• _ ' ' ·1 UJJ 'Ht I Approved For RelW 2005 01 uGUUl J Room 1-E-11 ' J l - b it CIA-RDPBOM00185A0-00900 ·1 tJ 1· - •• •• • r-• 25X1 Cy ft_ of 17 June 19Tl MEMORANDUM FOR Director of Central Intelligence Deputy Director of Central 'Intelligence VIA Anthony A Lapham General Counsel · FROM • 25X1- SUBJECT 25X1 1 Actic n Requested None You have asked for my comments concerning the memorandum sent you by the Director NSA entitled 11PrePublication Review of SIGINT Product 11 Specifically you have asked whether limitations may be placed on the foreign intelligence information made available to you from NSA you have also asked whether any foreign int igence informati9n can be made available by NSA to other officials of government which has not also been made available to you Limitations Upon DCI Access to_NSA Intercept Materials D 2 f - i Background The legal authorities indicate ·that the Director of Centra'riiiierngence has a guarantee of access to information including intercepts relevant to the foreign intelligence needs of the United States That ··access is limited however by restrictions imposed by Fourth Amendment · requ rements prohibiting unreaeonable search and seizure and the Attorney OGC General's electronic surveillance procedures promulgated pursua1_1t to FOIAB5 Executlve Order 11905 25X1 D 25X1 ilS l ·i 25X1 OGC Has Reviewed Approved For Relaa 2 f ' · I •• FOIAB5 OGC 4LJ'he National Security CoWlcil Inte Jligence Directives NSCIDs provide direction to the Director of Central Intelligence regarding hls over intelligence duties NSCID No 1 paragraph l I directs that 25X1 The Director of Central lntelllgence shall coordinate the foreign intelligence activities of the United States ln accordance with existing law and applicable directives Such coordination shall include those forms of intelligence that constitute the foreign intelligence activities of the United States The DCI is directed to provide for the interchange of • •• intelligence· intelli- ·• ' gence information and other lnformation wlth utility for intelligence purposes II ·NSCID No 1 paragraph -3g 2 and a shall make sv ch surveys -0f departmental intelligence activities of the various departments and agencies as he may deem necessary in connection with his duty to advise the National Security Council and to coordinate the intelligence effort of the United States n NSCID No l paragraph 3 h The Director also shall • ensure that on intelligence matters affecting the national set urity the intelligence community is supported by the full knowledge and technical talent available in or to the Government n NSCID No l paragraph 8 a 2 25X1 5 Dx cutlve Ord or 11905 also provides defi itive statements in support of the Dlrector1s access to foreign intelligence information · 25X1 · - •• • • ' rnfSEc El Appi oved For Reldae' 2005 01 26 CIA PBOM00165A00IIMJ0090021-1 To assist the DCI in the fulfillment -of·his ·responsibilities -· the heads of all departments and agencies shall give him access to all information relevant to the foreign intelligence needs of the United Sta tee Relevant information requested by the DCI shall be provided and the DCI shall take appropriate steps to maintain· its confidentiality Emphasis added Section 3 d 4 • Se tiozi 4a 6 of the 'o rder provides that senior officials of the Intelligence Community shall - •• furnish to the Director of Cen al Intelligence the CFI the Operations Group · • • all of the information required for the performance of their· respective duties Emphasis added • The standards of these provisions dictate that the information be relevant to the foreign intelligence needs of the United States and that it be in fulfillment of the Dlrect or1s responsibilities Thus legitimate foreign intelligence information upon which there are no legal restrictions on dissemination may not be denied the Director As the drafter1s annotations to the Executiv c Order state at one point This provision §3d 4 ls designed to ensure that the Director receive all relevant foreign intelligence information coming int o the p' session of tho dcparbnents and agencies of our Government Emphasis added 6 r JThe applicability of these provisions to the National Security Agency NSA is acknowledged in Section 4 c 2 ii c of Executive Order· 11905 which provides that the NSA functions and responsibilities include Collection processing and dissemination of signals intelligence in accordance with objectives requirements and priorities established by the Director of Central Intelligence Emphasis added • · Thus while the Director of NSA exercises control over signals intelligence SIGINT collection and processiiig activities he must collect disseminate information in accordance with the requirements established by the Director · of Central Intelligence and 25X1 7 J However Executive