we , ? ote Ayton as REPORT ON INQUIRY INTO CIA-RELATED TOP Seem SC-05078-76 Copy / oF 2 ni te”, ELECTRONIC SURVEILLANCE ACTIVITIES ay . 4 t 7 CLASSIFIED sy Sateen 2. Ketyety EXCMPT FAGM CFNTRAL DIOLS Sse ATION SCHEDELE CF EG. MET SRT CP TFOORT: 3 § 53(1), Cf ao 0} Grects eos er more) | teat Se et re AUTOR ate bed LECe le Ff
SC-05078+76 Copy / of 2 PREFACE Most of the information contained in this Report was obtained from personnel exployed by the various intelligence agencies under investigation. Predictably, their attitudes ranged from circumspection to wariness. One typically had to ask the right question to elicit the right answer or docummmt. It is likely, therefore, that we had insufficient information om occasion to frame the 'imagic'' question. One also had to ascertain the specific person or division to whom the right question should be addressed, Since cocpartmentalization of intelligence-gathering often results in cone hand not knowing what the other is doing. The latter was particularly true of the offices of general comsel with which we dealt. They were not always consulted beforehand con- cerning the legality of borderline operations. Indeed, they were not fully avare,. until our inquiry, of certain questionsble operations engaged in by their respective agencies Piste cn ciurkia oem sc In addition, the offices of general counsel evinced a lack of legal exp@rtise in the field of electronic surveillance and a general uncertainty and inexperience in the area of Federal criminal law. It is possible, therefore, that sam exculpatory as well as inculpatory facts and docurents were not revealed because general counsel did not perceive their relevance or significance. The degree of overall cooperation with our inquiry varied exong the agencies inder scrutiny. NSA and DEA, for instance, were generally cooperative. Perscmmel from both DEA and NSA who had been directly involved in, Cuesticnable operations readily submitted to interview and cooperated however guardedly), despite Miranda warnings. The CIA, on the other h-nd, electec to inform us of the details of questionable CIA activities through CLA perscrmel who would not be given Mirenda warnings, i.e., CIA exployees who had not been involved in the questionable operations. Consequently, our oriefings on CIA activities were conducted by CIA persomel with only second- hand knowledge gleaned principally from written records. Subsequently, hoxever, several of the CIA personel directly involved in questionable operations did submit to interview. Compliance with requests for documents and/or written reports also varied in cegree of promptmess. NSA and DEA were reasonably prompt. Initially, the CIA was dilatory and the FBI tardy, but both improved as the inquiry progressed. aterials gathered by the Senate Select Committee were not made available for om review until March 2, 1976. The foregoing impediments, while inconvenient, did not fimderentally alre-s the final product of cur effort to obtain the detailed overview reflected in this Report. Such ebstructions might become intolerable, however, in the prosecutive pursuit of specific cases. Dougald D, Mcilien Jume 30, 1976 Cte a Date aioe oem nan
Findir o Of tt . Adcitional Areas of Justice Department Inquiry . A. ~- sw 6? he” 0.5078. 16 coy / Gi2 TABLE OF CONTENTS ngs of Cocmissicn on CIA activities . Ofrice of Security - Telephone Taps and Bugs Comterintelligence Staff - Collection of Information on Dissidents, etc. Directorate of Operations - Telepheme Toll Records Directorate of Operations - Narcotics Intelligence (Brandy Operation) Directorate of Science and Technology - Equipment Testing . ffice of Security - Assistance to Washington Metropolitan Police Department and Secret Service Central Intelligence Agency . 1{] Narcotics Coordinator and NAROOG . ./ LPMEDLEY . 2 1. 1 ee ee ID 3 4 5. [ overseas Intercepts and Dropped Cases 6. CIA-BNDD Miami Operatiom . 8. Procurenent of Private Parties to > Intercept Commications . os . 25 22 i ~~ —HGP-SECRET | fe. aUt, Ah a S-ohuk aie aapcitinaedenes it LIAKIPE DD VLA CONLIN ET OE a ek tee
Cc. D. ror ha rl he SC-G50/6 & By. Copy / of 2 Federal Bureau of Investigation . State Department . III. Purported Sources of Authority A. Presidential Power 1. Legislative History 2. Presidential Directives (Historical) . 3. Interpretation of the Presidential Power 4, Presidential Authorization ‘ Narcotics Intelligence Gathering: Presidential Direction Presidential Message to Congress White House Task Force on Narcotics Control 1 2 3. Cabinet Committee on International Narcotics Control 4. Office of National Narcotics Intelligence 5. International Narcotics Control Conference . 6. Pronouncements by President Ford General Intelligence Gathering: Presidential Direction Narcotics Intelligence Gathering: Legislative Direction . CIA: Legislative and Presidential Direction . 1. National Security Council 2, Central Intelligence Agency . Page 39 39 40 40 40 41 ov {I~ SF ~ wd ij w t-
F, G. United States Intelligence Board (USIB) H. President's Foreign Intelligence Advisory Board (PFIAB) . I, NSA: Legislative and Presidential Direction . 1. /Commmications Intelligence . 2. NSCIDs . 3. ) The One-Terminal Rule . 4, NSA Participation in Drafziny, i8 U.S.C. §2511(3) . 5. [p Propriety of Requirements a ae sm - 1a et RLS BERRI aa * 1. | nscx 1 - 1964 2, NSCID 1 - 1972 L_ 3. ICP. 4. U.S. Intelligence Objectives Intelligence Evaluation Coumittee (IEC) IV. Possible Violations A, V. Applicable Statutes and Law Interception of Commmications Having One Terminal in the United States 1. Pertinent Criminal Statutes . Receipt of "Cable Traffic"’ From International Commmications Carriers lL. Pertinent Criminal Statutes . Interception of Domestic Coommicatios in Testing Electronic Equipment 1. Pertinent Criminal Statutes . A. 47 U.S.C. §605 Ce 0 fs od 2 el 105 113 115 116 116 117 117 118 116
VI. SC-uat/o-70 Gooy / O12 B, 18 U.S.C. §2510, et seq. C. Willfulness . 1. United States v. Murdock 2. 18 U.S.C. §2520 3. Zweibon v. Mitchell . D. "Plain View’ Analogy . E. ‘Border Search" Analogy . Possible Defenses A. Interception of Commmications Having One Terminal . in the United States 1. Interception of International Radio-Telephone Landline (Voice) Commmications (a) 18 U.S.C. §2511 (i) (ii) (iii) (iv) ~v) (vi) (vii) (viii) (ix) Radio-Telephone Commmications . Wire Commmications The "Nation's Commmications Network". Justified Expectations of Privacy : Felony v. Misdemeanor . : Oral Commmicatios Overlapping Definitions Statutory Construction Prosecutive Options (bo) 47 U.S.C. §605 . {c) Presidential Authorization (18 U.S.C. §2511(3) (d) Willfulness . Page 120 121 123 124 125 126
SC-UaC/o-s& Copy / are 2. Interceptions of International Non-Voice Commications . . rs (a) 18 U.S.C. §2511 (i) Interception . . . 1. 2 2 1 ew we et 145 (ii) “Aural” . rns) (444) Teletype and Telex Commmications . (b) 47 U.S.C. §605 . 2. 2. 1 ww we 148 (1) Divulgence. . . 2. 2. 1 «© © © ew we ew | 148 (ii) Use... .. re (iii) Interception and Divulgence or Use by. . . . 150 1 Different Parties . (c) Presidential Authorization. . . ...... 150 B. Receipt of "Cable Traffic" from Intemational Cammmications. . 151 Carriers | . 1. 470U.S.C. §605. . .... (a) Communications Persormel . >) Government Agents and Officials 2. Presidential Authorizatim . 3. Willfulness . . C. Interception of Domestic Commmications in Testing Equipment . 1. 18U.S.C. §2511 and 47 U.S.C. §605 2. Presidential Authorizatim . . 3. Willfulmess....... se e ° s e e e e EEE REE REE HANDLE VIA COMINT CHANNELS e e e e ° e ° 145 ,
VIII, me: Conclusions and Recommendations HANDLE VIA COMINT CHANNELS vii e ° ° e . ° SC-y9075-/6 Copy / ole Page Lo 155 Lo 155 oe 156 , 157+ , 158 , 160 Lo 164 . 165 168 ; 169 171
Copy / of 2 I, FINDINGS OF THE COMMISSION ON CIA ACTIVITIES WITHIN THE UNITED STATES The Report to the President by the Commission on CIA Activities Within the United States (hereinafter referred to as the Rockefeller Commission Report or '"'RCR'') contains various findings with respect to CIA electronic surveillance activities. These findings are set forth below, | followed by comments based upon results of the inquiry conducted by the Justice Department Task Force. A. OFFICE OF SECURITY - Telephone Taps and Bugs Commission Findings ; The Office of Security conducted 32 domestic 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 Attorney General. (RCR 30; 167-168) The Commission found two cases in which the telephones of three newsmen were tapped in an effort to identify their sources of sensitive information. These occurred in 1959 and 1962. The latter was apparently conducted with the knowledge and consent of the Attorney General. (RCR 164) Some 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) Comment. The analysis of available information (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 Commission. In addition, both the last known telephone tap and mike-and-wire operation were conducted in October, 1971, rather than 1965 and 1968, respectively. These differences appear to be academic, however, 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. HANDLE VIA COMINT CHANNELS
SC-G5S/s- Copy s cia 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. COUNTERINTELLIGENCE STAFF, DEPUTY DIRECTOR OF PLANS - Collection of Information On American Dissidents ete. 1LSS1 ts, etc. Coomission Findings ‘ The Comnission found no evidence that any of the agents or CIA officers involved with any of the dissident operations (CHAOS) employed or directed the domestic use of any electronic surveillance or wiretaps against any dissident group or individual. Operation CHAOS, however, received materials fron an internatimal commmica- tions activity of aother agency of the govermment. These commmica- tions passed between the United States and foreign countries. None was purely domestic. (RCR 24; 141-142) Cooment Investigation has developed nothing to contradict the Commission's finding that there is no evidence CIA employed or directed the damestic use of any electronic surveillance or wiretaps against any dissident group or individual in Operation CHAOS. (Tab B1) The other government agency referred to by the Camission as having furnished Operation CHAOS with international cammications materials has been identified as the National Security Agency. (The electronic surveillance activities of NSA are discussed in II (8), infra.) HANDLE VIA COMINT CHANNELS
$C-05078-76 Copy / of 2 --C, DIRECTORATE OF OPERATIONS ~ Telephone Toll . Records Reflectin g Contacts Between the . ited States an stile Countries. Commission Findings During 1972 and 1973, the Directorate of Operations obtained and transmitted to other components of CIA certain information about telephone calls between the Western Hemisphere (including the United States) and two other foreign coumtries. Some of the calls involved American citizens within the United States. ‘The information obtained by the Directorate of Operations was limited to the names, telephone numbers and locations of the caller and the recipient. The contents of the call were not indicated. Shortly after the program commenced, the OfFice of the General Counsel issued a brief memorandum stating receipt of this information did not appear to violate applicable statutory provisions. Collection of this material was terminated in May 1973. The Comnission was unable to discover any specific purpose for the collection of telephone toll call information, or any use of that information by the CIA. In the absence of a valid purpose, such collection is improper. (RCR 213-214) Comment a some “7 telephone calls between the United S States and Red China. 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 OCC cites United States v. Covella, 410 F.2d 536, c.d. 396 U.S. 879 (1969), and appears to be well reasoned and soundly based. HANDLE VIA COMINT CHANNELS
FOP SECRET SC-yat/d-76 Copy / af 2 - D. DIRECTORATE OF OPERATIONS - Electronic Surveillance for Narcotics Inteligence . (Brandy Operation) Commission Findings Beginning in the Fall of 1973 the Directorate of Operations, at the request of NSA, monitored telephone conversations between the United States and Latin America for a period of three (or six) months in an effort to identify narcotics traffickers. This was immediately terminated upon the issuance of an opinion by the CIA General Counsel that it was illegal. (RCR 37; 222-224) Comment. Examination of CIA files and the interview of various CIA officials estab/ished that from October, 1972 through Jane: 1973 intercepted anat trequency commercial radio telephone commmications between the United States and Latin America for the purpose of gathering foreign narcotics intelligence. (Tab D) Tne CIA undertook this narcotics intelligence collection effort at the request of NSA which had previously accepted tasking requests from ENDD to gather narcotics communications. cripts of intercepted calls which were selected on the basis of a atch List" of names and telephone mumbers prov NSA. NSA distributed ihe score to BNDD. ‘i : , Hee This electronic surveillance activity presents prima facie questions of criminality and is well within the limitations period. (See "Possible Violations", V, infra.) HANDLE VIA COMINT CHANNELS
eb SEAN amie SC-05676-76 Copy / vfs Investigation has confirmed the Ro Commission's findings that the gases. conducted without the knowledge of the CIA component with responsibility for narcotics intelligence collection." (RCR 222). This CIA component was know successively as the "Narcotics Coordinator" and ''NARCOG" which are also discussed herein. (See :1(A)(1), infra.) E. DIRECTORATE OF SCIENCE AND TECHNOLOGY - Interception of Domestic Commmications In Testing Electronic Equipment Commission Findings In the process of testing monitoring equipment for use overseas, the CIA has overheard conversations between Americans. The nares of the speakers were not identified; the contents of the conversations were not disseminated. All recordings were destroyed when testing was concluded. i] The acquisition of commmicatiors incidental to the testing of interception equipment appears to be prohibited by 18 U.S.C. 2510 et seq. (RCR 37; 64; 228) HANDLE VIA COMINT CHANNELS
TOP-SEeRET AER SC-05°78- Caps ! ge The five-year statute of limitations would bar prosecution for possible substantive offenses involved in this project. The limitations period for prosecuting possible sub- stantive offenses related to this activity expired in 1974. HANDLE VIA COMINT CHANNELS
—TtOr SECKE: ARES SC-05678-76 Copy { of 2 HANDLE VIA COMINT CHANNELS
wor SEUNC! Miieueed, 6C-05078-76 Copy | o12 rare 2 Vea a The limitations period regarding any possible prosecution arising from this activity will expire in May, 1976. See "Possible Violations" below. HANDLE VIA COMINT CHANNELS
eee “ror SEUNE! SC-05C78-76 Copy J of 2 HANDLE VIA COMINT CHANNELS
SC-G56/5-76 Copy / oz F. Office of Security - Assistance to Washington, D.C. Metropolitan Police Department and the Secret Service _ Commission Findings The CIA has on.at least one occasion provided some 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 lamps to be placed in the apartment of a police informer who frequently met with members of dissident groups. CIA agreed to provide the requested equipment. The lamps were provided to CIA and the transmitter devices were installed in the lamps by personnel fram the Office of Security. The lamps were then placed back in the police informer's apartment by the police. The police informer was aware that the apartment was being bugged and consented to the operation. (RCR 296) / Comment Pursuant to the request of AAG Richard Thornburgh on August 19, os, the FBI is currently conducting an investigation of alleged bugging activities involving the Washington Metropolitan Police Department (MPD). This investigation is being monitored by AUSA Donald E. Campbell, Deputy Chief, Major Crimes Division, U.S. Attorney'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 from the Rockefeller Comission files reflect that in September, 1968, the CIA loaned "lamps with transmitters"’ to — | HANDLE VIA COMINT CHANNELS
SC-05078-76 Cops f Ore of the Washington Metropolitan Police Department, and that the lamps were not returned to CIA. (Tab A3) | 2.  Umited States Secret Service The Rockefeller Commission records also reflect that the CIA fimnished the following equipment to the Secret Service: (1) -R5-111-1B-170, loaned toficea iicgrO55, ON 27 July 73, and not | (2) Clandestine Transmitter (Com'l), to al ,USSS, and returned. (The date the equipaaie was loaned is unknown). According to a Metropolitan Police Department investigative report to Mayor Walter Washington on March 7, 1975, the only intercept utilized in comection with denonstration activities consisted of a recording device in the apartment of a special employee of the MPD in order to secure information regarding planned anti-war activities of an illegal nature. This consisted of one-party consent and was purportedly a legal installation. (Tab A4) FBI investigative reports reflect that a special employee of the MPD from 1968-1972 was interviewed by FBI agents and stated that in 1968, she traveled to Chicago with a representative of the MPD to cover radical activities which were expected to occur in conjuction with the Democratic National Convention, and that her hotel room was subsequently monitored by electronic surveillance conducted by the Secret Service. She further acknowledged her role in electronic surveillances conducted by the MPD of her residences on GiviecaniCnahiinaeboaead One indicated this monitoring was accomplished HANDLE VIA COMINT CHANNELS
SC-G5078-76 Copy / 0124 with transmitters which were present in two lamps finished to her by the MPD. Secret Service personnel were interviewed and confirmed that the Secret Service had participated in the consensual electronic surveillance of the informant's hotel rooom in Chicago in 1968, and a residence occupied by her Prior to the May Day Demonstrations in 1971, the Secret Service is alleged to have participated with the MPD in the consensual electronic surveillance of the apartment of another MPD informant. This apartment was reportedly located at ; and CIA is further alleged to have furnished some of the equipment utilized by the MPD in conducting this electronic surveillance. Secret Service officials confirmed to the FBI that prior to the May bay Desonstrations in 1971, the MPD requested and obtained the assistance of me Secret Service in the consensual electronic surveillance of the above apartmene. At the same time, the Secret Service also monitored, with the MPD, two listening devices in the apartment of the aforenentioned female informant. The latter was also consensual. A former MPD Intelligence Division officer confirmed that he participatec in an electronic surveillance of the famale informant's apartment ''several weeks" after the bombing of the U.S. Capital in March, 1971. The above surveillances were apparently conducted between March 17, 1971 and May 4, 1971.
