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Shanet Clark

FISA, CIA NSA Domestic Spying Oversight:

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President Jimmy Carter’s 1978 Executive

Order 12036, FISA and Congressional Oversight:

Chronic Structural Issues in 20th Century U.S. Intelligence

Introduction:

Like any other discipline, the pertinent demand for History is to ask the appropriate question—pose the important problems. What is wrong with U.S. Intelligence? Is there too much congressional and public oversight? Not enough oversight? Is U.S. Intelligence too centralized? Too de-centralized? Are there too many spies? Not enough spies? Too much data? Not enough data? These are the quandaries. Who is in charge? Are they competent? Do they enjoy our confidence? If the problems are kept secret, are good answers likely to emerge? How much should people be told, and who should decide what is classified as top secret? Deep philosophical questions of political philosophy clash in this arena, in the running debate over intelligence and the U.S. national security agencies and departments. In politics the central questions are usually ‘who benefits?’ and ‘who will be held responsible?’ To probe the murky recesses of U.S. national security and intelligence history is to address these questions of public policy -- while impeded by structural walls of silence and misinformation.

Public confidence and institutional competence are the goals of the reform effort, and ideology will drive the debate. Security and public accountability will be achieved, if at all, via debate, the exposure of unpleasant facts, political leadership and ultimately electoral support for appropriate changes. Without a parliamentary system, the U.S. Executive Branch is free from many of the challenges and constraints facing a Prime Minister. The general trend of 20th century U.S. political power was the gain in executive power, the concentration of power into the White House. The secret agencies (usually cited as fifteen in number) and the classified Presidential Cabinet staff paper system emerged at the expense of the individual, local, county, state, regional, legislative and judicial prerogatives. The events of September 11th 2001 and the two subsequent wars brought urgency to the debate over U.S. intelligence reform, and while the issue is largely historical in nature, the constitutional problems are contested, contemporary and chronic. Compelling, concise and coherent approaches are called for in the interrogation of the diplomatic and intelligence records.

Body:

In the 1960s and 1970s images and texts regarding Vietnam, Watergate and secret programs like the MK-ULTRA—i.e. intelligence failures—were more tightly limited, distribution of damning information was slower, and de-classification more calcified. Nevertheless, largely through congressional action and the activities of responsible national investigative reporting, certain reforms were put forward. The failure of the 1970s reforms to address the chronic structural problems in the secret agencies becomes clearer every day. Their byzantine relationships were only complicated and no real power relationships were simplified. However, in the 1970s the Senate (and to a much lesser degree, the House) were brought into the policy-making for and oversight over the U.S. intelligence community in a more meaningful way as President Ford, the Church Select Committee and the Carter administration placed limits on the runaway U.S. intelligence.

The National Security Advisor and his staff expanded their power, the Defense Intelligence Agencies and the DIA maintained autonomy, and the National Security Agency remained autonomously linked to both the CIA and Defense Department. Executive orders limiting the activities and defining the scope of the agencies were issued by both Ford and Carter. President Carter also signed the Foreign Intelligence Surveillance Act of 1978 and the Intelligence Oversight Act of 1980, which then marked the end of the 1970s era of investigational oversight and relative transparency.

The historiography of recent U.S. Intelligence history falls into six categories. There are scholarly overviews, descriptive tomes, and think-tank projects, which are supplemented by more or less self serving memoirs, U.S. and foreign government documents and a large spectrum of critical non-standard works. Jeff Richelson of the National Security Archives offers a uniquely valuable descriptive digest of U.S. Intelligence. His very dry text contains a vast laundry list of secret branches and Byzantine corridors within the U.S. intelligence community. The sixteen pages of acronyms and short descriptive paragraphs gives an overview of the structures and functions occurring within U.S. Intelligence, and this is required reading in the field. His exhaustive compendium is backed by a voluminous and complete apparatus, and these notes display an annotation for almost every line of published text, comment, fact or declassified item on record which concerns U.S. intelligence. While the notes are pregnant with scandal, the text of Richelson’s book is less than critical of the status quo.

Critics abound, but legitimate academic voices are more difficult to find. Loch K. Johnson, in a series of books on U.S. intelligence, offers syllabus-quality narratives and interpretations from the point of view of the critical insider. Johnson points to “pathologies of the intelligence cycle” where analysts are severed from their sources. He outlines the chronic problem the relationship between the overseas ‘Chiefs of Mission’ (Ambassadors, i.e., State Department people) and the CIA’s own equally powerful ‘Chiefs of Station.’ Readers of Johnson become familiar with the chronic structural problems between the Intelligence Directorate and the Operations Directorate, (analysis versus espionage). Johnson looks sensitively at campus CIA connections to academics and he draws interesting graphic charts concerning the secret agencies’ public responsiveness, feedback cycles, oversight, and costs and tasking.

Memoirs are an important source of information in this field; many former CIA Directors have published autobiographies. They usually offer valuable insight into the activities of the intelligence community, and definitely show the paradox and tensions inherent in using intelligence in a representative system of government. Stansfield Turner’s book was important in my research and the writings of William Colby and Richard Helms are very valuable, as are Robert M. Gates’s and James Woolsey’s books.

I found the best single source on U.S. Intelligence policy to be Frank J. Smist’s Congress Oversees the United States Intelligence Community 1947-1989. Here is a calm but critical narrative paired with incisive analysis. Smist, a political scientist, applies an analytical model that is valuable. He distinguishes “Investigative Oversight” from “Institutional Oversight,” and shows the strengths and weaknesses of each. Georgia Democrat Richard B. Russell, who served in the Senate from 1933 until 1971, dominated the period of institutional oversight, which ran from the passing of the National Security Act of 1947 until the Church or Senate Select Committee was formed in early 1975.

Richard Russell chaired both the Senate Armed Services Committee CIA subcommittee and the Senate Appropriations Committee CIA subcommittee, and he defeated a 1953 attempt by Mike Mansfield to create a joint Senate-House Intelligence Committee. U.S. Senators Margaret Chase Smith, Carl Hayden and Leverett Saltonstall also had twin CIA subcommittee seats, and Russell embodied “institutional oversight.” In the lower house a similar conservatism prevailed; the Chairman of the House Armed Services Committee (1949-1953 and 1955-1965) Carl Vinson and his allies “were strong advocates for the intelligence community and presidential leadership in foreign affairs … in the closed door oversight conducted by these committees, secrets did not leak” Both Loch Johnson and Frank Smist point to early 1975 as the period where investigative or oppositional oversight in Congress replaced institutional or non-critical oversight. Although Gerald Ford (and his Vice President Nelson Rockefeller) made some progress in reining in the more blatant excesses of the CIA and other intelligence agencies via Executive Order, deeper reform only came with the election of Jimmy Carter and Walter Mondale in 1976 and the subsequent enactment of Church Committee recommendations within a Democratic majority House and Senate. President Gerald Ford’s progress was limited by the presence of his National Security Advisor Henry Kissinger, a Nixon administration veteran who was not as eager to expose recent unconstitutional acts, or limit national security executive prerogatives.

