SC-05078-76 ' • - - -- • • · - COpy Oi 2 · • - -·· - __ i I REPORT ON Th QUIRY mro CIA-RErA'IED ELECTRONIC SURVEII U NCE ACTIVITIES · -------------i·I 1 CLASS FI D y t T e' -6__ · _· · · • t EX T F D' l c · u ' H os SCIH DUE cror C n· - · · ' 'Ti'C ' S So l _ - ' 'j ··_• - r-• r r or u i' 0 • ••• _ i ' ' · - c _li i2 l_ _ -- C- J ·7C _ · ' 1 I ••••••••••--------- - · ·- ur i• L· ··· ' · i --f -lg' - __ • --•-- - • - · I·• SC-05078-76 COpy I 012 PREFACE Most of the infcnration contained in this Repo -t was obtai 11ed frco perscr inel e loyed by the various iutelliga1ce agencies under investigation Predictably t l-i eir attitudes ranged from circu rspection to wariness One typically had to ask the right question to elicit the right answar or doci t It is likely therefore that we had insufficient information on occasion to frame the ''tragic question One also had t ascertain the S ecif ic person or di vision to whan the right question should be addressed s L lce ccq artrrentalization of intelligence-gathering often results in one hand not kna nng what the other is doing TI-i e latter was partic ularly true of the offices of general cmr sel 'They were not always consulted befo ehand con- i th -- hlch -- -e dealt ce i 11g the legality of borderline operations Indeed they were not fully m -are · t mtil our inquiry of certain ouestionable 9perations engaged bv f en· e agenci·eniff - °·fh1 · J • # °' ·•· e• • T-n addit1 ·on the m -r respect-I a -dffe-ii 'itt - r 1 aoi 11• - ttz· t dt•• r- $0 • J offices of general counsel evinced a lack of legal expifrtise in the field of electro u c surveillance and a general uncertainty and inexperience in t l--e area of Federal cri rnir al law It is possible therefore tri at sccre e xculpatory as well as inculpatory facts and docu r ents were not revealec because general counsel did not perceive their relevance or significance 7 V I The degree of overall cooperation with our inquiry va ied a -or g t age icies t 1der scrutiny NS and DEA for instance ·were ge - erally coo e -ative Perscnnel frcm both DF and NS A '-ho had been directly inv h-ed i - c ue stiC' la ble operations readily sub r it ted to intervieW and coo erated r cr - eve - g 1-a dedly despite Miranda -amir gs The CIA on the other 1- · d elected to inform us of the details of questionable CIA activities t l-i O' Jgh CV perscr nel wiio would not be given Miranda ·warnings i e CIA e -ployees -110 had not been involveam the questionable operations Consequently our riefi 11gs on CIA activities were conducted by CIA personnel 'ith only secondrz-1d k lc wledge gleaned principally frcm -rritten records Subsequently hcr -avar se eral of tru CIA persormel directly involved i 1 questionable ope ratia- s did su2 xr it to intervietv C' a pliance with requests for doctnients and or written reports also arled cle6Tee of prcxq tness NSA and DEA were reasonably prcrnpt Initially t 11e CIA 't- aS dilatory and the FBI tardy but both improved as the inquLry progressed 1- terials gathered by the Senate Select Ccmnittee ·were not tr ade available for our revie -1 until March 2 1976 m The foregoing imped irrents ·while inconve d ent did not ftJi da -z 1tally alce tr- e fir al product of cur effort to obtain the detailed overvie -1 Tefl ected in this Report Such obstructions ll ight becane intole -able ha- -ev-er i 1 tr prosecutive pursuit of speci£ic cases · Jtne 30 1976 Dougald D Hd· ill an - t • · _ - '2C · - J'JhS·7 6 COpJ oi 2 TABI E OF CDNlt NTS Paga I Finc i ngs of Cccr tl ssicn on CIA activities l A Ofiice of Security - Telephone Taps and Bugs 1 B Ca 1te- -intelligence Staff - Collection of Infonna tion on Dissidents etc C Directorate of Operations - TelRphr r Toll Records D Directorate of Operations - Narcotics Intelligence Brandy Operation Directorate of Science and Technology - Equipment Testing F Office of Security - Aesistance to Washington Metropolitan Police Departrnent and Secret Service Ce 1tral Intelligence Agency 3 4 5 10 14 II Additional P eas of Justice Departtnent Inquiry A 2 1 J irrcotics Coordinator and NA 2 ri -rwl El 3 rt · ·t· t t tt · · · - z · · z m w 18 4 i7 l t Z l - %Z1 19 5 l_c yerseas Intercepts and Dropped Cases B 2- • 6 CIA-ENDO Miami Operaticn 23 8 Procurement of Private Parties to Intercept Ccmrunications 25 26 ational Security Agency - -- o 1 GITN RET 2 r · $ 29 37 __ J ii µ L J l I C I A rr • I lT r t I • ' •-• - u v• _ · • · - 1 • '·# SC•0507o- i 6 Copy I 012 Page III C Federal Bureau of Investigation 39 D Sta te Department 39 Presidential Pa 1er 1 Legislative History 2 Presidential Directives Historical 3 Interpretation of the Presidential Pc wer 4 Presidential Authorization • Purported Sour9es of Authority 40 A 40 B 40 41 42 44 Narcotics Intelligence Gathering Presidential Direction 46 1 Presidential Message to Congress 46 2 t-hi te House Task Force on Narcotics Control 46 3 Cabinet Carmittee on International Narcotics Control 47 4 Office of National Narcotics L11telligence 56 5 6 International Narcotics Control Conference Pronounca r ents by President Ford 57 59 C General Intelligence Gathering Presidential Direction 60 D Narcotics Intelligence· Gathering Legislative Direction 63 E CIA Legislative and Presidential Directiai • 54 1 National Security Council 2 Central Intelligence Age i q • 3 Gscms 64 64 __I 0 71 72 - i-i F NSA · Legislative and Presidential Direction • 1 cations Intelligence • 2 • NSCIDs • 3 e One-Tenn inal Rule • 4 NSA Participation in Dr ' lf• x i 8 U S C §2511 3 5 rPropriety of Require nents • • • • ' 76 ii 't • • • 85 · - 2QJ G United States Intelligence Board USIB 1 f scm 1 - 1964 2 N CID 1 - 1972 • • • • • • • 3 IGCE 4 U S Intelligence Objectives • • • • • • • • 91 92 • • • • • • 93 H Pre ident's Foreign Intelligence Advisory Board PFIAB • 105 113 rJ Possible· Violations A B C 115 116 Interception of Canrunications Hav i ng One Tenainal in the United States 1 Pertinent Cr im inal Statutes • • 116 Receipt of Cable Traffic Fran Intematicnal 117 1 Pert lI ent Criminal Statutes • • 117 Qmm mications Carriers • Intercepticn of Darestic Camunicaticns in Test b g Electronic Equipment 1 Pertinent Criminal Statutes • • • Applicable Statutes and Law • 118 118 119 iv • 119 A 47 U S C §605 • e - t - • •w I - l 'f _ f I _ _ I ----- 95 100 I Intelligence Evaluation Cannittee IEC V - • SC·05 Jo- o COpj 0 Pago B 18 U S C §2510 C Willfulness • 1 120 seq 121 United States v Murdock 2 18 3 u s c • 121 §2520 123 Zw-eibon v Mitchell • D 'tplain Vi6i ' Analogy • E Eorder Search Analogy • 124 125 126 VI Possible Defenses • • A 125 Interception of Ccmnunications Havil'lg One Terminal 128 in the United States 1 Interception of International Radio-Telephone Landline Voice Comrunications a 128 18 U S C §2511 i ii iii iv v vi 128 Radio-Telephone Carm Inications 128 · 130 Wire Carm mications The Nation's Ccmwnications Network 130 Justified Expectations of Privacy 132 · Fel y v Misde oea nor 132 Oral Camunicatioos 136 us vii Overlapping Definitions viii Statutory Construction 142 Prosecutive Options 143 ix u s c §605 • • b 47 c Presidential Authorization 18 U S C §2511 3 d Willfulness V • 143 • 144 145 SC•05Cio· v COP i Oi' 2_ __ Intercepticns of International Non-Voice Caimunications • _ a b 18 U S C §2511 i Interception ii Aural iii Teletype and Telex Cccm mications u s c 47 §605 • 147 148 148 • • • • 149 Interception and Diwlgence or Use by • Different Parties • • • 150 150 ii Use • 145 i 145 148 Diwlgence • iii • • • i I Page 145 • • • • ' c Presidential Authorization • • • • • I d B • 151 Receipt of Cable Traffic fran International Camunications Carriers I 1 C Willfulness 47 u s c 151 I I I §605 • • • • • • i • • • • • • • • • • 151 • • • • • • • • 151 • • • • 153 153 a Camunications Persomel b Government Agents and Officials 2 Presidential Authorizaticn • 3 Willfulness • • • Interception of Dcmestic Camunications 1n Testing F qui JB1t • • 1 18 U S C §2511 and 47 U S C §605 2 • • 154 154 154 Presidential Authorizaticn • 3 Willfulness 153 vi HANDLE VIA COMINT CHANNELS 154 - -· SC•05C7o-i6 copi_ I oi i VII Stmraey of Possible Violations and Defenses A 155 Recapitulation of Inquiry 1 · 2 157• 3 158 4 MINARET 160 5 164 6 165 SHAMROCK • 7 168 8 VIII 155 Conclusions and Recarrnendations HANDLE VIA COMINT CHANNELS vii 171 Copy ot 2 I FINDINGS OF 11-IE CXM1ISSION ON CIA ACTIVITIES t-1I1HIN THE UNITED STATES The Report to the President by the Ccmni ssion on CIA Activities ' Within the·United States hereinafter referred to as the Rockefeller Carmi ssiori Report or RCR contains various findings with respect to CIA electronic surveillance activities These findings are set forth bela-1 followed by caments based upon results of the inquiry conducted by the • Justice Department Task Force A OFFICE OF SECURIT'l - Telephone Taps and Bugs Ccmnission Findings The Office of Security conducted 32 dares tic wiretaps the · last in 1965 and engaged in 32 instances of bugging the last in 1968 • None of these was conducted pursuant to a judicial warrant and only one was with the written approval of the Attomey General RCR 30 167-168 The Ccmn i ssion found t wo cases in which the telephones of t'iree newsmen were tapped in an effort to identify their sources of sensitive infonnation These occurred in 1959 and 1962 The latter was apparently conducted with the kncMledge and consent of the Attomey General RCR 164 Sane of these activities were clearly illegal at the time they were conducted Others might have been lawful at the time but would be prohibited under current legal standards RCR 160 Camv nt The analysis of available info rnetion Tab Al indicates a total of 36 possibly 38 rather than 32 telephone taps by the Office of Security and 35 possibly 38 mike-and-wire operations instead of the 32 instances of ''bugging reported by the Rockefeller Camdssion In addition both the last known telephooe tap and mike-and-wire operation were conducted in October 1971 rather than 1965 and 1968 respectively These differences appear to be acadanic ha vever since the five-year statute of limitations 18 U S C 3282 has expired as to all the interceptions except those in October• 1971 which were consensual -18P SECRiJBf l 1 HANDLE VIA COMJNT CHANNELS SC-OSC ti-76 COt- i I Ci With respect to CIA electronic surveillance of newsmen an examination of available files indicates that in 1959 a foreign newspaper correspondent and two U S writers were the subject of telephone taps The foreign newspaper correspondent was also the subject of a mike-and-wire operation In 1963 two U S newspaper reporters were the subject of a CIA telephone tap Tab A2 Obviously the statute of limitations has long barred any possible prosecution for substantive offenses based upon these interceptions B OOUNTERINTEI LIGENCE STAFF DEPUTY DIRFCIOR O'F On American Dissidents etc Pl ANS - Collection of Infomtion Cannission Findings · The Cannission found no evidence that any of the agents or CIA officers involved with any of the dissident operations CHAOS en-ployed or directed the danestic use of any electronic surveillance or wiretaps against any dissident group or individual Operation CHAOS ha -rever received materials fran an international carm mications activity of another agency of the goverrnnent These ccmnunications passed between the United States and foreign countries None was purely darestic RCR 24 141-142 Carment Investigation has developed nothing to contradict the Camd ssion' s finding that there is no evidence CIA employed or directed the danestic use of any electronic surveillance or wiretaps against any dissident group or individual in Operation 01 AOS Tab Bl The other government agency referred to by the Caimission as having furnished Operaticn CHAOS with international ca rm uu cations materials has been identified as the National Security Agency The electronic surveillance activities of NSA are discussed in II B infra ' TOl4£CIITTE i 2 HANDLE VIA COMINT CHANNELS • TOP SECR£f lij §4l'j SC·05C78• 76 Cop I o l -·-· C DIRECTORATE OF OPERATIONS - Telephone Toll Records Reflecting Contacts Between the United States anc Hostile Countries Carmission Findings During 1972 and 1973 the Directorate of Operations obtained and transmitted to other CCXll Oilents of CIA certain information about telephone calls between the Westem Hemisphere including the United States and two other foreign countries Sane of the calls involved American citizens within the United States lbe information obtained by the Directorate of Operations was limited to the names telephone nunbers and locations of the caller and the recipient The contents of the call were not indicated Shortly after the program ccmnenced the Office of the General Counsel issued a brief memoranch m stating that receipt of this information did not appear to violate applicable statutory provisions Collection of this material was termi 'lated in May 1973 Tile Carmission was unable to discover any specific purpose for the collection of telephone toll call information or sn y use of that information by the CIA In the absence of a valid purpose such collection is improper RCR 213-214 Ccmnent The legitimacy of this source of intelligence was confirmed in February 1972 by the Office of General Counsel CIA Tab Cl The opinion of the cx c cites United States v Covella 410 F 2d 536 c d 396 U S 879 1969 and appears to be well reasonea ind soundly based --TOP SECRET lt l HANDLE VIA COMINT CHANNELS 3 • - ro SECRET SC-J5C7o-i 6 COµj I Q 2 - D DIRECTORATE OF OPERATIONS - Electronic Surveillance for Narcotics Inteligence · Brandy Operation Carrnissia Findings Beginning in the Fall of 1973 the Directorate of Operations at the request of NSA m mitored telephone conversations bet'Ween the United States and Latin America for a period of three or six m mths in an effort to identify narcotics traffickers This was imnediately terminated upon t 'lie issuance of an opinicn by the CIA General Counsel that it was illegal RCR 37 222-224 Ccmne nt Examination of CIA files and the intei-view of various CIA officials established that frcm October i 1 uic i1 rt8 t tr f ll I of intercepted hl gn trequency carmercial radio telephone ccnm micaticns between the United States and Latin America for the purpose of gathering foreign narcotics intelligence Tab D This electronic surveillance activity presents prlma facie questions of criminality and is well within the limitations period See ''Possible Violatiais V infra 4 HANDLE VIA COMINT CHANNELS - C vl C l sc o5o7B-76 Cop'J I uf Investigation has confinned the Rockefeller Cannission' s findings that the 'l ii W t tZ '• tms conducted without the knowledge of the CIA canponent with responsibility for narcotics intelligence collection RCR 222 This CIA canponent was kn0v n successively a the ''Narcotics Coordinat- ir and NARCOG which are also discussed herein See _I A 1 infra E DIREC'IORATE OF SCIENCE AND TECHNOI DGY futerceotion of Domestic Camunications In Testing Electronic EguiJXnent - Coomission Findipgs In the process of testing n-onitoring equ EXnent for use overseas the CIA has overheard conversations bet ween Americans 'Ih e na res of the speakers -were not identified the contents of the conversations -were not disseminated All recordings -were destroyed when testing was concluded i 'lbe acquisition of ccmnmications incidental to the testing of interception equipment appears to be prohibited by 18 U S C 2510 et seq RCR 37 64 228 _J 5 HANDLE VIA COMINT CHA1 NELS R '£¥1' YriRVJ - •·· ' • •·· - ··· ·• • l ·' •· ' ' '• · - ·- • •• ' • - ' ·• -· ' · · ' • ·· ·i' r • The five-year statute of limitations would bar prosecution for possible substantive offenses involved in this project - -· · dJ · - 1- · · ft • ·l J ' ' · · The limitatiats period for prosecuting possible substantive offenses related to this activity expired In 1974-__J 6 HANDLE VIA COMINT CHANNELS -ror- S CKEs E# ji SC-05078-76 copy o• 2 -· ' r - • ' •' -_ •• • ll 'I ·_ •· J- · · - _ · • -· • ••j• • 7 •--•••••• i • •• 1- · - · · - - · - - • _ ·· _J _ 7 HANDLE VIA COMINT CHANNELS p SEGKt 1 9@5 Rt41t SC•05C78-76 COpj I Oi l • ' · f · - ·• t-·· _ '' ' ' ·· · · · · _ ' - · I ·· ' ' • •· '• ' The limitations period regarding any possible prosecution arising fran this activity will expire in May 1976 See ''Possible Violations belJM HANDLE VIA CO v lNT CHANNELS TVI 5 CJ RiFzelllitr SC·05C78-76 Cop I Of 2 • - · - -f - ••1- i· 9 HANDLE VIA COMINT CHANNELS -· - ___i QP sEeRet SC-05070• 6 COpj I F Office of Security - Assistance to Washington D C Metropolitan Police Department and tfie Secret Service l O• Coomission Findings The CIA has on at least one occasion provided sare technical assistance in an actual police operation being carried out by the Metropolitan Police Department In late 1968 or early 1969 CIA was asked to provde the Department with transmitters which could be planted in several lan4 s to be placed in the apartment of a police informer 'Who frequently met with manbers of dissident groups CIA agreed to provide the requested equipirent 'The lamps -were provided to CIA and the transmitter devices were installed in the l s by personnel fran the Office of Security The lamps were then placed back in the police informer's apartment by the police The police infonner was aware that the apart n'S'lt was being bugged and consented to the operation RCR 296 __j • Ca ment Pursuant to the request of MG Richard Thomburgh on August 19 1975 the FBI is currently conducting an investigation of alleged bugging activities involving the Washington Metropolitan Police Department MPD 'l'his investigation is being m mitored by AUSA Donald E bell Deputy Chief Major Crimes Division U S Attomey' s Office Washington D C and James Robinson General Crimes Section Criminal Division U S Department of Justice 1 Washington Metropolitan Police Department Records obtained fran the Rockefeller Camdssion files reflect that in Septa nber 1968 the CIA loaned lamps with transmitters to lll JBP srena r J HANDLE VIA COMINT CHANNELS 9_j lUP sE CRET SC•05r 78-76 Cu - J I o L 7 of the Wasnington Metropolitan Police Department and that the lamps t t f were not returned to CIA 2 __J Tab A3 United States Secret Service The Rockefeller Carmission records also reflect that the CIA furnished the following equipment to the Secret Service toCfMft 1 R _5-111-lB-170 loaned _ ·ti· - sss on 27 July 73 and not returned 2 I Clandestine Transmitter Can' 1 to usss and returned The date the equipment was loaned is 1 Il'U l'lOWil • Et§£fil Mit i Accordil g to a Metropolitan Police Department investigative report to Mayor Walter Washingt on March 7 1975 the only intercept utilized in I I connection with d stration activities consisted of a recording device in I the apartment of a special ai loyee of the MPD in order to sec Ire information I regarding plamed anti-war activities of an illegal nature nus consisted of one-party consent and was purportedly a legal installation Tab A4 FBI investigative reports reflect that a special enployee of the MPD fran 1968-1972 was interviewed by FBI agents and stated that in 1968 she traveled t o Chicago with a representative of the MPD to cover radical activities which -were expected to occur in conjuction with the Damcratic National Ccnventiai and that her hotel roan was sub equently m mitored conducted by· the Secret Service by electronic surveillance She further acl n0v1ledged her role in electronic surveillances conducted by the MPD of her residences on She indicated this m xdtorlng was accarplished 11 - IBP SECRETf 2 HANDLE VIA COMINT CHANNELS SC·05G76-76 CDPJ I o wit 11 tra I SID itters which were present in two lar ps furnished to her by the MPD Secret Service personnel were interviewed and confirmed that the Secret Service had participated m the consensual electronic surveillance of the informant' s hotel roocm in Chicago in 1968 and a residence occupied by her Prior to the May Day Dexrxmstrations in 1971 the Secret Service is alleged to have participated with the MPD in the conser sual electronic surveillance of the apartment of another MPD informant Tnis apartir ent was reportedly located at etz#W -- f®t-- z Zt t $$JZ t$i t t a d CIA is further alleged to have furnished sane of the equipment utilized by the MPD in conducting this electronic surveillance Secret Service officials confirmed to the FBI_ that prior to the May Day Deronstrations in 1971 the MPD requested and obtained the assistance of -C - e Secret Service in the consensual electronic surveillance of t' le above apartt e1- At the sarr e tima the Secret Service also trtmitored with the MPD tv o liscening devices in tr e aparonent of the aforementioned female informant Tne latter was also consensual A former MPD Intelligence Division officer confinred that r- e peztic patee in an electronic surveillance of the f ana le infor r ant' s aparttr ent ''ssveral weeks after the banbing of the U S Capital in March 1971 1he above surveillances were apparently conducted bet wee 1 Marc ii 17 1971 and May 4 1971 12 -l1Jr_S- EC - - RE -T t I a L _ r ft• - --- • t - J q i a • •- -• • · · · c l Departmental Attorney James SC-05078-76 Robinson will endeavor to as w_n any fut- ther involvement the CIA might have had in the above or related activities George- Clarke CIA Associate General Counsel advised as follows T hroughout the Office of Security's research pursuant to the Rockefeller Ccmnission and Congressional investigations of the Agency there have been no indications that the Office of Security has ever directly assisted a nd or participated in ciny electronic surveillance activ ities with the Metropolitan Police Department No assista nce has been rendered or equipnent loaned to the Metropolitan Police Department by Division D CIA in connection with electronic surveillance activities Tab A5 However Mr Clarke furnished CIA mem randa reflecting loa ns of ccmrunications equipnent to the Metropolitan Police Department a nd other police departments Tab AG Mr Clarke also f mlished CIA II1SIOranda reflecting loans of carm nications equipment to the Secret Service Tab A7 and further advised The U S Secret Service USSS under the authority contained in Title 18 U S Code Section 3056 as amended by Pl 90-331 regularly tasks the CIA to pro- vide real-time camunications intelligence close support to the USSS during the foreign travel of the President and other protectees designated by the USSS 'Ihe CL in response to such tasking m mitors en the scene those local foreign military and internal security camunications supporting elements responsible for the physical protection of visiting protectees '1he results of this uxmitoring are imnediately passed to the USSS on-scene On occasion local USSS camDJnicaticns may also be nx nitored by the CIA team However all such toonitoring is at the specific request of the USSS of the Office of Security's assistance to the Secret Service has been related to counteraudio e s in connection with the protection of the President and or Vice President Since 1974 no electronic equipnent capable of intercepting oral camunications has been loaned to the U S Secret Service by the Office of Security ••• The majority The arrangenent between the CIA and Secret Service was formalized by written agreement in 1971 Tab AB In sun the foregoing assistance to other agencies does·not indicate pe-oseeutable violatims cm ' i _ 1 - ·- 11 1 1 ai 13 · ·•- -- HANDLE VIA COMINT CHANNELS II ADDITIONAL AREAS OF mQUIRY A _Central Intelligence Agency 1 Narcotics Coordinator and NARCCG Tab E In October 1969 the President designated intemational narcotics control a concem of U S foreign policy and established the Jhite House Task Force on Heroin Suppression 'The Director of Central Intelligence OCI Richard Helms was named to the membership of the Task Force and directed by the President to provide the Task Force with CIA assistance C onsequently a CIA office of Narcotics Coordinator was established under the Deputy Directorate of Plans nCM the Deputy Directorate of Operations 1he duties of the CIA Narcotics Coordinator lt4fiAQ • 1ncluded the representation of CIA on the 't-brldng Group of the vJhite House Task Force and narcotics liason with other agenices Since the initial concem of the hlte House Task Force was narcotics trafficking in Turkey and Southeast Asia the CIA provided the Task Force with narcotics i11telligence reports and studies concerning both areas Additionally ll#lf#b#lf pdvised interested in the European connections between Latin the Task Force was American traffickers and 1 Irkish opiun suppliers and the CIA contributed inforaation in this regard With respect to the CIA' s cooperation with other agenices ENDO tasking ma noranda to CIA reflect that during the time the Jhite House Task Force was in existence the CIA provided ENDO with assistance in training programs loans of funds for overseas operations intelligence reports on intematiaial narcotics traffickers and other narcotics develqments overseas Sale of this informaticn was obtained as the · HANDLE VIA COMINT CHANNELS ------------------------_ -- 1- il •- -- sc · 'ru 1 e ·rw·EiW SC•05C78·76 Cop oi L incidental by-product of national security electronic eillances overseas and sare fran overseas interceptions specifically conducted for international narcotics intelligence CIA assures however that none of these electronic surveillance operations was conducted within the United States or fran lands reserved for use by the United States neither were any of the interceptions targeted against ccmrunications having one terminal in the United States In August 1971 the President upgraded the priority of the intema onal narcotics control effort by replacing the White House Task Force with the Cabinet Ccmnittee on International Narc tics Control CCmC • 'lb e CIA Narcotics Coordinator was named chairman of the ccmc Work il1g Group Intelligence Subcc mnittee He was reportedly instructed by DCI Richard Helms to avoid involvement in danestic law enforcement activities and BNDD's stic intelligence operatiais CIA continued to provide BNDD also a msnber of the Intellige 1ce Subcc mnittee with foreign narcotics intell tge nce and various support e g training flash rolls for its overseas operations The CIA Narcotics Coordinator furnished ENDO with reports of the folloo ng t -ypes 1 FllIDB TDFIRDB TDFIR etc Foreign Intelligence Reports Collected by die Office of Operations fran foreign field offices with description of the sources included in the reports 2 00 arts Q mpiled by the Danestic Collecticn Division exc usively fran interviews of people who had traveled to foreign countries _ mp SECMT 15 11£ HANDLE VIA COMlNT CHANNELS SC·05078-76 COpj l Oi 2 3 Ana ical RE ort The only known report of this type was a s y entited Cocaine Trafficking Network in Colanbia 4 Daily Reaorts i e USIB National Intelligence Bulletin Pertaine primarily to geopolitical intelligence not narcotics oriented It is 5 Weekly Sunnary Geopolitical bulletin Not narcotics oriented 6 Miscellaneous Rehorts These included teletypes of specific intomtion whic may or may not have been CXMINT and also included Director of Operations Narcotics Control Reports OOt- CS vmich were sent directly to ENDD's Chief of Strategic Intelligence 1$'#-% ·M#sJ There is no indication that the CIA Narcotics Coordinator furnished BNDD with any narcotics intelligence reports other than the foregoing CIA's Office of Narcotics Coordinator was reorganized on June 12 1972 as the Narcotics Coordination Group or tw«x x ' he principal duties of NARD X did not differ frcm those previously assigned the Narcotics Coordinator NARax provided -upport to the intelligence programs ccmc and coordinated the CIA' s narcotics NAROOG also contirrued responding to RIDD DEA's intelligence requirements by furnishing ENDO DEA with the ab ve described reports The first chief of NAROOG 6 19 72 - 7 19 74 was reportedly instructed by the OCI and the DDP to avoid involvanent in danestic narcotics enforcement operations as well as foreign operations targeted against American citizens len overseas CIA statialS inadvertently acquired infonnation concem ing the narcotics trafficking activities