ci SC-050/8-76 Departmental Attorney James Robinson will endeavor to asdev tgin/any) Gt- 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 pur- suant to the Rockefeller Commission and Congressional investigations of the Agency, there have been no indica- tions that the Office of Security has ever directly assisted and/or participated in any electronic surveillance . activities with the Metropolitan Police Department. No assistance has been rendered or equipment loaned to the Metropolitan Police Department by Division D [CIA] in con- = nection with electronic surveillance activities. (Tab A5) However, Mr. Clarke furnished CIA memoranda reflecting loans of commmications equipment to the Metropolitan Police Department and other police departments. (Tab A6) | Mr. Clarke also fimnished CIA memoranda reflecting loans of commmications equipment to the Secret Service (Tab A7), and further advised: -. he U.S. Secret Service (USSS), under the authority \ contained in Title 18, U.S. Code, Section 3056, as t amended by Pl 90-331, regularly tasks the CIA to pro- | vide real-time coummications intelligence close sup- | port to the USSS during the foreign travel of the President and other protectees designated by the USSS. | ‘The CIA, in response to such tasking, monitors, on the scene, those local, foreign military and internal security commmications supporting elements responsible for the physical protection of visiting protectees. The results of this monitoring are immediately passed to the USSS on-scene. On occasion, local USSS commmications may also be monitored by the CIA team. However, all such monitoring is at the specific request of the USSS. cma The majority of the Office of Security's assistance to the Secret Service has been related to counteraudio measures in connection with the protection of the President and/or Vice President. Since 1974 no electronic equipment, capable of intercepting oral commications, has been loaned to the U.S. Secret Service by the Office of Security.... The arrangement between the CIA and Secret Service was iormalized by written agreement in 1971. (Tab A8) In sun, the foregoing assistance to other agencies does not indicate ‘ : HANDLE VIA COMINT CHANNELS
SC-05C/8- 16 Copy /oi2 IZ. ADDITIONAL AREAS OF INQUIRY A. .Central Intelligence Agency 1. Narcotics Coordinator _and NARCOG (Tab E) In October, 1969, the President designated international narcotics . control a concern of U.S. foreign policy and established the White House Task Force on Heroin Suppression. The Director of Central Intelligence (DCI), Richard Helms, was named to the membership of the Task Force and directed by the President to provide the Task Force with CIA assistance. - Consequently, a CIA office of Narcotics Coordinator was established under the Deputy Directorate of Plans (now the Deputy Directorate of Operations). The duties of the CIA Narcotics Coordinator representation of CIA on the Working Group of the White House Task Force and narcotics liason with other agenices. Since the initial concern of the White House Task Force was narcotics trafficking in Turkey and Southeast Asia, the CIA provided the Task Force with narcotics intelligence reports and studies concerning both areas. Additionally, EGiimieasim advised, the Task Force was interested in the European connections between Latin American traffickers and Turkish opium suppliers, and the CIA contributed information in this regard. With respect to the CIA's cooperation with other agenices, BNDD tasking memoranda to CIA reflect that during the time the White House Task Force was in existence, the CIA provided BNDD with assistance in training programs, loans of funds for overseas operations, intelligence reports on international narcotics traffickers, and other narcotics developments overseas. Some of this information was obtained as the HANDLE VIA COMINT CHANNELS
SC-05078-76 ° Cop; / oi incidental by-product of national security electronic surveillances overseas, and some from overseas interceptions specifically conducted for intemmational narcotics intelligence. CIA assures, however, that none of these electronic surveillance operations was conducted within the United States or from lands reserved for use by the United States; neither were any of the interceptions targeted against commmications having one terminal in the United States. In August, 1971, the President upgraded the priority of the international narcotics control effort by replacing the White House Task Force with the Cabinet Committee on International Narcotics Control (CCINC). The CIA Narcotics Coordinator was named chairman of the CCINC Working Group Intelligence Subcommittee. He was reportedly instructed by DCI Richard Helms to avoid involvement in danestic law enforcement activities and ENDD's domestic intelligence operations. CIA continued to provide ENDD (also a member of the Intelligence Subcommittee) with foreign narcotics intelligence and various support (e.g., training, "flash rolls'') for its overseas operations. The CIA Narcotics Coordinator finished ENDD with reports of the following types: 1. FIRDB, TDFIRDB, TDFIR, etc. (Foreign Intelligence Reports): Collected by the Office of Operations fran foreign field offices with description of the sources included in the reports. 2. 00 ts: Compiled by the Domestic Collectio Division exclusively from interviews of people who had traveled to foreign countries. HANDLE VIA COMINT CHANNELS
btn -OSTOINL) Mich ieainebiateel $C-65678-76 Copy of 2 3. fnalytical Report The only known report of this type was a study entitled ‘Cocaine Trafficking Network in Colombia." 4. Daily Reports (i.e., USIB National Intelligence Bulletin) : Perteings primarily to geopolitical intelligence. It is not narcotics oriented. 5. Weekly Summary: Geopolitical bulletin. Not narcotics . oriented. 6. Miscellaneous Reports: These included teletypes of specific information whi ah May or may not have been COMINT, and also included Director of Operations Narcotics Control Reports (DONCS) which were sent directly to ENDD's Chief of Strategic Intelligence, 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 Jime 12, 1972, as the Narcotics Coordination Group, or NARCOG. The principal duties of NAROOG did not differ from those previously assigned the Narcotics Coordinator. | NARCOG provided support to the CCINC and coordinated the CIA's narcotics intelligence programs. NAROOG also continued responding to ENDD/DEA's intelligence requirements by furnishing ENDD/DEA with the above described reports. . The first chief of NAROCOG, (Rats aces iene (6/19/72. - 7/19/74), was reportedly instructed by the DCI and the DDP to avoid involvement in damestic narcotics enforcement operations as well as foreign operations targeted against American citizens. When overseas CIA stations inadvertently acquired information concerning the narcotics trafficking activities of U.S. citizens, the local CIA official would reportedly surrender the information to his local HANDLE VIA COMINT CHANNELS
SC-05C738-/6 Copy / oi z ENDD counterpart and take steps to insure that no further collection on the U.S. citizen occurred. While much of the information provided the CCINC by CIA was obtained as a result of CIA's overseas national security electronic surveillance neither conducted nor requested the conduct of electronic surveillance operations damestically or against any commmications having one terminal Inquiry has confirmed that NAROOG officials were keenly aware of the ' | prohibition against involvement in domestic operations. During his tenure as NARCOG chief, Ea rerortedly sought to insure against this sort of activity by renaming the CCINC Intelligence Subcommittee the Foreign Intelligence Subcommittee, and took steps to insure that U.S. citizens’ names were excluded from the MINT Register, an inter-agency listing of individuals involved in illicit foreign narcotics trafficking. 2. LPMEDLEY (Tab G) | On August 18, 1966, Dr. Lowls Tordella, Deputy Director, NSA, met i with Thomas Karamessines, then Acting Deputy Director of Plans, CIA, and ' requested CIA's assistance in setting up a small cover office in damtown Manhattan. Dr. Tordella explained that NSA needed the office so that NSA employees could copy international telegraphic commmications received = | HANDLE VIA COMINT CHANNELS
| commercial carriers (SHAMROCK). The copying process, previously performed in Washington, D.C. , had to be shifted to New York because of technical problems. CIA accepted NSA's requirement and assigned the project the cryptonym LPMEDLEY. Beginning on Noverber 1, 1966, and continuing through August 31, 1973, the CIA provided NSA with space in a comercial buidling - in lower Manhattan and a front for the NSA operation. The CIA was reimbursed by NSA for expenditures incurred in this project. COUT ay wet coy ser Shoe HANDLE VIA COMINT CHANNELS
sls sul OorlD Copy / of 2 aa. HANDLE VIA COMINT CHANNELS
SurUyvLsorsyu Copy | oi2 - -.5. Overseas Intercepts (Tab J) The overseas electronic surveillance operations of CIA provided a source of information to various government agencies concerning such matters as the influence and participation of foreign governments in domestic militant movements, and the international narcotics control effort. With respect to the support of U.S. dissidents by foreign govermments, CIA stations were instructed to provide CIA headquarters with pertinent information. reo In its endeavor to provide ENDD/DEA with valuable international narcotics intelligence, the CIA conducted foreign commmications intercept operations against specific targets overseas. These operations could have been | initiated pursuant to requests from CIA Headquarters or from several different goverrmental entities including ENDD/DEA Headquarters and ENDD/DEA District or Regional offices. With respect to the tasking of CIA by BNDD/- DEA foreign field offices, CIA officials advised that the CIA field statims would not undertake any such electronic surveillance activities without HANDLE VIA COMINT CHANNELS
SC-050/%-/6 Copy / of 2 first obtaining authorization from CIA Headquarters. Although the CIA provided BNDD/DEA with information cbtained from overseas electronic surveillances, the CIA took precautions to insure that the method of collection and the source of the information would not be revealed. In same cases, however, the recipients of the information were ENDD/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/DEA officer not to reveal the source if he passed the information on to BNDD/DEA Headquarters. Thus, when ENDD/DEA Headquarters received commmications intercept information from CIA Headquarters, the source usually would not be identified as an overseas interception. At times, however, the nature of the information made it apparent to the consumer that it was obtained as a result of electronic surveillance. The CIA used electronic surveillance as a method of collecting narcotics | intelligence overseas, and because CIA provided such information to BNDD/DEA, several narcotics investigations and/or prosecutions had to be terminated. In these instances, the CIA and the Department of Justice were fearful that the confidentiality of CIA's overseas collection methods and sources would be in jeopardy should discovery proceedings require disclosure of | the CIA's electronic surveillance activities. The following investigations _ and cas HANDLE VIA COMINT CHANNELS
“Eastern District OE New York on domestic narcotics distribution charges only, and nine others were severed fram the indictment. (Tab J4) Gustavo Guerra - Montenegro: In 1972, an indictment wriuch had been returned in the Southern District of California charging Guerra and six others with 5 narcos tics trafficking was s dismissed. HANDLE VIA COMINT CHANNELS
ne. TA envestigation te: 1 the Eastern District of New York and the Southern District of New York. Be was eventuall iy eoelles disposition of DAAG, Criminal pivision. The chronology of CIA electronic surveillance coverage | which was furnished to AAG Henry Petersen, DAAG Dogin, et ali, in Noverber, 1974, indicates that teleph}fone coommications between | ea ‘United States had been intercepted. (Tab J4) ~/ ~ . ‘Wote: 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 Memorandum of Study conducted by Phillip T. White, Chief, Legis- lation and Special Projects.) 6. CIA-BNDD Miami Operation (DEACON I) (Tab K) In October, 1972, curing a meeting with BD Director Ingersoll, DCI Richard Helms offered to recruit a former CIA contract employee to work for ENDD in Miami on its BUNCION narcotics intelligence project. The employee thereafter became a "staff agent” for ENDD but retained his CIA cover. The CIA has advised that "... the Agency did not control or participate in the formilation of duties assigned the agent by BNDD." DEA advised that although the CIA paid the agent, the fimds were , aaa received fran ENDD, but paid —/ HANDLE VIA COMINT CHANNELS
Copy | Ore by CIA to avoid having DOJ records reflect the payment .° DEA advised that BNDD used the agent as a live source for information concerning Latin American narcotics traffickers and their organized crime comnections in Miami. This 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 BUNCIN, and later, with the formation of DEA, became known as DEAOON I. According to DEA, the former CIA contract employee reported to a BNDD official in Miami who reportedly was also an ex-employee of the CIA. CIA advised that the Agency's involvement 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 DEA concurred - that there is no indication that any conmmications were intercepted during the course of the above activities. HANDLE VIA COMINT CHANNELS
—— SC-U5078-/0 Copy { ob2 8. Procurement of Private Parties to Intercept Commications (Tab M) ( An inquiry was made to determine whether the CIA has procured private individuals, parties, or corporations to intercept cammmications having one or both terminals in the United States since June 19, 1968, the . date Title III was enacted. The CIA advised that the ''... appropriate components of CIA discovered no record of interceptions..." relative to HANDLE VIA COMINT CHANNELS
SC-050/8-/0 Copy / oz (B) National Security Agency . 1. MINARET (Tab N) | MINARET was a cryptonym applied by NSA to a project chartered on July 1, 1969 in which NSA analysts selected from two primary foreign intelligence sources certain by-product intelligence involving several areas of interest. The primary sources were: (1) NSA's interception of international commercial carrier (ILC) voice and non-voice commmications ti al 1 Ay ican HAH YC Oa LMP Ni AERTS and (2) copies (or tapes) of international messages furnished to NSA by U.S. commercial commmications carriers in the "Shamrock'' operation. The by-product intelligence was initially sought in the following areas of activity: 1. Foreign goverrments, organizations and indi- viduals attempting to influence, coordinate, or control U.S. organizations and individuals who might incite or foment civil disturbances, or otherwise undermine national security. 2. U.S. organizations or individuals engaged in activities which might result in civil distur- bances or otherwise subvert the national security. PrOUDS 4. Cammmications which indicated foreign contacts or comections with various assassins, BEL nue! 5. Military deserters involved in the anti-war movement. In mid-1970 the scope of MINARET was enlarged to include the selection of intelligence concerning international narcotics trafficking, particularly the illegal importation of dangerous drugs and narcotics into the United HANDLE VIA COMINT CHANNELS
SC-Y5078-76 Copy / of 2 States. From September 4, 1970 until Jume 1973, this in¢luded the ! interception of high frequency radio-telephone (commercially) voice commmications between the United States and several South American The purpose of the MINARET project was to provide by-product intelligence to various Federal departments and agencies in response to their requests or requirements. In responding to such requirements, however, NSA purportedly relied upon implicit assurances of requesting agencies that their need for the intelligence was legitimate. In addition, NSA dealt only with "foreign commmications", i.e., commmications having at least one terminal on foreign soll. The MINARET charter also provided that appropriate measures would be taken, in disseminating intercepted communications, to insure that NSA could not be identified as the source of the intelligence. , Closely associated with the MINARET project are the "Watch Lists" LAPS act POST LEER Ne ARRIBA EE Hon a shed NSA by such consumer agencies as the CIA and ™ es U ear BNDD, FRea e.  -Seie he HANDLE VIA COMINT CHANNELS
SC-U5C78-/6 Copy / oiz in oe “EERO, imcy,.j were used by NSA analysts in processing ILC voice conmmications and “drop copy’’ messages obtained in the Shamrock Operation. ;
Copy ! or 2 ¢ ry y ya od ohio, pw OY EE eure ty HANDLE VIA COMINT CHANNELS
——————— lll _ . FOP-SECRET SC-G3078-76 Copy | of 2 nts wee Seas " a In late 1971, when the DCI was designated by the President to assume the role of intelligence coordinator for the President's Cabinet Committee on International Narcotics Control (CCINC), it appears that the CIA, FBI and ENDD were authorized to levy drug-related intelligence requirements on | HANDLE VIA COMINT CHANNELS
Sa Pa NSA. Later, in 1972, when NSA began collecting intelligence on 7 terrorists and terrorist-related matters, the FBI, Secret Service and CIA were designated as tasking and consumer agencies. - It should be noted that the objectives of Exe at least in general terms, were probably approved by two successive Attorneys General and a Secretary of Defense. (See F(3), infra.) | With respect to the CIA's involvement in drug-related intelligence gathering, it is noted that from October 1972 to January 1973, at NSA's request, CIA engaged in the interception of high frequency radio trans- missions of commercial voice commmications between the U.S. and South America from a monitoring staticn in (Rr re le ea oa ate was terminated on January 29, 1973 when the General Counsel of CIA advised it was unlawful.. (See summary of ieee RNS 10), supra.) It carmot be precisely stated when thea. project terminated . since the termination occurred in phases, but the narcotics phase apparently ended in May 1973 when, after discussions with CIA General Counsel, NSA discontinued this phase of NSA's assistance to the FBI and Secret Service throughfiiieausesccontinued until October, 1973, when Attorney General Richardson instructed the directors of those agencies to stop requesting information obtained by NSA through electronic surveillance. On the same date, the Attorney General directed the Director NSA not to respond to requests from these agencies or "any agency to monitor in comnection with a matter that can only be considred one of domestic intelligence”. Our investigation reveals that in November 1973, NSA excised the names of all U.S. citizens from the Watch List Bee Ween raron HANDLE VIA COMINT CHANNELS
