refusing to answer the committee's questions. Each count -- a misdemeanor -- was punishable by a fine of not less than $100 nor more than $1,000 or imprisonment for one to 12 months or both.
In its final report on its six-month-long, $150,000 investigation of the leak of the intelligence committee's report on CIA abuses, the ethics committee concluded that the leak had originated with "someone on or very close to" the staff of the committee that wrote the report.
The report was adopted Sept. 29 by a vote of 9-1 (H Rept 94-1754). Thomas S. Foley (D Wash.), who filed minority views, voted against.
The ethics panel concluded that Schorr had committed "a defiant act" in facilitating the report's publication by The Village Voice after the House had voted against release.
The ethics report, filed Oct. 1, included a recommendation that the House establish a system for classifying and declassifying information related to national security and that it hire a small staff of security officers to control the distribution of classified documents sought by the House.
Although some members and staffs of the intelligence committee had voiced suspicions that the administration had leaked the report in an effort to discredit the intelligence panel's investigation of the intelligence agencies, the ethics committee concluded that the source of the leak "was not associated with the executive branch."
The panel said that none of the copies of the intelligence report it examined, including all the versions located in the executive branch, matched the version published by The Village Voice. "Each contained significant variations, not just minor differences."
The committee had examine d 14 of the 20 copies of the report made by the intelligence panel; the other six reportedly were destroyed by the intelligence committee staff on Jan. 29.
Security Precautions
The ethics panel judged "adequate" the procedures adopted by the intelligence committee to protect the security of classified documents received from the executive branch. But it concluded that the rules were not strictly adhered to. It cited several instances in which members of the intelligence committee staff had deviated from the committee's own rules for controlling access to classified documents. Particular emphasis was placed on a meeting Dec. 31, 1975, between staff director A. Searle Field and several newsmen during which the reporters were given access to a transcript of a secret interview of a committee witness.
In its report, the panel called Schorr's role in transmitting the document to the New York paper "a defiant act in disregard of the expressed will of the House," later adding that it was "reprehensible."
While recognizing that the press would often disagree with the government on the control of information, the panel insisted: "It is not axiomatic...that the news media is always right and the government is always wrong.... Nor is the assertion that the government over-clas8ifies or improperly classifies much information a guarantee that the revealed secret will not do great harm."
The committee warned that "the news media frequently does not possess sufficient information on which to make a prudent decision on whether the revelation of a secret will help or harm."
Recommendations
The ethics committee advocated passage of legislation to establish a system for classifying and declassifying secret information, but it proposed no specific legislation dealing with the classification issue. The existing classification system was created by executive order, and had no legally binding force on Congress. The panel also recommended the creation of a system to resolve conflicts between the Congress and the executive branch over declassification "to preclude unilateral release of security information."
The committee called for new House rules governing the use of classified information, but did not recommend any specific changes in existing regulations. To ensure uniformity in the execution of the rules, it proposed that "a small staff of professionals be recruited and trained as security officers ... responsible for obtaining and controlling all classified documents sought by or in the possession of the House." It added that the security officers could screen House employees for security clearances and investigate future leaks of information.
Additional Views
Ethics Committee Chairman John J. Flynt Jr. (D Ga.), senior Republican Floyd Spence (S.C.), Olin E. Teague (D Texas) and Edward Hutchinson (R Mich.) criticized the panel's refusal to act on Schorr's defiance of the committee subpoena. "By voting against even the most rudimentary effort to obtain the information that we needed from the one man who was sure to know," they said, "the committee has shown that it is intimidated by the specter of constitutional questions which do not in fact exist in this case." Noting that the press had warned the committee against a confrontation with Schorr over his refusal to give information, they said: "The real reason that the media fought us so hard on the subpoena issue is very simple: they knew that they would lose ... [and] that an adverse precedent would discourage future leaks of congressional documents and future sensational news stories."
The four members insisted that the real issue was the right of Congress to investigate a leak that posed a potential threat to national security.