The Carter administration’s foreign policy has a mixed record, best known for its initiation of the Panama Canal Treaty and the brokering of the Camp David Accords, and its response to the 1970’s Oil Crisis and U.S. Embassy hostage crisis in Iran. Another significant foreign policy thread runs through the mid-1970s, however. With a Democratic majority in both the House and Senate, Jimmy Carter’s Administration was able to address the intelligence agencies’ severe credibility crisis. This crisis stemmed from the exposure of some of the excesses of the Vietnam War era, including foreign assassinations, domestic spying, drug experimentation by the CIA and rampant domestic wiretapping by the FBI and NSA. Carter followed up on the work of the Senate Select Committee, the “Church Committee” where his Vice President, Walter Mondale of Minnesota, had served before the election of 1976. On January 24, 1978 Carter issued Executive Order 12036 as one of his second annual budget and State of the Union policy initiatives, and he partially re-organized the intelligence community via this executive order.

Giving a special role to his Vice-President in strengthening oversight of intelligence community, Carter followed in the steps of his immediate predecessor, Republican Gerald Ford, of Michigan. Ford had depended on his Vice President, former New York Governor Nelson Rockefeller, to seriously begin the executive branch intelligence community reforms demanded by the public, the courts and Congress. Rockefeller’s recommendations to Ford, grudgingly supported by Henry Kissinger, laid the groundwork for the more sweeping re-structuring of the intelligence community carried out by Jimmy Carter. There are many parallels and continuities between the Ford and Carter administration reforms in the mid-1970s. President Reagan also appears to have given intelligence portfolio functions to his Vice President, the former CIA Director G.H.W. Bush, despite his claims of being “out of the loop.” Any Vice President is statutorily linked to intelligence oversight by sitting on the National Security Council with the President, Secretary of State and Secretary of Defense.

In brief, the Carter intelligence reform was unable to solve the structural problem of the control of U.S. intelligence, and the “CIA re-chartering” bogged down in the late 1970’s, mainly on the issue of greater congressional oversight, or how many ‘outsiders’ would have access to the budgets, technology and personnel data of the fifteen secret agencies. At the time (post-Watergate and post-Vietnam) the CIA was unable to muster enough Congressional and Presidential support for the needed expansion of their powers over the NSA and the NRO satellite agency, although such changes were discussed. Certainly signals intelligence (SIGINT) ascended over human intelligence (HUMINT) in the 1970’s reforms, and ground agents were de-emphasized in favor of technical intelligence priorities. Stansfield Turner fired over 800 espionage case officers in one day. Although Carter Executive Order 12036, the FISA and the Senate Bill 400 were all important reforms, larger questions of counterintelligence sharing between the FBI, CIA and NSA were left unaddressed, and the power of the CIA director to control the other fifteen agencies remained weak, as the Carter White House and point man Lloyd Cutler retreated from investigatory oversight progressive reforms to the older Cold War institutional oversight norms.

Intelligence history, like its related discipline, diplomatic history, is a frustrating and highly restricted field. There are limited records available, they are almost all government documents, and they hide more than they divulge. Archivists at the Carter Library in Atlanta were helpful in my research, though, and they shared unmarked boxes of Presidential National Security Directives with me as well as extremely useful records originating from the Ford Presidential Library in Grand Rapids, Michigan. Now, with attorney Lloyd Cutler and the CIA/NSA re-organization plans back in the national headlines, I am beginning to feel that history may indeed repeat itself.

Executive Order 12036:

The Presidential Archives at the Carter Library have de-classified files from the Ford Administration and these shed light on Carter’s Executive Order 12036 and his efforts to reign in the intelligence community. In December 1974, after four months in office, President Ford received an unprecedented letter in which his Director of Central Intelligence William Colby confirmed a story published by Seymour Hersh in the New York Times. “I have already briefed the chairman of the Armed Services Committee” CIA Director Colby states, “some CIA employees . . . misinterpreted” orders and engaged in “unauthorized entry of the premises, breaking and entering, electronic surveillance . . . telephone taps of two newspaper reporters in 1963 and physical surveillance of five reporters in 1971 and 1972.” The Seymour Hersh New York Times articles immediately served as the final catalyst for Senate Majority Leader Mansfield to force through a Senate Select Committee, and both Frist and Johnson point to January 1975 as the turning point from the institutional to the investigatory oversight model.

This Christmas Eve letter was a bombshell for the un-elected President, and it was followed on Christmas Day by a sensitive, now declassified, memo from National Security Adviser Henry Kissinger to Gerald Ford in which Kissinger briefs the President on the issue: {{{quote}}}

A program to identify possible foreign links with American dissident elements was established within the CIA’s office of Counterintelligence in August 1967 . . . to determine whether U.S. dissidents were receiving support from outside the U.S.

Later in 1967 the CIA’s activity was integrated into an interagency program. In December 1970 an Interagency Evaluation Committee was established under the coordination of John Dean. . . . CIA continued its counter intelligence interests in possible foreign links with American dissidents . . . I have discussed these activities with him [DCI Colby] and must tell you that some few of them clearly were illegal, while others – though not technically illegal – raise profound moral questions. A number, while neither illegal nor morally unsound, demonstrated very poor judgment.

The response to the Hersh article and other investigative journalism, and to the Colby and Kissinger admissions, and to the pressure from the Senate and House was all co-ordinated in the Ford White House by the Vice President, Nelson Rockefeller. Gerald Ford and Jimmy Carter’s two related Executive Orders both have their roots in this policy option memorandum. It is dated September 18, 1975 and signed by Vice President Nelson Rockefeller, Henry Kissinger, James Schlesinger, Phil Buchen and James Lynn, Ford’s inner circle of West Wing advisors: {{quote}}

Background: One of the most serious consequences of Watergate was that the intelligence community became a topic for Congressional investigations, as well as public and press debate. Starting with CIA links to Watergate, the issues have expanded to: CIA involvement in domestic spying and foreign assassination plots - FBI violations of civil liberties, - NSA monitoring of the telephone conversations of American citizens . . . insufficient control by Congress of the intelligence community purse strings and insufficient knowledge of its operations . . . poor management and control of intelligence community activities and resources, and poor performance of the community in specific instances. [Ford was presented with policy options:] Where in the Executive Branch should responsibility for oversight of the propriety of intelligence activities be placed? Should you issue an Executive Order restricting the activities of the CIA or the intelligence community as a whole . . . or a more comprehensive Executive Order which also incorporates a full statement of positive duties and responsibilities for the agencies . . . what actions are appropriate at this time to improve your supervision and control of the intelligence community? . . . Option 1. Extend the role of the PFIAB [President’s Foreign Intelligence and Advisory Board] to include oversight, (or) approve Option One but rename PFIAB, . . . retain PFIAB and create a new body solely for oversight . . . Second [option], issue an Executive Order restricting the collection of information on American citizens . . . [to restrict the CIA, all agencies, or all agencies except the FBI in a] comprehensive Executive Order . . . What actions are appropriate at this time to improve your supervision and control of the Intelligence community? Option – give formal authorization of the NSC Intelligence Committee to evaluate the programs and product of the intelligence community.