tue bee S 78S bee © Mamemenbiaantiad ides SC-05075-76 Copy / of 2 3. SHAMROCK (Tab P) ce | SHAMROCK is the code name of an operation initiated by U.S. military intelligence officers in 1945 in which United States intemational commmications carriers agreed to finnish them with copies of diplomatic messages received or routed over commercial circuits. NSA inherited this activity when it was created in 1952 to direct the national commmications intelligence effort. A review of the circumstances surrounding the inception of SHAMROCK in 1945 reveals that it was an outgrowth of the World War II "censorship" program and was conducted initially under the aegis of the Assistant Chief of Staff for Intelligence, General Hoyt Vandenberg. There was a general reluctance on the part of the carriers (based on advise of their house comsel) to engage in such activity unless certain conditions were met, including the personal assurance of the Attorney Generali that the companies would be protected "in case of suit". Although the first expression of such assurance apparently occurred on April 20, 1949, it appears that the carriers had begun cooperating with the military in mid-1945 based upon the representations of General Vandenberg and lower-echelon intelligence officers that such intelligence was a matter of vital importance to the national security. Investigation reveals that in December, 1947, Secretary of Defense James Forrestal met with officials of RCA, ITT, and Western Unim Inter- national and said he was speaking for President Truman in commending them for their cooperation in SHAMROCK. He further requested their contimued HANDLE VIA COMINT CHANNELS
(ue) SGU! Bios! SC-USC/3"76 : Copy / of2 assistance because the intelligence constituted a matter of great importance to the national security. On May 18, 1949, Secretary of Defense Louis Jotmson met with officials of the same companies and stated that President Truman, Attorney General Tom Clark, and he, endorsed the Forrestal statement and would provide them with a guarantee against any criminal action which might arise from their assistance. According to former Secretary of Defense Melvin Laird, NSA's SHAMROCK operation was tacitly endorsed by him during his term of office (1969-1973). | When NSA assumed responsibility for the SHAMROCK operation in 1952, varying practices and procedures (which would later change) had already been established between the military and the commercial carriers which permitted NSA employees access to all diplomatic messages transmitted, routed or received by the RCA, ITT and Western Union offices located in New York City and Washington, D.C., as well as the RCA and ITT offices in San Francisco. RCA provided NSA employees with duplicates (drop copies) of all international messages, thus requiring the NSA employees to visually screen and select-out diplanatic messages for microfilming on NSA-owned machines located on the RCA premises. Rss RRR nme Or ap teiR FSaT oh that NSA employees were also given access to all perforated paper tape copies of international messages transmitted by RCA, and until 1965, were —/ HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy | of 2 receiving parcels fram the New York City TIT office which were vetiewa to contain perforated paper tapes tramsmitted or received by the ITT office EEN | Although SHAMROCK is c.amonly referred to as a "drop copy" operation, this characterization is sanewhat misleading since it applies only to . that part of the-overall operation in which NSA employees were given access to duplicate copies of international messages which were prepared for aceomting purposes. When RCA began using more sophisticated equipment in 1960, the "drop copy'’ operation became minimal. Investigation reveals that begiming in 1960, the visual screening and selecting-out process accomplished by NSA employees at RCA 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 ITT obtained after 1965 when they switched to the magnetic tape process. It has been estimated by NSA that ‘during the period 1960-1965, before the magnetic tape process began, 97% of the messages received at NSA were discarded because they failed to meet NSA's criteria Qe ecient deieituh saiescaia Aiaoiascad _ Hea geomet st? HANDLE VIA COMINT CHANNELS
Be SU-UULIOTY Copy / oc Although NSA purportedly adhered to the practice of discarding all international messages obtained from commercial carriers which were not followed a practice of discarding all messages of a personal nature at the earliest possible moment of discovery), there came a time in the late 1960s, probably 1967, when umbelmown to RCA and ITT, (Western Union participation ended in 1969), NSA selected-out international messages containing the names of persons on the Watch Lists. This continved until October 1973 when Attorney General Richardson terminated the practice by which NSA responded to specific requests from goverrmental agencies. The SHAMROCK / feta Investigation also indicates an FBI involvement in the Operation fram 1963 to 1973. During this time, the FBI obtained copies of international cable traffic from RCA and IIT in New York City and
SU-U3U/0%/0 copy / of2 NSA received a daily package of such commmications fron the FBI aaa office in Washington, D.C. These packages contained what are believed to have been "'drop copy” messages of BRURnFr rr nreTEnrDEENTerr tS ee tte ei uk, 1t 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.) HANDLE VIA COMINT CHANNELS
fol 7 ot CLO LT Ae be mS) Copy / of 2 Ne ty wee aie ee Re se “CHAN COMINT NELS HANDLE VIA
SC-956/8-76 Copy / ot 2 rete We dispewleee . Si aoe HANDLE VIA COMINT CHANNELS
TOP SECRET ; SC-05C78-76 Copy / of 2 C. Federal Bureau of Investigation (Tab R) : In July, 1975, the national press publicized the intelligence- gathering operations of NSA and the FBI known, respectively, as SHAMROCK and the "Drop Copy Operation". (See II1(B), infra.) The FBI immediately furnished the Attorney General with summaries of background information (Tab R1), and provided the writer, et al., with a partial briefing on October 20, 1975. On October 30, 1975, the FBI was requested to provide the Criminal Division with a detailed written report on its involvement . in the operation. The report was received on February 24, 1976. (Tab R2) -" , (ote: This Report does not purport to cover the electronic surveillance activities of the FBI. Inquiry into the FBI "Drop Copy Operation" was prompted by its collateral relationship with NSA's SHAMROCK.) - D. Department ‘lof State The attorneys for the Goverrment in the case uf Morton Halperin, et al., v. A. Kissinger, et al., C.A. No. 1187-73, DDC, advised that in 1969 2nd 1970-71, Hera cassis Smnientesdtinondadciinithitlesiadsicgeitiinsanitaniaaiiaiel ,was the subject of electronic surveillances authorized by the Attorney General. An inquiry was made to ascertain whether the Department of State had conducted any warrantless electronic surveillances since 1969, i.e., since the enactment of Title III. Maurice Leigh, Legal Advisor, Department of State, responded on December 31, 1975 that no warrantless electronic surveillances of U.S. citizens were conducted by his Department during that period. (Tab S) _ “ 33 HANDLE VIA COMINT CHANNELS
Copy / of: LII. PURPORTED SOURCES OF AUTHORITY FOR INTERCEPTING COMMUNICATIONS No court orders were obtained to conduct 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. 18 U.S.C. §2511(3). A. THE PRESIDENTIAL POWER 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). The legislative history of Section 2511(3) expressly reflects that nothing contained in the Federal criminal prohibitions "... is intended to limit the power of the President to obtain information by whatever Means to protect the United States from the acts of a foreign power, including actual or potential attack or foreign intelligence activities, or any other danger to the structure or existence of the Govermment. Where foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of danestic criminal legislation is not intended necessarily to be applicable...
"It is obvious that whatever means are necessary should and must be taken to protect the national security interest. Wiretapping and electronic surveillance techniques are proper means for the acquisition of counter- intelligence 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 domestic affairs of a nation become 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 information by listening devices directed to the conversation of persons suspected of subversive activities. Zweibon v. Mitchell, 516 F.2d 594, 673-679 App. A (D.C, Cir. 1975). . Although this practice has never received express Supreme Court aproval, the Court in United States v. United States District Cort, 4
tom / of 2 ~ maintaining intelligence on subversive forces and should not be subject to traditional warrant requirements which were established to govern the investigation of criminal activity rather than ongoing intelligence gathering. 407 U.S. 318-319. : The Court rejected these contentions and held that 18 U.S.C. §2511(3) is not a congressionally prescribed exception to the general warrant requirenent, but a congressional disclaimer and expression of neutrality which makes no attempt to define or delineate the powers of the President to meet domestic threats to the national security. While recognizing the Constitutional basis of the President's domestic security role, the Court ruled that the President's power to authorize domestic security electronic surveillances must be exercised in a manner compatible with the Fourth Amendment 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. Although the Court studiously avoided expressing any opinion concerning the issues which might be involved in the activities of foreign powers or their agents, the decision obviously narrowed the scope of Presidentially- authorized domestic security electronic surveillances previously considered pexmissible by the Attorney General and Federal intelligence officials. 43
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., United | States v. Butenko, 494 F.2d 593 (3 Cir. 1974); United States v. Brown, 494 F.2d . 418 (5 Cir. 1973)). The existence of criminal willfulness ,sddéeemecnskaizSem, could turn on whether an electronic surveillance occurred pre-Keith or post-Keith where the surveillance was purportedly under Presidential auspices... The significance of Keith is most apparent where a Federal agency, acting without a warrant but under the purported direction of the President (or his designee, the Attorney General, or alter ego, the National Security Council), intercepts commmications having at least one terminal in the United States which commmications do not directly relate to national security. Prior to Keith, Presidential authorization was probably sufficient per se to demn- strate good faith on the part of those conducting the interceptions. Since Keith, a Finding of good faith in such warrantless surveillances might be more difficult. Zweibon v. Mitchell, 516 F.2d 594, 671n.279 (D.C. Cir. 1975). | 4. Presidential Authorization The fundamental question in the instant inquiry is whether Presidential authorization, or its equivalent, was given in the aforementioned areas of questionable activity. « 44
s Copy / of 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), memoranda of conferences with the President, briefirz« of Attormeys General, instructions from White House staffers, Presi speeches and press releases, and interpretations of Presi- dential p: ograms and priorities. These are discussed below under appropriate captions. 45
——— | SC-U90/8-76 . Copy / oi z B. NARCOTICS INTELLIGENCE-GATHERING: PRESIDENTIAL DIRECTION — 1. Presidential Message to Congress On July 14, 1969, the President sent the Comprehensive Drug Abuse Prevention and Control Act to Congress. In an accompanying message (Tab Tl), the Pyesident 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 governments .... I have directed the Secretary of State and the Attorney General to explore new avenues of cooperation with foreign governments to stop the production of this contraband at its sources .... Our efforts to eliminate these drugs 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 comprehensive study of the unlawful trafficking in narcotics and dangerous drugs .... this Task Force has completed its study and has a recommended plan of action, for immediate and long-term implementation, designed to substantially reduce the illicit trafficking in narcotics, marihuana and dangerous drugs across United States borders. To implement the recommended plan, I have directed the Attorney General to organize and place into immediate operation an "action task force!’ to undertake a frontal attack on the problem .... C 2. White House Task Force on Narcotics Control According to CIA memoranda (Tab T2), the CIA "first became involved in the narcotic control problem on 24 October 1969 when the President amounced a decision to make narcotics a matter of foreign policy. A White House Task Force on Narcotics Control was established with the DCI as a member and the Agency was asked to contribute to the maximm extent HANDLE VIA COMINT CHANNELS
— SC-05078-76 Copy / of 2 possible in the collection of foreign intelligence related to traffic in opium and heroin." (Emphasis added.) : The White House Task Force included representatives from the White House Staff, CIA, State Department, Treasury, EBNDD, and the Department of Defense. The purpose of the Task Force was to plan actions abroad to reduce opium production and to suppress trafficking in narcotics. (Tab T3) According to other CIA memoranda (Tab T4), the President instructed the Director of Central Intelligence to ''do whatever he could ‘to help" when he designated him a member of the Task Force. . 3. Cabinet Committee on International Narcotics Control The President sent a memorandum to the Secretary of State on August 17, 1971, (Tab T5), directing the establishment of a Cabinet Committee on International Narcotics Control (CCINC) composed 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 flow of narcotics and dangerous drugs into this country be stopped as soon as possible." The CCINC was assigned responsibility for the 'formilation and coordination of all policies of the Federal Government relating to the goal of curtailing and eventually eliminating the flow of illegal narcotics and dangerous drugs into the United States from abroad. To the maximm HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 extent permitted by law, Federal offices and Federal departments and agencies shall cooperate with the Cabinet Committee in carrying out its functions under this directive and shall comply with the policies, guidelines, standards, and procedures prescribed by the Cabinet Committee. ... More specifically, the Cabinet Committee shall... (2) assure that all . diplomatic, intelligence, and Federal law enforcement programs and activities of intemational scope are properly coordinated . . . and (5) "report to the President, from time to time, concerning the foregoing.'' (Emphasis added.) | The Presidential memorandum also directed that the CCINC be supported by a "Working Group to be composed of personnel from each of the concerned agencies..." The CCINC was officially established on September 7, 1971. (Tab T5) Egil Krogh was designated its Executive Director and Chairman of the Working Group. The latter included representatives from State, Treasury, ENDD, NSC, Defense and CIA. The CcINC appointed a Foreign Intelligence Subconmittee chaired by the CIA ‘narcotics coordinator" and including members fram NSA, DIA, State, Treasury and the White House. (Tab T6) The mission of the Subcommittee 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 fimctions of the Subcommittee included the forwarding of intelligence "collection requirements as necessary to appropriate departments and agencies." ri HANDLE VIA COMINT CHANNELS * WME ine
SC-05078-76 Copy: / of 2 The "Terms of Reference" for the Intelligence Subconmittee define “national ‘foreign intelligence" as follows: Foreign intelligence includes domestic intelligence that directly relates to foreign intelligence targets. National intelligence is that intelligence which is required for the formulation of ° national policy or narcotics and danger- ous drugs. (Tab T6) A CCINC Coordinating Subcommittee 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 umder the ’ Foreign Military Sales Act... with respect to any country when the President determines that the govermment 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 Subcommittee 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 government officials were involved in illicit drug production, processing, smiggling or trafficking; and (3) whether a country had declined or failed to take adequate steps to improve the effectiveness of its narcotics enforce- ment capability and to correct other narcotics control deficiencies. (Tab T7) | WANINTE VIA. COMINT CHANNELS
SC-05C78-76 Copy / of 2 Minutes and memoranda of CCINC meetings and activities reflect the following: | August 17, 1971 Establishment of the Cabinet Comittee actually amounts to a shift of overall authority away from Justice to the White House and State.... xkx*k* A Presidential Directive would designate the Cabinet officers to serve on the Com mittee and mandate its establishment and functions. Also, it would designate me [Krogh] as Executive Director of the Committee. This is important to give the Director [Krogh] credibility and clout.... (Tab T8) September 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 T9) October 7, 1971 Secretary Rogers stated that he believed the Committee's primary task should be to exert pressure from the top during the next year to insure that the United States Goverrment takes what- ever steps are necessary to reduce the supply of illicit narcotics available to American users. He reiterated to the Committee that achieving real progress in this battle is one of the President's highest priorities. kkk Attorney General Mitchell raised the problem of narcotics smuggling through Latin America. This area, particularly Panama and Paraguay is an increasingly
SC-05C/8-/6 Copy / of 2 important transit point for heroin destined for the United States. Mr. Krogh agreed that the Cabinet Committee should address itself to the Latin American problem on a priority basis. (Tab T10) December 29, 1971 The Comittee agreed with Mr. Krogh's suggestion that the highest supply side priority should be on domestic law enforce- ment and interdiction at the United States border. Internationally, the greatest emphases should be on gathering intelligence and on strengthening foreign narcotics law enforcement. kk* To increase our intelligence gathering Capacity, Mr. Krogh asked for increased assistance from the Central Intelligence Agency. General Cushman responded that the CIA is pleased to act as intelligence coordinator overseas and would attempt to assist the narcotics control effort in whatever way it can. General Cushman did caution, though, that a coordinated interagency effort is required since neither the CIA nor any other narcotics intelligence gathering organization possesses the assets or expertise required to do the job by itself. General Cushman made it clear that to expand its efforts the CIA needed same increase in financial and persormel support and, most importantly, required additional coverage for its overseas personnel. Mr. Gross volimteered to assist on the latter problem. (Tab T11) S| Te HANDLE VIA COMINT CHANNELS
ee ee SC-05078-76 Copy J o12 March 10, 1972 Mr. Gross asserted that the Cabinet Committee's December 16, 1971, decision to put first priority on intelligence and law enforcement had been interpreted in some quarters as meaning there was no longer any interest in crop substitution, treatment, education or research overseas. The Working Group agreed that this extreme interpretation was incorrect. Other facets of the intemational drug control effort will continue to receive support where appropriate despite the Cabinet Committee's decision to emphasize intelligence and law enforcement. kK * Mr. Ludlum reported on the intelligence s review being undertaken at Mr. Krogh request by his Subcommittee. The Critical ‘Collection Problems Committee 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 make recommendations on a wide Tange of organizational problems. *x*x* A number of initiatives in the intelligence field have already been taken. The Subcon- mittee authorized the creation of an ad noc group to accelerate the collection of high- priority drug intelligence on major European trafficking networks. The Subcommittee is also analyzing the desirability of a national narcotics opera- tions and intelligence center. A Treasury sponsored effort to strengthen the intelligence gathering and exchange capability of Interpol ahs also been approved. (Tab T12) $2 EUAL Lad HANDLE VIA COMINT CHANNELS