In separate individual views, Foley challenged several of the committee's major conclusions. Although he approved the "diligent manner" in which the committee and its staff prepared the report, Foley insisted that the evidence did not support the panel's conclusion that the leak was on or close to the intelligence committee staff and that it was not associated with the executive branch. "We simply do not know who provided the report to Mr. Schorr," he maintained.
Foley also dismissed as "unnecessary and gratuitous" the committee's "denunciation of the press and its general lecture to the press on its responsibilities under the First Amendment."
He endorsed the panel's call for improvement in the House's procedures for handling classified information, but he disagreed strongly with the recommendation that the House employ a staff of professional security officers.
To give such a group power to control classified documents in the possession of the House, "to judge the trustworthiness and reliability of the members, officers and employees of the House and to approve or deny their security clearances, to'conduct inquiries into leaks of information within the House,' and to remove all of these judgments and powers from members and committees," said Foley, "is an unprecedented and startling proposal whose dangerous implications for the House should be obvious."
CQ Almanac, 1976, pp. 415-421.
In its final report on domestic spying abuses by federal agencies, the Senate Select Intelligence Committee recommended limiting most intelligence activities within the L;nited States to the FBI. The committee called for stronger oversight and a basic legislative charter to control domestic U.S. intelligence activity. The only legislative activity relating to the recommendations involved wiretapping, and that bill (S 3197) was not enacted. (See following story)
The 396-page document (S Rept 94-755), released April 28, was the second volume of the committee's report of its 15-month investigation of the U.S. intelligence community. The first part, released April 26, contained recommendations for changes in foreign intelligence activities. (Foreign recommendatioms, chapter on National Security)
The report, concluded that domestic intelligence activity, which had become increasingly unchecked in recent years, had threatened and undermined Americans' constitutional rights of free speech. The report stated, "Too many people have been spied upon by too many government agencies and too much information has been collected." It said the FBI, CIA, National Security Agency (NSA) and Defense Department intelligence agencies had engaged in improper domestic intelligence and that the Internal Revenue Service (IRS) and U.S. Postal Service had been involved.
Beginning with vague presidential directives during the administration of Franklin D. Roosevelt to collect intelligence about "subversive activities," the report stated, the domestic intelligence apparatus mushroomed during the next 30 years. It came to include covert action and illegal measures against domestic groups that were treated as suspect, even though their activities might have been legal. The targets included anti-war and religious groups, advocates of new life styles and proponents of the women's liberation movement.
The committee said FBI headquarters alone had developed 500,000 domestic intelligence files. It said 300,000 individuals were indexed in a CIA computer system between 1967-73. Almost a quarter of a million first class letters were opened and photographed by the FBI and CIA between 1953-73 and millions of private telegrams were intercepted bv the NSA.