The importance of this 12-page policy paper to Jimmy Carter’s efforts cannot be underestimated. Walter Mondale, Zbigniew Brezhinski and Carter’s top staff arrived at nearly identical conclusions in 1977 before issuing Executive Order 12036, imposing much more stringent controls on the agencies than Ford had done in Executive Order 11905.

Carter would have trouble in the three years following the issuance of Executive Order 12036. Although the Order carried the force of law, the parallel legislation concerning Congressional oversight of intelligence and a new CIA Charter would bog down into a sustained deadlock. Although Carter signed the Foreign Intelligence Surveillance Act in 1978 and the Intelligence Oversight law in 1980, Carter Staff Counsel Lloyd Cutler’s boxes, marked “CIA Charter” show a loss of momentum in their dedication to further reforms. Most notably, Defense Secretary Harold Brown, Admiral Turner at CIA and Admiral Inman at NSA combined to sustain the status quo in overall Defense/CIA/NSA relations.

Controlled by a moderate Republican untainted by recent assassinations, Watergate or Vietnam scandals, the Rockefeller Commission moved parallel to the Church Senate Committee to establish controls on the runaway intelligence agency. The Rockefeller Commission’s report caused Henry Kissinger to add his voice to those urging sweeping reforms on Ford. Kissinger states: {{quote}}

The Rockefeller Commission was charged with investigating and making recommendations with respect to allegations that the CIA engaged in illegal spying on American citizens . . . propose revisions in the National Security Act which would clarify CIA’s authority by explicitly limiting it to foreign intelligence matters – this could also be accomplished by Executive Order . . . to prohibit improper domestic activities of CIA concerning US citizens, legislation to strengthen CIA’s internal organization and management structure including establishing a second Deputy Director position [and] stronger penalties for violations by present or former CIA employees . . . chang[ing] Executive Branch procedures on oversight of intelligence community and white House contact with CIA and a stronger role for the President’s Foreign Intelligence Advisory Board.

Ford promulgated Executive Order 11905 in the spring of 1976, and he took steps in these directions, but Carter’s election signaled that more sweeping intelligence controls were coming. David Aaron, Mondale’s staff adviser on foreign affairs and former counsel to the Church Committee organized the Carter White House reform efforts, which culminated in Executive Order 12036. (Mr. Aaron’s papers have not yet been declassified, but Carter’s revamping of the intelligence community is traceable in the Carter Library’s papers from National Security Advisor Zbigniew Brezhinski and Staff Counsel Lloyd Cutler’s desks).

Although the Carter Administration would never reach consensus with the Democratic Congress on Congressional investigational oversight of the intelligence agencies or develop a new charter for the fifteen intelligence agencies, on Tuesday, January 24, the White House did issue Executive Order 12036, which placed explicit controls and limits on the intelligence community and re-organized the lines of responsibility. On Friday, January 20th, 1978 President Carter received a large package in his in-box from his National Security Advisor ‘stage-managing’ the signing of the Executive Order. This memo is a briefing for the signing ceremony for E.O. 12036. Brezhinski tells Carter:{{quote}}

This executive order is the product of the most extensive and highest-level review of our foreign intelligence activities ever conducted through the NSC system and an unprecedented dialogue with Congress. It builds on the experience under President Ford’s Executive Order 11905 and is intended to provide a foundation for the drafting and enactment by Congress of statutory charters. The Order ensures that U.S. government foreign intelligence and counterintelligence activities are conducted in full compliance with our laws and are consistent with broader national security policies. . . [it will] establish effective oversight of the direction, management and conduct of foreign intelligence activities . . . clarify the authority and responsibility of the DCI and the several departments and agencies that have foreign intelligence and counterintelligence responsibilities . . .the Senate Select Committee is proud of its significant contribution and its recently formed counterpart, the House Select Committee, while not as much involved, wants to publicly associate itself with the new Executive Order . . . Emphasize the unprecedented degree of constructive dialogue with the Congressional oversight committees. Stress the fact that in this very sensitive area the Administration and Congress are working in harmony – provide the Congressional leaders with an opportunity to make remarks for the record. (underlining in the original)

The President’s address is included in this file, and here he announces the basic changes brought by Executive Order 12036 in four parts. In part one, Carter announced that the Policy Review Committee and the Special Coordination Committee, standing committees of the National Security Council, “will, short of the President, provide the highest level review and guidance for the policies and practices of the Intelligence Community.” The PRC would henceforth be chaired by the DCI, Admiral Stansfield Turner, and the SCC would be chaired by the National Security Advisor himself, Zbigniew Brezhinski. The second part of Carter’s speech is more immediately of interest. He stated this groundbreaking doctrine, “the authorities and responsibilities of all departments, agencies and senior officials engaged in foreign intelligence and counterintelligence are being made public. Those implementing directives which must remain classified for security reasons will be made available to the appropriate Congressional oversight committee.”

Part Two of the President’s speech explained, yet glossed over, a Byzantine struggle over turf between the Secretary of Defense Harold Brown and the DCI, Stansfield Turner. Carter said, “the new Order implements my earlier decision to centralize under the DCI the most important national intelligence management functions – collection requirements, budget control, and analysis – while operational and support activities are left unchanged and decentralized.” This opaque statement only makes sense in light of the New York Times article of 1/23/78 and other secondary sources. DCI Turner, pushing for both improved organization and personal power, had pressed for day-to-day CIA control of the Defense Department’s powerful intelligence agencies, the National Reconnaissance Office (spy satellites) and the National Security Agency (signals intelligence, wire-tapping and code-breaking). Admiral Turner’s efforts ran counter to the vision of Dr. Brezhinski and Vice President Mondale. They were engineering a popular limitation on the CIA’s power, by changing its charter and its oversight boards. Carter and Admiral Turner had agreed on some additional management duties for the DCI (see Presidential Directive NSC-17, below) but the Admiral was never given control of the NRO and NSA, two major intelligence agencies under the Secretary of Defense. Turner never seemed to understand that the new Executive Order was designed to limit the CIA and control it, not to give it greater power and independent authority. The behind the scenes struggle is glossed over, but Carter summarized the final decision; the DCI was given more management and policy input, but the “operational and support activities are left unchanged and decentralized.”

In Part Three of his address, Carter expresses the dilemma of executive intelligence actions in a representative republic. {{quote}}

Our intelligence agencies have a critical role to play in collecting and analyzing information important to our national security interests and, on occasion, acting in direct support of major foreign policy objectives. It is equally important however, that the methods employed by these agencies meet the Constitutional standards protecting the privacy and civil liberties of US persons and are in full compliance with the law . . . a major section of the Executive Order is devoted entirely to setting forth detailed restrictions on intelligence collection, covert activities in support of foreign policy objectives, experimentation, contracting, assistance to law enforcement authorities, personnel assigned to other agencies, indirect participation in prohibited activities, dissemination and storage of information and a prohibition on assassinations. The FBI’s intelligence activities no longer have a blanket exception to these restrictions . . . [and there will be] a greatly enhanced role for the Attorney General.