March 20, 1972 [Attended by the President] The President opened the meeting by reiterating his deep commitment to finding a solution to the drug problem and his interest in the activities being conducted by the Cabinet Committee, Secretary Rogers reported that the Cabinet Committee and its constituent organizations have launched the most comprehensive 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 flow of hard narcotics entering the United States from abroad.... Present priorities for achieving this objective are the following...: 2. Improved overseas law enforcement and intelligence. ek kk The problem of narcotics intelligence was next discussed. © Mr. Krogh described intelligence as being the most important, but currently weakest, element of our international drug control program. We have yet to penetrate the upper echelons of major overseas syndicates, have comparatively little hard intelligence on officials collusion, and need more precise information on specific narcotics shipments. There was general agreement that some mechanism should be developed to ensure better coordination, collection, analysis, and dissemination of narcotics intelligence. *k*** 23 \ HANDLE VIA COMINT CHANNELS
SECRET EF SC-65678-76 Copy /oi2d 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 the best approach to the drug pro- blem is to offer assistance and treatment to the addict combined with the strictest possible enforcement directed against suppliers and trafficers. (Tab T13) August 30, 1972 ... Next discussed were procedures for use in conducting investigations required by Section 481 of the Foreign Assistance Act and related statutes which require the President to cut off aid to comtries not cooperating on narcotics control. k* * Mr. Gross then described his recent mission to Paraguay where he discussed the extradition of Auguste Ricord with President Stroessner. Mr. Gross' success was applauded by members of the Committee. Mr. Krogh cautioned that our public comments 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 umecessary strain. He also asked that appropriate steps be taken to prevent Ricord fran being released on bail once he is in United States custody. Director Ingersoll replied that efforts were already underway to try to prevent bail fram being set. Once Ricord arrives in the United States, it in unclear how quickly he can be brought to trial. The Attomey General agreed to look into the possibility of expediting judicial consideration of the case. (Tab T14) NDR Pers 54 HANDLE VIA COMINT CHANNELS
SC-U5078-76 Copy / of 2 November 27, 1973 [Attended by the President] _ The President opened the meeting by citing the Administrations record of progress in combatting heroin abuse aid emphasized the continuing priori which he intends the drug control pro- gram to have. . . The President expressed his pleasure with the ¢uccesses our drug enforcement efforts have had, both at home and abroad.... kx ... He asked the Cabinet to give new impetus to the attack on newly emerging problem areas and to do en even better job in combatting the old.... kKkK* The President emphasized that he wanted to continue his personal involvement in drug control as appro- priate and instructed Mr. Laird to assume personal respcensibility for overseeing the operation of the federal anti-drug effort.... (Tab T15) In a telephone interview on April 13, 1976, Egil Krogh advised that in 1971, a Vhite House meeting of high-level presidential advisers was opened to ABC-TV News during which President Nixon was briefed by DCI Richard Helms and ENDD Director John Ingersoll on the problem of narcotics (particularly heroin) smuggling into the United States. An ABC-TV News Documentary containing excerpts fram the White House meeting was produced and later published in the paperback, A. WESTIN, HEROES AND HEROIN (1972). (Tab Tl5a) Krogh advised that the President was very interested in appropriately utilizing all CIA assets abroad to assist the effort to interdict narcotics destined for the United States. Krogh also vaguely recalled hearing of intercepted radio- telephone conmmications containing narcotics intelligence but was unaware of the mechanics or specific Qlysiain.such interceptions. , | CLIAKIAT RP vera COA wore
SC-05078-76 Copy / oz In a March 28, 1971 memorandum to the CIA Narcotics. Coordinator (Tab T5a), CCINC Executive Director Egil Krogh stated that CIA station chiefs needed to be reminded that their role in narcotics intelligence collection overseas was an active role: ‘They are not simply to support whatever initiatives BNDD already has underway. They should also be instructed that headquarters wants them (i) 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 Establishment of an Office of National Narcotics Intelligence Within the Department of Justice’. The Order states in pertinent part: This Administration is determined to eradicate the menace of drug abuse in America.... I have now determined that a National Narcotics Intelligence System is a necessary next step in our campaign against illegal drug traffic... The Director shall call upon other agencies of the Goverrment to provide him with informa- tion, and such agencies shall, to the extent permitted by law, provide the Director with all information that is pertinent to the development and maintenance of a National Narcotics Intelligence System.... Each department and agency of the Federal Govermment shall, upon request and to the extent permitted by law, assist the Director of the Office of National Narcotics Inte’ Ligence in the performance of functions assigned to him by or pursuant to this order, and the Director may, in carrying out those fimctions, utilize the services of any other agencies, Federal or State, or may be available and appropriate. (Tab T16) On December 6, 1972, the Attorney General sent a memorandim to the various department and agencies, including the NSA, prescribing the role and mission of the ONNI pursuant to the above Order. (Tab Tl7) The 56 HANDLE VIA COMINT CHANNELS
SC-G5C75-/6 Copy / of 2 Attorney General stated that "[g]iven the urgency of the narcotics problem and the priority placed by the President upon the establishment of a National Narcotics Intelligence System to combat it, it is essential that the responsible departments and agencies involved join forces in an integrated program of action..." S. International Narcotics Control Conference On September 18, 1972, in remarks to the International Narcotics Control Conference the President said in pertinent part: (Wining the battle against drug abuse is one of the most important, the most urgent national priorities confronting the United States today .... [L]ooking back over the three years since I declared total war on drug abuse and labeled it America's public enemy number one, I think the depth of our national commitment is clear .... From an organizational standpoint, we have mobilized to meet this problem on all fronts .... 1 have named a Cabinet Committee on Inter- national Narcoties Control which coordinates our world-wide aign to cut off the sources of supply .... Here we are attacking the problem therefore on all fronts in the mst effective way we can through our various government agencies .... I also have assumed sare personal responsibilities. I have been deliberately cracking the w ip, aS many of you in this room know, in my personal supervision of this program and I have to admit that we have Taocked same bureaucratic heads together because of my directive, which I gave in the East Room two years ago, that government agencies should quit fighting each other about this problem and start fighting the problem .... Nor will this effort stop at or am borders. The men and women who operate the global heroin trade are a menace not to Americans alone, but to all mm- .... They mist be permitted not a single hiding place or refuge from justice anywhere in the world and that is why we have established an aggressive international narcotics control program in cooperation with the goverrments in more than 50 comtries around the world. That is why I have 57 HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 ordered the Central Intelligence Agency, early in this Administration, . to mobilize its full resources to fight the international trade, a task, incidentally, in which it has performed superbly.... The key priority here is the target on the traffickers wherever they are, to inmobilize and destroy them through our law enforcement and intelligence efforts and I commend all of you on the fine initial progress which has been made in these programs... Any government whose leaders participate in or protect the activities of those who contribute to our drug problem should know that the President of the United States is required by statute to suspend all American economic and military assistance to such a regime.... I consider keeping erous drugs out of the United States just as Dangerous drugs which come into the ted States can endanger the lives of youmg Americans just as much as would an invading ancing in the United States. Every government which wants to move against narcotics should know that it can cout on this country for our wholehearted support and assistance in doing so.... We are living in a age, as we all know, in the era of diplomacy, when there are times that a great nation must engage in what is called a limited war. I have rejected that principle in declaring total war against dangerous drugs.... We are going to fight this evil with every weapon at our command..." (Tab T18) (Emphasis added.) HANDLE VIA COMINT CHANNELS
2 eT Sete hee SC-G5C75-7u Copy / Ore . 6. Pronouncements by President Ford In a September, 1975, White Paper on Drug Abuse the Domestic Council Drug Task Force quoted President Ford as having recently stated: All nations of the world--friend and adversary alike--must understand that America considers the illicit export of opium to this country a threat to our national security * * * Secretary Kissinger and I intend to make sure that they do [understand]. (Tab T19) (Emphasis added.) A CIA memorandum of September 8, 1975, states: ... [T]he President, in compliance with the amendments to the Foreign Assistance Act of 1961... has determined that the Agency should engage in the collection of narcotics intelli- gence abroad. In a paper entitled ‘Findings Pursuant to Section 662 of the Foreign Assis- tance Act of 1961, as Amended, Concerning Operations Abroad to Help Implement 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 aimed at... international narcotics traffic... directed against the United States"’ is important to the national security of the United States. (lab 100) Ciphaete added.) 54 WAKIRTE VIA COMINT CHANNELS
SC-U5075-/6 Copy / ot2 C. GENERAL INTELLIGENCE GATHERING: PRESIDENTIAL DIRECTION On November 5, 1971, the President sent a memorandum (reportedly prepared by James Schlesinger, then of 4B) to the intelligence principals of the U.S. Government (Tab U1) establishing goals for the intelligence coommity and directing organizational and management changes to attain them. One of the listed objectives was that "'... more efficient use of resources by the [intelligence] commmity in the collection of intelligence information be achieved. Utilization of the means available must be in consonance with approved requirements of U.S. security and national interests."' (Emphasis added.) To achieve the objectives, the President directed, inter alia, that the Director of Central Intelligence (DCI) assume overall leader- ship of the intelligence cammmity; that intelligence collection programs financed and managed by the Department of Defense [which includes NSA] must come under more effective management and coordination with other — intelligence programs; and that NSCIDs and DCIDs (Director of Central Intelligence Directives) be rewritten to reflect the changes ordered. The President "reconstituted" the United States Intelligence Board (USIB) under the chairmanship of the DCI and added to its membership a representative of the Secretary of the Treasury. The USIB was charged with advising and assisting the DCI with respect to the "production of national intelligence requirements and priorities, the supervision of the dissemination and security of intelligence material, and the protection of intelligence sources end methods." » | HANDLE VIA COMINT CHANNELS.
SC-05C78-76 Copy / oie The President further established a National Security Council Intelligence Committee (NLTIC) to give direction and guidance on national substantive intelligence needs, and also directed the Department of Defense to establish a 'imified National Cryptologic Command under Director, - NSA for the conduct of USG coummications intelligence and electronic intelligence activities." In conclusion, the President stated thas while his directed changes were limited, he fully expected ''further changes in the intelligence commmity consistent with maximm practicable attainment of my objectives" and that other "changes in the consumer-producer relationship may be needed to achieve a more effective reconciliation of the demands fran consumers with the limited resources available for intelligence production." The principal itens in the foregoing memorandum were made public in a contemporaneous White House press release. (Tab U2) On the same date, the President sent a letter to the DCI (fab U3) in which he designated, as a top priority, the production of "national intelligence required by the President and other national consumers''. The President also emmerated the following goals: (1) a more efficient use of resources in the collestion of intelligence information; (2) a more effective assignment of fimetions within the intelligence commmity; and (3) improvement in the quality and scope of the substantive product. The rresident's directives were incorporated in NSCIDs effective February 17, 1972. On October 9, 1974, in a memoranchm to the DCI, President Ford affirmed A HANDLE VIA COMINT. CHANNELS
I) - h Copy / oz "the responsibilities and authority charged to you as leader of the Intelligence Commmity in the Presidential memrandum of November 5, 1971... I shall expect that the heads of the departments having foreign intelligence responsibilities will cooperate with you and provide you with every assistance in fulfilling your responsibilities." ania £2 HANDLE VIA COMINT CHANNELS
i | | SC-00C/8-70 Copy / ore D. NARCOTICS INTELLIGENCE GATHERING: LEGISLATIVE DIRECTION The Federal Narcotics and Drug Abuse Law Enforcement Reorganization Act of 1973 (5 U.S.C. §§901 et seq.) contains Congressional findings and declarations of policy (Tab V) which acknowledge both the need for sharing narcotics intelligence and the fact that the Director of Central Intelligence (CLA) and Secretary of Defense (NSA) have fimctions related to the trafficking in narcotics and dangerous drugs: Sec. 3.(a) The Congress hereby finds and declares... (3) that overlapping jurisdictions, failure to share _ intelligence and other information, general lack of communication and cooperation... among law enforcement agencies have resulted from the diffusion of efforts within the Federal government against trafficking in narcotics and dangerous drugs; xk ke * 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 fimctions related to trafficking in narcotics and dangerous drugs; Sec. 11.(a) The President, after consultation with the Attorney General, shall direct the Secretary of Defense with respect to all of the Secretary's functions related to trafficking in narcorics and dangerous drugs. HANDLE VIA COMINT CHANNELS
tec SC-05C738-/6 Copy / og E. CIA: LEGISLATIVE AND PRESIDENTIAL AUTHORIZATION ~ - 1. National Security Council Congress established the National Security Council in 1947 to advise the President with respect to the integration of domestic, 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 (DCI) 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 of "coordinating the intelligence activities of the several Governmental departments 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 recommendations regarding national security intelligence activities, the coordination of such activities, the dissemination within the Government of intelligence relating to national security, and the performance of such other functions and duties as the National Security Courcil may direct. 50 U.S.C. §403(d). The statutory authority of the National Security Council to direct the activities of the CIA and the Director of Central Intelligence Lf HANDLE VIA COMINT CHANNELS
nr oe ee SC-05078-/6 Copy / oi2 implemented by the issuance of National Security Council Intelligence Directives (NSCIDs). These NSCIDs are deemed by CIA to bear the imprimatur of the President who has the only '‘vote'' on the Comcil. The NSCIDs which prescribe the basic duties and responsibilities of the CIA and the Director of Central Intelligence during the time 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 1, revised March 4, 1964 (and in effect util February 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 Security Comcil directives". The 1964 NSCID 1 further provides that the Director of Central _ Intelligence "shall act for the National Security Concil to provide for detailed implenentation of National Security Council Intelligence Directives by issuing with the concurrence of the U.S. Intelligence Board such supplementary Director of Central Intelligence Directions as may be required... Such directions shall, as applicable, be promulgated and implemented within the normal command channels of the departments and agencies concerned’’. (Paragraph 3a) The contemplated DCI Directives include: (1) General guidance and the establishment of specific priorities for the production of national and other intelligence and for collection and other activities in support thereof, including: (a) establishment of comprehensive National Intelligence Objectives generally applicable to foreign coumtries and areas; | ' r bad a wo JELb. 65 HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 (b) indentification from time to time, and m a current | . basis, of Priority National Intelligence Objectives with reference to specific comtries and subjects; and (c) {ssuance of such comprehensive and priority objectives, for general intelligence guidance, and their formal trans- mission to the National Security Council. (2) Establistment of policy, procedures and practices for the maintenance, by the individual components of the intelligence comity, of a continuing interchange of intelligence, intelligence information, and other infor- mation with utility for intelligence purposes. (3) Establishment of policy, procedures and practices for the production or procurement, by the individual components of the intelligence cammity within the limits of their capabilities, of such intelligence, intelligence infor- tation and other information with utility for intelligence purposes relating to the national security, as may be requested by one of the departments or agencies. (Para- graph 3g) The 1964 NSCID 1 directs that the Director of Central Intelligence disseminate "national intelligence" (i.e., intelligence required for the formulation of national security policy and concerning more than one department or agency) to the President, members of the National Security Camceil, members of the USIB and, subject to existing statutes, to such other components of the Government as the NSC 'tmay from time to time designate or the U.S. Intelligence Board may recoumend."' (Paragraph 4) The DCI 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 commity is supported by the full 66 HANDLE VIA COMINT CHANNELS |