Presidential Misuse of the FBI -- Roosevelt to NixonDuring the Roosevelt administration the FBI began collecting information for the White House on the private lives of American citizens. This practice "grew to unprecedented dimensions" during the Johnson and Nixon administrations, according to the Senate Intelligence Committee's final report released April 28. The 40-year practice netted reports on members of Congress, lobbyists, Supreme Court Justice William 0. Douglas, Eleanor Roosevelt, executive branch officials, journalists and U.S. citizens opposed to White House policies. The information either was supplied voluntarily by the FBI or provided by the bureau in response to White House orders. The committee traced the origin of the intelligence abuses to May 21, 1940, when President Roosevelt asked the FBI to supply the names and addresses of citizens who had sent telegrams to the White House opposing the administration's defense policies. A month later, telegrams expressing support for a speech by a popular opponent of Roosevelt, Col. Charles A. Lindbergh, also were referred to the FBI. "A domestic intelligence program without clearly defined boundaries almost invited such action," the report stated. Truman-KennedyDuring the Truman administration, the FBI channeled "personal and confidential" letters to the President and his aides; these contained "tidbits" of political intelligence, according to the committee. such as notes on a former Roosevelt aide (not named in the report) who was trying to influence President Truman's nominations and appointments; the negotiating position of a labor union (also not named); and a meeting of Chicago newspaper executives planning to publish stories about organized crime and corrupt politicians. FBI reports on Communist "influence" in the United States provided a "considerable amount of extraneous information" about groups lobbying for civil rights legislation and about the political activities of members of Congress, the report disclosed. President Eisenhower received reports from the bureau on the meetings of an NAACP delegation-with the U.S. senators from Illinois and on social contacts by Mrs. Roosevelt and Justice Douglas with foreign officials. Requests also flowed from the Eisenhower White House to the FBI. Staff aides, for example, asked the bureau to check its files for data on Rev. Carl McIntyre, who heads the International Council of Christian Churches. FBI political reporting intensified during the Kennedy administration when Attorney General Robert Kennedy sent the President an FBI memorandum on the personal life of Martin Luther King Jr. The FBI also passed information to the White House on the plans of a group to publish allegations about President Kennedy's personal life, the report disclosed. In 1962 the FBI "complied unquestioningly" with a request from Robert Kennedy to interview a steel corporation executive and several reporters who had written stories about the official. Kennedy told the FBI the information was needed for a White House meetin a bureau official told the committee. Johnson and Nixon YearsDuring the 1964 Democratic national convention at Atlantic City, N.J., the White House received "useful political intelligence" as a byproduct of FBI electronic surveillance of civil rights groups and leaders. At Johnson's request, the FBI also kept records of contacts between foreign officials and members of Congress opposed to U.$. involvement in Vietnam. The Nixon administration carried the political abuses to another plateau when the White House authorized wiretaps that produced "purely political or personal information unrelated to national security." Between 1969 and 1971, 17 taps were placed on newsmen and executive officials. Taps also were placed on a number of persons who had left the government to take positions as advisers to Sen. Edmund S. Muskie (D Maine), who at the time was considered the front-runner for his party's nomination for President in 1972. "The misuse of the FBI had progressed by 1971 from the regular receipt by the White House of political tidbits ... to the use of a full array of intelligence operations to serve the political interests of the administration," the report concluded. |
The committee divided its domestic intelligence disclosures into seven major
categories, detailing the following abuses:
After stating its findings, the committee delineated 96 recom mendat ions, most of which were designed to be included in legislation intended to improve control over domestic intelligence apparatus. After specifying that intelligence agencies must be subject to the rule of law, thecommittee divided its recommendations into the following areas: 1) jurisdiction over domestic security investigations; 2) the circumstances in which an American should be investigated; 3) accountability in the executive branch for oversight of intelligence agencies, 4) the appropriate role of the courts and 5) the appropriate role of Congress.
Rule of Law. The committee concluded that placing intelligence agencies within a legal framework was the most fundamental reform needed. It could be accomplished, the committee said, through legislation and administrative regulations to implement the legislation. In the future, no intelligence agency should engage in any activities that were not covered by statute.
Jurisdiction Over Domestic Intelligence. In the next 23 recommendations,
the committee essentially proposed to centralize domestic security investigations
within the FBI. Foreign and military agencies such as the CIA and NSA would
be allowed only limited activity in the U.S. and activities affecting Americans
abroad also would be controlled. Recommendations affecting the CIA would:
In recommendations concerning NSA, the committee said the agency should not be allowed to engage in domestic securitv activities, and its charter should be drawn to limit its functions to the collection of foreign intelligence from foreign communications.
Monitoring of communications to, from or about Americans should be limited to obtaining information about hostile foreign intelligence or terrorist activities, and then only if a suitable judicial warrant were obtained. NSA would be allowed to collect information on its present or prospective employees, but any information incidentally acquired concerning other Americans was to be destroyed unless it concerned hostile activities, felonious criminal conduct or a threat of death or serious bodily harm. Any dissemination of such information was to be approved by the Attorney General.