In Part Four Carter announces the formation of an Intelligence Oversight Board and instructs the DCI “to report to the Congressional Intelligence Committees in a complete and prompt manner.” Carter concluded the speech by stating “this Executive Order . . . assur[es] the American people that their intelligence agencies will be working effectively for them and not infringing on their legal rights.”

In an attached memo, Brezhinski specifically reminds the President to call up to the podium Senate Select Committee members Daniel Inouye, Birch Bayh, Dee Huddleston and Congressmen Boland and Murphy of the House Select Committee. An unprecedented Congressional/Executive agreement on U.S. Intelligence reform was acted out that day.

One final memo in this file sheds light on the character and policies of two major intelligence community figures, Admiral Stansfield Turner and Attorney General Griffin Bell. Chief Speech Writer James Fallows and Griffin Smith wrote a memo for Carter concerning the recommendations of Turner and Bell for Carter’s speech.{{quote}}

ADMIRAL TURNER suggests –“That you acknowledge this Executive Order was produced by close cooperation between the Secretary of Defense and the DCI.” – “that you indicate your support for Admiral Turner’s management of the agency ‘which you suggested earlier’” and “that you express hope that the charter legislation will move smoothly, with Congress refraining from placing too much detail in the charters [as] ‘we need some flexibility in intelligence operations and oversight.’” [caps in original]

Turner here shows much of the problematic character he is often pictured as having. In his first request, he wants the President to re-characterize the fierce wrangling between the CIA and the DOD as “close co-operation” and then he suggests that Carter (to paraphrase) ‘remind them I’m doing a good job,’ and ‘tell Congress not to tie my hands.’ Turner was probably not the best individual to work within the new Mondale/Brezhinski/Congress re-charter program for intelligence. This note shows the pettiness of Turner, especially when contrasted to the high-mindedness of the second half of the memo, which indirectly quotes Attorney General Griffin Bell. Bell suggested that the President announce: {{quote}}

Constitutional rights of privacy and civil liberties are fully protected by this Order . . . requiring [the Attorney General] to set procedures that ensure compliance with the law, protect constitutional rights and privacy and ensure that any intelligence activity within the U.S. or directed against any U.S. person is conducted by the least intrusive means possible.

No such constitutional re-iteration of the basic premises of the Executive Order are seen in the defensive, self-serving jockeying found in the Turner proposals, and Griffin Bell stands considerably higher in historical stature than the frustrated and over-reaching Turner.

Conclusion:

Turner’s egoism and heavy-handed bearing are fully aired in his memoirs, as well.

A series of more recently de-classified Presidential Directives shed light on the struggle between Turner and the other Intelligence chiefs. An August 1977 Presidential Directive NSC-17 shows the steps Carter went through in re-defining the role of the Director of Central Intelligence relative to the other agencies such as the NRO and NSA. Admiral Turner’s role is enhanced when Carter directs that the PRC committee (under the DCI) “define and prioritize substantive intelligence requirements and evaluate analytical product performance.” The Directive states “DCI will have full tasking responsibilities [for] . . . specific intelligence collection objectives and targets and assigning these to intelligence collection agencies [to be] . . . jointly manned by civilian and military personnel.” This empowered the DCI to steer the NSA and NRO but not to oversee the Defense Department agencies. The “DCI is named as principal budget forecaster” is to be “provided adequate staff” and “continue to act as primary advisor to NSC and President and retain all other powers,” but, most importantly, “authority to hire and fire personnel and to give day to day direction (to the NRO and NSA, the satellite and wiretapping agencies) . . . will remain with the heads of the relevant departments and agencies [D.O.D]” This Directive sets the stage for Executive Order 12036 and shows the compromise Carter worked out with Turner, which gave forecasting, targeting and budget control over the NRO and the NSA to the DCI but stopped short of greatly enhancing the CIA Director’s power over the two large military intelligence agencies, the NRO and the NSA. This, of course, is the substance of today’s post 9-11 debate over intelligence authority.

After January 1978, President Carter was unable to rapidly forge a Congressional consensus on intelligence reform, even with Democratic majorities in both houses of Congress. The CIA Charter remained a hot internal White House issue until the Reagan inauguration and the question of Congressional oversight became the main sticking point for preventing additional legislative reform under Carter. I now believe that Lloyd Cutler, in his role as senior counselor to Bill Clinton, drew on his Carter White House experience to discourage President Clinton from attempting the difficult structural reforms which are now, in hindsight, seen to be so critical. Clinton, under the advice of Cutler, made no effort to eliminate any of the fifteen agencies or place the NRO and NSA under the DCI’s direct control, and of course, the FBI and CIA counterintelligence functions remain segregated, competitive and at cross purposes. Under Reagan, Bush, Clinton and Bush II, the chronic structural problems which weakened U.S. intelligence co-ordination and efficacy remained, after the window of opportunity and public clamor of the 1970s had passed into quiescence.

Executive Order 12036 and the FISA were the high points for Jimmy Carter and Walter Mondale’s intelligence program. Following on President Ford’s Executive Order 11905, which Vice President Rockefeller had promoted, Executive Order 12036 broke new ground in publicly addressing civil rights questions and assassinations. 12036 placed very specific domestic limits on the CIA and FBI for the first time, and the FISA codified tasking and targeting norms for the fifteen agencies overseas. This progress in regulating the espionage and analysis units of the Federal government was limited by the personalities of the major players, specifically Stansfield Turner, and also by the more conservative approach to Congressional oversight of the CIA that was taken by the maturing Carter Administration in the late 1970s. The administration strayed from its 1976 mandate for investigative oversight and retreated into a milder and ineffective institutional oversight, which was further weakened by the Reagan-Casey regime. .

In very general terms, the leadership of the intelligence community (from both political parties) must be improved. The agencies and the military intelligence units must be firmly indoctrinated in constitutional law, the Bill of Rights, the Geneva Convention and universal humanist ethics. The ideology of the partisan leaders should not drive the analysts to pre-arranged and politically expedient conclusions. The programs, techniques and activities of the fifteen agencies need to be placed under rigorous and ongoing scrutiny. Programs need to be questioned by the appropriate congressional leaders, via investigational oversight, as institutional oversight has proven to be too weak to raise performance standards. Ultimately, our safety as a nation -- and as a global society -- rests on the vigorous, exhaustive and critical oversight of the various intelligence communities.

Sources Cited

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Bureaucracy always exists primarily to protect itself and reproduce. Intelligence bureaucracies are no different except that their area of responsibility is explosively sensitive to freedom of the citizen / subject.

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Shanet, very very informative and timely information, even if that is, stating the obvious. I suppose the following information is what you would consider in the "For What Its Worth," category. A few days before the Obama/McCain debate, hosted by Bob Schieffer, many people across the country recieved emails from a certain organization known to be dedicated to preserving democracy. In this privileged communication, it was revealed, or rather repeated, the recent NY Times news story regarding new information, that NSA wiretappers had not only eavesdropped on conversations between U.S. military personnel overseas and their spouses, but were even joking about some of the conversations that were of a intimate nature.

While some might argue that husband/wife military personnel could indeed involve spying, and hence, a legitimate issue regarding national security, the grade-school mentality of making jokes about highly personal material reveals a certain big-brother mentality, in which Orwellian would not be an understatement, perhaps more concise would be the term Orwellian/Voyeurism.