knowledge and technical talent available in or to the Goverment." (Para- graph 6). NSCID 1, February 17, 1972 NSCID 1 (and other NSCIDs) were revised on February 17, 1972, to conform with the directives of the President contained in a Noverber 5, 1971 Presidential memorandum, infra. The 1972 NSCID 1 charged the Director of Central Intelligence with, | inter alia, the following duties and responsibilities: 3. The Director of Central Intelligence a. The Director of Central Intelligence will dis- charge four major responsibilities: (1) Planing, reviewing and evaluating all intelligence activities and the allocation of all intelligence resources, (2) Producing national intelligence required by the President and other national consumers. (3) Chairing and staffing all intelligence comity advisory boards and committees. (4) Establishing and reconciling intelligence requirements and priorities within budgetary constraints. kkk c. The Director of Central Intelligence shall act for the National Security Camcil to provide for detailed implementation of National Security Council Intelligence Directives by issuing, after appropriate UAKINTE WIA COMINT CHANNELS
5. SC-05078-76 Copy / o1z 4 consultation, such supplementary Director of Central Intelligence, Directives as may be requized. Such directives shall, as applicable, be promilgated and implemented within the normal command channels of the departments and agencies concerned. kkk 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 establish- ment of specific priorities for the production of national and other intelligence and for collection and other activities in support thereof and their formal transmission to the National Security Council. (2) Establishment of policy, procedures and practices for the maintenance, by the individual components of the intelligence commmity, of a ut contimuing interchange of inte ence, intelligence information and other information, information with utility for intelligence purposes. . kk * The United States Intelligence Board (USIB) kk * c. The Board shall be provided with a Secretariat staff, which should be under the direction of an Executive Secretary appointed by the Director of Central Intelligence. Subordinate committees and Working Groups should be established, as appropriate, by the Director of Central Intelli- gence. kk * HANDLE VIA COMINT CHANNELS
gg TS ET ETE | Mircea seamen 6C-08078-76 Cony / of 2 - 6. National Intelligence - k*kK* d, The Director of Central Intelligence shall disseminate national intelligence to the President, members of the National Security Comcil, as appropriate, members of the ° United States Intelligence Board and, sub- ject to existing statutues, such other components of the Government as the National Security Council may from time to time designate or the United States Intelligence Board may recoomend.... kkk ' 7. Protection of Intelligence and of Intelligence Sources and Methods. The Director of Central Intelligence, with the advice of the members 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 fron unauthorized disclosure. Each department and agency shall remain responsible for the protection of intelligence and of intelligence sources and methods within its om organization.... kkk 8. Coommity Responsibilities a. In implementation of, and in conformity with, approved National Security Council policy, the Director of Central Intelligence shall: kkk (2) Call upon the other departments and agencies, as appropriate, to ensure that on intelligence matters affecting the national security the intelligence commmity is supported by the full kmow- ledge and technical talent available in HANINIE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 4 or to the Government. kk * (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 concerned shall, by agreement, provide each other with such mutual assistance as may be within their capabilities and as may be required in the interests of the intelli- gence conmmity for reasons of econany, efficiency or operational necessity. In this commection primary departmental interests shall be recognized and shall receive mitual cooperation and support. k** (6) Be provided with all information required fron all departments and agencies of the Executive Branch required for the exercise of his responsibilities. . b. Insofar as practicable, in fulfill- ment of their respective responsibi- iities for the production of intelli- gence, the several departments and agencies shall not duplicate the intelligence activities and research of other departments and agencies and shall make full use of existing capa- bilities of the other elements of the intelligence cammmity. | sor-seenetf—_] 70 HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 in the CIA's statutory procurement power, i.e., 50 U.S.C. §403j, which authorizes the CIA, inter alia, to expend mds for radio equipment and devices, and contractual services otherwise provided by law or regulations when approved by the DCI. In addition, NSCID 1 charges the Director of Central Intelligence with the protection of intelligence and intelligence sources and methods. 71 HANDLE VIA COMINT CHANNELS
SC-U9E/8- = Copy f/f of 2 5. CIA Narcotics Intelligence Gathering © In a memorandum of August 6, 1975 (Tab W), CIA General Counsel invokes two principal sources 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, under 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 facilities; Provided, that the Agency shall have no police, subpoena, law-enforcement powers. or internal-security fimctions. CIA asserts that the above clause is clearly ''self-executing regarding the correlation and evaluation tasks of the Agency's narcotics program. Although these tasks must comply with the ‘direction of the National Security Council', if any, no further authorization is required regarding this part of the program; the statute is sufficient..." CIA finds authority to conduct the non-correlation on non-evaluation tasks in a combination of Section 403(d) (4) and NSCID 5. Since 1958, NSCID 5 has delegated primary responsibility to the ~CIA for U.S. clandestine activities abroad, including: 3a. The conduct of espionage outside the United States and its possessions [defined as "that intelligence activity which is directed toward the acquisition of information ‘ through clandestine means''] in order to met the intelligence, ~ ™“ needs of all departments and agencies concerned in cormection with the national security.’ xk** HANDLE VIA COMINT CHANNELS
\ SC-G5C/8-/6 Copy / of 2 ‘3c. Upon request and to the extent practicable, to. assist other departments and agencies with their cover support needs. [The latter was changed to “cover and support'' in the NSCID 5 effective 2/17/72). Section 403(d)(4), Title 50, authorizes the CIA: To perform, for the benefit of the existing intelligence agencies, such additional services of common concern as the National Security Council determines can be more efficiently accomplished 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 turn, within the scope of NSCID 5. CIA General Counsel further notes that in July, 1973, William E. Colby testified before the Senate Armed Services Committee on his nomination to become Director of Central Intelligence. In response to a question specifically addressed to whether CIA was then engaged in assisting U.S. law enforcement agencies in addition to the F.B.I., Mr. Colby replied: Answer. Yes. CIA disseminates its foreign intelligence reports to several agencies concerned with the matters | covered in these reports such as the Drug Enforcement Administration, the Immigration and Naturalization Service, the Armed Services, the Customs Service, the Secret Service ‘and others on a routine basis. The CIA reports there was no congressional objection to the dissemination of such intelligence to law-enforcement agencies, and comstrues this as tacit approval by Congress of such dissemination. HANDLE VIA COMINT CHANNELS
Copy / of 2 F. NSA: LEGISLATIVE AND PRESIDENTIAL AUTHORIZATION The National Security Agency was established under the authority and control of the Secretary of Defense by Presidential directive of Noverber 4, 1952 pursuant to the provisions of Section 133, Title 10, United States Code. The organizational structure and functions of NSA fe ; are set forth in National Security Council Intelligence Directive No. 9, \ 4 as revised 12/29/52 and superceded by National Security Council Directive No. 6 issued 2/17/72. Prior to the establishment of NSA, Congress had enacted 18 U.S.C. §798 which prohibits disclosure to unauthorized persons of classified information including, inter elia, the nature or use of any code, cipher or cryptographic system of the United States or information concerning the commmication intelligence activities of the United States. The term “commmication intelligence” is defined by Section 798 to include ''all procedures and methods used in the interception of commmications and the obteining of information from such commmications by other than the intended recipients." The statute describes "\mauthorized person'' as any person who, or agency which, is not authorized to receive the information by the President or the “head of a department or agency which is expressly designated by the President to e in commmication intelligence activities for the United States.'' (Emphasis added.) HANINIE VIA COMINT CHANNELS
Ee FING OUTS TO.OOCO~<“‘i‘:™S Cosy / of 2. ° By the enactment of 18 U.S.C. §798, Congress recognized the legitimacy and protected the product of coommications intelligence activities of the United States, notwithstanding the prohibitions of 47 U.S.C. §605 enacted in 1934. Section 798 also confimms the Presidential power to designate an agency, i.e., the National Security Agency, to engage in commmications 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 commmications intelligence activities. The specific questions in the instant inquiry are whether Presidential authorization, or its equivalent, was given in each area of questionable NSA activity; and if 80, whether NSA exceeded that authorization. The answers will ton largely on the operational definition of ''commmication intelligence activities,'' as opposed to the sweeping statutory definitim in 18 U.S.C. §798(b). HANDLE VIA COMINT CHANNELS
~-§C-05078-76 Copy / of 2 1. Coommications Intelligence ~ | NSA operates pursuant to the definition of commmications intelligence (COMINT) contained in National Security Council Intelligence Directive No. 6, i.e., intelligence information derived by other than the intended recipients from foreign commmications passed by radio, wire or other electromagnetic means. This encompasses the processing of foreign encrypted commmications (including the study of plain text), however transmitted, but does not include the interception and processing of tmmencrypted written Semmnicasions. | NSCID 6, Paragraph 1. obese ESG?!: -.. eee) 2. NSCIDs NSA takes the position that the President's constitutional and statutory authority to obtain cammmications 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 Congress established the National Security Council in 1947 and designated its membership to include the President (as presiding officer), the Vice President, Secretaries of State and Defense, et al. The primary fimction of the Comcil is to advise the President with respect to the integration of domestic, foreign, and military policies relating to national security. 50 U.S.C. §402. It is a truism that the President has the only "vote" on the Natimal Security Comeil. Consequently, the operational directives (NSCIDs) of the Council are regarded by NSA as bearing the imprimatur of the President. HASINEE. VIA COMINT CUANIAIEDS
\ eee | SC-05078-76 copy /oi2 - (While the President does not attend every NSC meeting,. the NSCIDs distributed to the field obviously do not reflect the President's attendance record nor the extent of his personal participation in the promilgation 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 SIGINT* activities in accordance with the provisions of this directive and for the direction, supervision, fimding, maintenance and operation of the'National Security Agency. The Director of the National Security Agency shall report to the Secretary of Defense and shall be the principal SIGINT 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. ke 4, The National Security Agency i b. KK It shall be the duty of the Director of the National Security Agency to provide for the SIGINT mission of the United States, to establish an effective unified organization and control of all SIGINT collection and processing activities of the United States, and to preduce SIGINT in accordance with oblectives requirements end pri oritles establis Director ot Centra Intelligence Sard No other organization go *NSCID 6 defines SIGINI to include commmicatios intelligence (CCMINT). LIAKIAIE AN TO EAINIT CUASINIFES
SC-05078-76 Copy /oiz shall engage in SIGINT activities except | as provided for in this directive, Except as provided in paragraphs 5 and 6 of this directive, [re wique responsibilities of CIA and FBI) the Director of the National Security Agency shall exercise full control over all SIGINT collection end processine activities, Ff" ~-" ” —_ C ee The Director of the National Securi rence is authorized to issue direct to any operatin elements aged in SIGINT operations such instructions and assiprments as are re red. AIL instructions issued by the DL rector under the authori rovided in this paragraph shall be mandatory, subject only to appeal to Secretary of Defense. kk * The Armed Forces and other departments and agencies often require timely and effective SiGinl. The Director oF the National Security Agency shall provide information requested, taking all necessary measures to facilitate its maximm utility. As determined by the Director of the National Security Agency or as directed by the Secre of Defense, the Director of the National Security Agency shall provide such SIGINT . HANDLE VIA COMINT CHANNELS
SC-056, 8-76 Copy / oi z a | KK ree) 9 Vol, | g. The intelligence components of individual TF Dy & epartments and agencies may continue to Conouct direct Liaison with the National Witin @ Spt Security Agency in the interpretation and miitication of reduirenents and priorities 6 Tum enn the fromeerk of objectives, reauire- " 6 pak ents and priorities established b the Director ™ of Central intelligence. (Emphasis added.) The foregoing NSCID 6 superceded NSCID 6 dated September 15, 1£58 and revised Jarmary 18, 1961 which, in tum, superceded NSCID 9 dated! July 1, 1948 and revised December 29, 1952. There has been no fimdarental “change since September 15, 1958 in the definicions 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 September 15, 1958, its predecessor, NSCID 9, dated July 1, 1948, contained the following definitions: HANDLE VIA COMINT CHANNELS
SC-050/8-76 Copy / of 2 ° “Commmications Intellligence” is intelligence produced by the study of foreign commmications. Intelligence based in whole or in part on Cammmications Intelligence sources shall be considered Commmications Intelligence as pertains to the authority and responsibility of the United States Commmications Intelligence Board. "Commmications Intelligence activities" comprise all processes involved in the collection, for intelligence purposes, of foreign commications, the production of information from such commmications, the dissemination of that information, and the control of the protection of that information and the security of its sources. ee emerge Fee egg Ee oT Ee apne. PET hs RE eg eee Se =: om HANDLE VIA COMINT CHANNELS
SC-050/78-76 Copy / of 2 ~ | 3. The One-Terminal Rule The foregoing definition of “foreign commmications" is only slightly less sweeping that the definitions of "commmications intelligence” in NSCID € and 18 U.S.C. §798, NSA purportedly operates, however, pursuant to a more restrictive self-imposed "one-terminal rule", i.e., NSA will not intentionally intercept a coommication unless at least one terminal is outside the United States. According to Dr. Louis Tordello, former Deputy Director of NSA, this has been NSA's practice fram its inception in 1952 To further confirm its good faith reliance on the one-terminal rule, NSA cites memoranda reflecting separate briefings of Attomey General John Mitchell and Secretary of Defense Melvin Laird on February 1, 1971, by Assistant NSA Director B.K. Buffham. (Tab X1) Mr. Buffham's memorandim _| Jo Ui HANDLE VIA COMINT CHANNELS 81
————————_— Lh F SC-65078-76 Copy / 012 e of February 3, 1971 reflects that Messrs. Mitchell and Laird read and “| approved the contents of the following January 26, 1971 memorandum from: NSA Director Admiral Noel Gaylor: 26 Jarnmary 1971 MEMORANDUM FOR THE SECRETARY OF DEFENSE THE ATTORNEY GENERAL” SUBJECT: NSA Contribution to Domestic Intelligence Consistent with our conversation today, these are the agreed ground rules on NSA contribution to intelli- gence bearing on domestic. problems. Character To be consistent with accepted standards in respect to protection of individual constitutional rights and civil liberties. Source Telecommications with at least one foreign terminal. Scope . Intelligence bearing on: . (1) Criminal activity, including drugs. (2) Foreign support or foreign basing of subversive activity. (3) Presidential and related protection. Procedures Tasking by competent authority only. Special procedures to protect source, to include:
SC-050738-76 Copy / of2.. * (1) Compartmented reporting to F.B.1.°or ENDD . for criminal activity, to F.B.I. and CIA for foreign-related subversive activity, and to the Secret Service for Presidential protection. (2) No indications of origin. (3) No evidential or other public use under any circumstances. (4) Screening at source (NSA) .to insure compliance with the above criteria. It is further umderstood that NSA will insure full availabill of all relevant SIGINT material by cometent and informed representa- tion in the Justice working group. (Emphasis added.) /s/ Noel Gaylor Another memorandum fron Admiral Gayler attached to the above memorandum of January 26, 1971, stated that the latter was read "in presence of Secy. Laird and accepted by Attorney General Kleindienst 1 July 1972". (Tab X2) Mr. Kleindienst had no independent recollection of the above but. said he would not dispute Admiral Gaylor's representation. (Tab X3) . Mr. Laird stated he never saw or read Admiral Gaylor's memorandum but couldn't disagree with Buffham's comments, and that the memorandm contained nothing he did not generally know as early as 1964 when he served on the House Armed Forces Appropriations Subcommittee. (Tab X4)
Be } - — §C-05078-76 Copy foi2 - Mr. Mitchell said he had no recollection of the briefing by Buffham but that his appointment book reflects a meeting with Buffham at 12:05 p.m. on February 1, 1971 for about five minutes. (Tab X5) (In addition to the foregoing, NSA relies on other instructions and directions to support its intelligence gathering activities concerning narcotics traffic, militants, radicals, etc. These will be discussed, infra, under appropriate captions).