The committee recommended that intelligence activities of the military services relating to civilians be limited to those necessary and pertinent to the military mission which could not feasibly be accomplished by civilian agencies.
Military agencies should be allowed to investigate their own personnel but should not be Allowed to continue to conduct investigations of Americans justified on grounds that such information would be useful in potential civil disorders.
The committee also included 11 recommendations involving the IRS and the Postal Service, aimed at protecting the privacy of U.S. citizens. The committee recommended that IRS information collection be limited to enforcernerit of tax laws. Any dissemination of IRS information should follow certain definite rules.
No inspection of the exterior of first class mail ("mail cover") should be accomplished without the written approval of the Attorney General, and no examination of the contents of first class mail ("mail opening") should occur except upon a judicial search warrant.
Limitations on Domestic Security Activities. The committee explained that the purpose of the recommendations in this section was to set limits to prevent abuses from domestic security activities without hampering criminal or espionage investigations.
Under the recommendations, certain FBI activities would be prohibited, including interfering with lawful speech, assembly or association of Americans, disseminating information for a political or improper purpose, harrassing or intimidating individuals and maintaining information on the political beliefs or private lives of Americans, except when clearly necessary for domestic security investigations.
The committee said it sought to carefully limit the scope of such investigations.
Its recommendations would permit the FBI to:
The next group of recommendations concerned controls on the types of investigative techniques used in domestic security investigations. The committee said it intended to ensure that the more intrusive the technique, the more stringent the procedural checks that would be applied.
The committee recommendations would:
At the conclusion of this section, the committee recommended criteria for disseminating, sealing and purging domestic security information.
Oversight of Domestic Security Activities. The committee recommended that broad oversight responsibility for federal domestic security activities be given to the Attorney General, who, as chief legal officer of the United States, is the "most appropriate official."
The committee also recommended that each agency and the FBI have a general counsel nominated by the President and confirmed by the Senate. It recommended that these officials be required to investigate activities of their agencies and report any intelligence violations to the At. torney General. All agency employees would be reminded of their obligation to report violations.
The committee also recommended that the Office of Professional Responsibility created by the Attorney General be recognized in statute as the repository of agency reports and investigator of alleged violations. The committee also recommended that the director of the FBI be under the supervision and control of the Attorney General and be allowed to serve as director for a maximum of eight years. In addition, the committee recommended that the FBI and other intelligence agencies be required to seek annual statutory authorization for their programs.
Role of the Courts. The committee recommended that civil and criminal penalties be expanded to afford effective redress to Americans injured by improper federal intelligence activity.
Other Recommendations. The committee recommended that Congress should either repeal or amend the Smith Act and the Voorhis Act. It explained that these laws appeared to authorize investigation of "mere advocacy" of a political ideology and should be dropped or amended so that domestic security investigations would be aimed only at conduct that could result in constitutional criminal prosecution.
The committee recommended that appropriate congressional committees investigate the modernization of the federal espionage act for possible amendments concerning industrial, technological or economic espionage.
Finally, the committee recommended that a permanent intelligence oversight committee be established and that the General Accounting Office be given broader access to audit and review domestic intelligence activities.
Six members attached additional views to the domestic intelligence report. Three of these members generally supported the committee's recommendations; the three below expressed more or less strong reservations.
'Those in Power Tempted'
Philip A. Hart (D Mich.) warned that the committee's recommendations might have allowed too much flexibility and discretion to executive branch officials in carrying out "preventive intelligence" intended to investigate persons thought likely to commit terrorist acts. "It is appealing to say we should let the FBI do everythihg possible to avert bombing ofthe Capitol," Hart conceded. "But in America we must refuse to let the government 'do everything possible!' "
He noted that the panel's recommendations would preclude launching preventive intelligence activity on, the basis of a person's stated beliefs or associations. But he added that in practice "that would simply require specific allegations that an unpopular dissident group was planning terrorist violence."