The organization suggested that anyone concerned with this revelation, send an email to Bob Schieffer asking him to ask both Barrack Obama and Sen John McCain what their stance would be regarding personal privacy violations of the hitherto described nature......I personally sent such a communication the night before the debate, and was not in the least bit shocked that the debate did not address the issue that had been raised.

And, I think that is a sad commentary, not on just how our nation has been run over the last few years, but honest and candid journalism, that is not afraid to upset the applecart.

Edited by Robert Howard

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President Jimmy Carter’s 1978 Executive

Order 12036, FISA and Congressional Oversight:

Chronic Structural Issues in 20th Century U.S. Intelligence

Introduction:

Like any other discipline, the pertinent demand for History is to ask the appropriate question—pose the important problems. What is wrong with U.S. Intelligence? Is there too much congressional and public oversight? Not enough oversight? Is U.S. Intelligence too centralized? Too de-centralized? Are there too many spies? Not enough spies? Too much data? Not enough data? These are the quandaries. Who is in charge? Are they competent? Do they enjoy our confidence? If the problems are kept secret, are good answers likely to emerge? How much should people be told, and who should decide what is classified as top secret? Deep philosophical questions of political philosophy clash in this arena, in the running debate over intelligence and the U.S. national security agencies and departments. In politics the central questions are usually ‘who benefits?’ and ‘who will be held responsible?’ To probe the murky recesses of U.S. national security and intelligence history is to address these questions of public policy -- while impeded by structural walls of silence and misinformation.

Public confidence and institutional competence are the goals of the reform effort, and ideology will drive the debate. Security and public accountability will be achieved, if at all, via debate, the exposure of unpleasant facts, political leadership and ultimately electoral support for appropriate changes. Without a parliamentary system, the U.S. Executive Branch is free from many of the challenges and constraints facing a Prime Minister. The general trend of 20th century U.S. political power was the gain in executive power, the concentration of power into the White House. The secret agencies (usually cited as fifteen in number) and the classified Presidential Cabinet staff paper system emerged at the expense of the individual, local, county, state, regional, legislative and judicial prerogatives. The events of September 11th 2001 and the two subsequent wars brought urgency to the debate over U.S. intelligence reform, and while the issue is largely historical in nature, the constitutional problems are contested, contemporary and chronic. Compelling, concise and coherent approaches are called for in the interrogation of the diplomatic and intelligence records.

Body:

In the 1960s and 1970s images and texts regarding Vietnam, Watergate and secret programs like the MK-ULTRA—i.e. intelligence failures—were more tightly limited, distribution of damning information was slower, and de-classification more calcified. Nevertheless, largely through congressional action and the activities of responsible national investigative reporting, certain reforms were put forward. The failure of the 1970s reforms to address the chronic structural problems in the secret agencies becomes clearer every day. Their byzantine relationships were only complicated and no real power relationships were simplified. However, in the 1970s the Senate (and to a much lesser degree, the House) were brought into the policy-making for and oversight over the U.S. intelligence community in a more meaningful way as President Ford, the Church Select Committee and the Carter administration placed limits on the runaway U.S. intelligence.

The National Security Advisor and his staff expanded their power, the Defense Intelligence Agencies and the DIA maintained autonomy, and the National Security Agency remained autonomously linked to both the CIA and Defense Department. Executive orders limiting the activities and defining the scope of the agencies were issued by both Ford and Carter. President Carter also signed the Foreign Intelligence Surveillance Act of 1978 and the Intelligence Oversight Act of 1980, which then marked the end of the 1970s era of investigational oversight and relative transparency.

The historiography of recent U.S. Intelligence history falls into six categories. There are scholarly overviews, descriptive tomes, and think-tank projects, which are supplemented by more or less self serving memoirs, U.S. and foreign government documents and a large spectrum of critical non-standard works. Jeff Richelson of the National Security Archives offers a uniquely valuable descriptive digest of U.S. Intelligence. His very dry text contains a vast laundry list of secret branches and Byzantine corridors within the U.S. intelligence community. The sixteen pages of acronyms and short descriptive paragraphs gives an overview of the structures and functions occurring within U.S. Intelligence, and this is required reading in the field. His exhaustive compendium is backed by a voluminous and complete apparatus, and these notes display an annotation for almost every line of published text, comment, fact or declassified item on record which concerns U.S. intelligence. While the notes are pregnant with scandal, the text of Richelson’s book is less than critical of the status quo.

Critics abound, but legitimate academic voices are more difficult to find. Loch K. Johnson, in a series of books on U.S. intelligence, offers syllabus-quality narratives and interpretations from the point of view of the critical insider. Johnson points to “pathologies of the intelligence cycle” where analysts are severed from their sources. He outlines the chronic problem the relationship between the overseas ‘Chiefs of Mission’ (Ambassadors, i.e., State Department people) and the CIA’s own equally powerful ‘Chiefs of Station.’ Readers of Johnson become familiar with the chronic structural problems between the Intelligence Directorate and the Operations Directorate, (analysis versus espionage). Johnson looks sensitively at campus CIA connections to academics and he draws interesting graphic charts concerning the secret agencies’ public responsiveness, feedback cycles, oversight, and costs and tasking.

Memoirs are an important source of information in this field; many former CIA Directors have published autobiographies. They usually offer valuable insight into the activities of the intelligence community, and definitely show the paradox and tensions inherent in using intelligence in a representative system of government. Stansfield Turner’s book was important in my research and the writings of William Colby and Richard Helms are very valuable, as are Robert M. Gates’s and James Woolsey’s books.

I found the best single source on U.S. Intelligence policy to be Frank J. Smist’s Congress Oversees the United States Intelligence Community 1947-1989. Here is a calm but critical narrative paired with incisive analysis. Smist, a political scientist, applies an analytical model that is valuable. He distinguishes “Investigative Oversight” from “Institutional Oversight,” and shows the strengths and weaknesses of each. Georgia Democrat Richard B. Russell, who served in the Senate from 1933 until 1971, dominated the period of institutional oversight, which ran from the passing of the National Security Act of 1947 until the Church or Senate Select Committee was formed in early 1975.

Richard Russell chaired both the Senate Armed Services Committee CIA subcommittee and the Senate Appropriations Committee CIA subcommittee, and he defeated a 1953 attempt by Mike Mansfield to create a joint Senate-House Intelligence Committee. U.S. Senators Margaret Chase Smith, Carl Hayden and Leverett Saltonstall also had twin CIA subcommittee seats, and Russell embodied “institutional oversight.” In the lower house a similar conservatism prevailed; the Chairman of the House Armed Services Committee (1949-1953 and 1955-1965) Carl Vinson and his allies “were strong advocates for the intelligence community and presidential leadership in foreign affairs … in the closed door oversight conducted by these committees, secrets did not leak” Both Loch Johnson and Frank Smist point to early 1975 as the period where investigative or oppositional oversight in Congress replaced institutional or non-critical oversight. Although Gerald Ford (and his Vice President Nelson Rockefeller) made some progress in reining in the more blatant excesses of the CIA and other intelligence agencies via Executive Order, deeper reform only came with the election of Jimmy Carter and Walter Mondale in 1976 and the subsequent enactment of Church Committee recommendations within a Democratic majority House and Senate. President Gerald Ford’s progress was limited by the presence of his National Security Advisor Henry Kissinger, a Nixon administration veteran who was not as eager to expose recent unconstitutional acts, or limit national security executive prerogatives.