tPF OCUREI § ud SC-G5C78-76 Copy /ot2 4. NSA Participation In Drafting 18 U.S.C. 2511(3) \ Having operated under the "one-terminal rule" since 1952, ] NSA's General ~ Counsel consulted in 1967 with officials of both the Justice Department and the Senate Subcommittee who were drafting Federal legislation prohibiting unauthorized interceptions of wire and oral commmications (18 U.S.C. §§2510, et seg.). 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. (Y 1) On July 24, 1968, the General Coumsel reported to NSA that the effect of the Presidential exception contained in 18 U.S.C. §2511(3) |"... is to remove any doubt @ to the legality of the SIGINT and COMSEC activities of the Executive Branch of the Government." He further stated that the language "... precludes an interpretation that the prchibitions against wiretapping or electronic surveillance techniques in other law applies to SIGINT and COMSEC activities of the Federal Government, ] Wiretapping and electronic surveillance techniques, are, therefore, legally recognized as means for the Federal Govermment to acquire foreign intelligence information and to monitor U.S. classified coommications to assess their protection against exploitation by foreign intelligence activities." (Tab Y2) NSA General Comsel 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 powers "shall be received in evidence in any judicial or administrative proceeding." (Tab Y3) This proposal was HANDLE VIA COMINT CHANNELS
SC-05C/8-/6 Copy / of 2 substantially diluted in the statute, as passed, and was essentially nullified by the enactment of 18 U.: C. §3504 on October 15, 1970. 5. Propriety of Requirements It should be noted that Paragraph 7c of the 1958 NSCID 6 provided: It is recognized that the Armed Forces and other departments and agencies being. served require direct COMINT... support of various kinds.... Each member department or_agency is responsible for Stating to the Director, NSA its re ements or direct support. (Emphasis added.) The rephrased Paragraph ' e)ot NSCID 6, effective 2/17/72, provides: The Armed Forces “md other departments and agencies often require timely and effective SIGINT. The Director of the National Seawity Agency shall provide informa- | tion requested.. (Emphasis added.) / NSA interprets this language to require the implicit assurance of the departments or agency making requests to NSA that such requests are appropriate. NSA thus purportedly places the responsibility on the requesting agencies to frame their requirements to conform with the law. Paragraph 4g of NSCID 6 (2/17/72) permits the intelligence components ( of individual departments and agencies to "continue to conduct direct liaison with the National Security Agency in the interpretation and amplification of requirements and priorities within the framework of objectives, requirements and priorities established by the Director of Central Intelligence." HANDLE VIA COMINT CHANNELS
TTT Sst et Bee need SC-056078-76 Copy / of 2 . Paragraph 4b (old paragraph 6a) of NSCID 6 (2/17/72) requires wa J to produce ‘commmications intelligence "in accordance with objectives, | requirements and priorities established by the Director of Central Intelligence with the advice of the United States Intelligence Board.. | NSA notes that since 1962, the Criminal Division of the Department of Justice has sent nmdreds of names of racketeers to NSA requesting information NSA might have, or subsequently obtain, ecnceming then. (fab 2) On July 5, 1973, the Assistant Secretary of Defense (Intelligence) requested an opinion from DOD General Counsel as to whether, inter alia, NSA was clearly operating within the law. Assistant General Counsel Frank A. Bartimo responded by memorandum of July 10, 1973 (Tab AAl1), in which he stated, in pertinent part: HANDLE VIA COMINT CHANNELS 87
orf... SC-05978-76 © Copy J ot Z ee, On September 17, 1973, General Lew Allen, Jr., Director, NSA, wrote to DCI William Colby, et al., concerning "Watch List!’ procedures, stating that "as in the past, we at NSA 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 AA2) Lakme TEA ONE EINIT CHANINELS
TOP SECRET EX]: SC-05078-76 . Copy /of2 % HANIAEE S77" COMINT CHANNELS
r SC-05578-76 Cory. / oi 2 G. UNITED STATES INTELLIGENCE BOARD Pursuant to the provisions of the National Security Act of iar, | the National Security Council (NSC) issued NSCID 9 on July 1, 1948 establishing, inter alia, the United States Commmications Intelligence [Board "to effect the authoritative coordination of Commmications ‘Intelligence activities of the Government and to advise the Director of Central Intelligence in those matters in the field of Commmications Intelligence for which he is responsible," i.e., coordination of the foreign intelligence activities of the United States. NSCID 9, revised December 29, 1952, reconstituted USCIB to operate under the newly-created Special Committee of the National Security Coumcil | for COMINT consisting of the Secretaries of State and Defense and the Attorney General (when F.B.I. matters were before the committee), assisted by the Director of Central Intelligence. The United States Intelligence Board (USIB) was established By NSCID 1 in 1958 to "maintain the relationship necessary for a fully integration of and guidance to the national intelligence effort..." (The "intelligence commmity’' includes the CIA, the intelligence camponents of State, Defense, Armny, Navy, and Air Force, the F.B.I., AEC and NSC. Other components of the departments and agencies of the Government are included to the extent of their agreed participation in regularly established, interdepartmental intelligence activities.) _4\
SC-05078-76 Copy / of 2 The membership of the USIB since 1964 has been the Director and Deputy Director of Central Intelligence; the Director of Intelligence and Research, State Department; Director, DIA; Director, NSA; an AEC representa- tive, and a representative of the Director, F.B.I. (Revised 1 NSCID - 1 effective 2/17/72 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 department or agency having functions related to the national security to sit with the USIB whenever matters within the perview of his department ars to be discussed. 1. NSCID 1, March 4, 1964 ~] NSCID 1 (revised March 4, 1964 and effective util February 17, 1972) directed that the USIB advise and assist the Director of Central Intelligence and: (1) Establish policies and develop programs for the guidance of all departments and agencies concerned. (2). Establish appropriate intelligence objectives, requirements end priorities. . (3) Review and report to the National Security Council on the national foreign-intelligence effort as a whole. (4) Make recommendations on foreign-intelligence matters to appropriate United States officials, including particularly recommendations to the Secrerary of Defense on intelligence matters within the jurisdiction of the Director of the National Security Agency. (5) Develop and review security standards and practices as they relate to the protection of intelligence and of intelligence sources and methods fran unauthorized disclosure. (6) Formulate, as appropriate, policies with respect to arrange- ments with foreign goverrments on intelligence matters. -
$C-05078-76 . Copy { of 2 The 1964 NSCID 1 provides that the USIB shall establish subordinate committees .and working groups as appropriate and that the Executive Secretary arid staff shall be under the direction of the DCI. (Paragraph 2c). This NSCID 1 further directs that the USIB reach its decisions by agreement, and that its decisions and recommendations be transmitted by the Director of Central Intelligence, as Chairman, 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, as applicable, on_all departments and agencies of the Goverrment." (Paragraph 2g) (Emphasis added.) 2. NSCID 1, February 17, 1972 NSCID 1, effective February 17, 1972, provides rhat the USIB shall advise and assist the Director of Central Intelligence with respect to: (1) The establishment of appropriate intelligence objectives, requirements and priorities. (2) The production of national intelligence. . (3) The supervision of the dissenination and security of intelligence material. (4) The protection of intelligence sources and methods. (5) As appropriate, policies and with respect to arrangements with foreign govermments on intelligence matters. 77 ~Items 2 and 3, above, are new additions, while Items 1, 3 and 4 of (_the 1964 NSCID 1 were deleted. The revision appears to be primarily one — Hatintr VIA COMINT CHANNELS
SC-05078-76 » Copy’/ of 2 of form, however. The basic duties of USIB remain substantially the ] come, 7 . , 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 (DCIDs) as may be required and that such directives shall, as applicable, "be pramilgated and implemented within the normal command charmels of the departments and agencies concerned." The 1964 NSCID 1 specifically directs that such DCIDs shall be issued 'with the concurrence of the USIB"’, while the 1972 NSCID 1 authorizes the issuance of DCIDs “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 Govermment" was deleted in the 1972 NSCID 1, but the continuing provision, supra, that DCIDs be "implemented within the normal command channels of the departments and agencies concerned" seems to overlap the deleted phrase. oo Paragraph 5c of the 1972 NSCID 1 effects a change in the authority to establish subordinate camittees and working groups of the USIB. The primary authority previously vested in the Board was shifted to the DCI in 1972. The DCI's actions in this regard, of course, are still taken with the advice and assistance of the USIB. (See I(C), supra) On April 10, 1970, the Director of BNDD, Jotm E. Ingersoll, sent a list of requirements for commmications intelligence to NSA. (Tab BB) The memorandum noted that "the consideration of the President's keen
——————————— Nee SC-05C78-76 Copy / of 2 * Each requirement contained in the IGCP obligates NSA to perform three principal tasks with respect to the desired intelligence: to collect, to process, and to report, the requested information. Individual consumer agencies may approach NSA directly for information with respect to the reporting component of the requirement. By doing so, they do not necessarily request additional ‘collection and/or processing efforts. EEE pointed out, however, that consumers and NSA are often in direct contact and USIB cannot maintain complete oversight. Consequently, NSA may, without the knowledge of USIB, embark upon a new collection requirement. | because he did not want to unequivocally state that NSA strictly performs } only those tasks specifically set out in the IGCP. | The prescribed proce- dure for handling direct requests from consumer agencies to NSA is set forth ina memorandum (Tab CC) for the members of the SIGINI Committee from Eke SIGINT Committee Chairman, dated July 14, 1971: When an Agency submits a requirement to NSA which falls within a line item and does not require in NSA's view additional resource allocations it should be honored by NSA. A supplemental requirement 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 | can be met fran the managerial standpoint including feasibility and cost.... If'the desired reporting is | @ither (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 consumer in question who may | then formulate a new line item requirement for addition to the IGCP as guidance and forward it to the IGS. when |
SC-G5078-76 ; Copy / ot2 interest in eliminating the problem of drug abuse, it appears appropriate to include this requirement under Priority National Intelligence Objectives." The latter are set forth in DCID 1/3 of May 16, 1968. The formulation of IGCP requirements was reportedly instituted in ees <= 1966 to provide NSA with specific priorities and guidelines in its overall a, responsibility for collecting signals intelligence for the United States. ree SHRI TAN OTANTT Fam
—————————— SU-U90/69/0 Ceay / of 2 .- approved by the IGS_ the SIGINT Committee will consider the item for incorporation as supplemental guidance to the IGCP. The SIGINT Committee will issue changes to the IGCP as appropriate unless further action by USIB is required. On July 20, 1971, Bete. a memoradum (Tab DD) to other IGS members which stated, in pertinent part: 1. Although it was recognized at the time the ICCP was drafted (1970?} that there was under development a processing effort against ILC traffic related to international narcotics activities, NSA advised the IGS that such effort should not be given visability. 2. During the past year this effort was increased in scope, with most of the work done on the basis of informal requests for information from the various agencies involved in the problem. COMINT produced has been of great value ‘to the CIA production offices and has been used as a principal source of information in several intelligence reports and memoranda. We understand that it has also bee of considerable valve to operational components, such as the Bureau of Narcotics and Dangerous Drugs. 3. CIA believes that because of the importance 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 following statement: “Report information relating to the inter- national trafficking in narcotics and dangerous drugs. Timeliness to be ‘within 72 hours after recognition" and reporting to be at an estimated completeness level of ''2,'' which we understand fram NSA to be the level of the current effort. On August 11, 1971, the IGS approved, inter alia, the following change to the IGCP (Tab EE): 1. Add line item on international narcotics traffic activity (line item 8). HANDLE VIA COMINT CHANNELS
$C-05078-76 Copy + ci 2 On August 20, 1971, the new narcotics requirement was added to Group B, Subelement 32 of IGCP (Tab FF) which applied to ILC (international commercial commmications) networks, as opposed to foreign internal commnications. ‘The specific requirement was to report the following "within 72 hours after recogn: "8, International Narcotics activities. a. Report information relating to the international trafficking in narco- tics and dangerous drugs." The July 22, 1974 revision of IGCP Subelement 32 contains identical language. (Tab G6). On January 10, 1973, EESSe member of IGS, sent another memorandim (Tab HH) to IGS members recommending the following: 1. In July 1971 CIA recommended, and in August 1971 USIB approved, a change in the IGCP reportin specification to include a requirement for infor- mation on international trafficking in narcotics and dangerous drugs from international commercial commmications (Subelement 32). NSA has further developed its processing effort against other conmmications carrying informaiton on this topic to where we should now include a regular reporting requirement for such information contained in various national internal and external commmications. 2. The attachment lists by Subelement, those countries and Line Items which pertain to this requirement. No change in the level of reporting or timeliness is made. This supplemental requirement merely points up that narcotics trafficking information is specifically required to be reported when recognized in the target commmications. HANDLE. VIA COMINT CHANNELS
SC-050/8-76 Copy / of 2 3. This requirement has been coordinated with the: Chairman, Intelligence Subcommittee, Working Group of the Cabinet Conmittee on International Narcotics Control. Upon this recammendation, a change in the reporting specifications for Subelements 24, 26, 27, 28, and 29 (respectively: Other Asian Coutries, i.e., India; Latin America; Western Europe; Middle East and North Africa; and Sub Saharan coutries) pertaining to international trafficking in 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/ a/ As specified by or through CIA b/ As specified by BNDD, ONNI, Customs, and/or CIA The above specification would seem to imply that NSA would be provided with targeted individuals [Watch Lists] by the consumer agencies. \ HANDLE VIA COMINT CHANNELS
EOE hoe! Copy / of2 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 plamning and programming for the subsequent period of five years. These objectives identified intelligence targets in terms of information needed "'to enable the U.S. intelligence commmity to provide effective support for the decision making, plarming and operational activities of the United States Goverrment relating to national security and foreign policy." (Emphasis added.) The listed objectives included the following: 71. Non-goverrmental activities detrimental to U.S. interests. Activities of indivi s and non- governmental organizations in the subject coumtry which have an adverse impact on the interests of the United States and the welfare of its citizens, including the production and distribution of dangerous drugs and narcotics, training of terrorists and high-jacking. HANDLE VIA COMINT . CHANNELS
Copy / of 2 Latin America was designated as one of the areas concerning which such intelligence should be gathered. On January 31, 1972, the DCI requested the Critical Collection oblems Committee (CCPC) of the USIB to conduct a review of intelligence forts 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 follows: ls SIGINT INFORMATION ON NARCOTICS AND DANGEROUS DRUGS 1. No SIGINT resources are dedicated solely to the intercept of narcotics information. The SIGINT which is now being produced on the international narcotics problem is a by-product of SIGINT reporting on other national requirements. However, in order to provide 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 drugs are disseminated electrically to customer agencies. | HANDLE VIA COMINT CHANNELS
— SC-05078-76 Copy / of 2 In the absence of a COMINT-secure teletype circuit ai to the BENDD, special arrangements for regular courier service have been made. = ewe ni _. Drug operators coummicate covertly, concealing who and where they are, and send only isolated or sporadic messages. Consequently, they tend to use either telephone or prearranged numbers or over-the-coumter paid telegrams. This makes intercept and exploitation of ‘such camumications exceedingly difficult, but significant results might well be achieved. : ~ 5. The effective use of SIGINT information in support of on-going operations while at the same time protecting the scurce has been a problen. SIGINT frequently produces information which is valuable in an operational sense, but if used indiscreetly will result in a serious compromise. Any compromise can result in improved foreign communications security measures. The effect may be a permanent or temporary denial to the U.S. of intelligence information over and above the immediate drug problem. It is necessary to emphasize that in handling SIGINT, long-range interests must not be } sacrificed for short-term gains. HANDLE VIA COMINT CHANNELS
’ SC-050/8-/6 Copy / of 2 6. Successful usage of the SIGINT product is | largely contingent upon close collaboration between the SIGINT producers and the appropriate customer agencies. Frequent exchanges between NSA, BNDD and CIA will ensure that SIGINT is exploited to its fill capacity. Recommendation It is reccomended that NSA, in conjunction with interested customers, particularly BNDD and Customs, make appropriate determination of what COMINT support is required on the narcotics problem and that the requisite priorities be established through the SIGINT Committee. (Tab LL) | Paragraphs (1) and (4), above, indicate an apparent lack of knowledge concerning the NSA's interception of international voice commmications for narcotics intelligence which began -in 1970. There seems to be an awareness of everything else, however, including the courier service between NSA and ENDD by which the latter received the product of the voice interceptions. Based upon its study, the CCPC submitted reccmmendations to the USIB on Noverber 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- nent for ‘information related to narcotics trafficking" in Latin America and other specified countries. In the DCL's August, 1973 "Perspective of the Intelligence Commmity ,"' it is pointed out that as long as there exists a narcotics problem, intelligence agencies will be involved. In the KIQ's (Key Intelligence Questions) for FY 1974 and FY 1975, there are two questions regarding the narcotics problen. The first is to identify traffickers and producers and their methods; the second relates to the effectiveness of anti-narcotics HANDLE VIA COMINT CHANNELS
] SC-G50/8-/6 Copy / of 2 programs in Mexico, France, Turkey, Thailand, “Buma, and Laos. The second question included information concerning the willingness of those governments to "cooperate with the United States' efforts to expose and prosecute producers, traffickers, and their collaborators." HANINIE VIA COMINT CHANNELS
SC-05078-76 Copy / 012 H. PRESIDENT'S FOREIGN INTELLIGENCE ADVISORY BOARD (PFIAB) By Executive Order 10655 (February 6, 1956), President Dwight D. Eisenhower established the President's Board of Consultants on Foreign Intelligence Activities (PBCFIA) ‘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 empowered the Board to review the foreign intelligence activities of the Government and the performance of fimctions of the Central Intelligence Agency and report its findings directly to the President. Its authority also extended to a review of foreign intelligence fimctions of other executive depart- ments and any other related foreign intelligence matters which the President's Board deems appropriate. By Executive Order 10938 (May 4, 1961), Executive Order 10656 was cancelled by President Jotm F. Kermedy and the PFCFIA was reconstituted as the President's Foreign Intelligence Advisory Board (PFIAB). Its fimctions remained essentially the same as its predecessor Board; i.e,, continuing review and assessment of all fimctions 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 Executve Order 11460 (arch 20, 1969) President Richard Nixon cancelled Executive Order 10938 and reconstituted the PFIAB. While predecessor Boards served a purely advisory fimction, President Nixon expanded the role of the PFIAB to "receive, consider and take ropriate action with respect to 10S HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 matters identified to the Board... in which the support of the Board will further the effectiveness of the national intelligence effort." (Emphasis added.) 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 coordination 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 National Security Council and has had continuing 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 Committee" on covert operations, the Board has had continuing access to all material maintained by the NSC and its committees, except during the Nixon Administration when the Board was denied access to such materials. PFIAB minutes and records reflect the following: May 26, 1961 ‘ x * * 5. The President should not be publicly identified nor otherwise publicly involved with non-overt political, psychological, propoganda, paramili- tary, or clandestine intelligence activities. 6. The Central Intelligence Agency should strive to achieve anonymity in its officials and activities 106 HANDLE VIA COMINT. CHANNELS
SC-05078-76 © Copy / of 2 © February 5, 1971 The Chairman opened the meeting by asking Attorney General Mitchell for his views on the adequacy of the overall U.S. intelligence effort. Mr. Mitchell stated . . . that his office relies | on information which it gets from NSA and CIA which may be collateral to the primary collection goals of these agencies but which is recognized as beine useful to the DOJ and is forwarded to <tipect nttemainensemnaph ane abtbcngnntn stietartania tlh ta tsteetees He said that electronic surveillance is restricted to violence-prone S, and that in these cases electronic surveillence is clearl within the jurisdiction of the Presidential responsibilities for’ maintaining law and order. 2S a ° | Mr. Mitchell said that NSA and FBI Director Hoover ave having a rurning battle on this very point. VNSA is also urging resumption of physical entry... Mr. Mitchell said we have more taps on now than when the Republicans came to Washington... March 31, 1971 Memo for Board | 7 . hiaaeinernthennacsS2d iat niifilin gas isone 4) operaticns, generally known as SHAMROCK, whereby U.S. commerical commmications firms make available to the U.S. Government copies of international | HANDLE VIA COMINT CHANNELS
Copy / of 2 commercial commmications transmitted by foreign | missions, or permit the U.S. commmications by photography, etc.... The vast majority of SHAMROCK collection is performed by NSA itself, i.e., through its own agreements with U.S. commercial commmi- cations firms and utilizing its om personnel. NSA obtains, on a daily basis, large quantities of comercial telegraphic traffic originated by foreign govermments and foreign private enter- prise within the United States... \ i | February 3-4, 1972 Discussion with Mr. Nelson Gross, Special Assistant for Narcotics to the Secre of State, and with Mr. Walter ar Staff rv tor tor Cabinet mittee on International Narcotics Control. Mr. Gross opened the discussion by saying that the Cabinet Committee had been established to provide a focal point at a high level for the Administrations program to combat the illegal importation, distribution, and use of narcotics. He said... that the only hope of success in com- bating this evil is to have a coordinated program which simultaneously seeks to stem the supply fran’ abroad, prosecute 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 govermments to reduce the production of heroin... and to stimulate and coordinate inter- national cooperation in breaking up trafficking networks. Mr. Gross said... that the success of these programs would be wholly dependent on intelligence. Mr. Gross was critical of CIA efforts to date.... Mr. Gross said that CIA has 108 -
_ SC-05078-76 Copy / of 2 been given responsibility for coordinating all narcotics intelligence abroad, but has - assigned insufficient manpower 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 narcotics program at the Cabinet level was to add ‘shite House clout in getting the cooperation of all the necessary Government agencies and bureaus. Mr. Gross said that -\-arly the pro- am had all the authority it needs... (iphasis added.) Discussion with gr . 7 irman © e Inteliigence Suocommittee of the Cabinet Conmittee on International Narcotics Control... arcotics Control. ~ Mr. Helms’ Special Assistant or narcotics matters and Chairman of the Cabinet Committee Subcommittees for Intelligence.... E vmmmenssaid that the Agency's role in narcotics program began in October 1969 with a White 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 Agency mission was to support the narcotics program by establishing where illicit narcotics were coming fran and, secondly, to provide intelligence for the diplomatic effort to reduce production and trafficking. _ meee | said that the Agency has moved slowly for g reason.... HANDLE VIA COMINT CHANNELS
§C-05078-76 Copy / of 2 ene "said... the primary groups involved <x@ Criminal syndicates. . EE = - "stated he was satisfied that the Agency a sense of urgency.... ——— . said that NSA provides regular coverage of persons on a watch list and is prepared to do more as soon as the Intelligence Subcommittee can develop the necessary target data. Discussion with DCI Helms _ Mr. Helms had been asked to discuss the alloca- tion of intelligence resources for the narcotics problem.... He agreed to follow up Dr. Baker's suggestion to see if CIA couldn't give sane direct assistance to the BNDD in organizing their files and staff for participation in what is now a major Government 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 combating our domestic narcotics problem... : ~ In conclusion, the Chairman offered Mr. Ehrlichman any assistance which the Board could render with respect to the narcotics problem... Feb 3, 1972 (CIA) Memorandum on cntelt igence Support Ls International arcotics Control. I. ‘Two years ago the development of foreign HANDLE VIA COMINT CHANNELS
rer eae  6C-05078-76 Copy / of 2° on narcotics... was a wholly new enterprise for the intelligence commmity.... * * * 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 departments and agencies, including the intelligence comu- nity, to cooperate fully with its efforts.... kk * I%. Organized criminal conspiracies tend everywhere to monopolize the illicit trade... a, kk & South American smuggling operations are now carrying a substantial part of the French heroin to the U.S. via Latin America. kkk XIV. As a result of the presidential initiative from mid-1971, intelligence support for international narcotics control has became . virtually world-wide. A. XVI. iB. In October 1971 the Working Group of the CCINC directed that U.S. missions in close to 60 countries draw up narcotics control action plans. k * * With the establishment of the CCIN... leadership responsibilities for coor- dination of foreign intelligence m narcotics passed from BNDD to CIA. * * * HANDLE VIA COMINT CHANNELS
és ee XVII. XVIII. 2. 1.  §C-05078-76 Copy /ot2. The targets bring us, both in operations and production, into a closer relationship with U.S. law enforcement. Our job is to feed them intelligence and leads which they can use in their efforts to investi- gate and eventually prosecute or expose middle and top level narcotics traffickers in the U.S. and abroad. The thrust of current national strategy commits the commmity to directly support domestic enforcement... kk We mist help them and still protect intelligence officers and sources abroad from investigative or legal disclosures. Otherwise the intelligence cammnity will find itself where it carmot afford to go - in court as a witness. April 12, 1972 memorandm to fe. aad om Egil Krogh, Executive Director, INC. The President is intensely interested in using every means at his ire osal to st the Ra ternational narcotics traffic. This includes covert action where appropriate.... (Emphasis added.) . 12 HANDLE VIA COMINT CHANNELS
Copy / of 2 Mr. Ehrlichman has been given the responsiblity for handling this matter within the White House and is to be assisted by Bud Krogh, David Young (who has been borrowed from Dr. Kissinger), Gordon Liddy and others. b. Liddy's role: He is an expediter to break bureaucratic problems by applying either grease or dynamite. He will sit with the IES and audit the IEC meetings. Mr. David Young can speak for Mr. Ehrlichman and is “heavier"' than Mr. Liddy; therefore, any requests fran Mr. Young should be honored without 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 members for direct and rapid access to their own Agencies in order to get over and minimize bureaucratic problems. He specifically stated that although agencies would be tasked through their agency heads, Mr. Ehrlichman was not prepared to wait until agencies had polished their contributions and sent them back through chamels, but rather wanted to have access to information when and as it is developed. Mr. Liddy, therefore, would expect to be able’to ask for things through the IES members and have them vested with the authority to get them and release them to the White House. Beyond the foregoing, the IES 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.