of U S citizens the local CIA official would reportedly surrender the information to bis local 16 HANDLE VIA COMINT CHANNELS - - - ·--· p ·ru zr SC-0507 - 6 Cop_y I 01 ENDD counterpart and take step to insure that no further collection on the U S cftizen occurred l Jhile much of the infottnation provided the 'XlliC by CIA was obtained as a result of CIA's overseas national security electronic surveillance operations A4teJmd his 7 74 - 12 74 and t wo • ifflitMfZ successors M¼-@#$¢4%@$£$ J Chief Chief 1 75 - presen advised that NAru XX neither conducted nor requested the conduct of electronic surveillance I I opez-ations dooestically or against Erny carm mications having one terminal I in the United State · EM##4Gfr%##1t41@«4· - -B%iAWt¥ti J #Wtz@1 I Inquiry has confirmed that I NARCX G officials were keenly aware cf the prohibition against involvanent in da Iestic operations During his tenure I 111 as NAROX chief fi• 't '· • _ reportedly sought to insure against this sort of I ' activity by renaming ccrnc Intelligence Subcc mnittee the Foreign Intelligence Subccmnittee Ernd took steps to insure that U S citizens' names were excluded fran the MINT Register an inter-agency listing of individuals involved in illicit foreign narcotics trafficking 2 LPMEDLEY Tab G 7 On August 18 1966 Dr Louis Tordella Deputy Director NSA met with Thanas Karamessines then Acting Deputy Director of Plans CIA and requested CTA' s assistance in setting up a small caver office in domtown Manhat·tan Dr Tordella explained that NSA needed t he office so that NSA aq layees could copy inte natiaull telegraphic camunicatlc ns receiwd HANDLE VIA COMINT CHANNELS _j SC•05C7d-76 Cufi i I o• I ccmnercial carriers Sl-W1ROCK The copying process previously perfonned in Washington D C had to be shifted to New York because of technical CIA accepted NSA's requirenent and assigned the project the problans Beginning on Novanber 1 1966 and continuing through cryptonym LPMEDLEY Angust 31 1973 the CIA provided NSA with space in a cc mnercial buidling in lCMer Manhattan and a front for the NSA operation 'The CIA was reimbursed by NSA for expenditures incurred in this project · · · • 'r - _ 'r ' • · i 11 rtJ tt tjf1f1 1 1 · ·· • • t tf i ' 'ft i 0 J ' 'r1 lltt o1-1 - _- - ii • 1 7 i - ' t _ _ e- 11 - J · · •• - •• · · - -· ·c-'' 't ·- ' •• • · 1tt · f ti sl V t 7_ 7 · · · _ ·- · • i - •• - - ff -1 ···1 • f4 i1 t- - -• - t•· · u ·-- l ' i · ' · · - 4 Ji f · c • ·· J · - x ' _ J J 1 - ·' •t' f'¼ •• ' -1f ·•' · ' - • ' ·' 1 t-' n 'l t t 1 ' - 5 It I r ttUt ' ' ftt · t it-7 - e · -·- · f 1•· I ' iJr i • · •-·• _ tJi t tt _ ·-·· j 4'• •- • • f - · ' '' ' · •sf 40 - • ·• - - • I •• l' •l 0 - 'j • •• • • _ •• ' 1 w r--•• • • ' ' t ' '• • • •••1 • 1 f 4I • · •• · - - ' •• • • ' • ·1 i • -- • -1 • • i - I i' 'J - q t • • •- t _ • ' • jo1 J-H- ' i• • -°11 • • • _ 'J • ' •• 1 i '•· 'O $' -- ' • -•••·••• t lo • ' '° f • --• • '•• I • --• _ • f f 1 h• ij 1' - _'N • - • - •- ••• ' t' • t• z • 1- r -t • ' J t • l J c ' -'- tot ° ' I ' ·-· · ' ✓ - w · r r J q tJ - V t- l • · · t t ' · _ ' --- · t - • r· - - _ •i·1t · _ - J · -c -·· ·1 i - _'- ' i j ii J iitt • ·_ · -- - · 11 o 1'' · q'· _ • ·'• •1' _ - t t 1 '1 • ·••-· _ _ 1 ' t ' • J r Jiy·• • 6 f' •• ·fr • i c s •··- t · ·•· • - 1 ·'I _ -- - 1' I _ '- · ••• f 1J' 1 - -J f 'y ' - • ' • -·• '• _- · • _ • • r •• - -- • -¥ ' · • ' J - - ·' ·• 1t _-c f - -· V i i •• • '- -• f -J• '- Ml-1 I IJ - '' t i t - _ - ·· '• ' •c ' 1 - •-• l r - i M t k ' i t4•··'' n Jlt-- ·- -- · · ' I C' z- · ·••• • •• • - · • i y '- '' ' - j ' - 1 o c 4• G' e ' JW t t · i1W - -i i 'r fl _•lr J 1 tl -r tJ- J • 1 - r•' '' r-' '' · _ lti· · -•·r t'-i ' i •· · l · 1- • c • •· ·- · • _ q t - 1 t r · • ·•i ·ji ' 'l c '°ll ' - t il - t · -A ' • J C •• r • 1- i- • _f# h _ 'l --· 1 li - ' Jr i · · • - - · • · i f '- ·I • r- •-- - ·• r ' • - ·· t · · f •1 · - - 111t r· - Al - - r · ' ' - ·· - 1 l J· -' 31 · Zt • •t ' - r-· - f - ' i -- ' · · - - r ' 'J -f1_7 f -1- ' - '· •o1 f - • • 1 •• 1i· - i - 11 l t - • •'•u ' rJ i - ' ' oho•i O -· i 1 j'-J ' _ - X-t • '-t if' i £ir•3 J ·-- _ - --jj ·ti- · · - -- - · J ' P 7 · ' lf - - r-½ K'l t fr · •h - •· ·· ·· Jf - •••• •• • •t i _ f •_ I •• ---- if r Itf · t tf3 t' 't f i1 ' ' _ tJ t tf $ · l • · ' l • _ •• · ••• ii · _ Jf •--l - '-· ''· i -i ' -• t· · ti f _ i t J - · - L _ · ·- i i f J - t · · ic ii e J•r - - r r • ' - ·--• 1· ·- 1 •• •• I f'_ a · · · - f 1 1 o ' • · · ··· t·• 1t • fl_ r _ 1 _ _ _ - t J t L••-r ·i • 1 1 ' • '•·· -- · • ' 't • - - • • i' •••• '- r _ -·· ·- 18 sEeru · ·• LZJ '1 HANDLE VIA COMINT CHANNELS ·- •• · • · - t· I I copy I ot 2 t _· pr_f · i·-· - Jt c- t - _J JOP SEEREt 19 EJ HANDLE VIA COMINT CHANNELS •V 0•1 V COpJ' - 5 Overseas Intercepts o Tab J 1he overseas electronic surveillance operations of CIA provided a source of information to various goverrmient agencies concerning such matters as the influence and participation of foreign gove rnments in dcxnestic militant m wanents and the international narcotics control effort With respect to the support of U S dissidents by foreign governments In its endeavor to provide mDD DEA with valuable fntemational narcotics intelligence the CIA conducted foreign canrunications intercept operations against specific targets overseas These operations could have been initiated pursuant to requests fran CIA Headquarters or fran sev- a ral different govemrental entities inclu U ng mDD DFA Headquarters and mDD DFA District or Regional offices With respect to the tasking of CIA by PNDD - DFA foreign field offices CIA officials advised that the CIA field statiCl'lS 'WOUld not undertake any such electronic surveill tmce activities without TOP SECRIT J 20 HANDLE VIA COMINT CHANNELS SC 0o0 ·76 Copy 2 o first obtai I ing authorization frcm CIA Headquarters Although the CIA provided BNDD DEA with infonnation obtained fran overseas electronic surveillances the CIA took precautions to insure that t he method of collection and the source of the information would not be revealed In sane cases havever the recipients of the information were BNDD DEA officials directly involved in the CIA overseas operation and the obfuscation of source was not possible In such event the CIA station would ask the BNDD DFA officer not to reveal the source if he passed the informtion on to BNDD DFA Headquarters Thus men ENDD DFA Headquarters received ccxmunications intercept information fran CIA Headquarters the source usually would not be identi£ied as an overseas interception At times however the nature of the infom ation ma de it apparent to the consumer that it was obtained as a result of electronic surveillance The CIA used electronic SUJ Veillance as a method of collecting narcotics intelligence overseas and because CIA provided such information to BNDD DFA several narcotics investigatior- s and or prosecutions had to be terminated In these instances the CIA and the DepartIIV nt of Justice were fearful that the confidentiality of CIA's overseas collection nethods and sources would be in jeopardy should discovery proceedings require disclosure of the CIA' s electronic surveillance activities The foll cMing investigations and cases were affected by this ccnceJ n HANDLE VIA COMINT CHANNELS copy I OJ 2 -- ·Jl ·•· - • · ' - -- -- - -1i lbfF · - r• '°· I -J - • • • - • I • - · · · - -· - · · _ · - _ • •4 ' Gustavo Guerra - Montene o In 1972 an indictI elt i tiich had been returned m the Southern District of California charging Guerra and six others with narcotics trafficking was dismissed • HANDLE VIA COMINT CHANNELS i According to Associate CIA General Counsel John Greaney the foregoing disposi ion of ti was DAAG Criminal Division coverage I approved _by Hem y S Dog tn The chronology of CIA electronic surveillance Wif§ Jwhich was furnished to MG Heriry Petersen DAAG Dogin et al in November 1974 indicates that teleplj one ccmrDJnications bet ween I ttlMt4fMtf4ft t United States had been intercepted Tab J4_ _ Note This Report does not purport to deal with possible difficulties arising under 18 U S C §3504 in closed narcotics cases That is the subject of a 2 5 76 Mamrandun of Study conducted by Phillip T White Chief Legis1 a tion and Special Projects 6 CIA BNDD Miami Operaticn DF ACON I Tab K In October 1972 during a meeting with R'D Director Ingersoll OCI Richard Helms offered to recruit a former CIA contract employee to k for FNDD in MiBm1 on its EVNCION narcotics intelligence project he anployee thereafter became a staff agent for ENDD but retained his CIA cover 'nle CIA has advised that • the Agen C'f did not ccntrol or participate in the fonrulaticn of duties assigned the agent by BNDD DFA advised that although m the CIA paid the agent the funds were actually received £ran mIDD but paid -I rnr sECRIT HANDLE VIA COMINT CHANNELS Coµy I by CIA to avoid having IXlJ records reflect the paynait · DEA advised that ENDD used the agent as a live source for infonnation concerning Latin American oarcotics traffickers and their organized crime connections in Miami 'Ilu s project utilized agents in addition to the ex-CIA contract employee and may be generally described as a narcotics intelligence collection program targeted at Latin America It was first designated BUNClli and later with the formation of DEA became knov n as DEAOON I According to DEA the former CIA contract errployee r rted to a BNDD official in 1'1iami who reportedly was also an ex-anployee of the CIA CIA advised that the Agency's involva rent in the project was part of a program established to recruit agents for BNDD and 'Which was terminated in the fall of 1973 In addition CIA advised - and DFA concurred - that there is no indication that any carmmications were intercepted during the course of the above activities -----J HANDLE VIA COMINT CHANNELS SC·05C70•10 COP1 o 8 _ Procuranent of Private Parties to Interc t Ccmrunications Tab kn - r inquiry was made to determine whether the CIA has procured private individuals parties or corporations to intercept ccmrunications having one or both terminals m date Title III was enacted 'lhe CIA advised that the •• appropriate the United States since June 19 1968 the • canponents of CIA discovered no record of interceptions relative to ___J this inquiry • FBP SECREI 25 C HANDLE VIA COMINT _ HANNELS JOP SEGHE -t lf I'ffiihEI SC·05C7 - 6 cop I o• B National Security Agency I 1 l-ffi-tA RET Tab N MINAREr was a cryptonym applied by NSA to a project chartered on July 1 1969 in which NSA analysts selected frcm two primary foreign i telligence sources certain by-product intelligence involving several areas of interest The primary sources were 1 NSA's interception of inte Mtional cc mnercial carrier ILC voice and non-voice ccmrunications and 2 copies or tapes of intemational messages furnished to NSA by U S ccmnercial ccxrmunications carrier in the Shamrock operation The by-product intelligence was initially sought in the follc Ming areas of activity 1 Foreign governments organizations and individuals attenpting to influence coordinate or control U S organizations and individuals who might incite or faIEI1t civil disturbances or otherwise undermine national security 2 U S organizations or individuals engaged in activities which might result in civil disturbances or othentlse subvert the national security 3 4 Ccmrunications which indicated foreign contacts or connections with various assassins 5 Military deserters involved in the anti-war 1DOVaJE1t In mid-1970 tre scope of MINARET was enlarged to include the selecd a1 of intelligence concerning intematiooal narcotics trafficking particularly · _J the illegal lnportatioo of dangerous drugs and narcotics into the United • TOP SECREI 26 EJ HANDLE VIA COMINT CHANNELS -_ ¥41¥ sc-uoo78-76 COP i I Oi 2 States Fran September 4 1970 until June 1973 this iritluded the 7 intercepticn_of high frequency radio-telephone coornercially voice ccmrunicaticns between the United States and several South hrerican -• • • I • • - · · • • -• • • • • ·· · '• • j i ••• The purpose of the MINARET project was to provide by-product intellibence to various Federal departments and agencies in response to their requests or requiranents In responding to such requirements hc Mever NSA purportedly relied upon in plicit assurances of requesting agencies that their need for the intelligence was legitimate In addition NSA dealt only with foreign ccxrmunications i e comrunications hav iilg at least one terminal en foreign soil The MINARET charter also provided that appropriate measures would be taken in disseminating intercepted carm mications to insure that NSA - · could not be identified as the source of the intelligence Closely associated with the MINARET project are the 1 'Watch Usts and Mfii#iN# ¥$6P Wft1 W i ¥¾M#$N·iJM#4#¥4 ' 'furnished NSA HANDLE VIA COMINT CHANNELS - - fOP-- SE CRE I NkiiD c C•u·· 5r7 -i 6 Cop I o i were used by NSA analysts in processing n c voice carmmications and drop copy messages obtained in the Shamrock Operaticn • 28 HANDLE VIA COMINT C NELS ffJP SECRET $i'W¢0 SC·0507d-i6 Copy I o l ' HANDLE VIA COMINT CHANNELS oP 5ECftE1 Wii#W 1 SC-05078-7 6 Copy I o 2 In late 1971 w-be n the tel was designated by the President to asS J 12 the role of intelligence coordinator for the President's Cabinet Ccmnittee on Intematiooal Narcotics Control and moo -were authorized ccmc it appears that the CIA FBI to levy drug-related intelligence requirenents HANDLE VIA COMINT CHANNELS _j _ NSA Later in 1972 -c men NSA began collecting intelligence on terrorists and terrorist-related matters the FBI Secret Service and CIA were designated as tasking and censurer agencieo - It general s d be noted that the objectives of fi§Z· at least in terms were probably approved by two successive Attorneys General and a Secretary of Defense See F 3 infra With respect to the CIA's involvanent in drug-related intelligence I l gathering it is noted that fran October 1972 to January 1973 at NSA's request CIA enga ged in the interception of high frequency radio trans- missions of ccmrercial voice ccmm mications between the U S and South America fran a uonitoring station in e W%f® ttiifi fitffH4#ft i was itUS Z X f# @•f - tZ· U$#4if t1# terminated on January 29 1973 when the General Counsel of CIA advised it was unlawful See swmary of I D supra It cannot be precisely stated lYhen thP#@#t project terminated since the termination occurred in phases but the narcotics phase apparE ntly ended in May 1973 vhen after discussions with CIA General Counsel NSA discontinued this phase of iitl# ' NSA' s assistance to the FBI and Secret Service through$$$#$ -kontinued until October 1973 when Attorney General Richardson instructed the directors of those agencies to stop requesting information obtained by NSA through electronic surveills nce On the same date the Attorney General directed the D ector NSA not to respcnd to requests frcm these agencies or my agency to monitor in connection with a matter that can only be considred one of danestic intelligence Our investigaticn reveals that in NOVE IDer 1973 NSA excised the s of all U S citizens fran the Watch List HANDLE VIA COMINT CHANNELS __J_ I Va ''-'-'' ' _ • - - - -F-lllil' illllUt SC-05C7o- b Copy Oi 2 3 - SP AMROCK Tab P 7 S is the code name ·of an operation initiated by U S military intelligence officers in 1945 in which United States international ccmnunications carriers agreed to furnish than with copies of diplomatic messages received or routed over comnercial circuits NSA inherited this activity when it was created in 1952 to direct the national coam mications intelligence effort A review of t circumstances surrounding the inception of SHAMROCK in 1945 reveals that it was an outgrc Mth of the World War II censorship program and was conducted initially under the aegis of t lie Assistant Chief of Sta ff for Intelligence General Hoyt Vandenberg There was a general reluctance on the part of the carriers based on advise of their house counsel to engage in such activity unless certain conditions were met including the personal assurance of the Attomey General that the caq am es 'w'OUld be protected in case of suit Although the first expression of such assurance pparently occurred en April 20 1949 it appears that the carriers ' had begun cooperating with the military in mid-1945 based upon the representatioos of General Vandenberg and lower-echelon intelligence officers that such intelligence was a matter of vital ilrportance to the national security Investigation reveals that In December 1947 Secretary of Defense Jmres Forrestal met w 'ith officials of RCA Tr and Western Uni en Inter- naticrial and said he was speaking for President Trunan in cam end lng them for their cooperaticn in SlW-1RCCK He further requested their continued - HANDLE VIA COMINT CH NNELS · · - - - - - - - ' v -- -- J i v r C I Zf p-@ SC-u5C7o-i6 COpj I o 2 assistance because the intelligen e constituted a matt of great i nl ortanc- r to the national security On May 18 1949 Secretary of Defense Louis Johnson met with officials of the same canpanies and stated that President Trunan Attorney General Tcm Clark and he endorsed the Forrestal statement and would provide them with a guarantee against any criminal action vmich might arise frcm their assistance According to former Secretary of Defense Melvin Laird NSA' s SlW1ROCK operation was tacitly endorsed by him during his term of office 1969-1973 'Whel1 NSA assured responsibility for the SHAMROCK operation in 1952 varyir g practices and procedures which would later change had already ' been established between the military and the ccmnercial carriers which permitted NSA employees access to all diplcrnatic messages transmitted routed or received by the RCA I'IT and Westem Union offices located in New- York City and W shington D C as well as the RCA and ITI offices in San Francisco RCA provided NSA employees with duplicates drop copies of all international messages thus requiring the NSA emplo ees to visually screen and select-out diplanatic messages for microfilming on NSA-ooned - 1 ll't' t- el' ' i M t ' N - _ c l t l i k ' • -- --- r J - __ m •- Investigation shows that NSA enployees were also given access tc all perforated paper tape copies of intert'l atiooal messages transmitted by RCA and until 1965 were --fflfr HANDLE VIA COMlNT CHANNELS _ •••••----------------- s c i-- o5 o -- -7 -8•- 7- 6-cop I o 2 receiving_ parcels fran the New York City TIT office v hlch were believed to contain perforated paper tapes transmitted or received by the I'IT Although SHAMRCCK is c1 mronly referred· to as a drop copy operation this characterization is saretvhat misleading since it applies only to that part of the-overall operation in which NSA employees were given access to duplicate copies of intemational messages which were prepared for accounting purposes When RCA began using roore sophisticated equipm nt in 1960 the drop copy operation becarre minimal Investigation reveals that begiming in 1960 the visual screening and selecting-out process accanplished by NSA employees at RC A was terminated and all international message traffic was simply photographed by NSA employees and forwarded to NSA headquarters for screening and selecting-out A similar situation with respect to RCA and TI obtained after 1965 when they switched to the magnetic tape process It has been estimated I by NSA that during the period 1960-1965 before the magnetiC' _ tape process began 97% of the messages received at NSA were discarded because t hey failed to et NSA' s criteria @ifs$®@tfii###ifiWYJ WQffl t $ @4' fBP SECRET 34 C J HANDLE VIA COW INT CHANNELS • ·U I o• 1 u COP i Ql L Although NSA purportedly adhered to the practice of discarding all international messages obtained Eran cc mrercial carriers v hlch were not and purportedly has steadfastly followed a practice of discarding all messages of a personal nature at the earliest possible m ment of discovery there came a time in the late 1960s probably 1967 when unbekn to RC A and I'IT Westem Union participation ended in 1969 NSA selected-out international messages containing the names of persons on the Watch Lists 'Il-iis continued until October 1973 when Attorney General Richardson terminated the practice by which NSA responded to specific requests fran govemmental agencies The SHAMROCK I operation was temdnated in May 1975 - Investigation also indicates an FBI involvanent in the SHAMROCK operation fran 1963 to 1973 During this time the FBI obtained copies of intemational cable traffic £ran RC A and I'IT in Nerw York City and Washington D C Until 1973 __J HANDLE VIA COlv lNT CHANNELS S •U IJ o· 1 o cop1 01 NSA received a daily package of office in Washington D C such coom inications trC the FBI Field These packages contained what are b lieved to have been drop copy'' Ir essages o t a o - m@ d4$V· 5i ' It is estimated that 95% of these messages were discarded by NSA because they did not fit any of NSA' s intelligence criteria See II C infra _J - IB SEeKiJe rcil 36 HANDLE VIA COMINT CHANNELS _-- rVv il v-1 V I O 2 SC·J5078• 76 Cop ot 2 I j nir srentt lfil J 38 HANDLE VIA COMINT CHANNELS -------------- r opl5 cs ECMR CEr SC•05C78•76 COP ot 2 c· Federal Bureau of Investigation Tab R In July 1975 the national press publicized the intelligencegathering operations of NSA and the FBI knONn respectively as SHAMROCK and the ''Drop Copy Operation See II B infra The FBI imnediately furnished the Attomey General with sunnaries of background information Tab Rl and provided the writer et October 20 1975 al with a partial briefing on On October 30 1975 the FBI was requested to provide the Criminal Division with a detailed written report on its involvene nt I in the operation The report was received on February 24 1976 Tab R2 -1 · Note This Report· does not purport to cover the electronic surveillance activities of the FBI Inquiry into the FBI Drop Copy Operation w-as prcrnpted by its collateral relationship with NSA' s SHAMROCK D Deparonent 'of State The attorneys for the Govemrnent in the case f Morton Halperin et al I v Henry A Kiss er et al C A No 1187-73 DOC advised that in 1969 and 1970- 71 £ i• ··z Z % $# z t- t_ t- 7- f z t 1_was the subject of electronic surveillances authorized by the Attorney General AA inquiry was made to ascertain whether the Departrrent of State had conducted any warrantless electronic surveillances since 1969 i e since t li e enactment of Title III Maurice Leigh Legal Advisor Deparorent of State responded on Decarber 31 1975 that no warrantless electronic surveillances of U S citizens were conducted by his Depart trent during that period - Tab S _j 39 TGF SECRET HANDLE VIA_ COMINT CHANNELS COpy of I II PURPORTED SOURCES OF AU'll-IORI'IY FOR Th'TERCEf'T'lliG Q' J -t-1IJNICATIONS No court orders were obta ined to c onduct any of the interceptions involved in this inquiry Justification must be found it at all in specific legislation or under the Presidential power to protect the national security or obtain foreign intelligence information deemed essential to the security of the United States A THE PRESIDENITAL 18 U S C §2511 3 1 Legislative History Nothing contained in the criminal prohibitions of 18 U S C §2511 1 or 47 U S C §§501 605 • shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power to obtain foreign intelligence ·information deemed essential to the security of the United States or to protect national security information against foreign intelligence 18 U S C §2511 3 1he legislative history of Section 2511 3 expressly eflects that nothing contained in the Federal criminal prohibiticns is intended to limit the power of the President to obtain information by whatever rreans to protect the United States frcm the acts of a foreign power including actual or potential attack or foreign intelligence activities or any othe't' danger to the structure or existence of the Gove rnrna1t Where foreign affairs and internal security are involved the proposed system of court ordered electroo ic surveillance envisicned for the admirrlstraticn of t i c criminal legislaticn is not intended necessarily to be applicable ••• 40 ------------ COPY I of 2 It is obvious that whatever means are necessary ·should and D DJSt be taken to protect the national security interest Wiretapping and electronic surveillance techniques are proper means for the acquisition of counterintelligence against the hostile action of foreign powers Nothing in the proposed legislation seeks to disturb the power of the President to act in this area Limitations that may be deemed proper in the field of danestic affairs of a nation beca re artificial when international relations and internal ·security are at stake 1968 United States Code Cong and Adm News 2156-57 2182 2 Presidential Directives Historical Prior to the enactment of 18 U S C §2511 3 in June 1968 Presidents of the United States since Franklin Roosevelt had authorized Attorneys General to approve investigations to secure infonra tion by listening devices directed to the conversation of persons suspected of subversive activities 1975 Zweibonv Mitchell 516 F 2d 594 673-679 App A D C Cir - Although this practice has never received express Suprare Court aproval the Court in United States v United States District Court COPY ot 2 4I J7 U S 297 310-312 320 1972 recognized the constitutional basis of the President's dut-y to protect the Govcrnrrent against those ·who would subvert or overthrCM it by unlawful means and noted that the use of electronic surveillance in internal security case s has been sanctioned rrore or less continuously by various Pres idents and Attorneys General since July 1946 3 Interpretation of the Presidential Pav er The operational interpretation of the Presi dential po 'E r prior to June 1972 was dEITOnstrated by the Government's argunent in the landrrark Keith case United Sta tes v U S District Court 407 U S 297 303 309 1972 Relying on 18 U S C §2511 3 the Goveniment contended that Congress in excepting national security surveillance from the Act's warrant requiranent recognized the President's authority to conduct darestic security electronic surveillance thout prior judicial approval i e electronic surveillances of U S citizens constituting a threat to danestic security but having no significant connection with a foreign p r its agents or agencies The GoverrIDG1t further argued that such surveillances were conducted primarily for the purpose of collecting and J -J - I of 2 maintainlng intelligence on subversive forces and should not be subject to traditional warrant requirarents which Jere established to govern the mvestigation of criminal activity rather than ongoing intelligence gathering 407 U S 318-319 1he Court rejected these contentions and held that 18 U S C §2511 3 is not a congressionally prescribed exception to the general warrant requirement but a congressional disclaimer and expression of neutrality which makes no atta rpt to define or delineate the powers of the President to meet danestic threats to the national security hi le recognizing the Constitutional basis of the President's danestic security role the Court ruled that the President's pCMer to authorize darestic security electronic mn veillances nrust be exercised in a manner c atible with the Fourth Arnaldirent which requires an appropriate prior warrant procedure the prior express approval of the Attorney General is not sufficient The Keith case was decided on June 19 1972 It is a watershed in the development of the applicable law Altrough the C ourt studiously avoided expressing any opinion concerning the issues which might be involved in the activities of foreign pexvers or their agents the decisicx1 obviously nanowed the scope of Presidentially- authorized de nestle security electronic surveillances previously considered permissible by the Attorney General and Federal intelligence officials 43 I t COpy of 2 Presidential authorization to conduct electronic surveillances solely for the purpose of gathering foreign intelligence information was subsequently upheld by Federal Courts of Appeal e g trl ted States v Butenko 494 F 2d 593 3 Cir 