'Excessive Secrecy'
Robert Morgan (D N.C.) criticized the excessive secrecy of the agencies that had been investigated. "As the elected representative of the citizens of my state," he said, "I am entrusted with the right and duty to properly conduct the business of our government." But the secrecy claims of the intelligence agencies "severely hampered" the execution of that duty, he said.
"I can only interpret the strong resistance to some committee demands and inquiries as being symptomatic of the atmosphere within the agencies which contributed to the occurrence of abuse in the first instance -- one of basic distrust of the actions of fellow American citizens who have as their goals the strengthening of this nation's ideals, of its moral fiber."
'Unsubstantiated by Fact'
Barry Goldwater (R Ariz.) called the committee document "a voluminous and rambling treatise which pillories the nation's domestic intelligence agencies, fixes individual culpability, ignores agency efforts at reform, and urges the adoption of recommendations and findings unsubstantiated by fact."
He cited the panel's call for enactment of criminal penalties fo:r violation of some of the changes recommended by the committee-particularly repeal or modification of the Smith and Voorhis Acts dealing with subversion-as examples of proposals that were "glibly presented without so much as a shred of evidence... in their support."
He criticized the report for recommending reliance on legislation to remedy
abuses when, he said, executive orders would provide "more expeditious, more
particularlized and more flexible remedies."
The Foreign Intelligence Surveillance Act of 1976 (S 3197), to require warrants for domestic wiretapping to obtain foreign intelligence information, was reported by two Senate committees in 1976 but became so controversial that it was never called up on the floor.
The bill was first introduced March 23 with bipartisan support and strong backing by the administration that indicated smooth sailing toward final passage-a prognosis that changed as opposition developed.
By the time the bill was reported from the Judiciary Committee July 15 it had encountered stiff opposition from some senators, civil liberties and religious groups. They objected that the bill was too vague in defining activities subject to wiretapping and would allow electronic surveillance of American citizens acting in a strictly legal manner.
Despite amendments adopted by the committee to provide additional safeguards for individuals being wiretapped, as well as detailed procedures for challenging the wiretap in a formal court proceeding, opponents claimed the bill would still sacrifice individual constitutional rights against unreasonable search and seizure in favor of the government's national security objectives.
After the Judiciary Committee acted, S 3197 was referred to the new Senate Select Committee on Intelligence, and opponents took their objections there. The committee Aug. 24 reported its version of the bill with amendments which it claimed would add significant safeguards for U.S. citizens.
Various religious and civil liberties groups continued to oppose the bill. One group, the United Presbyterian Church, sent a newsletter to its members, claiming the changes made by the Intelligence Committee were merely "cosmetic."
A staff member for the Judiciary Subcommittee on Constitutional Rights said the bill still contained most of the 19 defects claimed by Subcommittee Chairman John V. Tunney (D Calif.) in the Judiciary Committee report. He added that the bill was worse in some respects than the Judiciary version.
This continued opposition, coupled with the realization that the House would not act on the bill before adjournment, proved too much for its supporters. Tunney Sept. 20 announced that S 3197 was dead for the 94th Congress.
The Senate Judiciary Committee ordered S 3197 reported June 15 by an 11-1 vote, with John V. Tunney (D Calif.) the only committee member to vote against the bill. The report was filed (S Rept 94-1035) July 15.
The committee explained that although Congress had enacted legislation to require warrants for wiretapping by law enforcement personnel investigating certain serious crimes, it had never approved legislation to regulate wiretapping in the United States for foreign intelligence purposes.
Such legislation was needed, the committee said, because recent investigations had indicated that warrantless wiretapping "in the name of national security has been seriously abused." The committee said it recognized that the executive branch must be authorized to use electronic surveillance to obtain foreign intelligence information. But it said limitations on those wiretaps were necessary, because "the past record establishes clearly that the executive branch cannot be the sole or final arbiter of when proper circumstances exist."
Presidential Power
The committee adopted numerous technical and clarifying amendments to the bill. It also made several major changes. The report said one of the most significant amendments concerned the question of presidential power to institute wiretaps without warrants.