The Carter administration’s foreign policy has a mixed record, best known for its initiation of the Panama Canal Treaty and the brokering of the Camp David Accords, and its response to the 1970’s Oil Crisis and U.S. Embassy hostage crisis in Iran. Another significant foreign policy thread runs through the mid-1970s, however. With a Democratic majority in both the House and Senate, Jimmy Carter’s Administration was able to address the intelligence agencies’ severe credibility crisis. This crisis stemmed from the exposure of some of the excesses of the Vietnam War era, including foreign assassinations, domestic spying, drug experimentation by the CIA and rampant domestic wiretapping by the FBI and NSA. Carter followed up on the work of the Senate Select Committee, the “Church Committee” where his Vice President, Walter Mondale of Minnesota, had served before the election of 1976. On January 24, 1978 Carter issued Executive Order 12036 as one of his second annual budget and State of the Union policy initiatives, and he partially re-organized the intelligence community via this executive order.

Giving a special role to his Vice-President in strengthening oversight of intelligence community, Carter followed in the steps of his immediate predecessor, Republican Gerald Ford, of Michigan. Ford had depended on his Vice President, former New York Governor Nelson Rockefeller, to seriously begin the executive branch intelligence community reforms demanded by the public, the courts and Congress. Rockefeller’s recommendations to Ford, grudgingly supported by Henry Kissinger, laid the groundwork for the more sweeping re-structuring of the intelligence community carried out by Jimmy Carter. There are many parallels and continuities between the Ford and Carter administration reforms in the mid-1970s. President Reagan also appears to have given intelligence portfolio functions to his Vice President, the former CIA Director G.H.W. Bush, despite his claims of being “out of the loop.” Any Vice President is statutorily linked to intelligence oversight by sitting on the National Security Council with the President, Secretary of State and Secretary of Defense.

In brief, the Carter intelligence reform was unable to solve the structural problem of the control of U.S. intelligence, and the “CIA re-chartering” bogged down in the late 1970’s, mainly on the issue of greater congressional oversight, or how many ‘outsiders’ would have access to the budgets, technology and personnel data of the fifteen secret agencies. At the time (post-Watergate and post-Vietnam) the CIA was unable to muster enough Congressional and Presidential support for the needed expansion of their powers over the NSA and the NRO satellite agency, although such changes were discussed. Certainly signals intelligence (SIGINT) ascended over human intelligence (HUMINT) in the 1970’s reforms, and ground agents were de-emphasized in favor of technical intelligence priorities. Stansfield Turner fired over 800 espionage case officers in one day. Although Carter Executive Order 12036, the FISA and the Senate Bill 400 were all important reforms, larger questions of counterintelligence sharing between the FBI, CIA and NSA were left unaddressed, and the power of the CIA director to control the other fifteen agencies remained weak, as the Carter White House and point man Lloyd Cutler retreated from investigatory oversight progressive reforms to the older Cold War institutional oversight norms.

Intelligence history, like its related discipline, diplomatic history, is a frustrating and highly restricted field. There are limited records available, they are almost all government documents, and they hide more than they divulge. Archivists at the Carter Library in Atlanta were helpful in my research, though, and they shared unmarked boxes of Presidential National Security Directives with me as well as extremely useful records originating from the Ford Presidential Library in Grand Rapids, Michigan. Now, with attorney Lloyd Cutler and the CIA/NSA re-organization plans back in the national headlines, I am beginning to feel that history may indeed repeat itself.

Executive Order 12036:

The Presidential Archives at the Carter Library have de-classified files from the Ford Administration and these shed light on Carter’s Executive Order 12036 and his efforts to reign in the intelligence community. In December 1974, after four months in office, President Ford received an unprecedented letter in which his Director of Central Intelligence William Colby confirmed a story published by Seymour Hersh in the New York Times. “I have already briefed the chairman of the Armed Services Committee” CIA Director Colby states, “some CIA employees . . . misinterpreted” orders and engaged in “unauthorized entry of the premises, breaking and entering, electronic surveillance . . . telephone taps of two newspaper reporters in 1963 and physical surveillance of five reporters in 1971 and 1972.” The Seymour Hersh New York Times articles immediately served as the final catalyst for Senate Majority Leader Mansfield to force through a Senate Select Committee, and both Frist and Johnson point to January 1975 as the turning point from the institutional to the investigatory oversight model.

This Christmas Eve letter was a bombshell for the un-elected President, and it was followed on Christmas Day by a sensitive, now declassified, memo from National Security Adviser Henry Kissinger to Gerald Ford in which Kissinger briefs the President on the issue: {{{quote}}}

A program to identify possible foreign links with American dissident elements was established within the CIA’s office of Counterintelligence in August 1967 . . . to determine whether U.S. dissidents were receiving support from outside the U.S.

Later in 1967 the CIA’s activity was integrated into an interagency program. In December 1970 an Interagency Evaluation Committee was established under the coordination of John Dean. . . . CIA continued its counter intelligence interests in possible foreign links with American dissidents . . . I have discussed these activities with him [DCI Colby] and must tell you that some few of them clearly were illegal, while others – though not technically illegal – raise profound moral questions. A number, while neither illegal nor morally unsound, demonstrated very poor judgment.

The response to the Hersh article and other investigative journalism, and to the Colby and Kissinger admissions, and to the pressure from the Senate and House was all co-ordinated in the Ford White House by the Vice President, Nelson Rockefeller. Gerald Ford and Jimmy Carter’s two related Executive Orders both have their roots in this policy option memorandum. It is dated September 18, 1975 and signed by Vice President Nelson Rockefeller, Henry Kissinger, James Schlesinger, Phil Buchen and James Lynn, Ford’s inner circle of West Wing advisors: {{quote}}

Background: One of the most serious consequences of Watergate was that the intelligence community became a topic for Congressional investigations, as well as public and press debate. Starting with CIA links to Watergate, the issues have expanded to: CIA involvement in domestic spying and foreign assassination plots - FBI violations of civil liberties, - NSA monitoring of the telephone conversations of American citizens . . . insufficient control by Congress of the intelligence community purse strings and insufficient knowledge of its operations . . . poor management and control of intelligence community activities and resources, and poor performance of the community in specific instances. [Ford was presented with policy options:] Where in the Executive Branch should responsibility for oversight of the propriety of intelligence activities be placed? Should you issue an Executive Order restricting the activities of the CIA or the intelligence community as a whole . . . or a more comprehensive Executive Order which also incorporates a full statement of positive duties and responsibilities for the agencies . . . what actions are appropriate at this time to improve your supervision and control of the intelligence community? . . . Option 1. Extend the role of the PFIAB [President’s Foreign Intelligence and Advisory Board] to include oversight, (or) approve Option One but rename PFIAB, . . . retain PFIAB and create a new body solely for oversight . . . Second [option], issue an Executive Order restricting the collection of information on American citizens . . . [to restrict the CIA, all agencies, or all agencies except the FBI in a] comprehensive Executive Order . . . What actions are appropriate at this time to improve your supervision and control of the Intelligence community? Option – give formal authorization of the NSC Intelligence Committee to evaluate the programs and product of the intelligence community.