1974 United States v Brc Mn 494 F 2d 418 S Cir 1973 The existence of criminal willfulness -4i s -¼ti Fe- could turn on whether an electronic surveillance occurred pre-Keith or post-Keith -- where the surveillance was purportedly tmder Presidential auspices The significance of Keith is most apparent where a Federal agency acting without a warrant but tmder the purported direction of the President or his desi gnee the Attorney General or alter ego the National Security Council intercepts ccmnunications having at least one terminal in the United States which cCIIUlUI'lications do not directly relate to national security Keith Presidential authorization was probably sufficient Prior to to daoon- strate good faith on the part of those conducting the interceptions Since Keith a finding of good faith in such warrantless surveill µ1ces might be tmre difficult Zweibon v Mite hell 516 4 F 2d 594 67ln 279 D C Cir 1975 Presidential Authorization The fundarrental question in the instant inquiry is viiether Presidential authorization or iti equivalent was given in the aforarentioned areas of questionable activity • 44- COpy ot 2 Preliminarily it can be stated that no direct Presidential authorization for any of the interceptions has been found Rather the agencies rely variously upon National Security Council Intelligence Directives NSCIDs maroranda of conferences with the President briefir c of Attorneys General instructions from 'White House staffers Presi speeches and press releases and interpretations of Presi- dential p1 Jgrams and priorities These are discussed belo under appropriate captions 45 SC·J5C7o-i 6 Cop I o• B NARCOTICS mrEI l IGENCE-GATHERING PRESIDENI'IAL DIREc ITON 1 Presidential Message to Congress On July 14 1969 the President sent the Carprehensive Drug Abuse Prevention and Control Act to Congress In an accanpanying message Tab Tl the esident stated in pertinent part A new urgency and concerted national policy are needed at the Federal level to begin to cope with this growing menace to the general welfare of the United States Effective control of illicit drugs requires the cooperation of many agencies of the Federal local and State goveniments •• I have directed the Secretary of State and the Attorney General to explore new avenues of cooperation with foreign governrrents to stop the production of this contraband at its sources • Our efforts to eliminate these dnlgs at their point of origin will be coupled with new efforts to intercept them at their point of illegal entry into the United States In the early days of this Administration I requested that the Attorney General form an interdepartmental Task Force to conduct a canpre hensive study of the unlawful trafficki '1g in narcotics and dangerous drugs this Task Force has corrpleted its study and has a recCXl'ID I'lded plan of action for imned iate and long-term implementation designed to substantially reduce the illicit trafficking in narcotics marihuana and dangerous drugs across United States horde rs To irrple nent the recoona1ded plan I have directed the Attorney General to organize and place into imnediate operation an action task force to undertake a frontal attack on the problem 2 Write House Task Force on Narcotics Control According to CIA tnffi'Dranda Tab T2 the CIA first became involved in the narcotic control problem en 24 October 1969 when the President ann otlneed a decision to make narcotics a matter of fore ign policy A hite House Task Force on Narcotics Control was established with tre OCI as a manber and tre Agency was asked to contribute to the maxim In extent 4-6 HANDLE VIA COMINT CHANNELS SC-05078-76 Copy I Oi 2 possible in the collection of foreign intelligence related to traffic in op iun and heroin Emphasis added The hlte House Task Force included representatives frcm the White House Staff CIA State Department Treasury ENDD and the Departlllent of Defense The purpose of the Task Force was to plan actions abroad to reduce opium production and to suppress traffick ing in narcotics Tab T3 Accordi 11g to other CIA maroranda Tab T4 the President instructed the Director of Central Intelligence to do natever he could to hel E_ 'When he designated him a rr enber of the Task Force 3 Cabinet Ccmnittee on International Narcotics Control The President sent a tnarorandum to the Secretary of State on August 17 1971 Tab TS directing the establishment of a Cabinet Ccmni ttee on International Narcotics Control CCOC ccxrposed of the Secretaries of State Defense and Treasury the Attorney General Director of Central Intelligence and the Ambassador to the United Nations The President stated that drug abuse had grown to crisis proportions and it was imperative that the illicit fl Nl of narcotics and dangerous drugs into this country be stopped as soon as possible The CCINC was assigned responsibility for the forrrn tl ation and coordination of all policies of the Federal Government relating to the goal of curtailing and eventually eliminating the fl Nl of illegal narcotics and dangerous drugs into the United States fran abroad ffl StCntl 47 To the maxirrun fJt J HANDLE VlA COJ ll'lT CHANNELS SC·05078-76 Cvpy I ot 2 extent permitted by law Federal off ices and Federal departments and agencies shall cooperate wi_th the Cabinet Ccmnittee in carrying out its functions under this directive and shall canply with the policies guidelines standards and procedures prescribed by the Cabinet Carrnittee More specifically the Cabinet Ccmnittee shall 2 assure that all • diplanatic intelligence and Federal law enforcement programs and activities of international scope are properly coordinated and 5 rEport to the President fran time to time concerning the foregoing 11 Emphasis added The Presidential merr orandum also directed that the CCINC be supported by a ' rking Group to be ccxrposed of persormel frcxn each of the concerned agencies TI1e CCINC was officially established on September 7 1971 Tab TS Egil Krogh was designated its Executive Director and Chairman of the 1-brking Group The latter included representatives fran State Treasury BNDD NSC Defense and CIA The CCINC appointed a Foreign Intelligence Subcoornittee_ cha ired by the CIA 'narcotics coordinator and including manbers fran NSA DIA State Treasury and the mite House CI'ab T6 The mission of the Subcarm i ttee was to ''provide for a coordinated national effort in the collection dissemination and finished production of national foreign intelligence on narcotics and dangerous drugs The functions of the Subcoomittee included tre forwarding of intelligence collection requirements as necessary to appropriate depart rrents and agencies lUP SE uf J HANDLE VlA COMlNT CHANNELS WI SECREi hxrWR SC-05078•76 Copy I ot 2 'The Terms of Reference for the Intelligence SubcO Illittee defL e ' -·· 1 national foreign intelligence as follc rs Foreign intelligence includes danestic intelligence that directly relates to foreign intelligence targets National intelligence is that intelligence which is required for the fonnulation of national policy or narcotics and dangerous drugs Tab T6 A CCU Coordinating Subcc mnittee was also created to support the President in fulfilling his responsiblity under Section 481 of the Foreign Assistance Act of 1961 which provides The President shall suspend sales under the · Foreign Military Sales Act with respect to an y country when the President determines that the government of such country has failed to take adequate steps to prevent narcotics drugs and other controlled substances fran entering the United States unlawfully Tab T7 In determining whether there was a prima facie case for questioning a country's performance the Coordinating Subcc mnittee was to ascertain inter alia if there was 1 evidence of substantial violations of treaty - ' obligations or bilateral agreements relating to control of the production processing or trafficking in narcotics drugs 2 ''hard evidence that govemment officials were involved in illicit drug production processing s r'Jggling or traffick L11g and 3 wrether a country had declfried or failed to take adequate steps to inprove the effectiveness of its narcotics enforce- ment capability and to correct other narcotics control deficiencies Tab TI -fHnrcfi T Whl ll'll VIA 1c _ J COM1NT CHANNELS SC-05078-76 COpy I 2 o• Minutes and maroranda of ccrnc meetings and activities reflect the follcwi ng - f ugust 17 1971 Establishrrent of the Cabinet Ccxrrnittee actually arrounts to a shift of overall authority fran Justice to the 'White P ouse and tate • S__y A Presidential Directive would designate the Cabinet officers to serve on the Ccxn- mittee and mandate its establishnent and functions Also it would designate me Krogh as Executive Director of the Ccmnittee This is important to give the Director Krogh credibility and clout Tab TS Septarher 20 1971 • Mr Krogh also explained that ways had to be found to make our narcotics suppression effort consistent with the requirements of national security Tab 1'9 October 7 1971 Secretary Rogers stated that he believed the Carmi ttee' s prim lry task should be to exert pressure frcxn the top during the next year to insure that the United States Goverrrnen t takes whatever steps are necessary to reduce the supply of illicit narcotics available to American users He reiterated to the C armi ttee that achieving real progress in this battle is one of the President's highest priorities Attorney General Mitchell raised the problem of narcotics smJggling through Ladn America n is area particularly Panama and Paraguay is an incre asingly sohJ -fOP SECRIT HANDLE VIA COMI C NELS · SC·05C7o•l6 COPY- oI 2 ilrportant transit point for heroin destined for the United States Mr Krogh agreed that the Cabinet Ca rmittee should address itself to the Latin American problem on a priority basis Tab TlO December 29 1971 The Ccmn ittee agreed with Mr Krogh' s suggestion that the highest supply side priority should be on danestic law enforcerrent and interdiction at the United States border Internationally the greatest arpha ses should be on gatheri tg intelligence and on strengthening foreign narcotics law enforcement To increase our intellige n ce gatherir g capacity Mr Krogh asked for increased assistance fran the Central Intelligence Agency General Cushnan responded that the CIA is pleased to act as intelligence coordinator overseas and would atta q t to assist the narcotics control effort in whatever way it can General Cushnan did caution though that a coordinated interagency effort is required since neither the CIA nor any other narcotics 'intelligence gathering organizaticn possesses the assets or expertise required to do the job by itself General Cusl-mm made it clear that to expand its efforts the CIA needed sare increase in financial and personnel support and trost irrportantly required additional coverage for its overseas personnel Mr Gross volunteered to assist on the latter problem Tab Til l I 0 sccat M SC-05078-76 Cop March 10 1972 Mr Gross asserted that the Cabinet C ornnittee's December 16 1971 decision to put first priority on intelligence and law enforcerrent had been interpreted in sane quarters as meaning there was no longer any interest in crop substitution treatment education or research overseas The W rldng Group agreed that this extrane interpretation was incorrect Other facets of the intemational drug control effort will continue to receive support where appropriate despite the Cabinet Carmittee's decision to arphasize intelligence and law enforcement Mr Ludlum reported on the intelli ence review being undertaken at Mr Krogh s request by his Subcomni ttee The Critical -Collection Problems Coornittee of the United States Intelligence Board has been asked by Mr Ludlum to conduct an inventory of United States overseas narcotics intelligence assets and to rake reccmnendations on a wide range I of organizational problems A nunber of initiatives in the intelligence field have already been taken The Subccmmittee authorized the creation of an ad noc group to accelerate the collection of highpriority drug intelligence on major Europe an trafficking networks The Subccmnittee is also analyzing the desirability of a national narcotics operations and intelligence center A Treasury sponsored effort to strengthen the intelligence gathering and ex change capability of Interpol ahs also been approved Tab Tl2 J 161 SEC Rd 1 ' 52 HANDLE VIA CO dNT CHANNELS 01 - 10 OEUliLIC SC·05C78•76 Copy o March 20 1972 Attended by the President The President opened the meeting by reiterating his deep carmi t m nt to finding a solution to the drug problem and his interest in the activities being conducted by the Cabinet Coomittee Secretary Rogers reported that the Cabinet Ccmnittee and its constituent organizations have launched the uost carprehensive attack ever made against the international drug traffic The Secretary congratulated those present on the results to date Mr Krogh then briefed the President on the details of our international narcotics control program Its objective is to reduce and eventually eliminate the floo of hard narcotics entering the United States frcm abroad Present priorities for achieving this objective are the follc nng 2 roved overseas law enforcem nt and intelligence The problem of r cotics intelligence was next discussed · Mr Krogh described intelligence as being the m st important but currently weakest elffilent of our international drug control program We have yet to penetrate the upper ecJielons of major overseas syndicates have carparatively little hard intelligence on officials collusion and need m re precise information en specific narcotics shi ts There was general agreement that sane han isrn should be developed to ensure better coordinaticn collection analysis and dissan ir ation of narcotics intelligence 1 ffiil S CRH • 53 HANDLE VIA COti INT CHANNELS •• -- - oP SECREf t- SC•0507t • 76 Cop I o• L _ In the President's opinion if a nation resigns itself to living with drugs it risks destruction of all accepted values The President restated his conviction that t e best approach to the drug problem is to offer assistance and treatlrent to the addict ccmbined with the strictest possible enforcement directed against suppliers and trafficers Tab Tl3 August 30 1972 Next discussed were procedures for use in conducting investigations required by Section 481 of the Foreign Assistance Act and related statutes vhlch require the President to cut off aid to countries not cooperating on narcotics control Mr Gross then described his recent mission to Paraguay where he discussed the extradition of Auguste Ricord Ji th President Stroessner Mr Gross' success w is applauded by rranbers of the Ccmnittee Mr Krogh cautioned that our public ccmrents on the United States role in the _ Ricord matter should be guarded lest the decision favoring extradition be reversed or our relations with Paraguay subjected to further unnecessary strain He also asked that appropriate steps be taken to prevent Ricord £-ran being released on bail once he is in United States custody Director Ingersoll replied that efforts were already und e rway to try to prevent bail £-rem being set Once Ricord arrives in the United States it in unclear how quickly he can be brought to trial The Attorney General agreed to look into the possibility of expediting judicial coosideraticn of the case Tab n4 TOP SECHU ·a SL f HANDLE VIA CO v lNT CHANNELS SC C 5C78•76 Cup o 2 November 27 1973 Attended by the President The President opened the meeting by citing the Administrations record of progress in carbatting heroin abuse ai11 1 emphasized the cont i J1uing prioriS ' which he intends the drug control program to have The President expressed his pleasure with the iucces es our drug enforcarent efforts have had both at hane and abroad He asked the Cabinet to give new irrpetus to the attack on newly emerging prob lern areas and to do an even better job in ccrnbatting the old The President emphasized that he wanted to continue his personal _ nvolvement in drug control as appropriate and mstructed Mr Laird to assure personal respcnsibility for overseeing the operation of the federal anti-drug effort Tab n5 · 1n a telephone interview on April 13 1976 Egil Krogh advised that in 1971 a hlte House meeting of high-level presidential advisers was opened to AOC-T J News during which President Nixon was briefed by OCI Richard Helms and ENDD Director Jorn Ingersoll on the problem of narcotics particularly heroin snuggling into the United States Im -TJ News Docurrentary containing excerpts fran the hlte House ueeting w lls produced and later published in the paperback A IBSTIN HEROES AND HEROrn 1972 Tab T15a that the President WS ve cy Krogh advised interested in appropriately utilizing all CIA assets abroad to assist the effort to interdict narcotics destined for the United States Krogh also vaguely recalled hea of intercepted radiotelephone carr imications coota ining narcotics intelligence but was unaware of the trechanics or spec s u c h intercepti cns -c '· _ uLµ H -· U A I tl'°'t r- IT A r l j J ''- - - T6P SECREi L SC•05G78-76 Cop o• In a March 28 1971 rnarorandurn to the CIA Narcotics Coordinator Tab T5a a rnc Executive Director Egil Krogh stated that CIA station - chiefs needed to be reminded that their role in narcotics intelligence collection ove rseas was an active role ''TI1ey are not sin-ply to support whatever initiatives BNDD already has underway They should also be instructed that headquarters wants them 1 to penetrate the major hard drug collection refining and distribution networks and 2 to discover 'Which foreign government and police officials are protecting or assisting the traffickers 4 Office of National Narcotics Intelligence On July 27 1972 the President issued Executive Order 11676 P roviding for the Establishnent of an Office of National Narcotics Intelligence Within the DepartJnent of Justice The Order states in pertinent part Titl s Administration is determined to eradicate the m2I1 ace of drug abuse in America I have detennined that a National Narcotics Intelligence Syste n is a necessary next step in our caI Ipaign against illegal drug traffic The Director shall call upon other agencies of the Government to provide him with information and such agencies shall to the extent permitted by law provide the Director with all in fonr ation that is pertinent to the development and maintenance of a National Narcotics Intelligence System F ach department and agency of the Federal Government shall upon request and to the extent permitted by law assist the Director of the Office of National Narcotics Intelligence in the pe rfonrance of functions assigned to him by or pursuant to this order and the Director may in carrying out those functions utilize the services of any other agencies Federal or State or may be available and appropriate Tab TI6 On Decanbe r 6 1972 the Attorney General sent a merrorandun to the various department and agencies Including the NSA prescribing the role and mission of the ONNI pursuant to the above Order Tab n7 o Sb HANDLE VIA COMlNT CHANNELS • 'Ibe ET - · TOP SCOR SC·05C7o-i6 Copy ol 2 Attomey General stated that g iven the urgency of the narcotics problem and the priority placed by the President upon the establishnent of a National Narcotics Intelligence System to ca rbat it it is essential that the responsible depart Irents and agencies involved join forces in an integrated program of action 5 Inteniational Narcotics Control Conference On September 18 1972 in remarks to the International Narcotics Control Conference the President said in pertinent part I W imrlng the battle against drug abuse is one of the m st IL- ortant the tr0st urgent national orlties confronting the United States today L ookmg back over the three iears since I declared total war on drug abuse and labeled it America's public enemy mincer one I think the depth of our natia al ccmni t ment is clear From an organizational standpoint we have rrcbilized to meet this problem on all fronts I have named a Cabinet Comni ttee on International Narcotics Control which coordinates our world-wide camp to cut off the sources of supply Here we are atta · the problem therefore on all fronts in the mst effective way we can through our various government agencies I also have assured sore rsonal responsibilities I have een e i erate era · e v hl as trany of you in this roan knc M in my persona s rnsion of this program and I have to admit that we have ocked sare bureaucratic heads together because of my directive mi ch I gave in the East Roan two years ago that govermie nt agencies should quit fighting each other about this problem and start fighting the problem Nor will this effort stop at our borders The men and wa ren who operate the global heroin trade are a rrenace not to Atre ricans alone but to all mankind They m ist be pennitted not a single hiding place or refuge fran justice anywhere in the world and that is why we have est Bblished an aggressive intem ational narcotics control program in cooperaticn with the governments in rore than 50 countries around the world That is why I have TOP SECRET 5 '1 HANDLE VIA COMlNT CHANNclS qop s£ek£1 2 SC•05C78-76 Cop o 2 ordered the Central Intelligence Agency e irly in this Acm inistration - to oobilize its full resources to fi ht the international trade a tas inci enta y in · it s per orme super y key priority here is the target on tlie traffickers wherever they are to irmobilize and destroy them through our law enforcanent and intelligence efforts and I carrnend all of you on the fine initial progress which has oeen made in these programs • Any government nose leaders participate in or protect the activities of those who contribute to our drug problem should knoo that the President of the United States is required by statute to suspend all Am rican econcmic and military assistance to such a regitre •• • I consider kee i ng erous ch s out of the United States ust as ortant ite States Tab Tffl SECRU 58 HANDLE VIA COMINT CHANNELS T18 j I GI SEC ttl £ •- SC·05C7o- u COp 01 L _ 6 Prooouncerrents by President Ford In a Septem er 1975 hlte Paper on Drug Abuse the Darestic C' ouncil Drug Task Force quoted President Ford as having recently stated All nations of the world--friend and adversary alike--nust understand that Arrerica considers the illicit e -port of opium to this country a threat to our national security Secretary f issinger and I intend to make sure that they do understand Tab TI9 Einphasis added A CIA trem randum of Septerrber 8 1975 states T he President in COOl liance with the arrendirents to the Foreign Assistance Act of 1961 has determined that the Agency should engage in the collection of narcotics intelligence abroad In a paper entitled '9Findings Pursuant to Section 662 of the Foreign Assistance Act of 1961 as Arrended Concerning Operations Abroad to Help Tmplerrent Foreign Policy and Protect National Security the President in January 1975 found that the world-wide activity to covertly influence foreign personalities to assist in programs ain'ed at internaticnal narcotics traffic • directed against the United States is in-port ant to the national securi of the United States Tab T20 fu phasis added -ftTtErnET 5'1 S--IA H I t VIA rn tNT CHANNELS - -M §2CK21L___ SC•J50iti• 6 Copy 01 l C On GENERAL UITELLIGENCE GAntER m PRESIDENITAL DIRECTION November 5 1971 the President sent a marorandum reportedly prepared by James Schlesinger then of 01B to the intelligence principals of the U S Government Tab Ul establishing goals for the intelligence ca rrrunity and directing organizational and management changes to attain them One of the listed objectives was that trore efficient use of resources by the intelligence ccxrm mity in the collection of intelligence information be achieved Utilization of the means available must be fn consonance with approved requira nents of U S sec -urity and national interests Emphasis added To achieve the objectives the President directed inter alia that the Director of Central Intelligence OCI assune overall leci dership of the intelligence camun ity that intelligence collection programs financed and managed by the Departtoent of Defense which includes NSA IIUSt cane under trore effective managanent and coordination with other · intelligence programs and that NSCIDs and OCIDs Director of Central Intelligence Directives be rewritten to reflect the changes ordered The President reconstituted the United States Intelligence Board USIB under t re chainranship of the DCI and added to its membership a representative of the Secretary of the Treasury 'Ihe USIB was charged with advising and assisting the DCI with respect to the ''production of natiooal intelligence requiraia1ts and priorities the supervision of the dissaninatia and security of intelligence material and the protecticn of intelligence sources and methods -mp srcmf J '1J HAN LE VIA COMINT CHANNELS J jf SLCicEI C cm SC-05C7o·i6 Copv - o l - The President further established a National Security Council Intelligence Carrnittee N · rc to give direction and guidance on national substantive intelligence needs and also directed the Department of Defense to establish a unified National Cryptologic Camiand under Director NSA for the conduct of USG coom mications intelligence and electronic intelligence activities In conclusion the President stated t h s ' while his directed c ha nges were limited he fully expected further changes in the intelligence coom micy consistent with traXim lm practicable attaimnent of rrrJ objectives and that ther changes in the consuner-producer relationship may be needed to achieve a trore effective reconciliation of the derrands fran consu ners with the limited resources available for intelligence production The principal items in the foregoing ire rorandlD'l were made public in a contar oraneous hlte House press release Tab U2 On the same date the President sent a letter to the OCI Tab U3 in which he designated as a top priority the producticn of 'national intelligence· required by the President and other national con su rers'' the foll -ring goals The President also enurerated 1 a trore efficient use of resources in the colle tion of intelligence informati011 2 a mre effective assignment of functions within the intelligence ccmrunity and 3 1m roverrent in the quality and scope of the substantive product The resident's directives were incorporated in NSCIDs effective February 17t 1972 On October 9t 1974t in a rrerorandun to the OCI President Ford affira ed TBP SECRET I f HANDLE VIA COMINT_ CHANNELS • - JS 66 JG C cop o the responsibilities and authority charged to you as leader of the Intelligence Camunity in the esidentia't tre t' lrandun of November 5 1971 I shall expect that the heads of the depci 'trnents having foreign intelligence responsibilities will cooperate with you and provide you with every assist ance in fulfilling your responsibilities ffl¥_ SECRll 2 HANDLE VIA 0 7 COMINT CHANNELS D NARCOTICS INfEI LIGrnCE GA 11- ERING LEGISI ATIVE DIRECTION nie Federal Narcotics and Drug Abuse Lsw Enforcement Reorganization Act of 1973 5 U S C §§901 et seq contains Congressional findings and declai ations of policy Tab V which acknc Mledge both the need for s ring narcotics intelligence and the fact that the Director of Central Intelligence CIA and Secretary of Defense NSA have functions related to the trafficking in narcotics and dangerous drugs Sec 3 a The Congress hereby finds and declares • 3 that cverLspping jurisdictions failure to share intelligence and other information general lack of ccxrm ru cation and cooperation • a rrong law enforcement agencies have resulted from the diffusion of efforts w-i th in the Federal government against trafficking in narcotics and dangerous drugs Sec 10 a The President after consultation with the Attorney General shall direct the Director of the Central Intelligence with respect to all of the Director's functions related to trafficking in narcotics and dangerous drugs Sec 11 a The President after consultation with the Attorney General