The committee noted that legal debate in recent years had been unable to determine whether a President has an inherent constitutional power to institute wiretaps without warrants in the name of national security. Title III of the Safe Streets Act of 1968 (PL 90-35), which required judicial warrants for wiretapping in certain types of crimes, contained a disclaimer which said Congress did not address the issue of presidential authority in national security cases. Although the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities ("the Church committee") concluded the President has no such power, the Supreme Court had never ruled on the issue and lower federal courts had divided on it. (Committee report, preceding story)
The committee said it recognized that neither Congress nor the executive branch could finally decide the question; such a decision was up to the Supreme Court.
However, the committee decided to repeal the disclaimer in the 1968 law and replace it with language in S 3197 as the "exclusive congressional" word on the subject.
The committee said that in its amendment it was careful not to provide either a grant of such power, or a congressional recognition of such power. Rather, it simply stated that if the President were found to possess inherent power for warrantless wiretapping, he would be allowed to do so only under the following circumstances: signals intelligence activity as currently engaged in by the National Security Agency, electronic surveillance conducted outside the United States, or domestic surveillance in a situation "so unprecedented and potentially harmful to - the nation" that it could not have been reasonably within Congress' contemplation when enacting the provision. All other types of electronic surveillance would be subject to the warrant procedures of the bill.
The committee was careful to explain that imminent threats of assassination or thefts of nuclear weapons would not constitute unprecedented situations and would therefore not be eligible for warrantless wiretaps. Such situations would be subject to the emergency warrant procedures indicated in the bill. As a further check on the President, the committee required him to report in writing any such unprecedented situation to the House and Senate Judiciary Committees.
Scope of Surveillance
The committee stated that the most difficult issue it faced during its deliberations was whether electronic surveillance should be limited to situations involving federal crimes. After much discussion, the committee decided to make a limited exception and allow wiretapping when an American acting under the control of a foreign power engaged in certain clandestine intelligence gathering which is not a violation under existing federal law. The committee gave as examples the gathering of certain industrial or technological information or third-country spying that would endanger the national security or foreign relations of the United States.
The committee was careful to explain that "this departure from the general principle that such surveillance must be linked to.criminal activity is intended to be a narrow, circumscribed one." The committee added that such noncriminal situations would have the further safeguard of an independent review by a neutral judge who would apply the standard that "probable cause" existed that the activity was taking place.
Additional Views
Sens. James Abourezk (D S.D.), Philip A. Hart (D Mich.) and Charles McC. Mathias Jr. (R Md.) wrote in additional views to the committee report that they would prefer further changes in the bill. However, all three voted to report the bill, saying "even in its present form it is an important step forward and presents an opportunity which should be seized."
The senators continued: "Although reasonable people concerned about civil liberties can differ, we are not persuaded by the argument that preserving the status quo-leaving such surveillance unregulated by statute-is preferable to enacting this bill."
The senators' first objection was to the provisions authorizing wiretapping in cases where no crime has been committed. Even though the exceptions for noncriminal conduct have been drawn very narrowly, they argued, it would be wiser to eliminate those situations altogether.
The three also objected to the lack of precision in the statute regarding definitions of such terms as "agent of a foreign power," "clandestine activities" and "terrorism." Although they admitted that the committee report clarified the basic categories and concepts of the bill, "clarity in the statute itself is the most direct and best way" to explain such an important measure.
Abourezk, Hart and Mathias also objected that the provision requiring congressional oversight was limited to an annual report covering general statistical information. Without access to the full record of applications for warrants, supporting papers and court rulings, they argued, Congress would be unable to establish whether someone had been engaged in clandestine activity and oversight would be meaningless.
On the question of the constitutionality of warrantless wiretaps, Hart and Abourezk said they believed the President had no "inherent" power to conduct electronic surveillance of Americans for foreign intelligence purposes without a judicial warrant. Such surveillance, they said, was an unreasonable search and seizure in violation of the Fourth Amendment.