IV. POSSIBLE VIOLATIONS This inquiry has focused on the interception of wire and radio’ commmications 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 communications, i.e., commmications with all terminals outside the United States. United States v. Catrone, F.2d (2 Cir. 1975); United States v. Toscanino, 500 F.2d 267,269 (2 Cir. 1974 Berlin Democratic Club v. Rumsfeld, Civil No. 310-74 @.D.C. March 17, 1976). (Evidence obtained fron such interceptions which do not meet Fourth Amendement standards, however, is subject to exclusion in U.S. courts.) Three categories of interceptions discussed herein require prosecutive evaluation: (1) The interception of international commmications having | one terminal in the United States (or a United States territory). (2) The procurement from commercial carriers of "cable traffic" between the U.S. and foreign countries. An initial review of available facts will indicate possible violations of 18 U.S.C. 2511 gnd/or 47 U.S.C. 605, but a tentative enalysis of the applicable statutes, legislative history, and convoluted sources of purported authorization together with anticipated difficulties in proving ° willfulness, preclude any unequivocal recommendation for prosecution at this juncture. HANDLE VIA COMINT CHANNELS
SC-050/78-76 - ~ Copy / of 2 A. Interception of International Commmications ~ | Ravine One Terminal in Ine United States or a.United states Territory. These interceptions were conducted by NSA in the gathering of forelgn intelligence information which, broadly defined, ' : . . eat included the MINARET (Tab N) & The CIA's eas devoted exclusively to the gathering | of international narcotics intelligence through the interception of specific commercial voice frequencies between South America and the United States. The NSA's MINARET and Projects 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 conmmications concerning a variety of subjects. | L. Pertinent Criminal Statutes i Title 18 Section 2511(a) (c)(d), Title 18, United States Code, infra. Title 47 Section 605 of Title 47, United States Code, provides in pertinent part: ... No person not being authorized by the sender shall intercept any radio commmication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted commmication to kkk HANDLE VIA COMINT CHANNELS
- Wo person having received any intercepted radio conmmication or having become acquainted with the contents, substance, purport, effect, or meaning of such commmication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such conmmication... or use such comumication... for his om benefit or for the benefit of another not entitled thereto... B. Receipt of "Cable Traffic" Fram | International Communications Carriers. arrlers. This activity was conducted by NSA under the cryptonym SHAMROCK (Tab P), and by the FBI as the "Drop Copy Operation". (Tab R) LPMEDLEY was a CIA operation limited solely to providing NSA with a “front location in New York City for processing SHAMROCK material. (Tab G) 1. Pertinent Criminal Statute Title 47 __/ Section 605 of Title 47, United States Code, provides in pertinent part: ... (NJo person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign commmication by wire or radio shall divulge or publish the existence, con- tents, substance, purport, effect, or meaning there- of, except aes authorized charmels of transmission or reception to any person other than the addresses. . in response to a subpoena issued by a court of Qroatect jurisdiction, or (6) @™m demand of other lawful authority.. HANDLE VIA COMINT CHANNELS
—— Te nen SC-G5078-76 Copy / oif2 - ... No person not being entitled thereto shall’ receive or acsist in receiving any interstate or foreign commmication by radio and use such cammmication... for his own benefit or for the benefit of another not entitled thereto. 1. Pertinent Criminal Statutes Such interception without appropriate authority, if willful, would be in violation of 18 U.S.C. §2511(a) (c) (a), or 47 U.S.C. $605, infra. HANDLE VIA COMINT CHANNELS
| &C-05078-76 Copy / of2. * 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 Jume 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 coommications persormel, and to prevent the unauthorized interception and disclosure, or use, by any person of radio commmications. 1968 U.S. Code Cong. and Adm. News 2196-2197. “Radio communications" or “commmications by radio" means the transmissions by radio of writing, signs, signals, pictures, and sounds of all kinds, including. all instrumen- talities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of commmica- tions) incidental to such transmission. 47 U.S.C. §153(b). Section 605 consists of for separate clauses containing four distinct pairs of prohibitions: ; (1) The first clause prohibits divulgence by any person receiving any interstate or foreign coommication by wire or radio, except through authorized charmels of transmission or reception. (2) The second clause proscribes the unauthorized interception and divulgence of any radio carounication. (3) The third prohibits the receipt of an interstate or foreign radio commication by a person not entitled thereto and the use thereof for his benefit or for the benefit of another not entitled thereto. ae] HANDLE VIA COMINT CHANNELS
TOP  8C-03078-76 Copy / of 2 (4) The fourth proscribes the receipt of any. intercepted radio commmication 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. a Adm. News 2197. 1968 U.S. Code Cong. and "Foreign commmication" within the meaning of 47 U.S.C. 605 is a commmication fron or to any place in the United States to or from a foreign country. 47 U.S. c. §153(f). Section 501 of Title 47, United States Code, contains the general misdemeanor penalty, provisions for violations of §605 and requires that such offenses by willfully and knowingly committed. B. 18 U.S.C. 2510, et seq. The regulation of the interception of wire or oral commmications is governed by 18 U.S.C. §§2510, et seg. 1968 U.S. Code Cong. and Adm. News 2196. . Section 2511 of Title 18, United States Code, provides in pertinent part: (1) ... [A]ny person who (a) willfully intercepts, endeavors to intercept, or procures any other person to entercept, any wire or oral coommication.. kkk HANDLE VIA COMINT CHANNELS
_—-10P.. SECRETS] SC-05C78-76 Copy./ of 2 (c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral commmication, knowing or having reason to know that the: information was obtained through the interception c. a wire or oral commmication... (d) willfully uses, or endeavors to use, the contents of any wire or oral conmmication, knowing or having reason to know that the information was obtained through the interception of a wire or oral commmication.... shall be fined not more than $10,000 or imprisoned not more than five years, or both. "(W]ire commmication' means any commmication made in whole or in part through the use of facill- ties for the transmission of commmications by the aid of wire, cable, or other like commection between the point of origin aid the point of reception fur- nished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign cammmica- tions. 18 U.S.C. 2510(1). "{O}ral coummication" means any oral commmication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. 18 U.S.C. §2510(Z). "Intercept" means the aural acquisition of the contents of any wire or oral commmication through the use of any electronic, mechmical, or other device. 18 U.S.C. §2510(4). ~~ C. Willfulness Willfulness is essential to the commission of each of the above offenses. 1. United States v. Murdock The legislative history of 18 U.S.C. §2511 indicates the applicable standard of willfulness in the instant context is that set forth in United Tpascm or ote Pe A Cao oe On
SC-05C0/78-76 Copy ./ of 2 States v. Murdock,. 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 following judicial comotations of the word "willfully’: The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished fron accidental. But when used in a criminal statute it generally means an act done with a bad purpose... without justifiable excuse... stubbornly, obstinately, perversely.... The word is also employed to characterize a thing done without ground for believing it is lawful... or conduct marked by careless disregard whether or not one has the right so to act.... (290 U.S. at 394-395) The standard of willfulness in Murdock is formated as follows: ...{BJad faith or evil intent... or evil motive and want of justification... It is not the purpose of the law to penalize... innocent errors made despite the exercise of reasonable care.... The requirement of an offense committed "willfully is not met... if a taxpayer has relied in good faith on a prior decision of this court... The Court's consistent interpretation of the word 'willfully' to require the element of mens | rea implements the persuasive intent of Congress to construct penalties that separate the purposeful... violator from the well-meaning, but easily confused...." (United States v. Bishop, 412 U.S. 346, 360-361 (1973)) Congress did not intend that a person, by reason of a bona fide misunderstanding, should become a criminal by his mere failure to measure up to the prescribed standard of conduct. United States v. Murdock, supra.
SC-05078-76 Copy / oiz ° 2. 18 U.S.C. §2520 - Section 2520 of Title 18, United States Code, provides that a good faith reliance on a court order or legislative authorization shall constitute a complete defense to my civil 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 contemplated 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 common 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 Supreme Court reaffirmed that the defense of good faith and probable cause is available to police officers, and further held that "a police officer is not charged with predicting the future course of constitutional law.'' This indicates a legislative intent in 18 U.S.C. §2520 to excuse from civil and criminal liability those persons who act under a statute they reasonably believe to be valid. The ‘legislative authorization" apparently relied upon by most of the 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 national security. This statute, upon its enactment in June, 1968, was vague with respect to the scope of such power, HANDLE VIA COMINT CHANNELS
SC-05078-76 Copy / of 2 and it was’not until June, 1972, that the Presidential power to authorize domestic security electronic surveillances was delineated by the U.S. Supreme Court. (See III, supra.) The President's power to authorize the warrantless electronic surveillance of activities of foreign powers or their agents has not yet been defined by the Supreme Court. It is likely, therefore, that potential defendants (particulary subordinates) will seize upon the decision in Raley v. Ohio, 360 U.S. 423, 438 (1959), in wnich the Court held that "a State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might trangress them, While it is true that men are, in general, held responsible for violations of the law, the layman is not required to know more law than the judge. United States v. Mancuso, 139 F.2d 90, 92 (3 Cir. 1943). 3. Zweibon v. Mitchell The Court in Zweibon v. Mitchell, 516 F.2d 594, 671-672, (@.C. Cir. 1975), cited Pierson v. Ray, supra, in reaffirming the defense of good faith: Thus, in light of the fact that Congress made the applicability of Title III tim o the future course of constitutional law, as well as the fact that the legislative history and language of Title III are themselves somewhat ambiguous concerning the applica- bility of that chapter to national security surveillance, and considering the policy that statutes in derogatim of the common law should be strictly construed, we do not believe Congress intended to preclude a good faith HANDIEF VITA COMI cu AKIKITES
SC-05078-76 + Copy./ of 2 defense that Executive officials acted under what they reasonably believed were the constitutionally inherent (and therefore statutorily exempt) powers of the President.... In a footmote, the Court added: The rights of victims of unconstitutional actions mist to scme 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) "Willfulness" in the instant context would seem to require bad faith rather than bad judgment. Good intentions coupled with bad judgment would not constitute such willfulness. Mullen v. United States, 263 F.2d 275, 276 @.C. Cir. 1958). D. "Plain View!’ Analogy Objects falling in the plain view of am 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 view’ doctrine serves to supplement the prior justification and permits the warrantless seizure. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1970). The plain view doctrine might be invoked, by analogy, to justify incidental commmications intercepts, e.g., the incidental interceptimm of commmications concerning international narcotics traffic in the course of conducting Presidentially-authorized electronic surveillance for the purpose 125 HANDLE VIA COMINT CHANNELS
" 6. 950 578-76 . Copy / of 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) permits the disclosure and use of commmications relating to offenses other than those specified in the order of authorization where such commmmications are intercepted while engaged in intercepting commmications in the manner authorized by the order. NSA represents that over 50 per’cent of the narcotics intelligence furnished by NSA to ENDD/DEA came fron commmications incidentally inter- cepted or incidentally received in the course of collecting foreign intelligence information pursuant to NSA's Presidential mandate and authorization. E. "Border Search!’ Analogy Pte t Treasury Department supports receipt by the Secret Service of SIGINT intelligence from NSA on grounds that the interception of messages crossing our national borders is analogous to conducting warrantless border searches which are clearly legal (Tab MY): If the search of the person is, thus, permissible, is it not reasonable that equal latitude be afforded to the impersonal harvesting of international commmica- tion signals for purposes clearly of great consequence to our national security? Upon that premise, the incidental acquisition from international signal comm- nications of important intelligence not supported by a foreign nexus is clearly an acceptable and reasonable intrusion into that realm of privacy protected by the Fourth Amendment.