snall direct the Secretary of Defense with respect to all of the Secretary's functicr s related to trafficking in narcotics and dangerous drugs HP SECRt l 3 7 HANDLE VIA COMINT CHANNELS SC·05C7o•i6 Cop o 4' E CIA LEGISlATIVE AND PRESIDENTI AL AUTHORIZATION 1 National Security Council Congress established t he National Security Council in 1947 to advise the President with respect to th integration of dcmestic foreign and military policies relating to national security Its membership includes the President as presiding officer the Vice President the Secretaries of State and Defense et al 50 U S C §402 2 Central Intelligence Agency The Central Intelligence Agency CIA and the position of Director of Central Intelligence OCI were also established by the National Security Act of 1947 50 U S C §401 et seq to operate under the direction of the National Security Council for the purpose o coordinating the intelligence activities of the several Governmental deparorents and agencies in the interests of national security The statutory responsibilities of the Central Intelligence Agency include the duty to advise the National Security Council and make recc xrmmdaticns 'I regarding national security intelligence activities the coordination of such activities the dissemination within the Goveniment of intelligence relating to national security and the performance of such other functia s and duties as the National Security Cour cil may direct 3 The 50 U S C §403 NSCIDs statutory authority of the National Security Council to direct tre activities of tre CIA and tre Director of Central In elligence HANDLE VIA COMINT· CHANNELS 1 ___J WI I § 6112 SC•05C7 ·i6 Copy o• irrplanented by the issuance of Naticnal Security Council Intelligence 7 Directives NSCIDs These NSCIDs are deaned by CIA to bear the imprimatur of the President who has the only vote on the Council The NSCIDs which prescribe the basic duties and responsibilities of the CIA and the Di rector of Central Intelligence during the tilre period here involved are NSCID 1 revised 3 4 64 and NSCID 1 effective 2 17 72 NSCID 5 revised 1 18 61 and NSCID 5 effective 2 17 72 NSCID 1 March 4 1964 NSCID l revised March 4 1964 and in effect until Februaxy 17 1972 directs that the Director of Central Intelligence shall coordinate the foreign intelligence activities of the United States in accordance with existing law and applicable National Se urity Council directives The 1964 NSCID 1 further provides that the Director of Central Intelligence shall act for the National Security Council to provide for detailed in ple n entation of National Security Collncil Intelligence Directives by issuing with the concurrence of the U S Intelligence Bo µ-d such supplementary Director of Central Intelligence Directions required as may be Such directicns shall as applicable be prarulgated and implemented within the ncmral cam-and channels of the departments and agencies concerned Paragraph 3a The contBil'lated OCI Directives include 1 General guidance and the establisluent of specific priorities for the producticn of national and other intelligence and for collection and other activities in support thereof including a establish nent of carprehensive National Intelligence Objectives generally applicable o foreign countries and areas IR s eRETE J b5 HANDLE VIA COMINT CHANNELS I Oi cc hLi A· SC·05C78•76 Cuµy oi2 b indentification fran ti me to time and oo· a current - basis of Priority National Intelligence Objectives with reference to specific countries and subjects and c issuance of such ccrnprehensive and priority objectives for general intelligence guidance and their formal transmission to the National Security Council 2 Establishnent of policy procedures and practices for the maintenance by the individual components of the intelligence ccxmu xnity of a continuing interchange of intelligence intelligence information and other information with utility for intelligence purposes 3 Establisrment of policy procedures and practices for the production or procurement by the individual components of the intelligence ccmrunity within t 11e limits of their capabilities of such i telligence intelligence informa tion and other infonnation with utility for intelligence purposes relating to the national security as may be requested by one of tbe deparonents or agencies Paragraph 3g The 1964 NSCID 1 directs that the Director of Central Intelligence dissE IT'inate ''national intelligmce i e intelligence required for the fonrulation of national security policy and concerning D'Ore than one depart Il'a1t or agency to the President tranbers of the National Security Council me nbf' rs of the USIB and subject to existing statutes to such other CCXIl onents of the Gove rnment as the NSC may frcm time to time designate or the U S Intelligence Board may reccmrend Paragraph 4 nie OCI was also directed to call upon the other departments and agencies as appropriate to ensure that on intelligence matters affecting the national security the intelligence cc mrunity is supported by the ful l b HANDLE VIA COMINT CHANNELS rd SF 5ECF £r t SC-05Chs-l 6 Ccpy O 2 kn ledge and technical talent available in or to the Government Para- graph 6 NSCID 1 Febniar y 17 1972 NSCID 1 and other NSCIDs were revised on February 17 1972 to conform with the directives of the President contained in a November 5 1971 Presidential nerorandun infra The 1972 NSCID 1 charged the Director of Central Intelligence with inter alia the following duties and responsibilities 3 The i stor of Central Intelligence a The Director of Central Intelligence will discharge four rrajor responsibilities 1 Planning revie- ing and evaluating all intelligence activities and the allocation of all intelligence resources 2 Producing national intelligence required by the President and other national consu ne rs 3 Chairing and staffing all intelligence ccxrrrunity advisory boards and cc mnittees 4 Establishing and reconciling intelligence requirements and priorities within budgetary constraints c The Director of Central Intelligencec shall act for the National Security Ccn n1cil to provide for detailed inplarentat ion of National Security Council Intelligence Directives by issuing after appropriate -fE SEct tT l -if·4' 7 u- _ r c v A rnMINT C'HANNELS · · ' l SC·05C78-i6 COpj I O• consultation such supplementary Director of Central Intelligence Directives as may be requiJ ed Such directives shall as applicabb be prcrn i lgated and implemented within the no'Ill'al ca rmand charmels of the departments and agencies concerned 7 g Director of Central Intelligence Directives to be issued in accordance with the provisions of subparagraph c above shall include 1 General guidance and the establishment of specific priorities for the production of national and other intelligence md for collection and other activities in support thereof and their fomal transmission to the National Securit _Y Co ncil 2 Establisl D lent of policy procedures and practices for the maintenance by the individual ccrnponents of the intelligence cc mrn mity of a continuing interchange of intelligence intelligence information and other infonnation information with utility for intelligence purposes 5 The United States Intelligence Board USIB c The Board shall be provided with a Secretariat staff 'Which Ghould be under the direction of an Executive Secretary appointed by the Director of Central Intelligence Subordinate ccxn nittees and ¼ irking Groups should be established as appropriate by the Director of Central Intelliga-i ce -IBP sm a s HANDLE VIA COMINT CHANNELS _j - f8fi ECREI L •• SC•05C78-76 COf j 0 - 6 National InteLLigence d The Director of Central Intelligence shall disseminate national intelligence to the President members of the National Security Coi mcil as appropriate members of the United States Intelligence Board and subject to existL11g statutues such other canponents of the Goverrment as the National Security Council may from time to ture designate or the United States Intelligence l3oard Iray reccm nend • · 7 Protection of Intelligence and of Intelligence Sources and Methods The Director of Central Intelligence with the advice of the marhers of the United States Intelligence Board shall ensure the development of policies and procedures for the protection of intelligence and of intelligence sources and methods ttan unauthorized disclosure Each department and agency shall remain responsible for the protection of intelligence and of intelligence sources and methods within its CM1 organization • • 8 Ccom mit-y a Responsibilities In imple nentation of and in conformity with approved National Security Council policy the Director of Central Intelligence shall 2 Call upcn the other departrre11ts cmd agencies as appropriBte to ensur that en intelligence matters affecting the national security the intelligence camunity is supported by the full knowledge and technical talent available in _j s£emt At-Jnl J VIA CON INT CHANNELS SC·05078-76 Copy ot 2 or to the Govenunent 5 Make arrangements with the departments and agencies for the assignment to or exchange with the Central Intelligence Agency of such experienced and qualified personnel as may be of advantage for advisory operational or other purposes In order to facilitate the performance of their respective intelligence missions the departments and agencies concemed shall by agreement provide each other with suc l-i mutual assistance as may be within their capabilities and as may be required in the interests of the intelligence canrunity for reasons of econcmy efficiency or operational necessity In this connection primary departmental interests shall be recognized and shall receive mutual cooperation and support 6 Be provided with all information required fran all departments and agencies of the Executive Branch required for the exercise of his responsibilities b Insofar as practicable in fulfillment of their respective responsibi lties for the production of intelligence the several deparonents and agencies shall not duplicate the intelligence activities and research of other depart Irents and agencies and shall make full use of existing capabilities of the other elements of the Intelligence camunity _l fflP stem 70 HANDLE VIA COfAl NT CHANNELS SC-05078•76 Cop I o 2 c · • ·· in the CIA's statutory procurernent pc Mer i e 50 U S C §403j which authorizes the CIA inter alia to expend funds for radio equipre nt and devices and contractual services otherwise provided by law or regulations wen approved by the OCI In addition NSCID 1 charges the Director of Central Intelligence with the protection of intelligence and intelligence _j sources and methods fHP S CREI f 71 HANDLE VIA COMll' T CHANNELS 5 SC•05C78•76 Coµ 1 I o 2 CIA Narcotics Intelligence Gathering· · In a marorandun of August 6 1975 Tab W CIA General Counsel invokes two principal sOtn ces of CIA authority to collect narcotics intelligence 50 U S C §403 d and NSCID 5 Section 403 d 3 charges CIA with the duty undPr the direction of the National Security Council • to correlate and evaluate intelligence relating to national security and provide for the appropriate dissemination of such intelligence within the Government using where appropriate existing agencies and facilitiesi Provided that the Agency shall have no police subpoena law-enforcement p Mer• or internal-security functions CIA asserts that the above clause is clearly 11self-executing regarding the correlation and evaluation tasks of the Agency's narcotics program Although these tasks must coo-ply with the 'direction of the National Security r ouncil' if any no further authorization is required regarding this part of the programi the statute is sufficient ••• CIA finds authority to conduct the non-correlation on n£D -evaluation tasks in a canbination of Section 403 d 4 and t CID 5 Since 1958 NSCID 5 has delegated primary responsibility to the ·cIA for U S clandestine activities abroad including 3a The conduct of espiaiage outside the United States and its possessions defined as that intelligence activity wii ich is directed tnvard the acquisition of information through clandestine me ans in order to meet the intelligence needs of all depararents and agencies concerned in connection with the national security rffiP SECRIT 72 HANDLE VIA COMINT CHANNELS SC•05C78- 6 Copy Oi 2 ' •· · 3c Upon request and to the extent practicable to assist other departments and agcncies with their cover support needs The latter was changed to cover and support11 in the NSCID 5 effective 2 17 72r Section 403 d 4 Title 50 authorizes the CIA To perform for the benefit of the exist u g intelligence agencies such additional services of comron concern as the National Security Council dete nnines can be mre efficiently accocnplished centrally CIA contends that NSCID 5 is clearly within the scope of Section 402 d 4 - and that the collection of foreign narcotics intelligence is in tum within t 1ie scope of NSCID 5 CIA General Counsel further notes that in July 1973 William E Colby testified before the Senate Armed Services Ccmnittee on his nocnination to beccxre Director of Central Intelligence In respcnse to a question specifically addressed to whether CIA was then engaged in assisting U S law enforcement agmcies in addition to the F B I Mr · Colby replied k- swer Yes CIA dissaninates its foreign intelligence reports to several agencies concerned with the matters · covered in these reports such as the Drug Enforc€ l £Ilt Administration the Imnigration and Naturalization Service the Armed Services the Custans Service the Secret Service and others on a routine basis The CIA reports there was no ca gressional objectico to the dissemination of Slrll intelligence to 1 aw-enforca oont agencies and construes this as tacit approval by Ccogress of such disseminaticn IO s a HAf DLE VIA CO J INT CHANNEL SC·05078• i 6 • F Copy ot 2 NSA LEGISIATIVE AND PRESIDENI'IAL AUrno nON The N' tional Security Agmcy was established mder the authority and control of the Secretary of Defense by Presidential du ective of November 4 1952 pursuant to the provisions of Section 133 Title 10 United States Code The organizational structure and functions of NSA • are set forth in National Security Council Intelligence Directive No 9 as revised U 29 52 and superceded by National Security Council Directive No 6 issued 2 17 72 Prior to the establishnent of NSA Congress had enacted 18 U S C §798 which prohibits disclosure to unauthorized persons of classified information including inter lia the natuce or use of any code cipher or cryptographic system of the United States or information conceming the ccmnunication intelligence activities of the United States The term camunication intelligence is defined by Section 798 to include all procedures and methods used in the interception of ccxmn Inications and the obtB i ning of infonnation fran such ccmrunications by other than the intended recipients 1he statute describes ''unauthorized person as sri y person who or agency which is not authorized to receive the information by the President or the ''head of a departIImt or agency which is expressly desigpated by t'ie President to e in ccxmunication intelligence activities for the United States Emphasis added 2ECR2T 1LJ t J f l t-- tnt i VI A MINT CHANNELS SC·05t J6•16 Cop -I ot 2 By the - enactment of 18 U S C §798 Congress recogrii zed the legitimacy and protected the product of coomunications intelligence activities of the United States notwithstanding the prohibitions of 47 U S C §605 enacted in 1934 Section 798 also confirms the Presidential power to designate an agency i e the Na donal Security Agency to engage in cr mrunications intelligence activities for the United States The foregoing statutes together with 18 U S C §2511 3 clearly acknowledge the President's power to engage the National Security Agency in ca rm nications intelligence activities The specific questions in the instant inquiry are whether Presidential authorizaticn or its equivalent was given in each area of questionable NSA activity and if so whether NSA exceeded that authorization The answers will tum largely on the operational definition of ccm un ication intelligence activities as opposed to the sweeping statutory defWticn in 18 U S C §798 b -fBP mttttf· 1 75 HANDLE VIA COMINT CHANNELS • · TOP SECREI I- · SC-05078-76 Copy ot 2 - 7 1 Camunications Intelligence NSA operates pursuant to the definition of ccmnunications intelligence CXMINI' contained in National Security Council Intelligence Directive No 6 i e intelligence information derived by other than the intended recipients fran foreign conmmications passed by radio wire or other electranagnetic neans This encanpasses the processing of foreign encrypted Cc m mJI' ications including the study of plain text ru Mever transmitted but does not include the interception and processing of unencrypted written cc mnunications J NSCID 6 Paragraph 1 ¥ E V · ct ett• ii 2 NSCIDs NSA takes the positicn that the President's constitutional_and stat utory authority to obtain ccnm mications intelligence is implemented through the directives NSCIDs of his alter ego the National Security Council and the subsidiary directives of the Director of Central Intelligence OCIDs and - -_ __ - _ _ supplara1taJ -Q_ V Congress established the National Security Council in 1947 and designated its msnbership to include the President as presiding officer the Vice President Secretaries of State and Defense et al The priirary function of the Council is to advise the President with respect to the integration of danestic foreign and military policies relating to national security u s c 50 §402 It is a truism that the President has the only vote on the Natiooal Security Council c onsequently tl1e operational directives NSCIDs of the Council are regarded by NSA as bearing the i rprimatur of the President --------• ------------ -onF SS ftC rt E lli•C - i 1 1 SC-05078-76 copy 2 o - 'hi le the President does not attend every NSC meeting l h e NSCIDs distributed to the field obviously do 110t reflect the President's attendance record nor the extent of his personal participati on in the prcnulgation of any particular directive NSCID 6 effective February 17 1972 provides in pertinent part 3 The Secretary of Defense a The Secretary of Defense is designated as Executive Agent of the Government for the conduct of SIG activities in accordance with the provisions of this directive and for the direction supervision fi mding maintenance and operation of the'National Security Agency The Director of the National Securi1 y Agency shall report to the Secretary of Defense and shall be the principal SIGrnT adviser to the Secretary of Defense the Director of Central Intelligence and the Joint Chiefs of Staff The Secretary of Defense may delegate in whole or part authority over the Director of the National Security Agency within the Office of the Secretary of Defense 4 11 e Naticnal Security Agency - b It shall be the duty of the Director of the National Security Agency to provide for the SIGTh'T mission of the United States to establish an effective unified orga nizatioo and control of all SIGTITI' collection and processing activities of the United States and to produce SIGW in accordance with objectivesd requirenents and ¥riorities establishe b Director o Central lntelligenced No other organization IBCID 6 defines SlGINI to include ccxmunicaticns intelligence O Mllll ' J - OP SWRET t SC•05C78·i'6 copy Qi 1 shall engage in SIGINI' activities except as provided for in this directive c Except as provided in paragraphs 5 and 6 of this directive re unique responsibilities of CLA and FBI the Director of the National Security Agency shall exercise full control over all SIGTh'T collection and roces · activities -'• -· Tne Director o the Nationa Security Agency is authorized to issue direct to any ooerating elerrmts ariaaged in SIGilTI' operations such instructions an assim-rnents as are required All · instructions issued by the Dire'ctorundet the authority provided in this paragraph shall be rrandatory subject only to appeal to the Secretary of Defense e The Armed Forces and other depart n'a'lts and agencies often require timery and effective SIGilIT The Director of tlie National Security Agency shall provide i lforntion reauested taking all necessary measures to facilitate its maxinun utility As determined by the - Director of the National Security Agency or as directed by the Secretary of Defense the Director of the Natiaial _J Tffil srnk J '18 HANDLE VIA COM NT CHANNELS tor sc cae _ - ___ sc-osc 8-76 Copy I o• g The intelligence cc nponents of individual deoaronents and agencies may continue to conduct direct liaison with the NationaT Seciritv enc in the i te retation and 1 itication o r uirements an riorities 'l i n t aIT e wOr o oojectives reatll rements and riorities established b the Director or Central Intel igence has1 s added I - l f The foregoing NSCID 6 superc ded NSCID 6 dated September 15 1558 and revised January 18 1961 which in tum superceded NSCID 9 datecl July 1 1948 and revised Decenber 29 1952 There has been no fundar -ental change since September 15 1958 in the definidons and duties set forth in pertinent part above Paragraph 4b is a rephrasing of the old Paragraph 6 Paragraph 4e of old Paragraph 7c and Paragraph 4c of the old 7a Prior to the issuance of NSCID 6 on Septanber 15 1958 its predecessor NSCID 9 dated July 1 1948 contained the follc Ming definitions t - fHP _ SEclltI J 19 HANDLE VIA COMINT CHANNELS 1 -··------------------- 1'tonF --SS eE CCJR EITI1c1 SC·0507 •i6 Copy Oil c ornnuni cations Tntellligence is intelligence produced by the si udy of foreign camn mications Intelligence based in mole or in part on Camuni tions Intelligence sources shall be considered Carmmications Intelligence as pertains to the authority and responsibility of the United States Ccmrunicati ons Intelligence Board Carmunications Intelligence activities carprlse all processes involved in the collection for intelligence purposes of foreign cCXIlTO lIU cations the production of infonra tion fran S JCh ccmrunic- tions the dissenination of that information and the control of the protection of that infonra tion and the security of its sources • - • - - - · _ _ --· - -· - - -- -r0e uuehc -- --- ·- - • ·•u • __ _ -•nree C • --·• ·• · -- - ··-· l - - - - - - ·__ ' - _ _ o 1 4 5 _ • -- - _ • i C• ' 'a- i w - 7 _j i • _asw ' _ • •w ' - • - - -- --··--·-·• -- J uese · ·•« · ' sfr•cbe nailer WP _ _ -- n • • di • Hro a mtu ·7 ro HANDLE VIA COMlt T CHANNELS a • •• _j SC-05078•76 Copy oi 2 ' 3 The One-Term nal Rule The foregoing definition of foreign canrunications is only slightly less I ' Sv eeping that the definitions of coom mications intelligence in NSCID 6 and 18 i NSA purportedly operates however pursuant to a mre restrictive U S C § 98 r---·-- self- sed one-terminal rule i e NSA will not intentionally intercept a i cCXIII'ILlnication unless at least one terminal is outside the United States I According to Dr Louis Tordello fon rer Deputy Director of- this has been NSA' s practice fran its inception in 19521 7 ' · · 1 c· · - _ J To further confirm its good faith reliance on the one-terminal rule NS A cites mem randa reflecting separate briefings of Attorney General John Mitchell and Secretary of Defense Melvin Laird on February l 1971 by Assistant NSA Director B K Buffham Tab Xl JBP SEEP Lr HANDLE VIA CO V1INT CHANNELS 81 ··-- ·---·- -·------- ------------------ ---- 1' 8 ij l -S E C ft't'IE JMU r - - - - ---r J SC·0S078-76 Copy or 2 of February 3 1971 reflects that Messrs Mitchell and Laird read and - 7 approved the contents of the follc Ming January 26 1971 marorandum £rem· NSA Director Admiral Noel Gaylor 26 January 1971 MEillRANDUM FOR nIE SECRr7J ARY OF DEFENSE 'lliE ATIORNEY GENERAL SUP JECT NSA Contribution to Danestic L 1telligence Consistent with our conversation today these are the agreed ground rules on NSA contribution to intelligence bearing on danestic problems Character To be consistent with accepted standards in respect to protection of individual constitutional rights and civil liberties Source Telecamunications with at least one foreign terminal Scope Intelligence bearing on · Criminal activity including drugs 1 2 Foreign support or foreign basing of subversive activity 3 Presidential and related protectioo Procedures Tasking by tent authority only Special procedures to protect source to include _J 't' 'TOP sECREl l _-en __ -1 SC•0507o•76 copy o 2 1 C artmented reporting to F B I ·or ENDD for crinrlnal activity to F B I and CUfor foreign-related subversive activity and to the Secret Service for Presidential protection 2 No indications of origin 3 4 No evidential or other public circunstances use under any Screening at source NSA to insure canpliance with the above criteria It is further understood that NSA ·• ill insure full availability of all relevant SIGINI' material b co roetent and informed r resentat1 on in Justice wor Isl _j Noel Gaylor Another menorandun fran Admiral Gaylor attached to the above randum of January 26 1971 stated that the latter was read in presence of Secy Laird and accepted by Attomey General Klei ldienst 1 July 1972 Tab X2 Mr Kleindienst had no independent recollection of the above but said he 1' 0'Uld not dispute Admiral Gaylor's representation Tab X3 · Mr Laird stated he never saw or read Admiral Gaylor's merorandun but couldn' t disagree with Buffham' s ccmrents and that the D SIOrandUin contained nothing he did not generally mow as early as 1964 when he se IVed on the House Anred Forces Appropriations Subcamrl ttee Tab X4 83 m trn ufp J - - SC•05078· 6 Copy ot 2 Mr Mitchell said he had no recollection of the briefing by Buffham but that ·- his appointment book reflects a ueeting with Buffham at 12 05 p m on February 1 1971 for about five minutes Cl'ab XS In addit on to the foregoing HSA relies on other instructions and directions to support its intelligence gathering activities concern il'lg narcotics traffic militants radicals etc These will be discussed infra under appropriate captions · • -iB StCR 8Lj f u HANDLE VIA CO v INT CHANNELS ------------4 -u1 r llru r -- ·- SC-05078-76 Copy ot 2 NSA Participation In Drafting 18 U S C 2511 3 Having -operated under the one-tenninal rule since 195iJ NSA' s a l Counsel con_ Sulted in 1967 with officials of both the Justice Deparment and the Senate Subcarmittee who were drafting Federal legislation prohibiting tJnauthorized lnterceptiCl'lS of wire and oral ccmrunications 1 8 U S C §§2510 s5 To assure that NSA' s operations would not be affected by the legis- lation NSA General Counsel participated in the drafting of 18 U S C §2511 3 which was incorporated in the statute enacted on June 19 1958 Cl 1 On July 24 1968 the General Counsel reported to NSA that the effect of the Presidential exception contained in 18 U S C §2511 3 E is to reaove any doubt a the legality of the SIGINI and a 1SEC activities of the Executive Branch of the Government He further stated that the language ••• precludes an interpretation that the prchibitiais against wiretapping or electronic surveillance techniques in other law applies to SIGrnI' and Ol1SEC activities of the Federlil Goverment Wiretapping and electronic surveillance techni s are therefore legally recognized as means for the Federal Government to acquire foreign intelligmce information and to nxmitor U S classified camunications to assess their protectio 1 agai ' 1 St exploitaticn by foreign intelligmce activities Tab Y2 NSA General Counsel sought in his initially proposed draft of 18 U S C §2511 3 to insure that no information obtained in the exercise of such Presidential s shall be received in evidence in sey judicial or administrative proceedir g Tab Y3 'Ibis proposal was J -- ffiMtCRIT • -x 85 HANDLE YlA COtJ INT CHANNELS - • U I- _·· -·• _ SC-0507o-i6 bLOICCi Copy 01 i substantially diluted in the statute as passed and w essentially nullified by the enactment of 18 U C §3504 on October 15 1970 5 Propriety of Requirements 7 It should be noted that Paragraph 7c of the 1958 