Order 1190 5 also places certain restrictions on foreign intelligence collection activities Among these Section 5 b 2 of the Order prohibits 25X1 mOM00 65 002 09002_1-1 • • 4 - • I 0 p p4 _ I • • - Approved For Rale J 2005 01 26 C PB0M00165A00-0090021-1 ••• Electronic surveill e to intercept a communication which ls made from or ls int nded by the sender to be received in the United States or directed against United States persons abroad except lawful electronic surveillance under procedures approved by the Attorney General •• · Pursuant to this provision the Attorney General has promulgated procedures which e binding upon Jl SA in its signal intelligence activities which the Attorney General regards as a form of electronic surveillance These procedures grounded for the mos t part on legal requirements represent a limitation of sorts on your right of access to all information collected within the Intelligence Community 25X1 25X1 25X1 8 t J The procedures are intended to control that information which involves United States persons For example they limit NSA to intentionally intercepting only foreign communications · NSA cannot deliberately intercept the communications of a U S person unless the Attorney ' General is convinced that the person may be a for-eign agent Nor can NS A' deliberately intercept communications where a U S person is simply mentioned unless the Attorney General is convinced that significant foreign intelligence can be obtained thereby Even in foreign communications where it is unexpectedly learned that a U S person is communicating or is mentioned cei-tain enumerated criteria must be met before the data can be retained and used within NSA with the identities of the U S persons intact If the conditions cannot be met the identities must be deleted Still further criteria must be met including an NSA judgment concerning the intended recipients• need-to-know I before this latter material can _b e di seminated outside NSA with the identities of U S persons intact Of course most of these Attorney Oeneral functions are delegated to NSA officials in routine · operations In spcdal circumstances however the Attorney General ls in fact called upon c J 9 Thus pursuant to these guidelines established by the Attorney General NSA does make certain judgments concerning' the communications · which are or are not intercepted judgments about whether the content is significant ·foreign intelligence and whether certain other eriumera d criteria affecting dissemination have been met and judgments about who inay·receivc this data · 1n theory at least certain of the information which would have constituted relevant and lawful foreign intelligence could be de eted or unnecessarily restricted in dissemination due to err ors of judgment in this sC eening process ·· 10 CJ In connection with the administration of the Attorney General guidelines the Dh-ector NSA has adopted the proce« Jures set out in his memorandum to you of 7 April One aspect of these procedures may not be a strict requirement of the Attorney General guidelines That is in certain circumstances NSA follows a practice of withholding certain particularly sensitive information involving U S •o ffi als on the instruction of the U S of fidal involved This apparently can appon for example where a j Appro nad 11a17 2-n i fflff00165A00200009 21-1 '' prominent official of this government may hold-'a private discussion with a representative of a foreign government Subsequently the foreign ·r epresentative reports to his government and NS A intercepts the message Through this lntbrception details of the conversation become available which the prominent official of this government may have deliberately chosen not to reveal In su h a case NSA would so i cit the opinion of the U S official involved andseek his guidance as to further dissemination General Allen does give you his assurance however that he 1 ••• will not allow significant foreign intelligence to be withheld from you without bringing the issue to you personally n D · 11 With the possible exception of th procedure discussed just above I believe General Allen's letter fairly states the rules wider which he must operate pursuant to the Attorney General's guidelines concerning electronic surveillance As to that procedure which would appear to have the endorsement of the Secretary of Defense and perhaps others as well you may wish lo discuss the matter more fully with the Secretary of Defense and the Director NSA to assure yourself that your own expectations concerning the availability of relevant foreign intelligence are being met 25X1 25X1 Anthony A Lapham 25X1 -I '25X1 Approved For Release 2005 01 26 C1A-RDPB0M00165A002000090021-1 Next 1 Page s In Document Exempt Approved For Release 2005 01 26 CIA-RDPB0M00165A002000090021-1