The importance of this 12-page policy paper to Jimmy Carter’s efforts cannot be underestimated. Walter Mondale, Zbigniew Brezhinski and Carter’s top staff arrived at nearly identical conclusions in 1977 before issuing Executive Order 12036, imposing much more stringent controls on the agencies than Ford had done in Executive Order 11905.

Carter would have trouble in the three years following the issuance of Executive Order 12036. Although the Order carried the force of law, the parallel legislation concerning Congressional oversight of intelligence and a new CIA Charter would bog down into a sustained deadlock. Although Carter signed the Foreign Intelligence Surveillance Act in 1978 and the Intelligence Oversight law in 1980, Carter Staff Counsel Lloyd Cutler’s boxes, marked “CIA Charter” show a loss of momentum in their dedication to further reforms. Most notably, Defense Secretary Harold Brown, Admiral Turner at CIA and Admiral Inman at NSA combined to sustain the status quo in overall Defense/CIA/NSA relations.

Controlled by a moderate Republican untainted by recent assassinations, Watergate or Vietnam scandals, the Rockefeller Commission moved parallel to the Church Senate Committee to establish controls on the runaway intelligence agency. The Rockefeller Commission’s report caused Henry Kissinger to add his voice to those urging sweeping reforms on Ford. Kissinger states: {{quote}}

The Rockefeller Commission was charged with investigating and making recommendations with respect to allegations that the CIA engaged in illegal spying on American citizens . . . propose revisions in the National Security Act which would clarify CIA’s authority by explicitly limiting it to foreign intelligence matters – this could also be accomplished by Executive Order . . . to prohibit improper domestic activities of CIA concerning US citizens, legislation to strengthen CIA’s internal organization and management structure including establishing a second Deputy Director position [and] stronger penalties for violations by present or former CIA employees . . . chang[ing] Executive Branch procedures on oversight of intelligence community and white House contact with CIA and a stronger role for the President’s Foreign Intelligence Advisory Board.

Ford promulgated Executive Order 11905 in the spring of 1976, and he took steps in these directions, but Carter’s election signaled that more sweeping intelligence controls were coming. David Aaron, Mondale’s staff adviser on foreign affairs and former counsel to the Church Committee organized the Carter White House reform efforts, which culminated in Executive Order 12036. (Mr. Aaron’s papers have not yet been declassified, but Carter’s revamping of the intelligence community is traceable in the Carter Library’s papers from National Security Advisor Zbigniew Brezhinski and Staff Counsel Lloyd Cutler’s desks).

Although the Carter Administration would never reach consensus with the Democratic Congress on Congressional investigational oversight of the intelligence agencies or develop a new charter for the fifteen intelligence agencies, on Tuesday, January 24, the White House did issue Executive Order 12036, which placed explicit controls and limits on the intelligence community and re-organized the lines of responsibility. On Friday, January 20th, 1978 President Carter received a large package in his in-box from his National Security Advisor ‘stage-managing’ the signing of the Executive Order. This memo is a briefing for the signing ceremony for E.O. 12036. Brezhinski tells Carter:{{quote}}

This executive order is the product of the most extensive and highest-level review of our foreign intelligence activities ever conducted through the NSC system and an unprecedented dialogue with Congress. It builds on the experience under President Ford’s Executive Order 11905 and is intended to provide a foundation for the drafting and enactment by Congress of statutory charters. The Order ensures that U.S. government foreign intelligence and counterintelligence activities are conducted in full compliance with our laws and are consistent with broader national security policies. . . [it will] establish effective oversight of the direction, management and conduct of foreign intelligence activities . . . clarify the authority and responsibility of the DCI and the several departments and agencies that have foreign intelligence and counterintelligence responsibilities . . .the Senate Select Committee is proud of its significant contribution and its recently formed counterpart, the House Select Committee, while not as much involved, wants to publicly associate itself with the new Executive Order . . . Emphasize the unprecedented degree of constructive dialogue with the Congressional oversight committees. Stress the fact that in this very sensitive area the Administration and Congress are working in harmony – provide the Congressional leaders with an opportunity to make remarks for the record. (underlining in the original)

The President’s address is included in this file, and here he announces the basic changes brought by Executive Order 12036 in four parts. In part one, Carter announced that the Policy Review Committee and the Special Coordination Committee, standing committees of the National Security Council, “will, short of the President, provide the highest level review and guidance for the policies and practices of the Intelligence Community.” The PRC would henceforth be chaired by the DCI, Admiral Stansfield Turner, and the SCC would be chaired by the National Security Advisor himself, Zbigniew Brezhinski. The second part of Carter’s speech is more immediately of interest. He stated this groundbreaking doctrine, “the authorities and responsibilities of all departments, agencies and senior officials engaged in foreign intelligence and counterintelligence are being made public. Those implementing directives which must remain classified for security reasons will be made available to the appropriate Congressional oversight committee.”

Part Two of the President’s speech explained, yet glossed over, a Byzantine struggle over turf between the Secretary of Defense Harold Brown and the DCI, Stansfield Turner. Carter said, “the new Order implements my earlier decision to centralize under the DCI the most important national intelligence management functions – collection requirements, budget control, and analysis – while operational and support activities are left unchanged and decentralized.” This opaque statement only makes sense in light of the New York Times article of 1/23/78 and other secondary sources. DCI Turner, pushing for both improved organization and personal power, had pressed for day-to-day CIA control of the Defense Department’s powerful intelligence agencies, the National Reconnaissance Office (spy satellites) and the National Security Agency (signals intelligence, wire-tapping and code-breaking). Admiral Turner’s efforts ran counter to the vision of Dr. Brezhinski and Vice President Mondale. They were engineering a popular limitation on the CIA’s power, by changing its charter and its oversight boards. Carter and Admiral Turner had agreed on some additional management duties for the DCI (see Presidential Directive NSC-17, below) but the Admiral was never given control of the NRO and NSA, two major intelligence agencies under the Secretary of Defense. Turner never seemed to understand that the new Executive Order was designed to limit the CIA and control it, not to give it greater power and independent authority. The behind the scenes struggle is glossed over, but Carter summarized the final decision; the DCI was given more management and policy input, but the “operational and support activities are left unchanged and decentralized.”