NSCID 6 provided It is recognized that the Al ned Forces and other departments and agencies being served require direct mmrr support of various kinds Each member departrrent or agency is responsible for stating to the Director NSA its requirements for direct support E' nt hasis added The rephrased Paragraph Qof NSCID 6 effective 2 17 72 provides ' ' ' ' I I The Anned Forces and other departrrents and agencief often require timely and effective SIGTh 'T The Director of the National Security Agency shall provide jnfonnation requested Errphasis added _ NSA interprets this language to require the implicit assurance of the departments or agency making requests to NSA that auch requests are appropriate NSA thus purportedly places the responsibility on the requesting agencies to frarre t i dr require nents to confonn with the law ParagTaph 4g of NSCID 6 2 17 72 permits the intellig'ence CCill Otlents of individual departments and agencies to continue to conduct direct liaison with the Natimal Security Agency in tre interpretation and mr lification of requirements and priorities within the framework of objectives requi rE IlS'lts and priorities established by the Director Central Intelligence HANDLE V h rnMt1'1T CHANNELS 7 it SECitti I 5 SC·05078•76 COpy oi 2 Paragraph l b old paragraph 6a of NSCID 2 17 72 requires t 'SA 7 to produce catm inications intelligence in accordance with objectives requiranents and priorities established by the Director of Central Intelligence with the advice of the United States IntelligEmce Board - NSA notes that since 1962 the Criminal Division of the Deparc rent of Justice has sent hundreds of names of racketeers to NSA requesting infonnation NSA might have or subsequently obtain ccnceming them Tab Z On July 5 1973 the Assistant Secretary of Defense Intelligence ' requested an opinion fran OOD General Counsel as to whether inter alia NSA was clearly operating within the law Assistant General Counsel Frank A Bartirro responded by ma rorandun of July 10 9 1973 Tab Ml in v '1u ch he stated in pertinent part - I 1 - - 11111 - _ _ _ _ _ _ _ _ _ _ _ - - - - _ -- _ --l HANDLE VIA COM INT CHANNELS 87 TOF SEGHEr E · SC-05078•76 ·Copy O 2 1 _J - · J -TGP srnd - ·-J BB µ A 1ri1 J VIA r0 - INT CH t NNELS - OP SECRET C SC-05078•76 COfJy I Ok fl YW'f I- On September 17 1973 General Lew Allen Jr Director h SA wrote to OCI William Colby et al concerning ''Watch List • procechJres stating that as in the past we at -- 'SA will lack the wherewithal for verifying the appropriateness of the Watch List entries and we will continue to rely upon you as the requesting agency for that assurance Tab AJ 2 TOP SECREr I' · j SC•0 1078•76 Cop I ot 2 i ·I r' • • _ r p j' · · · ' -- - ·--· - - ·- - ' h · l r s ·· - · · -- -- - - c _ _· • • ' · c ·• - tcttffl ' ' ' · 7 _J -rn mm J i ' JG - SECftET t • SC-05078-76 COr-·Y · ct 2 G UNITED STATES Th 'I'ELLIGENCE PDARD Pursuan t·o - provisions of the National Security Act of 1947 ' the National Security Council NSC issued NSCID 9 on July 1 1948 establishing inter alia the United States Ccmnunications Intelligence Board to effect the authoritative coordination of Cannunications Intelligence activities of the Government and to advise the Director of Central Intelligence in those matters in the field of Cammications Intelligence for which he is responsible i e coordination of the foreign intelligence activities of the United States NSCID 9 revised Decsnber 29 1952 reconstituted USCIB to operate under the newly-created Special Ccmnittee of the National Security Council Ifor CCMINr consisting of the Secretaries of State and J efense and the Attorney General when F B I matters were before the carmittee assisted by the Director of Central Intelligence The United States Intelligence Board USIB was established cy --------- NSCID l in 1958 to ''maintain the relationship necessary for a fully -------·- · _ coordinated intelligence camunity and to provide for a trore effective integration of and guidance to the national intelligence effort The intelligence ccmrunity'' includes the CIA the intelligence canponents of State Defense A rmij Navy and Af I Force the F B I AFC and NSC Other ccmponents of the departme lts and agencies of the Government are included to the extent of their agreed participation in regularly established interdeparmental intelligence activities '11 1 Tn r 11 #ti _ - · t _ $ c_ TOF SEGRE SC-05078-76 COpy at 2 The manbership of the USIB s ince 1964 has been the- Director and Deputy Director of Central Intelligence the Director of Intelligence and Research State Department Director DIA Director NSA an Af C representative and a representative of the Director F B I Revised NSCID 1 effective 21 1112 added a represent tive of the Secretary of Treasury --- In addition the Director of Central Intelligence as Chairman shall invite the chief of any other departlilent or agency having functions related to the national security to sit with the USIB whenever matters within the perview of his departnient an to be discussed 1 NSCID 1 March 4 1964 I NSCID 1 revised March 4 1964 and effective until February 17 1972 directed that the USIB advise and assist the Directo of Central Intelligence and 1 Establish policies and develop programs for the guidance of all departmmts and agencies concerned 2 Establish appropriate intelligence objectives requiranents and priorities 3 Review and report to the National Security Council on the national foreign- intelligence effort as a whole 4 Make reccmnendations on foreign-intelligence matters to appropriate United States officials including particularly reccmrendations to the Secretary of Defense on intelligence matters within the jurisdiction of the Director of the Na tir rial Security Agt ne f 5 Develop and review security standards and practices as they relate to the protection of intelligence and of intelligence s01Jrces and roothods £ran unauthorized disclosure 6 Form tl ai e as appropriate policies with respect to arrangewith foreign governrents on intelligence matters tia'lts _lQc SECREI 92 J J fji OP SECRET 'J I SC·05078-76 Copy ot 2 The 1964 NSCID 1 provides that the USIB s ll establish subordinate 1 carmittees-and working groups as appropriate and that the Executive Secretary and staff shall be under the direction of the DCI 2c Paragraph 'Ibis NSCID 1 further directs that the USIB reach its decisions by agresnent and that its decisions and reccmnendations be transmitted by the Director of Central Intelligence as Cha inna n to the departments and agencies concerned or to the National Security Council when higher approval is required Paragraph 2d Decisions of the Board arrived at under appropriate authority and procedures shall be binding a applicable on all departments and agencies of the Government Paragraph 2g hasis added 2 NSCID 1 February 17 1972 NSCID l I effective Februal ' 17 1972 provides that the USIE shall advise and assist the Director of Central Intelligence with respect to 1 TI1e establishment of appropriate intelligence objectives requira nents and priorities 2 he production of national intelligence · 3 n1e 4 The protection of intelligence sources and methxis 5 AB appropriate policies and with respect to arrangements with foreign govemrrents on intelligence matters supervision of the dissemination and security of intelligence material _ -· ---Items 2 and 3 above are new additions while I tans 1 3 and 4 of the 1964 NSCID 1 -were deleted The· revision appears to be prima ly one ---1 µ - r- VlA rnt lNT H J 1'-lELS I · • TOP SECR f SC-05078-76 · Copy· I oi 2 7 of fo rm however The basic duties of USIB rarain substantially the same Both the 1964 NSCID 1 Paragraph 3a and its 1972 successor Paragraph 3c provide that the DCI shall act for the National Security Council by issuing such supplementary directives OCIDs as may be required and that such directives shall as applicable ''be pram ilgated and inplemented within the normal ccmnand channels of the departme nts and agencies concerned The 1964 NSCID 1 specifically directs that such OCIDs shall be issued ''with the concurrence of the USIB 'While the 1972 NSCID 1 authorizes the issuance of ocms after appropriate consultation 'The provision in Paragraph 2g of the 1964 NSCID 1 that decisions of the USIB shall be binding as applicable on all departments and agencies of the Gove rmient was deleted in the 1972 NSCID l but the continuing provision suora that OCIDs be implemented within the nomal ccmnand channels of the departl nents and agencies concerned seems to overlap the deleted phrase · Paragraph Sc oft he 1972 NSCID 1 effects a change in the authority to establish subordinate ccmnittees and working groups of the USIB The primary authority previously vested in the Board was shifted to the tCI in 1972 The tCI's acticns in this regard of course are still taken with the advice and assistance of the USIB On See I C S JPra April 10 1970 the Director of mDD John E Ingersoll sent a list of requireirents for CCJJDJmications intelligence to NSA Tab BB The menorandun not that ''tre consideration of the President's keen _J - - - ' -· C • IGP -SECR ErDt@@jij SC·05078•76 CJpy t Oi 2 interest in eliminating the problem of drug abuse it appears appropriate to include ·this re arent under Priority National Intelligence Objectives Tne latter are set forth in DCID 1 3 of May 16 1968 The fonrw ation of - IGCP requirements was - reportedly instituted in 1966 to provide NSA with specific priorities and guiclelines in its overall responsibility for collecting signals intelligence for the United States r r- n r-T ' · f_ · £ g - -·····•--111111•-------- USS - i 1 C T l-'l 0 r'IC U •cn a 1'1lll tf W• iiiifiilfiiliiiillltiil-d SC-05078-76 Copy at 2 Each requirement contained in the IGCP obligates NSA to perform three principal tasks with respect to the desired L 'ltelligence to collect to process and to report the requested infonmtion Individual consu ner agencies may approach NSA directly for information with respect to the reporting_ canponent of the requirement By domg so they do not necessarily I request additional ·collection and or processing efforts EK ·' C_pointed out however that cons1ers and NSA are often in direct contact and USIB cannot main in cooplete dversight Consequently NSA may without the kn0v1ledge I of USIB embark upoh a new collection requirement ffi§ made I this point because he did not want to unequivocally state ths t NSA strictly perfo rms only those tasks sp cif ically set out in the IGCP The prescribed proce' dure for handling ect requests frcm consumer agencies to NSA is set I forth in a marorandun Tab CC for the ll'£mbers of the SIGIN Ccmnittee £ran fi'Miffll$$i¥i¥$1C SIGINr Ccmnittee Chaiman ---···· ---- dated July 14 1971 · When an Agency subnits a requiranent to NSA vhich falls within a line item and does not require in NSA' s view additiai al resource allocations it should be honored by NSA A supplemental requirerrent is not the vehicle for levying a new or changed requirement that is an add-on or deletion to the existing IGCP line items NSA should determine whether the supplemental requirement I can be met fran the managerial standpoint including feasibility and cost If the desired reportmg is either a not within resources of b constitutes an add-on deletion or significant change in scope periodically or timeliness to an existing line item NSA will so inform the consuner in question who may then formtl ate a new line item requirement for addition to the IGCP as guidance and forward it to the IGS vhm J - -1 ' C · r ' _ --9 ----------- SC-050 8• 6 co I ot 2 7 approved by the I S- the SIGINT Corrmittee will consi the item for incorporation as supplemental guidance to the IGCP The SIGINI' Cormri ttee -rill issue changes to e IGCP as appropriate unless further action by USIB required a mem radun Tab DD to other IGS members which stated in pertinent part -- - ----1 Although it was recognized at the time the IGCP Wcas drafted 1970 that there was under developcrent a processing effort against Il C traffic related to international narcotics activities NSA advised the IGS that such effort should not be given visability 2 During the past yea r this effort was increased in scope with most of the work done on the basis of informal requests for inforruation from the various agencies involved in the problem CXX-1INT produced has been of great value ·to the CIA production offices and has been used as a principal source of ir forma tion in several intelligence reports and merroranda We understand that it has also bee of considerable vall le to operational ca q onents such as the Bureau of Narcotics and Dangerous Drugs 3 CIA believes that because of the irrportance of this topic to national intelligence it should be covered by a specific general line item in the IGCP for Subelement 32 and we propose the follc Ming statanent ''Report infonration relating to the international trafficking in narcotics and dangerous drugs T iireliness to be within 72 hours after recognition and report to be at an estimated canpleteness level of 2 ' which we understand £ran NSA to be tie level of the current effort en August 11 1971 the IGS approved inter alia the following change to the IGCP Tab EE i Add line itan on inte 'Tlational narcotics traffic activity line itan 8 • HANDLE VlA COMlNT CHANNELS I • On SC-05078•76 COPY j_ cl 2 Attgu_ st 20 1971 the new narcotics requiranent was added to Group B Subelement 32 of IGCP l Tab FF mi ch applied to Il C international comnercial carmmications networks as opposed to foreign internal ccmnunications The specific requirement was to report the follCMing 'within 72 hours after recogn 8 International Narcotics activities a Report infonnation relating to the international trafficking 11in narcotics and dangerous drugs 'The July 22 1974 revision of IGCP Subelement 32 contains identical language Tab GG • marcrandum Tab HH 1 to IGS marbers reccmrending the follCMing In July 1971 CIA reccmrended and in August 1971 USIB approved a change in the IGCJ reporting specification to include a requirement for information a intemational trafficking in narcotics and dangerous drugs fran international coomercial comnunications Subelanent 32 NSA has further developed its processing effort against other ccmruni caticns carrying informaiton on this topic to where we should nc M include a regular report ing requirement for such information contained in various national intemal and extemal c amunicaticns 2 The attachnent lists by Suhelement those countries and Line Itens mi ch pertain to this requirerent No change in the level of reporting or tirreliness is made 'lhis supplerental requiranent merely points up that narcotics trafficking information is specifically required to be reported when recognized 1n the target ca rm Jnicaticns 98 HANDLE VIA COMINT CHANNELS ' SC·05078•76 Copy ot 2 3 This requiranent has been coordinated with the Chairman Intelligence Subccmnittee Working Group of the Cabinet Caimittee on International Narcotics Control Upon this reccmrendation a change in the reporting specifications for Subelements 24 26 27 28 and 29 respectively Other Asian Cout ries i e India Latin America Westem Europe Middle East and North Africa and Sub Saharan coutries pertaining to intert1a tional trafficking i n narcotics and dangerous drugs was adopted and included in the IGCP in 1974 Tab II Generally the language of this additional line item is identical in each Subelement and in all cases refers to travel For example Item 6 Group B Subelement 27 of the 1974 IGCP provides d Travel of selected individuals a 1 Travel of individuals related to narcotics trafficking b As specified by or tmrough CIA Ef As specified by ENDD ONNI Custcms and or CIA The above specification would seem to itrply that NSA d be praviqed with targeted individuals Watch Lists by the consumer agencies HANDLE VIA COf✓dNT CHANNELS SC•05U I ol2 Copy - ' 11' B· a ·--- l - I J • l ' I 1•· I• '••• L 4 U S Intelligence Objectives DCID No 1 2 effective January 21 _ 1972 listed the U S intelligence objectives and priorities which were to serve as guidance for planning and programning for the subsequent period of five years 'I11ese objectives identified intelligence targets in terms of information needed to enable the U S Intelligence cc mrunity to provide effective support for the decision maldng planning and operational activities of United States Government relating to national security and added foreign poli F irphasis 1he listed objectives Included the following 71 Non-gove rnnent al activities detrim mt al to U S interests Activities of individuals and nongovernmental organizations in the Stlbject country ich have an adverse ilrpact on the Interests of the United St ates and the welfare of its citizens includi lg the production and distribution of dangerous drugs and narcotics training of terrorists and high-j ack ing --fflfl SECRET ' 100 HANDLE VIA COMINT _CHANNELS -• J SC·O l018•76 Copy I 012 Latin Amerlca was designated as one of the areas concerning which such intelligence should be gathered On January 31 1972 the OCI requested the Critical CollectiCXl toblems Ccmnittee CCPC of the USIB to conduct a review of intelligence 1forts against narcotics looking into such problems as the coordination of collection dissemination and production of national intelligence information on narcotics In October 1972 the CCPC reported as follCMS ISIGINr INFOWATION ON NARronCS AND DANGEROUS DruJGS 1 No SIGmr resources are dedicated solely to the intercept of narcotics infonnation The SIGINT which is now being produced on the international narcotics problem is a by-product of SIGINT reporting on other national require nents Ha - ever in order to provide max im Jn support to U S Departments and Agenices in the field of international illicit narcotics activities the SIGINT collection and reporting system worldwide has been tasked to report any narcotics information which is collected 2 Most SIGINT reports on narcotics and dangerous drugR are disseminated electrically to custaner agencies UJP srnm lO E - HANDLE VIA COM NT CHANNELS j SC-05078•76 Copy ot 2 1 In the absence of a a MINT-secure teletype circuit to the BNDD special arrangements for regular CO'l t'ier service have been tr a de ' - 1 l · · ·- · un't'sR INF _ l rug operators J j comrunicate covertly concea mg who and where they are and send only isolated or sporadic me 9sages C ansequently they tend to use either telephone or prearranged numbers or over-the-counter paid telegrams This makes intercept and exploitation cf 'such carm mications exceedingly difficult but significant results might well be achi eved 5 The effective use of SIGlNI' informatia in support of on-going operations while at the sane protecting the source has been a problE Il SIGmr frequently produces information which is valuable in an operational sense but if used indiscreetly will result in a serious canpra nise hly ccxrprc mise can result in ilrproved foreign conrunications security measures The effect may be a permanent or temporary denial to the U S of intelligence Wormation over and above the imnedi ate drug problem It is necessary to eq hasize that in handling SIGINI' la g-range interests nust not be sacrificed for short-tenn gains --I ' HANDLE VIA CON lNT CHANNELS SC·05078•76 Copy I ot 2 7 6 Successful usage of the SIGTh'T product _is largely contingent upon close collaboration bet'ween the SIGrnr producers and the appropriate custcxner agencies Frequent exchanges between NSA ' 'IDD and CIA will ensure that SIGilIT is loj ted to its Ml capacity Reccmrendation It is reccxrn-ended that NSA in conjunction with interested custa rers particularly BNDD and Custans make appropriate detennination of what COMINr support is required on the narcotics problem and that the requisite priorities be established through the _J SIGINT c cmni ttee Tab U Paragraphs 1 and 4 above indicate an apparent lack of knCMledge concerning the NSA's interceptioo of intemational voice comrunications for narcotics intelligence which began -in 1970 There seems to be an awareness of everything else hcwever including the courier service between NSA and BNDD by which the latter received the product of· the voice interceptions Based upon its study the CCPC subnitted recc mre11dations to the USIB on Novellber 3 1972 which were approved by USIB on January 11 1972 and incorporated in the IGCP on February 23 1973 to include a broader require · ment for infom ation related to narcotics trafficking in Lat in America and other specified countries --- In the OCI 's August 1973 Perspective of the Intelligence Camunity it is pointed out that as long as there exists a narcotics problan intelligence agmcies '1 11 be involved In the KIQ I s Key Intelligence Quest ions ___ for FY 1974 and FY 1975 there are oro questions regarding the narcotics problem The first- is ide ntify traffickers and producers and their methods the second relates to the effectiveness of anti-narcotics · rnr £mttE 103 HANDLE VIA COtlJNT CHANNELS S ·O O 8•76 Copy I oi 2 programs in Mexico France 'l Irkey Thailand ·Burma and Laos The second question included information concerning the willingness of trose governments to co_operate with the United States' efforts to expose and prosecute producers traffickers and their collaborators - p rne s 1t r J HANYJt VI _JitNT CHANNELS I Ci sec CCI fl o·- - tt I J SC·05078-76 Copy ot 2 H PRESIDENT'S FOREIG INIELLIGENCE illVISORY EOARD PFI AB By Exe tive Order 10655 February 6 1956 President Mght D Eisenhc Mer established the President's Board of Consultants on Foreign Intelligence Activities PBCF A in order to enhance the security of the United States and the conduct of its foreign affairs by furthering the availability of intelligence of the highest order EO 10656 et rpCMered the Board to review the foreign intelligence activities of the Government and the performance of functions of the Central Intelligence Agency and riport its f indings directly to the President Its authority also extended to a review of foreign intelligence functions of other executive departments and any other related foreign intelligence matters mi ch the President's Board deems appropriate By Executive Order 10938 May 4 1961 Executive 9t'der 10656 was cancelled by President John F Kennedy and the PFCFIA was reconstit 1ted as the President's Foreign Intelligence Advisory Board PFIAB Its functions remair ed essentially the smre as its predecessor Board i e contmuing review and assessment of all functions of the CIA and other departments having similar respmsibilities in foreign intelligence and related fields in order to advise the President on matters bearing on foreign policy national defense and security By Execut' Te Order 11460 March 20 1969 President Richard Nixon cancelled Executive Order 10938 and reconstituted the PFIAB lhlle predecessor Boards setved a purely advisory functicn President Nixon expanded the role of the PFIAB to receive consider and take appropr1 ate action with respect to • 1l u lL - -J 7Uf 05 HANDLE VIA CO INT CHANNELS I SC·05078•76 Copy ot_ 2 matters identified to the Board in whicn the support of the Board will further the effectiveness of the national_j ptelligence effort added Emphasis The Nixon order also expanded the jurisdictional mandate of the Board beyond that of foreign intelligence-related matters by providing that the Board would advise the President concerning the objectives conduct management and coordmation of the various activities making up the overall national intelligence effort Since its inception in 1956 the Board has conducted its affairs independently of the Naticnal Security Council and has had cont inumg direct access through both its Chairman and the full Board to the President and his National Security Advisor While independent of the NSC and its 40 Carmittee on co--1ert operations the Board has had continuing access to all material maintained by the NSC and its com nittees except during the Nixon Administration when the Board was denied access to such materials PFIAB minutes and records reflect the following May 26 1961 5 The President should not be publicly identified nor othel wise publicly involved with non-overt political psychological propoganda paramilitary or clandestine intelligence acthrities 6 The Central Intelligence Agency should strive to achieve anonymity in its officials and activities - lBP SEeRt 1 IOb HANDLE VIA COMINT- CHANNELS SC•05078•76 Copy oj_ 2 February 5 1971 The Chainnan opened the eting by asking Attorney General Mitchell for his views on th adequacy of the ove rall U S intelligence effort Mr Mitchell stated that his office relies on infonnation wch it gets frc m NSA and CIA which may be collateral to tt e primary collection goals of these agencies but which is recognized as beine useful to the D' J and is fo rv rarded to them ' tram w 1 r ta · J - - -- He said that electronic surveillance is restrictea to violence-prone groups and that in these cases electronic surveillance is clearly ·within the jurisdiction of the Presidential resnonsibilities for· maintaining law and order Emphasis added _j Mr Mitchell said that NSA and FBI Director Hoover are having a running battle on this ve cy poin_t • vNSA is also m-ging resumption of physical entry Mr Mitchell said we have mre taps on nCM than the Republicans cmr e to Washington •• March 31 1971 1-f aro for Eoard · ' ' 01_ i • __ a I di _ ·• ·--·· - 111M1aaailllillil ijiliii - 1oollill --- 4 operatiais generally kn as SlW1ROCK 'Whereby U S ccmrerical camunic aticns firms make available to the U S t copies of intematioMl _j TOP SteRIT 107 f J HANDLE VIA COM INT CHANNELS SC-05078•76 Copy ot_ 2 ccmnercial ccmrunications transmitted by foreign missions or permit the U S ccmrn mications by photography etc •• The vast majority of SlW1ROCK collection is performed by NSA itself i e through its agresnents with U S ccmnercial carm m cations £ inns and utilizing its own personnel NSA obta ins on a daily basis large quantities of carmercial telegraphic traffic originated foreign governments and foreign private enterprise within the United States ••• b J I I i February 3-4 1972 Disc hssion with Mr Nelson Gross Special Assistant for Narcotics to the Seer of State and with Mr Walter 'M i nni taff Coordinator for the Cabinet Ccrimittee on International Narcotics Control Mr Gross opened the discussion by saying that the Cabinet Ccmnittee had been established to provide a focal point t a high level for the Administrations program to canbat the illegal in'portation distribution and use of narcotics He said ••• that the only hope of success in canbating this evil is to have a coordinated program which simlltaneously seeks to stem the supply £rem· abroad prosecutl the traffickers both at hare and abroad and to reduce demand through the provision of effective medical advice The Department of State's role is to work with foreign governments to reduce the production of heroin • • and to stim Jlate and coordinate international cooperatiai in breaking up traffick il'lg neo- orks Mr Gross said • that the success of these programs would be wholly dependent a intelligence Mr Gross was critical of CIA efforts to date Mr Gross said that CIA has -lOP SECRrrt 08 · HANDLE VIA COM1NT CHANNELS ------------ fe P SECRi i IC SC·05G78-76 Cup 1 I· oi 2 been given responsibility for coordinatfng all narcotics intelligence abroad but has assigned insufficient manpCMer to do the job Mr Gross said that the FBI had not been asked to work on this program because the BNDD ••• has exclusive jurisdiction for narcotics • •• Mr Minnick said that the purpose in establishing the r arcotics program at the Cabinet level was to add · mte House clout in getting the cooperation of all the necessary Government agencies and bureaus Mr Gross said that _t 'arly the prohad all the authority it needs ' Tham Emphasis added rn r · ' oiairman of the 1nte 11gence Suocomrd ttee 1 Discussion with of the Caoinet Ccr mittee on International Narcotics Control ' ls Mr Helms' Special Assistant or narcotics matters and Chainna n of the Cabinet Ccmnittee Subcomni