"Throughout our history," they argued, "even in time of war or civil insurrection, the court has adhered to the principle that the President cannot exercise his power without regard for the Bill of Rights."
Mathias did not concur in the last opinion, siding instead with the committee's view that the decision was up to the Supreme Court.
Tunney Opposition
Tunney, the lone committee member to vote against reporting the bill, attacked S 3197 in much stronger terms, charging it "treads on dangerous ground, enlarging the government's authority for bugging, wiretaps, unspecified 'other surveillance' devices and break-ins to install them."
According to Tunney: "The bill gives the illusion, but not the reality, of curtailing the surveillance abuses revealed by the Church committee, and so may postpone real reform in this area. It may be read as a congressional seal of approval for those abuses." He stated it would be preferable to scrap the bill and wait for proposals from the next administration.
Tunney cited 19 key "defects" in the bill, including:
Tunney admitted the judicial review provisions were "at least a recognition of the ... Fourth Amendment." However, he noted that under the 1968 wiretap law, only one federal wiretap application was denied in the first year and none of the 1,033 applications in the six years since had been denied.
"Riddled with loopholes," he said, "this bill gives official sanction to surveillance procedures which are ripe for misuse."
PROVISIONS
As reported by the Judiciary Committee, the bill:
The Senate Select Committee on Intelligence Aug. 24 reported amendments to S 3197 (S Rept 94-1161). It was the first bill reported by the committee since it was established May 19 as a result of congressional investigation into activities of U.S. intelligence agencies. (Committee established. chapter on National Security)
The vote to report the bill was 11-1. Robert Morgan (D N.C.) was the only committee member to vote against reporting the bill. Morgan said he could not accept surveillance of American citizens who were not guilty of criminal activity.
MAJOR CHANGES
Birch Bayh (D Ind.) chairman of the Intelligence Subcommittee on the Rights of Americans, listed the major amendments adopted by the subcommittee in its markup session Aug. 6. According to Bayh those amendments tightened up the definitions of persons allowed to be wiretapped, strengthened the protection of American citizens inadvertently caught in a wiretap, made it harder for federal officials to obtain wiretap warrants by permitting application to only one of the seven judges designated to hear wiretap applications and loosened the restrictions against criminal defendants learning if they have been wiretapped.
In addition to the subcommittee amendments, the committee also adopted an amendment mandating that the committee has the right under its authorizing legislation (S Res 400) to obtain more substantial information on wiretap activity than simple statistics.
Definitions
The key change made by the committee in the definitions ofpermissible surveillance targets, according to Bayh, concerned wiretapping of U.S. citizens for reasons other than the commission of a crime. Bayh said the provision had been narrowed so that it aimed directly at spies. The revised provision required that, in order to be wiretapped, there must be evidence that a person is transmitting information at the direction of a foreign intelligence network in such a clandestine manner that a reasonable man would believe the information will be used to harm the security of the United States. The judge reviewing the wiret.ap application would make the "reasonable man" decision.
Minimization Procedures
Bayh said the subcommittee amendments strengthened the procedures protecting ordinary Americans caught in a wiretap for which they were not the target.
The subcommittee added requirements that the Minimization statement accompanying the wiretap application must include procedures to minimize the dissemination and require -the expunging of such inadvertent interceptions. The Judiciary version had required minimization brocedures only for the acquisition and retention of such information.
Bayh said the amendments prohibited the practice of "indexing" information on non-targeted Americans who discussed foreign affairs in a wiretapped conversation. He said this would prevent retrieval from a computer bank of any information retained. The amendments also included a separate minimization provision to protect Americans working for foreign commercial entities, such as airlines.
Presidential Power
The Intelligence Committee, as did the Judiciary Committee, left open the question of whether the President has an inherent power to institute wiretaps in national security situations. However, the Intelligence Committee did add a phrase to the Judiciary version specifying such a decision was "subject to determination by the courts."
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