In Part Three of his address, Carter expresses the dilemma of executive intelligence actions in a representative republic. {{quote}}

Our intelligence agencies have a critical role to play in collecting and analyzing information important to our national security interests and, on occasion, acting in direct support of major foreign policy objectives. It is equally important however, that the methods employed by these agencies meet the Constitutional standards protecting the privacy and civil liberties of US persons and are in full compliance with the law . . . a major section of the Executive Order is devoted entirely to setting forth detailed restrictions on intelligence collection, covert activities in support of foreign policy objectives, experimentation, contracting, assistance to law enforcement authorities, personnel assigned to other agencies, indirect participation in prohibited activities, dissemination and storage of information and a prohibition on assassinations. The FBI’s intelligence activities no longer have a blanket exception to these restrictions . . . [and there will be] a greatly enhanced role for the Attorney General.

In Part Four Carter announces the formation of an Intelligence Oversight Board and instructs the DCI “to report to the Congressional Intelligence Committees in a complete and prompt manner.” Carter concluded the speech by stating “this Executive Order . . . assur[es] the American people that their intelligence agencies will be working effectively for them and not infringing on their legal rights.”

In an attached memo, Brezhinski specifically reminds the President to call up to the podium Senate Select Committee members Daniel Inouye, Birch Bayh, Dee Huddleston and Congressmen Boland and Murphy of the House Select Committee. An unprecedented Congressional/Executive agreement on U.S. Intelligence reform was acted out that day.

One final memo in this file sheds light on the character and policies of two major intelligence community figures, Admiral Stansfield Turner and Attorney General Griffin Bell. Chief Speech Writer James Fallows and Griffin Smith wrote a memo for Carter concerning the recommendations of Turner and Bell for Carter’s speech.{{quote}}

ADMIRAL TURNER suggests –“That you acknowledge this Executive Order was produced by close cooperation between the Secretary of Defense and the DCI.” – “that you indicate your support for Admiral Turner’s management of the agency ‘which you suggested earlier’” and “that you express hope that the charter legislation will move smoothly, with Congress refraining from placing too much detail in the charters [as] ‘we need some flexibility in intelligence operations and oversight.’” [caps in original]

Turner here shows much of the problematic character he is often pictured as having. In his first request, he wants the President to re-characterize the fierce wrangling between the CIA and the DOD as “close co-operation” and then he suggests that Carter (to paraphrase) ‘remind them I’m doing a good job,’ and ‘tell Congress not to tie my hands.’ Turner was probably not the best individual to work within the new Mondale/Brezhinski/Congress re-charter program for intelligence. This note shows the pettiness of Turner, especially when contrasted to the high-mindedness of the second half of the memo, which indirectly quotes Attorney General Griffin Bell. Bell suggested that the President announce: {{quote}}

Constitutional rights of privacy and civil liberties are fully protected by this Order . . . requiring [the Attorney General] to set procedures that ensure compliance with the law, protect constitutional rights and privacy and ensure that any intelligence activity within the U.S. or directed against any U.S. person is conducted by the least intrusive means possible.

No such constitutional re-iteration of the basic premises of the Executive Order are seen in the defensive, self-serving jockeying found in the Turner proposals, and Griffin Bell stands considerably higher in historical stature than the frustrated and over-reaching Turner.

Conclusion:

Turner’s egoism and heavy-handed bearing are fully aired in his memoirs, as well.

A series of more recently de-classified Presidential Directives shed light on the struggle between Turner and the other Intelligence chiefs. An August 1977 Presidential Directive NSC-17 shows the steps Carter went through in re-defining the role of the Director of Central Intelligence relative to the other agencies such as the NRO and NSA. Admiral Turner’s role is enhanced when Carter directs that the PRC committee (under the DCI) “define and prioritize substantive intelligence requirements and evaluate analytical product performance.” The Directive states “DCI will have full tasking responsibilities [for] . . . specific intelligence collection objectives and targets and assigning these to intelligence collection agencies [to be] . . . jointly manned by civilian and military personnel.” This empowered the DCI to steer the NSA and NRO but not to oversee the Defense Department agencies. The “DCI is named as principal budget forecaster” is to be “provided adequate staff” and “continue to act as primary advisor to NSC and President and retain all other powers,” but, most importantly, “authority to hire and fire personnel and to give day to day direction (to the NRO and NSA, the satellite and wiretapping agencies) . . . will remain with the heads of the relevant departments and agencies [D.O.D]” This Directive sets the stage for Executive Order 12036 and shows the compromise Carter worked out with Turner, which gave forecasting, targeting and budget control over the NRO and the NSA to the DCI but stopped short of greatly enhancing the CIA Director’s power over the two large military intelligence agencies, the NRO and the NSA. This, of course, is the substance of today’s post 9-11 debate over intelligence authority.

After January 1978, President Carter was unable to rapidly forge a Congressional consensus on intelligence reform, even with Democratic majorities in both houses of Congress. The CIA Charter remained a hot internal White House issue until the Reagan inauguration and the question of Congressional oversight became the main sticking point for preventing additional legislative reform under Carter. I now believe that Lloyd Cutler, in his role as senior counselor to Bill Clinton, drew on his Carter White House experience to discourage President Clinton from attempting the difficult structural reforms which are now, in hindsight, seen to be so critical. Clinton, under the advice of Cutler, made no effort to eliminate any of the fifteen agencies or place the NRO and NSA under the DCI’s direct control, and of course, the FBI and CIA counterintelligence functions remain segregated, competitive and at cross purposes. Under Reagan, Bush, Clinton and Bush II, the chronic structural problems which weakened U.S. intelligence co-ordination and efficacy remained, after the window of opportunity and public clamor of the 1970s had passed into quiescence.

Executive Order 12036 and the FISA were the high points for Jimmy Carter and Walter Mondale’s intelligence program. Following on President Ford’s Executive Order 11905, which Vice President Rockefeller had promoted, Executive Order 12036 broke new ground in publicly addressing civil rights questions and assassinations. 12036 placed very specific domestic limits on the CIA and FBI for the first time, and the FISA codified tasking and targeting norms for the fifteen agencies overseas. This progress in regulating the espionage and analysis units of the Federal government was limited by the personalities of the major players, specifically Stansfield Turner, and also by the more conservative approach to Congressional oversight of the CIA that was taken by the maturing Carter Administration in the late 1970s. The administration strayed from its 1976 mandate for investigative oversight and retreated into a milder and ineffective institutional oversight, which was further weakened by the Reagan-Casey regime. .

In very general terms, the leadership of the intelligence community (from both political parties) must be improved. The agencies and the military intelligence units must be firmly indoctrinated in constitutional law, the Bill of Rights, the Geneva Convention and universal humanist ethics. The ideology of the partisan leaders should not drive the analysts to pre-arranged and politically expedient conclusions. The programs, techniques and activities of the fifteen agencies need to be placed under rigorous and ongoing scrutiny. Programs need to be questioned by the appropriate congressional leaders, via investigational oversight, as institutional oversight has proven to be too weak to raise performance standards. Ultimately, our safety as a nation -- and as a global society -- rests on the vigorous, exhaustive and critical oversight of the various intelligence communities.

Sources Cited

Very, very informative post for me, more like this are needed in all debates I think. The one relevant thing I can see missing is that the EFF brought lawsuits against the cooperators with the NSA in their warrantless illegal wiretapping, and the case was never allowed to go forward for fear of "state secrets" being revealed, which leads me to think that they also wanted to avoid more of the Nixon Era scandal recurring.

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