ttees for Intelligence •• n iSaid that the Agency's role in narcotics program began in October 1969 with a bite House request for CIA to do whatever it could to help with this problem Such a directive he said raised two problems for the Agency the first was to establish a mechanism and 'WOrking relationship with law enforcement authorities and the second was adjusting agency priorities He said that the Agf ncy mission was to support the narcotics program by establishir g -where illicit narcotics were caning fran and secondly to provide intelligence for the diplanatic effo_r t to -reduce production and trafficking said that the Agency has mved slCMFfyfor reason •••• It ' - gooa J _JQP SEGRE£ 109 HANDLE VIA COMINT CHANNELS SC-05078• 76 copy I ot 2 far 1 _cr umnal · 'said the primary groups involved syndi ca tes C· - Agency 11 · ' ' 3tated he was satisfied that the a sense of urgency ••• - said that - lSA provides regular coverage o persons on a watch list and is prepared to do mre as soon as the Intelligence Subccmnittee csn develop the necessary target dat a Discussion with DCI Helms Mr Helms had been asked to discuss the allocation of intelligence resources for the narcotics problem • • He agreed to follCM up Dr Baker's suggestion to see if CIA couldn't give sane direct assistance the RIDD in organizing their files and staff for participation in what to is now a major Govert111ent program Discussion with Mr John Ehrlichman Assistant to the President for Diplo- matic Affairs Mr Ehrlichman had been asked to discuss • the role of foreign intelligence in canbating our danestic narcotics problem In conclusion the Chai nnan offered Mr Ehrlichnan any assist ance which the P oard could render with respect to the narcotics problem ••• Feb 3 1972 CIAf M Irorandun on Inte 3' gence s ortor Internatlonal Narcotics C ontro · I years ago the develoµnent of foreign -lHCRET 110 l HANDLE VIA COMINT CHANNELS -- - 'W'ir SC·05078-76 Copy ot 2 - on narcotics was a wholly new enterprise for the intelligence comm mity ••• B We began to organize a narcotics intelligence effort in October 1969 when President Nixon declared international narcotics control to be a major goal of U S foreign policy and established a 'White House Task Force on heroin suppression instructing all Federal depart rrents and agencies including the intelligence camunity to cooperate fully ·with its efforts • IX Organized criminal conspiracies tend everywhere to monopolize the illicit trade •• a South American srruggling operations are nCM carrying a substantial part of the French heroin to the U S vi a La t in America XIV As a result of the presidential initiative fran mid-1971 intelligence support for international narcotics control has becane virtually -'Orld-wide A ln October 1971 the vbrking Group of the ccmc directed that U S missicns in close to 60 countries draw up narcotics control action plans XVI B With the establishnent of the CCINC •• leadership responsibilities for coordination of foreign intelligence en narcotics passed fran ENDO to CIA HANDLE VIA COMlNT CHANNEtS ------------------ Oi '1 1 -' 0 C O l SC•05078•76 1 5 copy XVII 2 n- e targets bring us both in operations and production into a closer relation ship with U S law enforcement Our job is to feed them mtelligence and le ads which they can use m their efforts to investi- gate and eventually prosecute or se middle and top level narcotics traffickers in the U S and abroad XVIII 1 The thrust of current national strategy coamits the camunity to directly support danestic enforcement ••• 3 We tTl lSt help them and still protect mtelligence officers and sources abroad fran investigative or legal disclosures Otherwise the mtelligence ccmm m ty will f ind itself where it cannot afford to go - m court as a witness APril 12 1972 mem ranch m to _ -·- J ran Egil Krogh Executive Di rector CCINC P1e President is intenselaimterested 1n usin every means at his sposal to sifEI the mtemational narcotics traffic s includes covert action where appropriate basis added lDP S£8Rrl c J 112 HANDLE VIA COMINT _CHANNELS trr- I ot 2 -TG ·-SEeREtC' SC-05078-76 Copy I ot 2 I Intelligence Evaluation Comnittee and Staff · 1 Bac'kgrmmd Fonred Decerrber 1970 to produce fully- eva luated natimal danestic intelligence studies including studies on denxmstrations subversion e - trenism and terroriS ' 1 t-1e 1 bership Departme 1t of Justice ChairnR'1 Federal Bureau of Investigation Departrient of Defense Secret Service atim al Security Agency Central Intelligence Agency and as necess ary representatives of other Departrnents or Agencies follav -ing hove participated Treasury and State Staff IES Executive Director John Dour herty and later Bernard 'ells Sl 'Pplied by Depart rrent of Justice ·with title of Special Assistant to the Attorney General repor ting to the Assistant Attorney General for Internal Security Robert Mardian and later · illiam Olson IES has received regcinr cnt s directly frm ai1d delivered re orts chrectl v to John Dea11 of t he · ite House s Cocr - i t tee 2 CIA Participation Contributions on foreign aspects by rra urandum - - ith no Agency letterhead or attribution Contrib 1tions occasionally include foreign intelligence provided by FBI and NSA The Chief of the Special Operations Group serves as the Agency representative on the Intelligence Evaluation Cor rrJttee Staff md as the alternate to the Agency representative on the Cannittee who is the Chief Counter Intelligence Staff 1he White House was represented by Gordon Liddy at an Intelligence Evaluation Staff meeting on August 4 1971 fran a Stmrary The follCMing are excerpts of Liddy' s ra narks a hlte House action The President is deeply concerned at leaks including the Ells berg case SA LT talks the U-2 and the recent Jack Anderson colum and the President wants this sort of thing stopped JGP-SECRITG 113 I 4 Copy I Mr Ehrlichnan has been given the responsiblity far handling this matter within the hlte House and is to be assisted by Bud Krogh David Young who has been borrowed fran Dr Kiss ingeJ Gordon Liddy and others b Liddy's role He is an expediter to break down bureaucratic problens by applying either grease or dynamite He will sit with the IES and audit the IEC meetings Mr David Young can speak for Mr Ehrlich nan and is ''heavier than Mr Liddy therefore any requests fran Mr Young should be honored without checkil'lg with Liddy 'I c IES role 1 to prepare evaluation Mr Liddy noted that the IES had not yet been formally tasked in this regard 2 provide ideas for attacking and solving the problem 3 channel to agencies Mr Liddy intends to use the Staff manbers for direct and rapid access to their own Agencies in order to get aver and minimize eureaucratic problems He specifically stated that although agencies would be tasked through their agency heads Mr Ehr lichman was not prepared to wait until agencies had polished their contributicns and sent back through channels but rather wanted to have a cess to infonnation when and as it is developed Mr Liddy therefore vOUJ d expect to be able· to ask for things through the IES me ru ers and have them vested with the authority to get them and release them to the Jhite House Beyond the foregoing the ms seems to have been preoccupied in 1971 and 1972 with foreign support for activities planned to disrupt or harrass the national political conventions in 1972 l9P r J l I HANDLE VIA COM1NT CHANNEL o· 2 'VJ POSSIBLE VIOIATI ONS This inquiry has focused on the interception of wire and radio· cc cmunications having at least one terminal in the United States or a United States territory Federal criminal sanctions have no application to the extraterritorial interception of corrmmications i e ccmnunications with all teminals outside the United States F 2d - United States v Catrone _ 2 Cir 1975 United States v Toscanmo 500 F 2d 267 269 2 Cir 1974 ' Berlin Derrocratic Club v Rumsfeld Civil No 310-74 D D C March 17 1976 Evidence obtained fran such intercepticns which do not meet Fourth Amendement standards hotvever is subject to exclusion in U S courts lhree categories of interceptions discussed herein require prosecutive 7 evaluation 1 The interception of ternational carm T ications having one teminal in the United States or a United States territory 2 frcxn ccmrercial canters of cable traffic bet - --een the U S and foreign countries The procurement £ · · · - u Im initial review of available facts will indicate possible violaticns of 18 U S C 2511 q d or 47 U S C 605 but a tentative Enalysis of the applicable statutes legislative history and convoluted sources of purported authoriza ticn together with anticipated difficulties in proving willfulness preclude any unequivocal recannendation for prosecutiai at this juncture fflP SECRH ' v 115 HANDLE vtA COMINT CHANNELS 7TOP f CfitE T t SC·05078-76 CORY o·i 2 A Interceotion of International Co rrrn nications • Having One Terminal In fne United States or a_United States Territory I These interceptions were conducted by NSA in the gathering of foreign intelligence infomation C ·' 4 mich broadly defined included the MINARET Tab N It · · __ w - • ii r i - • _ _ _ _' · i 1 The CIA' s At' G pas devoted exclusively to the gathering of international narcotics intelligence through the interception of specific comrercial voice frequencies be en South America and the United States The NSA's MINARET and C · ____ rejects included but were not limited to the selection and or collection of narcotics intelligence and involved the incidental as well as specific interception of voice and non-voice cc mrunications concerning a variety of subjects 1 __J Pertinent Crinrlnal Statutes Title 18 Section 25ll a c d Title 18 United States Code infra Title 47 Section 605 of Title 47 United States Code provides in pertinent part • • • No persc n not being auth' rlzed by the sender shall intercept any radio ccmwnication and diwlge or publish the existence contents substance purport effect or meaning of such intercepted ca muucaticn to aey persal ••• --lffflffIT 116 J HANDLE VIA COMINT CHANNELS ••• 1 'lO person having received any intercepted adio cormuni cation or having becane acquainted with the contents ·substance purport effect or meaning of suc h ccmrunication was intercepted shall diwlge or publish the existence contents substance purport effect or meaning of such corrm mication or use such ccxmu mication for his n benefit or for the benefit of another not entitled thereto B 7 Receipt of Cable Traffic Fran International Garmunications tarriers This activity was conducted by NSA under the cryptonym SHAMROCK P and by the FBI as d1e Drop Copy Operation Tab R Tab LPt-m EY was a CIA operation limited solely to providing NSA with a front location in New York City for processing SHAMROCK material T 1 Pertinent Criminal Statute Title 47 Section 605 of Title 47 United States Code provides in pertinent · part N o person receiving assisting in receiving tran ni tting or assisting in tran ni tting any interstate or foreign carm mication by wire or radio shall divulge or publish the existence contents substance purport effect or meaning thereof except through authorized channels of t ransmissicn or recepticn 1 to any person other than the addresses 5 in response to a subpoena issued by a court of carpetent jurisdiction or 6 CX'l dar and of other lawful authority • _ TOP tsRrrE 117 • HANDLE VIA COMlNT CHANNELS Gj SC•05078•76 Copy 01 2 No person not being entitled thereto shall receive or acsist in receiving any interstate or foreign camunication by radio and use such can runication for his c n benefit or for the benefit of another not entitled thereto ·•· 1 7 1 Pertinent Criminal Statutes Such interception without appropriate authority if willful ro lld be in violation of 18 U S C §25ll a c d or 47 U S C 1605 in 4 -ra HANDLE VIA COMlNT CHANNELS SC·05C78•76 copy I oi 2 V Applicable Statutes and Law Prosecutive considerations in the instant inquiry are limited to possible violations of 18 U S C 2511 or 47 U S C 605 A 47 U S C 605 Section 605 originally enacted in 1934 was amended on June 19 1968 upon the enactment of 18 U S C §2510 et seq The new Section 605 was intended as a substitute rather than the mere reenactment of the old Section 605 It is designed to regulate the conduct of carm micatians personnel and to prevent the unauthorized interception and disclosure or use by sny person of radio ccmmmica tions 1968 U S Code Cong and Adm 0 • • ' Ne vs 2196-2197 ''Radio camunications or camunications by radio means the transmissions by radio of writing signs signals pictures and sounds of all kinds including all instturentalities facilities apparatus and services arrong other things the receipt forwarding and delivery of ccmnunications incidental to such transmission 47 U S C §153 b Secticn 605 consists of four separate clauses containing f01 1J distinct pairs of prohibitiCl'lS 1 'Ihe first clause prohibits divulgence by any person recei any interstate or foreign camunication y wire or radio except through authorized channels of transmission or reception 2 second clause proscribes the unauthorized interception and divu1gence of any radio The cCIIm Jnication 3 The third prohibits the receipt of an interstate or foreign radio camunication by a person not entitled thereto and the use thereof for his benefit or for the benefit of another not entitled thereto - JOMECREf 119 J HANDLE VIA C0 11NT CHANN LS TUl-1 - SC•05C78•76 Copy J o 2 4 The fourth proscribes the recei e_t of any intercepted radio cc mm mication and divulgence thereof or use for one's benefit or the benefit of another not entitled thereto ''Person as used in Section 604 does not include a law enforcement officer acting in the normal course of his duties 1968 U S Code Cong and Adm News 2197 ''Foreign ccmmmication within the meaning of 47 U S C 605 is a camunication £ran or to any place in the United States to or frcm a foreign I country 47 U S C §153 f I Section 501 of Title 47 United States Code contains the general I I misdemeanor penalty'_ provisions for violations of §605 and requires that such '' offenses by willfully and kn jngly ccmnitted B 18 U S C 2510 et seg The regulation' of the interception of wire or oral ccmm ni ications is governed by 18 U S C §§2510 S· 1968 U S Code Cong and Adil News 2196 Section 2511 of Title 18 United States Code provides in pertinent part 1 • • • A ny perscn who a willfully intercepts endeavors to intercept or procures any other perscn to intercept any wire or oral camunication •• -TOP SECRET-f - 120 HANDLE VIA COMlNT CHANNELS - J OP _ S£CREr -- I • _ i SC·05078-76 Copy I ot 2 c willfully discloses or endeavors to disclose to any other person the contents of any wire or oral commmication mowing or having reason to knew that the· infonnation was obtained through the interception o a wire or oral ccmrunication •• d willfully uses of any wire or oral reason to knc M that the interception of or endeavors to use the contents contl ' Jnication kncw ing or having the information was obtained through a wire or oral commmication •••• shall be fined not more than $10 000 or iirq risoned not trore than five years or both W ire ccmrunication means any conmunication made in whole or in part through the use of facilities for the transmission of comru micaticns by the aid of wire cable or other like connection between the point of origin arid the point of reception furnished or operated by any person engaged as a ca rm m carrier in providing or operating such facilities for the transmission of interstate or foreign cc mmmications 18 U S C 2510 1 O ral ccmrunication means any oral cormunication uttered by a person exhibiting an expectation that suc '1 ccmnunication is not subject to interception under circumstsnces justifying such e xpet tation 18 U S C §2510 Z Intercept means the aural acquisition of the - contents of any wire or oral comrunication through the use of mly electronic mechanical or other device 18 U S C §2510 4 C Willfulness Willfulness is essential to the carmission of each of the above offenses 1 United States v Murdock The legislative history of 18 U S C §2511 mdicates the applicable standard of willfulness in the Instant context is that set forth in United at J 121 • CCOP EGRact • 1 SC·05C78-i6 Copy ot 2 States v l-furdock 290 U S 389 1933 a criminal tax case 1968 U S Code Cong and Adm News 2181 In Murdock the Court recited with apparent approval the follawing judicial connotations of the word ''willfully The word often denotes an act which is intentional or knCMing or voluntary as distinguished fran accidental But when used in a criminal statute it generally means an act done with a bad purpose without justifiable excuse stubbomly obstinately per rersely The 'WOrd is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by careless disregard vmether or not one has the right so to act 290 U S at 394-395 The standard of willfulness in Murdock is formulated as follc Ms B ad faith or evil intent or evil rwtive and v t of justification It is not the purpose of the law to penalize innocent errors de despite the exercise of reasonable care The requirement of an offense cornnitted ''willfully is not iret ••• if a taxpayer has relied in good faith on a prior decision of this court The Court's consistent interpretaticn of the word 'willfully' to require the element of rea implements the persuasive intent of Congress to penalties that separate the purposeful violator fran the well-meaning but easily confused United States v Bishop 412 U S 346 360-361 1973 construct Congress did not intend that a person by reason of a bona fide misunderstanding should beccme a criminal by his tr ere failure to measure up to the prescribed standard of conduct United States v Murdock supra 122 ·- -• • i •1r - r 1 SC-05078•76 Copy o 2 18 u s c §2520 SectiOL 2520 of Title 18 United States Code provides that a good faith reliance on a court order or legislative authorization shall constitute a CClJl'lete defense to m1y ivil or criminal action brought under Title 18 or Title 47 The legislative history of Section 2520 cites Pierson v Ray 286 U S 547 1967 as the only supporting authority and guide to the good faith criteria contE Ilplated by the statute 1968 U S Code Cong and Adm News 2196 The Pierson case involved an action for damages against policemen for deprivation of civil rights under 42 U S C §1983 and carm m law false arrest The respondent policemen had arrested petitioners for breaching the peace in violation of a state statute which was subsequently declared invalid The Suprane Court reaffu med that the defense of good faith and probable cause is available to police officers and further held that 11a police officer is not charged with predicting the future course of constitutional law 'Ihis indicates a legislative intent i 118 U S C §2520 to excuse frcm civil and criminal liability those persons who act under a statute they reasonably believe to be valid 1be legislative authorization11 apparently relied upon by mst of potential defendants herein is 18 U S C §2511 3 i e the statutory recognition of Presidential power to authorize warrantless electronic surveillances to protect the naticnal security This statute upon its enaconent in June 1968 was vague with respect to the scope of such pa er -HANDLE VIA COMINT CHANNELS POP SECRET I SC-05 078-76 Cop I ot 2 and it was·not until June 1972 that the Presidential pc Mer to authorize - danestic security electronic surveillances was delineated by the U S Suprane Court See III supra The President's pc Mer to authorize the warrantless electronic surveillance of activities of foreign powers or their agents has not yet been defined by the Supre ne Court It is likely therefore that potential defendants particul ary subordinates will seize upon the decision in Raley v Q hio 360 U S 423 438 1959 in which the Court held that a State may not issue carmands to its citizens under criminal sanctions in language so vague and undefined as to afford no fair warning of what conduct might trangress th em 'While it is true that men are in general held responsible for violations of the law the layman is not required to knc M trore law than the judge United States v Mancuso 139 F 2d 90 92 3 Cir 1943 3 Z·weibon v Mitchell The Court in Z't- -eibon v Mitchell 516 F 2d 594 671-672 D C Cir · 1975 cited Pierson v Ray supra in re affirming the defense of good faith nu is in light of the fact that Congress m ide tre applicability of Title III turn en the future course of constitutiori al law as well as the fact that the legislative hi story and language of Title III are themselves sa ner mt ambiguous concerning the applicability of that chapter to r aticnal security surveillance and considering the policy that statutes in derogaticn of the coom n law should be strictly construed we do not believe Congress intended to preclude a good faith F TQP SECRET£ ur SC-05078-76 r opy ot 2 defense that Executive officials acted under what they reasonably believed were the constitutionally inherent and therefore statutorily exempt pCMers of the President In a footnote the Court added The rights of victims of unconstitutional actions must to scm extent be balanced against the needs of law enforcement particularly 'When an official in good faith acts according to a reasonable belief that his actions are lawful 516 F 2d at 616n 278 Willfulness11 in the instant context would seem to require bad faith rather than bad judgn-ent Good intentions coupled with bad judgment would not constitute such willfulness Mullen v United States 263 F 2d 275 276 D C Cir 1958 D ''Plain View Analogy Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence Harris v United States 390 U S 234 236 1967 This plain vie-vi' doctrine serves to supplement the prior justification and permits the warrantless seizure Coolidge · r Nev • Haglpshire 403 U S 443 466 1970 The plain view doctrine might be invoked by analogy to justify incidental COJmJnicaticns intercepts e g the incidental intercepticn of coom nications conceming intematiCX'lal narcotics traffic in the course of conducting Presidentially-authorized electronic surveilLs nce for the purpose f OP SECIID't • 125 HANDLE VIA COMINT CHANNELS •-- ---- rlu sEC8EJ __ _ _ j SC·05C78•76 Cop I ot 2 of gathering foreign intelligence information This analogous application of the plain view doctrine in the context of electronic surveillance finds support in 18 U S C §2517 5 United States v Kahn 415 U S 143 1974 Section 2517 5 penn i ts the dii closure and us of camunications relating to offenses ot ier than those specified in t lie order of authorization where such I cc mrunications are intercepted while engaged in intercepting camunications ' in the manner authorized by the order I NSA represents that aver 50 per· cent of the narcotics intelligence • I furnished by NSA to RIDD DF A came fran cCXIIlll1ications incidentall t inter- cepted or incidentally received in the course of collecting foreign intelligence I • information pursuant to NSA's Presidential mandate and authorizatiai 'I ' E Border Search Analogy I The Treasury Depar t supports receipt by the Secret Service f SIGmr intelligence £ran NSA on grounds that the interceptiai of messages crossing our natiaial borders is analogous to conducting warrantless border - searches which are clearly legal Tab M-Q If the search of the persoo is thus petmissible is it not reasonable that equal latitude be afforded to the Impersonal harvesting of international coom m cation signals for purposes clearly of great consequence to our national security Upon that pre nise the incidental acquisition fran international signal carm 1nicad ons of itrl Ortant intelligence not supported by a foreign nexus is clearly an acceptable and reasalable intnlSicn into that realm of privacy protected by the Fourth Amenarmt _j IBP srena 126 ' J The SIGOO activities of NSA constitute an essential attribute of the Executive's capability and·obligation to protect and pramte the national security and foreign relations of the United States One must in reason attribute to NSA's SIGOO acquisition of foreign intelligence an importance whlch surpasses that attending the border search authority earlier characterized indispensible exercise of the right of the sovereign to self-protection as an -_ - TOf S CR i J 127 HANDLE VIA COMINT CHANNELS CO Y ot 2 VI POSSIBLE DEFENSES A Interceotion of International Carrnunications Haying One Terminal in the United States or a United States Terrirn 1 Interception of International Radio1 andline Telephone Cornrnmications a 18 u s c §2511 i Radio-Telephone Ccxrmuni cations The legislative history of Title III 18 U S C §2510 seg 47 U S C §605 contains 'no indication of hCM Congress intended to treat a radio-teleph me conversation United States v Hall 488 F 2d 193 197 9 Cir 1973 ln the absence of such indication particularly with respect to the interception of diO portions of such ccmrunications the appliqable statutes and legislative history mJSt be e d to scertain whether there is a clear overall legislative purpose upon which one statute to the exclusion of the other may be validly applied to the instant facts 11le provisions of 18 U S C §2511 and 47 U S C §605 are not mutually exclusive They overlap Section 2511 prohibits the int ception of ''wire coom nications as broadly defined in 18 U S C §2510 1 wm le Section 605 regulates the interception and divulgence of ''radio camunications as broadly defined in 47 U S C §153 A tent tive application of either statute is possible in the instant context 128 COpy of 2 Secti 25ll_prohibits except as otherwise specifically provided the interception and disclosure of all wire or oral cormunications Paragraph 1 sets out several prohibitions Subparagraph a prohibits the interception itself This eliminates the requirare nt under existing law that an interception and a divul gence must take place 47 U S C §605 previously required the interception and divulgence of both wire and radio ccnm mications Subparagraph a establishes a blanket prohibition against the interception of any wire corrmunication Since the facilities used to transmit wire ccxrrnunications form part of the interstate or foreign coomJnicat ions net v -ork Congress has plenary pa er under the ccxrmerce clause to prohibit all fr1terception of such cc mlU ll d cations whether by wiretaµping or otherwise Weiss v United States 308 U S 321 1930 1968 U S Code Cong ll'ld Actn News 2180 Elnphasis added The above would seen at first to foreclose the applicability of 47 U S C §605 to the inst ant situation The citation ol Weiss v United States m wer indicates that the legislative history refers to the scooe of cccrm micaticns covered by §2511 rather than to the inclusion f additional methods of intercepticn Weiss was a wiretapping case under t 1-ie provisions of the old preTitle III 47 U S C §605 in whlch the Suprene Court held that the prohibitions of the second clause of §605 applied to intrastate as well as ir1terstate and foreign cations when transmitted over wires used for both kinds of caimrJ cations Weiss v United States 308 U S 321 327-328 1939 This d not se ffil necessarily to favor §2511 In the coverage of the intercepticn of radio portions of radio- landline telephone cccmunic aticns 129 COpy of 2 ii Wire Ccnm mications Paragraph 1 of 18 U S C §2510 defines ''wire ccmrunication to include all ccmnunications carried by a ccmron carrier in whole or in part through O U Nation's ccxmunications network The coverage is intended to be ccxnprehensive 1968 S Code Cong and A dm News 2178 'fut does this encanpass international cOlllllUnications as they pass Oller foreign countries Or intemational bodies of water Does it really mean as it says coom mications carried through our Nation's coanunic ations network If so is O U Nation's coomJnications network confined to the c cxrram ications network within the Nation 'Whatever the answers to the foregoing there is r o question that §2511 covers the aural acquisition of all v ire portions of radio-la ndline telephone carm mications and may also be construed to COiler the radio portions as well There re na ins an obvious qualitative difference bet - oeen ti1e radio and wire segrrents of radio-1 andline telephone COOITL' 'll cations particularly international ca rrrnmica tions - a distinction Congress pointedly recognized and reaffinred in ma int aining the concanitant viability of §605 requiring both the interception and divulgence of radio coom m ications to constitute a rrere misda rea nor iii The ''Nation's Carrr- nications Network The ''Nation's ccmrunications network according C r - tojf · 3 is generally regarded by those in the industry as the camerc ial 130 COPY ot 2 corrnunications system within the United States 'This system may be characteriz - as contiguous switched e g frcm wire to cable to microwave autana tic and self-routing It's ' vi reless canponent is a multi-channel micrCMave carriers system capable of carrying up to 2 000 comrn mications on sare channels International ccmnercial radio-telephone ccmnunications on the other hand are transmitted by high-frequency _single or miltichannel telephony which enters the national ccmnunications network through what are known as 11gateways 'The latter term seems to connote passage fran one systan to another This high-frequency telephony is not as reliable as microwave transmission and is considerably m re susceptible to interception by unsophisticated equiprrent such as ship-to-shore radio or the ordinary Zenith transoceanic-type portable radio Microwave transmission is straight line and covers much higher ··· frequencies than ''high frequency telephony which follows the curvature of the earth It is estimated for ex c ple that the radio portic i of a high frequ er cy single-channel radio-telephone camn m i cation fran Montevideo · Uruguay to New York City could be intercepted with unsohpisticated radio receivers ove r an area of perhaps 30 per cent of the earth's surface High frequency nilti-channel transmissions may be de-channeled by ''haneIm index of the users of international radio fre- ma de mrateur equipne nt quecies is reportedly published by the FCC and may be obtained frcm the Government Pri -1ting Offi e The only guarantee of privacy in such high frequency radio tran smissicns is the use of special ciphony equ ip nent to garble the crmruni catiC11S Such equiprent hc ever is not in general use by ccxmercial carrier __j 131 _ · COPY of 2 • iv Justified Expectations of Privacy The three general categories of ccxrm mications covered by Title III v 'l re oral and radio - are distinguished fuplicitly and explicitly accordi 'lg to the degree of justified expectations of privacy 't-m le an alrrost total expectation of privacy seems to be justified in camumications transmitted wholly by wire the expectation of privacy of oral ccmrunications is justified only if uttered under circunstances justifying that expectation e g coamJnications in one's hane or office Ccmm mications in a jail cell or an open field for exaJlFle would ·not nonnally justify such expectation 1968 U S Code Cong a '1d Adm News 2178 v Felony vs Misde nea nor 1he willful interception alone of a wire or oral cc mrunication car letes the felony offense under §2511 L 1 the case of a radio coom ll ca- tion h a ever there l llSt be both an interception and divulgence to· constitute the misdare a lor under §605 If we ignore both the explicit - · legislative distinction between radio crnt mications and other types of cornrunications and the irrplicit legislative scale of justified expectations of privacy the severity of criminal penalties imposed by Congress - OUld appear in sare instances to be inversely proportionate to the extent of privacy violated See vi infra Congress obviously placed radio ccm unications belCM wire and oral ccx rcutlcations on the ascendi ig sc ale of justified expectations of privacy 132 Copy of 2 The court in United States v Hall 488 F 2d 193 197 9 Cir 1973 observed that the radio portioo of a radio-landline telephone ccmmm ication logically should be afforded no trore protection than those occuring bet een cwo radio transceivers he court declined havever to exercise its option to find that surely Congress did not intend such as absurd result The specific issue in Hall was whether the contents of defend ants' radio-telephone conversations m m itored by law enforcement officers should have been suppressed in the prosecut ion of defendants for rrarijuana violations Sc re of the conversations were transmitted bet ween two radio telephones while others were between a radio-telephcne and regular land-line telephone The Court quickly found 47 U S C §605 inapplicab e statu g he legislative history also explicitly shCMS that Congress intended to exclude law enforcement officers fran the purview of the new §605 It is obvious that the legislature wanted law enforcarent personnel to be governed exclusively by Chapter 119 of Title 18 'Therefore because the critical cc mrn mications were intercepted by §605 o fers no m pedarent · The applying 18 U S C §§2510 et seg ha vever the Court reached an admittedly absurd result W e are forced to conclude that when part of a ca rrunication is carried to or from a land-line telephooe the entire conversatic n is a wire ccmrunicatian and a search warrant is required We realize that our classification of a conversation between a trobile and a land-line telephone as a wire carnunica ticn produces wt appears to be an absurd result These conversations were intercepted by an oroinarv radio receiver and not by a phone tap Logically they should be afforded no uore protection than th se occurring between tlo 10 radio transceivers 'lhey · ' 133 0 · r - ----·· - --- - - - -- -·_ • • · - - - •• • •4 'is - • • COpy of 2 should be oral ccmnunications Hc Mever Congress's definition of a wire ccxrmunication necessitates this conclusicn This is especially ironic since Title III of the Crime c ontrol Act contains stringent civil and criminal penalties for those who violate its provisions In other vJOrds any citizen who listens to a trobile telephone band does so at its sic own risk and scores of mariners v '110 listen to the ship-to-shore frequency carm mly used to call to a land-line telephone camtl t criniinal acts Emphasis added The absurd result could have been avoided of course by applying 47 U S C §605 to the radio portion of the radio-landline telephone carr micatic ns Congress tray have been silent as to its intent in radio-telephone situatioos but it can hardly be presuned to have intended a patently 11 absurd result It is a fi ndarrental canon of statutory construction that a legislative enactment must be so interpreted as to carry out the legislative will and in a IT 3IlI ler that would not reach an absurd result lnited States v l ewis 87 F Supp 970 972 D D C 1955 The Fourth Amendment also shuns absurd results 489 F 2d at 198 It is one thing of course to interpret a statute in favor of the acc 1 Sed but quite another to expand its treaning where to do so 10rks against the acc 'U Sed Pugach v Klein 193 F Supp 630 640 S D N Y 1961 11-e radio-telephcne cooversation in Hall whlch did not involve land-line telephones 1 e radio-to-radio Twe re held P Dt be oral crom nicaticns within the rreaning of 18 U S C §2510 2 because the 134 -- - -- -···· ·----- --- Court found they lacked the requisite expectation of privacy The district judge had previously made a specific finding that defendants l ne w they could be heard by other people and therefore had no right to privacy This seems hc ever to be a case of reaching the right result for the wrong reason 'n e 'ne- l' Section 605 enacted simlltaneously with 18 U S C §§2510 et seg was expressly intended as a substitute rather than the n-ere reenaccrent of its predecessor and Adm News 2196 1968 U S Code Cong If it has any substance at all §605 vJOUld seem to cover at least the interception of all cc rnrunications transmitted entirely by radio It does not apply to law enforcement officer ra ever because 11 person as used in the statute does not include a law enforcement officer acting in the normal course of his duties and Adm News 2197 1968 U S Code Cong In a letter to the Chai man of the Federal Ca rm Jni- cations Ccmnission on September 15 1975 Tab ID ' concerning FCC rronitorlng of citizen band radio transrnissicns the Justice Depart ITent i's Office of Legal Counsel stated Giving the 'Ord perscn such an interpretation d allc law enforcarent officers generally to intercept and divulge radio ccomnications The application of §605 in Hall xruld have achieved the sarre result with respect to the intercepticn of purely radio ca rmunications but without the strained applicaticn of 18 U S C §§2510 et seq 135_ COP J I Oi vi Oral Crermmica tions There appears to be no n ore reason for re-classifying certain radio ccmnunications as oral coommi cations than there would be to include 'wire ccxrm mications under oral ccmrunications Section 2510 Title 18 United States Code contains separate and distinct definitions of wire and oral ccrim Inications There is r o indication of a legislative intent to pre-empt under the caption of oral ccmnunications all wire camunications transmitted with a reasonable a-pectation they will not be inter9epted Despite the expectation of privacy the latter do not beccxne oral coamunications They ranain s ly and exclusively 'Wire ccmmmications under 18 U S C §2510 1 Similarly there is no indication Congress intenqed to include under oral ccmrunications all radio ca rmunications transmitted with a re isonable expectation they will not be intercepted These remain radio ccmrunications under the definition of 47 U S C §153 b It seans to be stretching 18 U S C §§2510 et s to construe purely radio comrunications even those with a reasonable expectation of privacy intercepted by law enforcanen t officers as oral ccxrm mications Nc here in the legislative history or language of 18 U S C §§2510 et seg is there any indication that Col gress intended to single out for felony prosecuticn only law enforcement officers who intercept radio ca rcunicaticns ·while providing an option to prosecute for misdanea nors all others v ro not only intercept but divulge such carm mications 136 '· COPY ot 2 The suitute specifically defines oral ccmrunication 11 as • • A ny oral cc rnrunication uttered by a person exhibiting an expectation that such carmunication is not subject to interception tmder circunstances justifying such expectation emphasis added 18 u s c §2510 2 Examples of oral coom mications cit d_in the legislative history of Title III are ccxmn mications uttered in one's hare or one's office 1968 U S Code Cong and Adm News 2178 There are two references in 18 U S C §2511 to ccmrunications by radio One prohibits the interception of oral not wire ccmrunications by devices which transmit cccnrunic ations by radio or interfere with the transmission of such a cc mrn m cation §2511 1 b ii the other merely ·codifies the exception frcm criminal liability of FCC officials acting in the nonnal course of their duties Neither provision purports to e --pand or arrplify the definition of oral ccmrunicaticn in 18 U S· C §2510 2 Prior to the enactment of Title III the exception of FCC officials was 11 inplicit in 47 U S C §605 United States y Sugden 226 F 2d 281 9 Cir 1955 aff'd 351 U S 916 1956 The legislative history of Title III 'While not carpletely clear on the point nevertheless tends to equate the interception of oral cc mrunications transmitted by radio with electrcnic eavesdropping bugging to overhear private oral conversaticns The legislative history cites Katz v Unted States 389 U S 347 1967 in stating the definition of oral caruunication is intended to reflect existing law 137 im Olved the use of an electronic eavesdropping device ''Wiretapping is generally associated with the interception of wire camn micaticns Code Cong - 1968 U S and Adm News 2153-2156 2177-2178 2180-2181 In the contm 't of trar smissions by radio therefore the definition of ''oral coor iunications in 18 U S C §2510 2 al pears to conterrplate private oral conversations intercepted by radio eavesdropping devices rather than the interception of ccr rn mications transmitted by carm m carrier radio-telephone facilities Section 25ll l b i would prohibit the use of leased or other telephone lines to transmit signals intercepted bv eavesdronniniz devices 1968 U S Code Cong and Adm News_ 2180 vii Overlaoping Definitions In neit 'h er 18 U S C §§2510 seq nor 47 U S C §605 does Congress reconcile the statutory definitions of ''wire and oral ccmrunications with radio ccmrn m ications in the radio-telephone context overlap WdS 1hi s apparently not considered or even recognized by Congress Even in United States v Hall supra the court conceded that the definition of wire ccmrnJnicaticn is not free frcm mrbiguity and concluded that b y reading the sections together -we can only conclude that the C or- gress did not ire an tl-ia t every corn ersaticn aided 1n any part by any wire would be a v ire carrrunicaticn 488 F 2d at 196-197 138 --- ---•·· -- COpy I of 2 Thus we hav two criminal statutes one a felony the other a misde neanot whose application ImJSt rest finally upon a reconciliation of the overlapping definitions of ''wire cc mrunication and oral corrmuni- cation in 18 U S C §2510 1 2 and radio carmunication in 47 U S C §153 b The central question may be stated precisely t-Jhich statute covers the interception of radio portions of ccmron carrier radio-telephone cc am nications between the United States and other coutries Perhaps the mst succ inct indication of overall legislative purpose i 1 Title III may be found incidentally in the definition of oral ccmrunications in 18 U S C §2510 2 • A ny • carm mication uttered by a person exhibiting an expectation that such ccmrunication is not subject to interception under circunstances justifying such expectaticn Obviously the privacy of the mre portion of a cam-on carrier radio- landline telephone carm mication is inherently greater than the radio • portion w'hile such ccmm mication as a whole might conform wit the technical definiticn of ''wire camuu cation in 18 U S C §2510 1 the radio portion fits equally the definition of radio ccmm m icatiai set forth in 47 U S C §153 b Hall As the c ourt observed in United States v supra the latter is infinitely mre vulnerable to both inadvertent and intmtional intercepticn As with any broadcast into the air the invitaticn to listen is afforded to all who can hear In the instant case t he eavesdropper merely tuned their radio receivers to the proper stati cn 139 1be legislative history emphatically states that 18 U S C §§2510 et seq is intended to protect the privacv of the ccmnunication Fmphasis added 1968 U S Code Cong and Adm News 2178 The purpose of the statutory protection therefore is not to maintain the absolute inviolability of the means of camunication but to protect fran inter- If ception those ccmnunications which are transmitted by private means the rrethod of carmmication at a given point in transmission is not reasonably private it is difficult to perceiye a legislative intent to pretend privacy at that point merely because the rre ans of ccmruni cation elsewhere in the chain of transmission are private A cccm mication is only as private as the rre ans of transaj ssion SI ployed at the point of interceptiai 4 q If the privacy of a cornrunication is to be protected the cc mrunication itself must first be private Jr _ sare - -rl per point in its transmissia a carr unication may be intercepted over 30 cent of the earth's surface with readily available and inexpensive radio -1·_ 1 ···-' equipre 1t the ccmrunication at that point can hardly 1 ' '1 ·L-- rlvate ' I If at be re arded as See iii supra · The legislative history further indicates that 18 U S C §§2510 et seg s intended to govem the regulation of the interception of '1re and oral camuu cations while 47 U S C §605 was designed to regulate the conduct of cc xrnll1icaticns persamel as well as prohibit the interception and diwlgence or use or radio ccmm m caticns 140 1968 U S Code Cqlg and COpy I Ot 2 Acrn News 2196-2197 Nothing in §605 indicates that coom m carrier radio ccmnunications are to be excluded fran its coverage Notwithstanding the seemingly coo reh ensive coverage of radio ccmnuI ications by §605 however the legislative history and definitions of wire and oral ccmrunications in 18 U S C §2510 permit an initial construction of §§2510 seg to CCNer intP r alia the interception of all radio-landline telepb me ccmnunications t ransmitted in part by aid of camx m carrier wire wire ccmnunications and all aural radio-toradio coom Irlications where there is a reasonable expectation such camunications are not subject to interception oral ccmrunications This constructicn of 18 U S C §§2510 se_g would leave §605 with jurisdiction over only the interception of 'non-aural radio-landli le ccmron carrier ccmrunications and only those aural radio-to-radio cCXTim Inications whlch might reasonably be subject to intP rception Such a construction would of course rem we the interception or radio-land line telephone ccxn runications by carm mications personnel fran the coverage of §605 whl ch was specifically designed to regulate the conduct of ccmrunicaticns personnel Section 2511 2 a i Title 18 United States C ode eJ Pressly recognizes and conte rplates that officers eD ployees and agents of camunicatioo s camcn carriers may also intercept wire The foregoing dewnstrates i£ nothing else that the seemingly cm rerensive coverage of ''wire cmmmicaticn in 18 U S C 2511 1 is 141 I' COpy ot 2 neither all-inclusive nor free of ambiguity It is npted that the only specific reference to radio ccrnrunicat i ons in the prohibitions of 18 U S C §2511 is that 'Which appears in §2511 1 b ii proscribing the interception of oral not wire ccmnunications by the use of devices which transmit carmunications by radio or interfere wi th the transmission of radio carm Jnications 'This reinforces not only the contention that oral ccmrunications defined in 18 U S C §2511 2 contanplate private oral corNersations transmitted by radio eavesdr9PPing devices it also points up the anission of any siird lar prohibition against the use of radio devices to intercept ''wire cannunications as defined in 18 u s c 2511 1 viii StatutO Construction Jhe n either of two statutes apply the specific takes precedence over the general Robinson v United States 142 F 2d ·431 8 Ct - 1 44 Therefore if 18 U S C §2511 clearly applied to the interception of radio ' portions of radio-1 andline telephone coom Jnications it should prece- dence over the general coverage of 47 U S C §605 Section §2511 h Mever is not unequivocal in its coverage and sf n and conflicts in statut ory construction 'zui ties trnJSL Jt m criminal statutes resolved in favor of potential defendants the misdemeanor statute would seen to apply Ur- ited States v Bass 404 U S 336 348 1971 142 OS _ Cov 1 I of 2 ix Prosecutive Options The Govemrnent has the option to proceed under 47 U S C §605 wbere a single act violates rore than one statute the Government rr ay elect to proceed under either United States v Burnett suora b 47 u s c §605 The second and fourth clauses of Section 605 prohibit respectively the interception and diwlgence of radio ccmnunications and the receipt of intercepted radio cormunications and divulgence or use for one's or vt1 benefit or the benefit of another Divulgence by one who did not personally intercept the comrunic atian h c Mever or cause another to do so · is not a violation of the second clause of Section 605 and use for the benefit of the Government is not the type of use prohibited by the statute Pugach v Klein 193 F Supp 630 640-641 S D N Y 1961 United St v U ½Ti s 87 F Supp 970 974 D D C 1950 reversedonot 1ergrounds 184F 2d394 D C Cir 1950 The GovernI 'eI1t has consistently taken the position that disclosure ·wit Ju 1 t l-ie Executive Branch is not divulgence Yw l thin the proscriptions of Sei tion 605 Nardone v United States 302 U S 379 1037 United States v Bute n l o 494 F 2d 593 600 3 Cir 1974 cert denied 419 U S 881 1974 In any event perscn in Section 605 does not include la-w enforcement officers acting in the normal course of their duties 143 1968 U S Code S ·vo0 d• 6 O 2 Copy c and Adm News 2197 The second clause of Section 605 prohibits any ''person' - fran intercepting and divulging to any person It would seem therefore that disclosure by lISA personnel to law enforcement officers of EIDD DFA would not constitute divulgence within the statute c Presidential Authorization Cl§ u s c §2511 3 On October 24 1969 President Nixon created the White House Task Force for Narcotics Control and reportedly annqunced a decision to u ake I narcotics a matter of foreign policy and further directed the Di rector of ' I I Central Intelligence to contribute to the ma ximun extent possible in the I collection of foreign intelligence related to traffic in opiun and heroin Tab T2 In August 1971 the President created the Cabinet Ccmrittee as Int tional Narcotics c ontrol which included inter alia the OCI ' CIA the Attorney General Secretary of Defense et al and directed that all Federal offices depart Irent and agencies cooperate with the ccrnc in carrying out its functions including the coordination of'all d i plcr atic intelligence and Federal law enforce ient programs cmd activities of internaticnal scope Tab TS President Nixon also issued additional ord rs 0 m d made additional state r ents directing the rrobilizaticn of the full resources of the Federal Govemrrent to gather intelligence on L 'ltemational drug traffic See III B • suora 144 ffll 1 ' · ' 4 -- f• - f - i COpy 012 President Ford was recently quoted as having designated the i licit export of opi to the United States as a threat to our national security See III B 6 supra Former Secretary of Defense Melvin Laird stated that during the Viet Na n Conflict he regarded the izIFortation of drugs into the United States to be a matter affecting the national security because it undermined the capability of the Armed Forces during a period of national e nergency Tab X4 For specific sources of purported authorizaticn see III supra d Willfulness See V C supra 2 Interc 2tions of Inte '11ational Non-Voice u m unications a 18 U S C §2511 i Interception The legality of the interception of non-voice coom mications tums U JI1 the interpretation of 11 intercept11 as defined in 18 U S C 2510 4 intercept IOOans the aural acquisiticn of the contents of any wire or oral carnunication through the use of any electronic mec 1-ianical ar other device 4 11 The statute tlnJs restricts the definition of intercept to aural acquisiticn and the legislative history specifically excludes all other means of acquisiticn - 145 TOP SECRtff t I 'r _ - I • --· •• • • • c• _ v p ··• '• 7J y - - of 2- Other f of surveillance are not within the proposed legislation The proposed legislation is intended to protect the privacy of the comnunication itself and not the means of coomu- nication 1968 U S Code Q ng and Adm News 2178 'The dictionary defines aural as of or relating to the ear or sense of hearing 'The words aural acquistion literally translated ueans to cane into possession through the sense of hearing Smith v Wunker 356 F Supp 44 46 S D Ohio 1972 'The legislative history further arrplifies the intended scope of ''aural interceptions Paragraph 4 defines intercept to include the aural acquisition of the contents of any wire or oral ccxrcrunication by any electric mechanical or other device Other forms of s a veillance are not within the proposed legislation See Lee v United States 47 S Ct 746 274 U S 559 9 27 Corngold v United States 367 F 2d 9th 1966 Im e xa mination of telephone carpa ny records by law enforcement agents in the regular course of their duties would be lawful because it d not be an interception1' ited States v Russo 250 F Supp 55 E D Pa 966 nie' proposed legislation is not designed to prevent the tracing of phone calls The use of a 'l en register for exarrple d be pem issible But see United States v Dote 371 F 2d 176 7th 1966 The proposed legisia'tion is intended to protect the privacy of tl-e ca rmmication itself and not the rre ans of camunication 1968 U S Code Cong and Adm News 2178 · The foregoing clearly excludes £ran the coverage of 18 U S C §2511 all ccmrunicatlons transmitted mechanically i e transmitted by signals independent of sound e g electrical pulses 146 C0py ot 2 ii 0 Aural Aural acquisition seems to have been used by the Congress neither as a term or art nor as a term of technology The words acquistion ••• through the use of any • device suggest that the central concern is with the activity engaged in at the time of the ccmrunication which causes such camunication to be overheard by uninvited listeners i e the contanporaneous acquisition of the camunication It is the act of contanporaeous surveillance by hearing recording or otherwise which '1m S at the center of congressional concem United States v Turk 526 F 2d 654 658-659 5 Cir 1976 This'interpretation of aural acquisition is reinforced by 18 U S C 25ll l c which prohibits the subsequent disclosure of an intercepted coo m micaticn Aural acquisition would seem to include for example the de-channeling of tape recordings of intercepted Imll ti-cha nnel sound camunications In such cases the acquisition of the intelligible contents of a ca municaticn v 'Ollld not necessarily have to be contanporaneous with the interception and acquisition of the primary or garbled sounds In short aural acquisition d appear to generally cover the interception of sounds while in the PEocess of transmission 147 iii Teletype and 1'elex Coomunications • TeletypE _ and telex transmissions are clearly non-aural Teletype technology essentially connects two typewriter keyboards by pulses of electrical energy transmitted by wire and or radio Telex technology maximizes the utility of teletype facilities by increasing the transmittil g capacity r b 47 u s c cstt a•·· -s ·1 §605 i Diwlgence 'The interception of non-aural ccmrunications is covered if at all by 47 U S C §605 which requires diwlgence or use in addition to interception There is absolutely no indication that Congress contemplated §605 situations vhere interceptions were not accarpanied by divulgence United States v Butenko 494 F 2d 593 600 3 Cir 1974 £ · £·• 419 U S 881 1974 The majority in Butenko observed that restricting any divulgence to tranbers of the Executive Branch •• does not necessarily mean that the -mP-Sffifil1 148 J surveillance and such divulgence does not fun afoul of §605 but the dissenting Chief Judge stated that while the question did not have to be resolved in that case perhaps such divulgence does not violate §605 ''because the federal officers are really acting as agents of the executive in making the interception and the relevant • erson to be viewed as inter- ceptor is thus the executive diwlgence to other agents of the executive vh o receive the information in such capacity hence would not violate the statute because the diwlgees would be part of the same ''person as the divulgors 11 This has been the consistent position taken by the Govermient in such cases Nardone v United States 302 U S 379 1937 United States v Butenko supra 'Jhatever the validity of the above position the Goverrment could hardly prosecute one of its Ov t'l agents for divulging the contents of an intercepted ccmrunication within the Executive Branch in reliance upon the Government's long-standing interpretation of the statute Furthermore Section 605 does not apply to law enforcement officers acting in the course of their non nal duties 1968 U S Code eopg and Adm News 2197 Disclosure by NSA within the Executive Branch particularly to BNDD Secret Service and FBI agents is therefore not proscribed by the statute ii Sectioo 605 m JSt face the canon of strict construction in favor of the accused It is one thing to interpret the statute in favor of the accused 149 PY I ot but quite an ther t expand its meaning where to do so rks against the accused A strict construction in favor of the accused impels the conclusion that the provision use for his OvJn benefit or for the benefit of another not entitled thereto means another person and does not include use for the benefit of the Gove rment govemment agent's PlaWy such use is not for the benefit Pugach v Klein 193 F Supp 630 640-641 S D N Y 1961 United States v Lewis 87 F Supp 970 974 D D C 1950 reversed on other grounds 184 F 2d 394 D C Cir 1950 i iii Interception and Divulgence or Use By Different Parties I Absent a conspiracy mere diwlgence by one who did not persormally ' intercept the ccmrunication or cause another to do so is not a violation I of the second clause of Section 605 I ach v Kle in supra By the same reasoning the receipt and diwlgence prohibitions of the first clause of Section 605 and the ''receipt and use proscriptions in the third clause '10Uld seem also to require that receipt and diwlgence or use be accarplished · by the same person to constitute an offense under §605 c Presidential Authorization See III supra 150 I • Vt'Y I ua •• · · d 'illfulness See V C supra B Receipt of Cable Traffic fran International Ccrnnunications Carriers SiWiRocK and Drg_eCopy Operation ' 1 47 u s c §605 Th is activity is covered if at all by the first clause and or third clause of 47 U S C §605 which prohibit generally the receipt and divulgence except upon demand of lawful authority etc of interstate or foreign camunicaticns by wire or radio and the receipt use ' of radio coamunicaticns Possible Violations of §605 involve persons in two general categories 1 ccamercial ccmrunications personnel and 2 government agents and· officials a Camunications Personnel The new Section §605 is designed to regulate the conduct of coommications personnel I i 1968 U S Code Cong and Adm News 2197 As noted above ha ever I §605 apparently requires that both the willful receipt or assistance in receivmg a 'ld the willful divulgence and or use be accarplished by the Sam person and 'use by a Goverrm nt agent for the benefit of the Goven-m nt is not the type of 'use contarplated in the proscriptions of the statute supra United States v Lewis supra ltJP SECRET 0 J 151 HANDLE VIA COMINT CHANNELS Pt gach v Klein ----------- - -feit-· e Cftt E SC-0 e b•it I OJ In addition to their reliance on the foregoing ca rtmJI'lications personnel involved in ·SlW1ROCK and the Drop-Copy Operation may contend their assistance to NSA and the FBI was in resonse to requests made under the Presidential power recognized by 18 U S C §2511 3 i e on demand of lawful authority'' and therefore with in the exceptions enunerated in §605 The FBI asserts that the legislative history of §605 indicates Congress intended the phrase on demand of lawful authority to be as inclusive as · the similar provision of the Interstate Ccmnerce Act of 1887 fran which the Camunications Ac t of 1934 in part was taken Tab 00 The Interstate Ccmnerce Act of 1887 as amended in 1910 to prohibit the disclosure of ccmruni cations transmitted by ccxrm m carriers provided that nothing therein should be construed to prevent the giving of information in response to any officer or agent of the Government of the Unit d States or of any State or Territory in the exercise of his s or to any officer or other duly authorized person seeking such infomation for the prosecution of persons charged w-i th or suspected of crime ••• The canrunicatiCX1S personnel might also argue they '1ere de facto agents of the United States Government and disclosed only to agents within the Executive Branch which does not constitute divulgence within the meaning of Section 605 United States v Butenko supra JOP SEettH 152 HANnt i J VIA rnMt IT ru q r - ·op 1- '_ ' SE REl SC-05078-76 COpy 012 Agents b _Govennent Agents and Officials ·· officials of NSA and the FBI who were involved in the dail0 conduct of SlW1ROCK and the Drop City Operation will perhaps assert they never received or assisted in re ceiving sny of the camn mications furnished to them but rather obtained the ccmrunications only after the receipt of same by cannunications personnel They will likely contend also that there was no diwlgence because disseminaticn was confined to a small segment of the Executive Branch Those officials who negotiated or maintained the informal agreements between the Govermient and the ccx rmunications carriers were not the sane persons obtained and disseminated the actual ccmnJl'lications wit lun the Executive Branch They will of course seek to avoid the application of Section 605 by claiming not to have received and divulged any cCDmJnications themselves As for criminal conspriacy they will probably attarpt to prove an Implied delegation of Presidential po«er under 18 2 Presidential Authorization See III a 3 Willfulness See V C supra 100 SE6RH J 153 HANDLF VIA MINT rHAt--- JNf I u s c 2511 COPY ot 2 C Interception of Domes de Comrunications ·1n Testing Electtonic Egui 1 18 U S C §2511 and 47 U S C §605 All interceptions mich are known to have occurred within the five-year statute of limitations were interceptions of radio carmmications i e the radio portions of radio-telephone ccmrDJI'lications which were not divulged within the meaning of 47 U S C §605 The ·same defenses set forth in 'N supra may be raised with respect to this activity 2 Presidential Authorization See III E 4 and Ill F 6 3 Willfulness See V D supra I 154 - TOI r 'RE c· _ j SC·J5078•76 Copy oi2 VII fTM1ARY OF POSSIBLE VIOLATIONS AND DEFENSES A Recapitulation of Inquiry J I 1he Rockefeller Ccmnission Report raised questions concern u g seven · areas of CIA-related electronic surveillance activity CIA personnel se ity activities of U S dissidents toll records of telephone calls between the U S and a hostile country the interception of international narcotics trafficker's telephone camurl caticns electronic equipomt testing · - -- f- ti - - _li y of a host le_foreign paer tCLintercept_ U S camunications and CIA assistance to the Secret Service and local ----·----· l police departments pp 1-13 supra --- - r 1 eleven additional areas of questicaable activity involving th CIA NSA and FBI seas intercepts SlW•1ROCIC#· supra • ' 0 4 7 ··· · of these may also contain the elements of Federal criminal •Iii Ii • ··•-· -· -· • --·•· en· · 5 - MIN W r C • f ffld the FBI drop-copy operaticn pp 14-39 offenEes i e MINAREr pp 26-29 surpra 1 arc ·t· · n #k SSZSP4WSWIQPjl d·tf ··• t# · sm1RDCK pp 32-36 supra and the FBI _j drop-cory operatiC11 p 39 supra Eig l specific electronic surveillance operatiai s th ts requhe prosec ut 1ve eva uatioo iilP SECRE ' 155 wwwJfOP SECREI C · · 1 SC•05078•76 J Copy ot 2 1 It-· • · Fran October 1972 to January 1973 at NSA's reques the CIA intercept the radio pottiais of targeted radio-telephone cCllll1L1n ications between Ladn America and the United States for the purpose of gatherl g intelligence en £ · ·• - • intematicnal narcotics tTafficldng A- -· t ' · he intelligence product was j furnished to NSA '1'lich in tum forwarded it to BNDD If the radio portions of international radio-telephone ccmra micaticns are I deemed ''wire caillllni cations see pp 139-140 supra the C 1 ' 0 J would be in clear violation of 18 U S C §2511 1 but for the apparent I blanket approval of such interceptions by Attomeys General and the Secretary I of Defense in 1971 and 1972 pp 81-84 supra Such approval together with I the explicit Presidential insistence that CIA contribute to the 'maxim Jn I extent and to 100bilize its full resources to fight the international drug i trade pp 46 58 112 S ra could be construed as Presidential directicn I and authorization lnde r 18 U S C §2511 3 This defense is partiC Jlarly buttressed by prior Presidential declaratiCl'lS that narcotics control is a matter of foreign policy p 46 supra that it is imperative that the illicit fl M of narcotics· and dangerous drugs into this country be stopped as socn as possible p 47 supra that illicit drugs are a menace to the general welfare of the United States p 46 supra that ''winning the battle against drug abuse is me of the m st inportant the most urge nt natiauu priorities ccnfrcnting the United States today p 57 supra that ''keeping dm gercm drugs out of the United States is just as t as keepmg armed ene ny forces fran landing in the United States p 58 supra - Such Presidential language could be easily construed as equating narcotics control with naticnal security -qifp smml 156 J · TOf SEGR g I SC-05078-76 Copy 2 • J o Congress has also recognized the need for international narcotics I intelligence_and the general propriety of utilizing CIA and NSA resources to obtain it pp 49 63 supra Tab T7 AlthOU h the foregoing does not conclusively establish legitimate authorlzation it sufficiently clouds the issue to make proof of willfulness on the part of subordinates essentially impossible Likewise the purported authorization by the President Attomeys General and Secretary of Defense is so general so amorphous that it would be impossible to prove beyond a reasonable doubt that ei e ' - ¢ tit of them specifically authorized0 D • L l It thus appears that no re al probability exists for convicting anyone involved -ti · onsequently it 'WOUld not seem to warrant further prosecutive pursuit 1 See SUTirary Outline Tab D for ·c lete listing of possible defenses ·• • - ·• ·c--· r • · _' _ 1 - •·· _ • • -··· •• ·- ---· 7· • _ I I J1 I '# • ·• - •• - · __J TOI SECREi t SC-05078-76 Copy ot 2 - ·- V ·· -- ____ _ --·· ·-- ------ - · -- _ ·l· ---- · ·-· See Sumnary 0-ltline Tab F4 for additional detail J --·- - - - -·r • I •• - •• • I - •·· '• f _ - ' •• l • ·· -- · - •- • _ ·• -·· - -TOP SECREJ C SC-05078-76 Copy ot 2 ' · ••' -· -· ' • au a as 7 • ' ·- j ·r-····· 'fDP SECRHf j HA 'DLE VIA COMINT CHANNELS TOP ·sECREi Jt SC-05078-76 COfJy I ot 2 7 4 MINARET n-e chartering of MrnARET on July 1 1969 fonralized SA' s de facto collection and dissemination of intelligence concerning Presidential protecticn and foreign influences on danest'lc organizations and individuals 'Which might create civil disturbances and or undermine the national security The Attomey General advised the PFIAB on February 5 1971 that electronic surveillance to obtain intelligence concerning violence-prone groups was clearly within the jurisdiction of the Presidential responsibilities for maintaining law and • order pp 107 supra Such intelligence was gathered a ld distributed by NSA to Federal consuner agencies i e the CIA FBI Secret Service ACSI DIA and State Departinent • all of 'Whan levied requirements on NSA under NSCID 6 pp 78 supra BNDD levied narcotics intelligence requirsrents on NSA in April 1970 C · ' ' ru • · · re a MINARET Intelligence except one category of international voice camuu - cations involving narcotics was obtained incidentallY in the course of NSA' s interception of aural and non-aur al e g telex intemational camunications and the receipt of GCHQ-acquired telex and n c cable traffic Possible violatiais in MlNAREl' are 1 mll al acquisition and or use disclosure etc of wire and oral CC1T1J1 11U caticns 18 U S C §2511 a nd 2 receipt or interception and divulgence or use of radio ccmrunicatiau 47 u s c §605 In confonnity with NSA's one-terminal rule p 61 supra all MlNARE I' ccmrunications apparently had at least one tenninal in a for eign country and 4i 160 4 _J ' TOP Sl tRf r ri J SC 05078-76 Copy Of 2 excluding SHAMROCK ccmrunications ere obtained through the interceptiai of I radio portfons of interr tional carmmicaticns fran sites both within and without the United States 6 1975 the Attorney General noted in his testitrany before On November the Senate Select Camrl ttee that it is arguable that if matters are picked up out of the air so to sper J as waves of sane kind across the ocean that there is no reason for people to assune that the conversations are private and therefore tM fourth amendment does not apply'' Carrnittee to Study Governmental Operations F earings Before the Select 1ith Respect to Intelligence Activities of the Senate 94th Cong 1st Sess VS pp 115-116 1975 Although the Attorney General expressly declined to make such an argurent because it goes too far it nonetheless ranains available as a tentative and plausible defense See pp 128-142 supra Assu ning however such defense is not viable the dissemination of intelligence incidentally derived fran clearly legitimate NSA operations to ''provide for the SIGINr mission of the United States p 77 supr appears to be lawful under the plain view'' doctrine p 125 eE Era particularly in view of the general absence of statutory restrictions on NSA intercept activities o ir inquil y ccnfil ms the following finclings of the Senate lect C cmnittee regarding the lack of statutory restricticns Cl'l NSA N o existing statutes control limit or define the signals intelligence activities of l ____ I JI v vnc -111o1a _ _ J SC·05078-76 COpy O 2 No statute or executive directive prohibi · NSA' s monitoring a telephone circuit with one terminal in the United States I It is important to note that the decision to tenninate the watch list was ultimately the administrative decision of an executive agency 'There is no statute t- 'hich expressly forbids such activity and no court case ' 'here it has been squarely at issue Without legislative controls 1'1SA could resu re the watch list activity at any t ime upon order of the F xecutive ••• S Rep No 94-755 94th Cong 2nd Sess Book pp 736 756 761 Q 976 - I ' The apparent lack of statutory restriction en NSA intercept activities was I reinforced by a memorandum fran NSA General C Ounsel to the Office of the NSA Director on July 24 1968 reporting that the enactment of 18 U S C §2511 3 on June 19 1968 rem ved any doubt as to the·legality of SIGmT ••• activities I of the Executive Branch of the Goverment p 85 supra Tab Y2 NSA's purposeful interception of the radio porticm of international radio-telephc ae camimications to obtain narcotics Intelligence for BNDD began in Septenil er 1970 and cmtinued until June 1973 Apparently NSA only intercepted narcotics camunicatiCN having one teminal at least in a foreign country Consequently this activity confonmd with NSA' s long-standing one- terminal nu e p 81 supra Presidential priorities pp 46-58 109 111-112 M' -' a poss le usm approval p 97 supra ground rules approved in· 1971 and 1972 by Attomeys General and the Secretary of Defense pp 82-84 6' 't'a and the ''natiaial security nature of drug traffick mg during the Viet Nam 'War Tab X4 llw trnfili 162 f o HANDLE VIA COMINT CHANNELS - _ s ts SC·05078-76 Copy ot 2 ' he broad sweep b g SIGmr responsibilities and pow_ers of NSA coobined 7 with vague or non-existent restrictions on NSA in exercising that r to carry out such responsibilities 'WOUld seem to render further prosecutive pursuit of MINARET futile The plain view docl-r ine appears to legitimize the incidentally-acquired 1-llNA P E'l' intelligence and the aforEm l'ltioned cirC ITIStances of gathering the narcotics intelligence for mDD makes proof of -1 1lfulness highly robable if not ilrpossible See Sunnary Outline Tab N for additional analysis and detail ·- _mu EOOrtf 163 J _ ' '' r n _ rnMlNT CHANNELS 2£ilZin v l Vl i I _ _ _ J SC-05078-76 Cup - O L ' I I r1 I I _ · • • • • ' ·· · 4 • -· ' • • · - i --- - - -- ·· ·--· -- ·-·-· ··--•- - ·-···· ' ' · _ · _ - · · cC l i ' •-•- •• 1--• •• Ii q - __J 1 I I 4W ---TOP SECrtUt ___j _ a l-f b Nf11 F VIA OMINT HANNFI -- TOl'S i Copy 6 I 7 SHAMROO In SHA 1R x the USA gathered international non-aural camunications fran n c carriers principally TIT RCA and vllI fran 1957 to May 1975 NSA inherited this operation £rem military agencies which began collecting cable traffic during vJt 7 II and continued thereafter as essential to the national security with the approval of Secretaries of Defense Attomey General Tan Clark and President Trunan ' he mthod of obtaining n c camunicatioos varied with changing technology and circunstances but frcm the mid-1960s to May 1975 l-lSA mq loyees received or had access to virtually all II£ traffic which passed through the New York City offices of RCA and t t The offices of WI in New York City and Washington D C furnished NSA with microfilm of£· • · possibly other n c ccmrmicaticns until 1969 'lbe WI cctTmJnicaticm '1 ere selected cut and microlf ured for NSA by rrr JI TI and other am 't lJI e rployees The offices of RrA n c carpanies in several other cities also contributed to SP AMROCK at various times NSA also requested and received cable traffic frc m the FBI 'Which the latter obtained fran RCA rrr and W'I mtil the terminatica of its ''Drop-copy Operaticn in April 1973 In about 1967 NSA began extracting darestic intelligence fran the 'II£ camunicaticns magnetic tapes received £ran m A and without the lcncMledge of R£A or m CZ $2 $4% Such dcm stic ·ffl rrr and ccntimled until the tem f nnticn of intelligence was disseminated to ccnsuam- - Ec af 165 HANDLE VIA 'lhis was dale f A Jl fT rlJ • n TOP-- SE€-R-Ef- WQ SC-05078•76 · j Copy ot 2 Notwithstandi ng the extractioo of MINA R E r andC addition toF · L - intelligence ln SA officials contend that it cmstituted only a small portion of the total traffic recei' ed 'Jbe renainder 907 was not used in any respect in an effort to min lmize the NSA intrusicn SPR1ROCK i 'lvolves possible violations of 47 U S C §605 Section 2511 cf Title 18 United States Code does not apply because ncne of the carm mications -were apparently acquired by aural means Rather they were mechanically transrritted and received through pulses of electrical energy e g telex NSA finds support for conducting its SHAMROCK operation in the follawmg NSA' s inheritance of the project which was cmtinu ed after W II at the instance of the Secretary of Defense Attorney General and the President pp 32-33 supra the purported knowledge and receipt of SHAMROCK-type camuu cations by the President and his National Security Advisor fran 1965 to 1969 p 41 Tab N Presidential authorizad oo pp 46-60 106-113 144 supra knowledge and approval of the Attorney General and PFIAB in 1971 pp 107-108 supra knowledge and tacit approval fran 1969 to 1973 of ' the Secretary of Defense p 33 supra and the mandate of NSCID 6 pp 76-80 supra NSA contends that the exclusicn of unencrypted written carmm Lcaticm fran 1 ts mandate under NSCID 6 is limited to mail and caJmJnicatims other than those sent electronically S Rep No 94-755 94th Cong 2nd Sess ' Book_ pp 737-738 1976 If NSA had p facie authority to collect NSA traffic fran n c carriers for national security purposes it may be contended that danestic intelligence incidentally derived therefran was lawfully obtained under the ''plain ·view'' doctrine See p 125 supra _ roF -SECRtl I - SC-05078•76 Coov I ot 2 • I Sectia i 605 o Title 47 prohibits 1 diwlgence by anyone receiving l any foreign ccmrunication by wire or radio cept upcn demand of lawful authority or 2 receipt and use of such cammication by a person not entitled thereto In addition to the purported authority defenses above potential SHAMROCK defendants may assert 1 there was no diwlgence outside the executive branch and therefore no diwlgence within the of §605 2 there was no diwlgence or use by my person who actually received - camunications and 3 use for the benefit of the Gavemrent is not the type of ''use conteaq lated in §605 pp 143-153 SW'ra Thus the argurent may be nade that no Federal crlwnal statute covers the SHAMROCK activity Secticn 605 does not apply to FBI BNDD or other law enforcement perscnnel pp 133-132 supra nor to the mere receipt of camunicaticns and diwlgence within the executive branch 'While the foregoing defenses do not clearly absolve the participants they wculd seem to provide the basis for a sufficient sha rl ng of good faith and lack of willfulness to preclude successful prosecution of NSA FBI and other consuner agency perscrmel Involved See pp 121-125 supra See Slmnary Oltline Tab P for additicrial detail _J -l0P --SECflEl° I · J· SC-05078-76 Copy ot 2 7 7 FBI Drop-Copy Operation Fran 1 41 to ril 18 1973 the FBI obtained copies of intemational n c carriers for purported national cable traffic from purposes security c w z · s By 1947 the FBI was receiving the cable traffic of 14 countries fran RCA 'WUl and MaCY ay In 1947 and 1949 the Secretary of Defense assured RCA Radio rrr and WI that the assistance they were providing was essential to the national security of the United States and both the President and Attorney General caicurred I in the request that it continue When the Drop-C opy Operaticn was terminated in 1973 the FBI was i I obtaining the raw' cable traffic of 21 countries fran the Washington D C offices of ITr RCA and WI The traffic of 10 of these CO mtries was 'I obtained for NSA I I During the 30-odd years of the Drop-Copy·Operaticn the FBI obtained I cable traffic fran various offices of six I n c c anies in New York City I San Francisco Los Angeles Portland and Washington D C I It appears that as late as March 22 1971 thl PFIAB and Attorney General -zere aware of the FBI' s operaticn p 107 supra The FBI finds authorization for its Drop-copy Operaticn in such knCMledge and acquiesence 1n NSCID 6 ch authorizes the NSA Director to issue direct mandatory assignments to any agency engaged in SIGINr operatiai s p 78 supra and 1n the FBI's own authority by virtue of F xecutive Order to conduct counter• intelligence opera ons within the United States Tab R4 Possible violatiai s and defenses are the same in the Drop-Copy Operaticn as 1n SHAMPOCK 'JFa See Summy Outline Tab R for further detail _j ' ·' •· • · ·- - - - -· -•• - • ·- · •·- • 11 - ·' -- · 1 • - I I · -·-· -- · · iP ·-· · · 1 • ·- --- ·- -- _- ··• -- - _ - · _ • J ·• ·· ·- · - ' - _ __ --- -- ' - - · ·-· - •· · f • · -s ·• · - • · ' • t •• • - - _ • • ·1 •• · ' • • • · ' ••·•· •I -- ··· - - - - c ' • •---· - · r i -t ··· ·· ' - - -_· · · - · - • -- I _ ·· - •· ·· • I - - r·• ··- _ _ · '• - -· • - J - _ ' l · SC-05078•76 copy oi 2 • - - •r• · · ·' • · c · - C · - I J 170 J COPY I of 2 VIII OONCUJSIONS AND RECXM1ENDATIONS This Report does not present particulars upon which affirmative prosecutive decisions may be mad a ln specific cases It rather provides the legal and factual detail for determining whether inquiry into specific activities should be terrr inated for lack of prosecutive potential or further pursued by grand jury If additional evidence of significant prosecutive value exists it is not likely to be obtained without a grand jury The writer reccxraends that of prosecutive potential the inquiry be terminated in all respects for lack ' here appears to be little likelihood if any that convictions could be obtained on the basis of currently available evidence or evidence which might reasonably be developed '11 e investigation has not revealed a single instance in which intelligence obtained by means of el ctronic surveillance was gathered or used fo-r personal or partisan political purposes lbe participants in every questicnable operation however oblivious or umnindful appear to have acted under at least sane colorable semblance of authority in 'What they conscientiously deaned to be I the best interests of the United States While they may be • regarded in current perspective as having abused their broad discreticnary power on occasia1 that 111-def lned r was conferred upcn them and their agencies with the levy of sweeping legislative and executive requirements e g the National Security Act and NScms If the intelligence agencies possessed too nuch discretionary authority with too little acccuitability that would seen to be a 35-year failing of Presidents and the Congress rather than the agend es In addition to the previously erunerated defenses ch may be invoked in the event of p-rosecutim there is likely to be tIUCh ''buck-passing fran sub- ordmate to superior agency to agency agency to board or camiittee board or camdttee to the President and fran the living to the dead The defense 171 COPY ot 2 tray be expected to subpoena every tenuously-involved govemment official an d former official to establish legitimate authorization or convoluted theories - or purported authorzation 'While the high office of prospective defense witnesses shoiJ ld not enter i Clto t he prosecutive decisicn the c01 Eusicn obfuscation and surprise testim my which might result carmot be ignored Other practical considerations fl'lclude the implicatims and carplexities of providing discovery of national security materials e g NSC PFIAB DOD and l Jhite Hou c e documents and records as well as sensitive foreign intelligence-gathering methodology and technology These consideratiais becare particularly acute when weighed against the minimal chances of sustaining the technical proof of violatia1S and the probable lack of juror enthusiasm for convicting those whan the defense may plausibly portray as dedicated employees who only follDNed orders ttying to protect the national interest keep heroin out of the United States etc ' be above observations are made with full appreciation that the subject matter is an intematianal cause celebre involving fundamental consti- ' of those rights tuticnal rights of United States citizens l-Jhile the violatic n whether intentional or inadvertent cannot be condcned the prosecutiai of alleged malefactors without any reasonable probability of convicticn wuld seem to be equally indefensible It is suggested that the remedy far the peculiar wraigs discussed herein might be more effectively and appropr ately sought in corrective legislaticn and adminst rative revisicn than in the pursuit of ptmitive and retributive 11'eaSUre8 tr tdch are likely to fail To that end the folladng mnavaticm appear to be as essent f s l as they are obvious 172 1 · Governmental agencies charged with the research and development of electronic equipment essential to the national security should be provided with clearly defined authority and procedures for testing such equipment against appropriate coom inications syste ns 2 Consideration should be given to seeking specific congressional and presidential designation of certa in international criminal activities as matters affecting the national security e g international narcotics trafficldng gun-running etc for purposes of foreign intelligence-gathering It is pure folly for exarrple to pay millions of dollars to 'l Irkey to reduce the production of opiun destined initially for Q rsica while at the same til e deliberately denying U S law enforcement agencies the benefit of our m st sophisticated and effective apparatus for gathering intelligence on heroin en route to the United States · 3 National security intelligence agencies should be authorized to provide appropriate U S law enforcement agencies with criminal intelligence incidentally obtained in the exercise of their awful fuictions including information indicatmg criminal activity on the part of U S citizens There is no rational basis for protecting U S • citizen-criminals fran the consequences of such ''plain view'' evidence 4 kt effort should be made consistent with the 5 The authority of the CJA NSA and FBI to perfonn their respective missions in the field of electronic surveillance should be clearly delegated and delineated with specific procedures prescribed for the lawful constitutional rights of criminal defendants to secure legislation and or rules changes to prevent the public identificaticn of natiaw secu rl ty agencies as the source of crir n ina l intelligence incidentally obtamed in the exercise of their law£ul functions at least mere such evidence is not introduced at trial - exercise of that authority 173 Copy 6 'Ibe Office of General Cotnsel for each inteiligence ·_ agency should be staffed with one or rrore attorneys with expertise in electronic surveillance law and Federal criminal law and procedure 7 Agency personnel should be required to consult their General Counsel and confixm in advance the legality of all electronic survetllance projects ' I I I I i I I 174 o ' ·••' '--- ·-------- ·-• -• · tf ti •· rst -rsc·W · 5 i ritt • 1 fi- - ii • - - - - - - _ tt d 35 - td n THE END