SC-U5078-7 Copy / of 2. The SIGINT activities of NSA constitute an essential \ attribute of the Executive's capability and obligation to protect and promote the national security and foreign relations of the United States. One must, in reason, attribute to NSA's SIGINT acquisition of fore intelligence an importance which surpasses that attending the border search authority earlier characterized as "an indispensible exercise of the right of the sovereign f to self-protection. .. HANDLE VIA COMINT CHANNELS
Copy /of2 VI. POSSIBLE DEFENSES A. Interception of International Commmications faving One Terminal in the United States or a United States Territory. 1. Interception of International Radio- ine Telephone Commmications (a) 18 U.S.C. §2511 (i) Radio-Telephone Commmications The legislative history of Title III (18 U.S.C. §2510, et seq,; 47 U.S.C. §605) contains "no indication of how Congress intended to treat a radio-telephone conversation". United States v. Hall, 488 F.2d 193, 197 (9 Cir. 1973). In the absence of such indication, particularly with respect to the interception of radio portions of such commmications, the applicable statutes and legislative history mist be examined to ascertain 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. The provisions of 18 U.S.C. §2511 and 47 U.S.C. §605 are not mutually exclusive. They overlap. Section 2511 prohibits the interception of "wire commmications,"’ as broadly defined in 18 U.S.C. §2510(1), while Section 605 regulates the interception and divulgence of "radio commnications," as broadly defined in 47 U.S.C. §153. A tentative application of either statute is possible in the instant context. 128
Copy / of 2 Section 2511 prohibits, except as otherwise specifically provided: .... the interception and disclosure of all wire or oral commmications. Paragraph (1) sets out several prohibitions. Subparagraph (a) prohibits the inter- ception itself. This eliminates the requirement under existing law that an "interception" and a “divulgence' must take place. [47 U.S.C. §605 pre- viously required the interception and divulgence of both wire and radio commmications].... Subpara- graph (a) establishes a blanket prohibition against the interception of any wire commmication. Since the facilities used to transmit wire commmications form part of the interstate or foreign commmications network, Congress has plenary power under the commerce clause to prohibit all interception of such commmica- tions, whether by wiretapping or otherwise. (Weiss v. United States, 308 U.S. 321 (1930). 1968 U.S:Code Cong. and Adn. News 2180. (Emphasis added.) The above would seem, at first, to foreclose the applicability of 47 U.S.C. §605 to the instant situation. The citation of Weiss v. United States, however, indicates that the legislative history refers to the scope of communications covered by §2511 rather than to the inclusion of additional methods of interception. Weiss was a wiretapping case under the provisions of the "old'' (pre- Title III) 47 U.S.C. §605 in which the Supreme Court held that the prohibitions of the second clause of §605 applied to intrastate as well as interstate and foreign commmications when transmitted over wires used for both kinds of conmmications. Weiss v. United States, 308 U.S. 321, 327-328 (1939). This would not seem necessarily to favor §2511 in the coverage of the interception of radio portions of radio-landline telephone commmications. 129
Copy / of 2 (ii) Wire Commications Paragraph (1) of 18 U.S.C. §2510 defines "wire commmication" to include ''all conmmications carried by a common carrier, in whole or in part, through our Nation's commmications network. The coverage is intended to be comprehensive."" 1968 U.S. Code Cong. and Adm. News 2178. But does this encompass international commmications as they pass over foreign countries? Or international bodies of water? Does it really mean, as it says, cammmications ''carried through our Nation's commications network''? If so, is our 'Nation's commmications network'' confined to the commmications network within the Nation? Whatever the answers to the foregoing, there is no question that §2511 covers the "aural" acquisition of all wire portions of radio-landline telephone commmications, and may also be construed to cover the radio portions as well. There remains an obvious qualitative difference, however, between the radio and wire segments of radio-landline telephone commmications (particularly international commmications) — a distinction Congress pointedly recognized and reaffirmed in maintaining the concomitant viability of §605 requiring both the interception and divulgence of radio commmications to constitute a mere misdemeanor. Z| (iid) The "Nation's Commmications Network" The "Nation's conmmications network", according ro) | A | Bo __NSA, is generally regarded by those in the industry as the comercial 130
Copy / oi 2 commmications system within the United States. This system may be sureties | as contiguous, switched (e.g., from wire to cable to microwave), automatic, and self-routing. It's 'Wwireless"' component is a milti-channel microwave carriers system capable of carrying up to 2,000 commmications on same channels. International commercial radio-telephone commmications, on the other hand, are transmitted by high-frequency, single or milti- channel telephony which enters the national commmications network through what are know as "'gateways'’. (The latter term seems to connote passage from one system to another.) This high-frequency telephony is not as reliable as microwave transmission and is considerably more susceptible to inter- ception by unsophisticated equipment 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 example, that the radio portion of a high frequency single-channel radio-telephone cammmication fran Montevideo, Uruguay, to New York City, could be intercepted with insohpisticated radio receivers over an area of perhaps 30 per cent of the earth's surface. High frequency multi-channel transmissions may be de-chammeled by "home- made" amateur equipment. An index of the users of international radio fre- quecies is reportedly published by the FCC and may be obtained from the Government Printing Office. The only guarantee of privacy in such high frequency radio transmissions is the use of special ciphony equipment to "'garble" the commmica- tions. Such equipment, however, is not in general use by commercial carriers. \ 231
Copy / of 2 = (iv) Justified Emectations of Privacy The three general categories of commmications covered by Title III - wire, oral and radio - are distinguished, implicitly and explicitly, according to the degree of justified expectations of privacy. Vhile an almost total expectation of privacy seems to be justified in cammmications transmitted wholly by wire, the expectation of privacy of oral cammmications is justified only if uttered under circumstances justifying that expectation, e.g., ccommications in one's home or office. Commmications in a jail cell or an open field, for example, would not normally justify such expectation. 1968 U.S. Code Cong. and Adm. News 2178. {v) Felony vs. Misdemeanor The willful interception, alone, of a wire or oral comication campletes the felony offense under §2511. In the case of a radio commmica- tion, however, there mst be both an interception and divulgence to- constitute the misdemeanor under §605. If we ignore both the explicit legislative distinction between radio commmications and other types of commmications, and the implicit legislative scale of justified expectations of privacy, the severity of criminal penalties imposed by Congress would appear in same instances to be inversely proportionate to the extent of privacy violated. (See vi, infra.) Congress obviously placed radio cormmications below wire and oral commumications on the ascending scale of justified expectations of privacy. 132
Copy /of2 The court in United States v. Hall, 488 F.2d 193, 197 (9 Cir. 1973), observed that the radio portion of a radio-landline telephone coommication, logically, should be afforded no more protection than those occuring between two radio transceivers. The court declined, however, 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 defendants' radio-telephone conversations monitored by law enforcement officers should have been suppressed in the prosecution of defendants for marijuana viola- tions. Some of the conversations were transmitted between two radio telephones, while others were between a radio-telephme and regular land-line telephone. The Court quickly found 47 U.S.C. §605 inapplicable, stating: The legislative history also explicitly shows that Congress intended to exclude law enforcement officers from the purview of the new §605.... It is obvious that the legislature wanted law enforcement personnel to be governed exclusively by Chapter 119 of Title 18. Therefore, because the critical commmications were intercepted by Lawmen, §605 offers no impedement. The applying 18 U.S.C. §§2510, et seq., however, the Court reached an admittedly "absurd result": ... [We are forced to conclude that, when part of a coammication is carried to or from a land-line tele- phone, the entire conversation is a wire commmication and a search warrant is required. We realize that our classification of a conversation between a mobile and a land-line telephone as a wire communication produces what appears to be an absurd result. ‘These conversations were intercepted by an ordinary radio receiver and not by a phone tap. Logi- cally they should be afforded no more protection than those occurring between two radio transceivers. They
Copy / of 2 . should be oral commmications. However, Congress's definition of a wire commmication necessitates this conclusion. This is especially ironic since Title III of the Crime Control Act contains stringent civil and criminal penalties for those who violate its pro- visions. In other words, any citizen who listens to a mobile telephone band does so at its [sic] own risk, and scores of mariners who listen to the ship-to-shore frequency, commonly used to call to a land-line telephone, commit criminal 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 comumications. Congress may have been silent as to its intent in radio-telephone situations, but it can hardly be presumed to have intended a patently “absurd result". It is a fimdamental canon of statutory construction that a legislative enactment must be so interpreted as to carry out the legislative will and in a mammer that would not reach an "absurd result". United States v. Lewis, 87 F.Supp. 970, 972, (@.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 accused, but quite another to expand its meaning where to do so works against the accused. Pugach v. Klein, 193 F.Supp. 630, 640 (S.D.N.Y. 1961) .) The radio-telephone conversation in Hall which did not involve land-line telephones, i.e., radio-to-radio, were held not be "oral commmications" within the meaning of 18 U.S.C. §2510(2) because, the
Copy 7 oi Wh) Oral Communications There appears to be no more reason for re-classifying certain radio commmications as “oral commmications' than there would be to include "wire commications'" under “oral commmications". Section 2510, Title 18, United States Code, contains separate and distinct definitions of "wire'’ and "oral" cotmmications. There is no indication of a legislative intent to pre-empt, under the caption of "oral commmications", all wire commmications transmitted with a reasonable expectation they will not be intercepted. Despite the expectation of privacy, the latter do not become “oral commmications'". They renain, | simply and exclusively, wire coommications under 18 U.S.C. §2510(1). Similarly, there is no indication Congress intended to include under “oral commmications" all radio commmications transmitted with a reasonable expectation they will not be intercepted. These remain radio commmications under the definition of 47 U.S.C. §153(). It seems to be stretching 18 U.S.C. §§2510, et seq., to construe purely radio commmications (even those with a reasonable expectation of privacy) intercepted by law enforcement officers as “oral coummications". Nowhere in the legislative history or language of 18 U.S.C. §§2510, et seq., is there any indication that Congress intended to single out, for felony prosecution, only law enforcement officers who intercept radio commnications, while providing an option to prosecute, for misdemeanors, all others who not only intercept, but divulge, such commmications. 136
Copy / oitz Court found, they lacked the requisite expectation of privacy. (The district judge had previously made a specific finding that defendants knew they could be heard by other people and, therefore, had no right to privacy.) This seems, however, to be a case of reaching the right result for the wrong reason. The "new’' Section 605, enacted simultaneously with 18 U.S.C. §§2510, et_seq., was expressly intended as a substitute rather than the mere reenactment of its predecessor. 1968 U.S. Code Cong. and Adm. News 2196. If it has any substance at all, §605 would seem to cover at least the interception of all commmications transmitted entirely by radio. It does not apply to law enforcement officers, however, because "person", as used in the statute, does not include a law enforcement officer acting in the normal course of his duties. 1968 U.S. Code Cong. and Adm. News 2197. In a letter to the Chairman of the Federal Commi- cations Commission on September 15, 1975 (Tab NN) concerning FCC monitoring of citizen band radio transmissims, the Justice Department's Office of Legal Coumsel stated: Giving the word "person" such an interpretation would allow law enforcement officers generally to intercept and divulge radio coommications. The application of §605 in Hall would have achieved the sare result with respect to the interceptio of purely radio cammmications, but without the strained application of 18 U.S.C. §§2510, et seq.
Copy /of2 The statute specifically defines "oral communication" as: ... [A]ny oral commmication uttered by a person exhibiting an expectation that such commmication . is not subject to interception under circumstances justifying such expectation. (emphasis added) 18 U.S.C. §2510(2). Examples of "oral commmications" citcd in the legislative history of Title III are commmications uttered in one's home or one's office. 1968 U.S. Code Cong. and Adm. News 2178. There are two references in 18 U.S.C. §2511 to coummications by radio: One prohibits the interception of oral (not wire) commmications by devices which transmit commmications by radio or interfere with the transmission of such a commmication (§2511(1) (b) (i1)); the other merely ‘codifies the exception fron criminal liability of FCC officials acting in the normal course of their duties. Neither provision purports to expand or amplify the definition of "oral commmication" in 18 U.S.C. §2510(2). (Prior to the enactment of Title III, the exception of FCC officials was "implicit" 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 completely clear on the point, nevertheless tends to equate the interception of "oral ccoommications transmitted by radio" with electrmic eavesdropping (bugging) to overhear private oral conversations. The legislative history cites Katz v. Unted States, 389 U.S. 347 (1967), in stating the definition of oral commmication "is intended to reflect existing law." Katz involved the use Tyee OFA oe eee id ete Aaa ew oes so Poet wat at
way / org of an electronic eavesdropping device. 'Wiretapping" is generally associated with the interception of wire commmicatios. 1968 U.S. ~ Code Cong. end Adm. News 2153-2156; 2177-2178; 2180-2181. In the context of transmissions by radio, therefore, the definition of "oral commmications" in 18 U.S.C. §2510(2) appears to conterplate private oral conversations intercepted by radio eavesdro devices rather than the interception of commmications transmitted by common carrier radio-telephone facilities. (Section 2511(1) (b) (1) would prohibit the use of leased or other telephone lines to transmit signals intercepted by eavesdropping devices. 1968 U.S. Code Cong. and Adm. News 2180.) (vil) Overlapping Definitions In neither 18 U.S.C. §§2510, et seq., nor 47 U.S.C. §605, does Congress reconcile the statutory definitions of 'wire'' and "oral" commmica- tions with "radio" commmications in the radio-telephone context. This "overlap" was apparently not considered or even recognized by Congress. Even in United States v. Hall, supra, the court conceded that "the definition of wire commmication is not free from ambiguity", and concluded that “[b]y reading the sections together, we can only conclude that the Congress did not mean that every conversation aided in any part by any wire would be a wire commmicatio”. 488 F.2d at 196-197. 138
Copy / of 2 Thus, we have two criminal statutes, one a felony, the other a misdemeanor, whose application must rest finally upon a reconciliation of the overlapping definitions of "wire commication"' and "oral coommi- cation" in 18 U.S.C. §2510(1) (2), and “radio commmication" in 47 U.S.C. §153(b). The central question may be stated precisely: Which statute covers the interception of radio portions of common carrier radio-telephone commmications between the United States and other coutries? Perhaps the most succinct indication of overall legislative purpose in Title III may be found, incidentally, in the definition of "oral commmications" in 18 U.S.C. §2510{2): | ... [A]ny... commmication uttered by a person exhibiting an expectation that such commmica- tion is not subject to interception under cir- cumstances justifying such expectation. Obviously, the privacy of the wire portion of a common carrier radio- landline telephone commmication is inherently greater than the radio portion. While such commmication, as a whole, might conform with the technical definition of "wire comummication" in 18 U.S.C. §2510(1), the radio portion fits equally the definition of “radio commmication” set forth in 47 U.S.C. §153(b). As the Court observed in United States v. Hall, supra, the latter is infinitely more vulnerable to both inadvertent _ and intentional interceptim: As with any broadcast into the air, the invitatim to listen is afforded to all who can hear, In the instant case, the eavesdropper merely tuned their radio receivers to the proper station. 139
may / op The legislative history emphatically states that 18 U.S.C. §§2510, et seq. '..is intended to protect the privacy of the commmication". (xphasis 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 commmication, but to protect fran inter- ception those commmications which are transmitted by private means. If the method of cammmication at a given point in transmission is not reasonably private, it is difficult to perceive a legislative intent to pretend privacy at that point merely because the means of commmication elsewhere in the chain of transmission are private. A commmication is only as private as the means of transmission erployed at the point of interception. If the privacy of a commmication i ds to be protected, the coummication itself must first be private. If at pi some point in its transmission a conmmication may be intercepted over 30 ; an “jper cent of the earth's surface with readily available and inexpensive radio ‘ ad equipment, the commication at_that point can hardly be regarded as ; HY private. (See iii, supra.) if . it fos fon. The legislative history further indicates that 18 U.S.C. §§2510, et seq., was intended to govern "'the regulation of the interception of wire and oral commications", while 47 U.S.C. §605 was designed to “regulate the conduct of coummications personnel" as well as prohibit the interception and divulgence, or use, or radio cammmications. 1968 U.S. Code Cong. and 140
Copy / of 2 Adn. News 2196-2197, Nothing in §605 indicatés that common carrier radio communications are to be excluded from its coverage. Notwithstanding the seemingly comprehensive coverage of radio commmications by §605, however, the legislative history and definitions of wire and oral commications in 18 U.S.C. §2510 permit an initial construction of §§2510, et seq., to cover, inter alia, the interception of all radio-landline telephone conmmications transmitted, in part, by aid of common carrier wire (wire coummications), and all "aural" radio-to- radio commmications where there is a reasonable expectation such commmi- cations are not subject to interception (oral commmications). This construction of 18 U.S.C. §§2510, et seq., would leave §605 with jurisdiction over only the interception of "non-aural" radio-landline coumon carrier coummications, and only those aural" radio-to-radio commmications which might reasonably be subject to interception. Such a construction would, of course, remove the interception or radio-landline telephone commmications by "commications personnel" fron the coverage of §605 which was specifically designed to “regulate the conduct of coommications personnel". (Section 2511(2) (a) (i), Title 18, United States Code, expressly recognizes and contemplates that officers, employees ; and agents of commmications common carriers may also intercept wire communications.) The foregoing demonstrates, if nothing else, that the seemingly comprehensive coverage of wire commicatio" in 18 U.S.C. 2511(1) is -
Copy / of 2 e neither all-inclusive nor free of ambiguity. It is noted that the only specific reference to radio commmications in the prohibitions of 18 U.S.C. §2511 is that which appears in §2511(1) (b) (Li) proscribing the interception of oral (not wire) commmications ) by the use of devices which transmit commmications by radio or interfere with the transmission of radio commmications. This reinforces not only the contention that "oral coummications" defined in 18 U.S.C. §2511(2) contemplate private oral comversations transmitted by radio eavesdropping devices; it also points up the anission of any similar prohibition against the use of radio devices to intercept "wire commmications" as defined in 18 U.S.C. 2511(1). (viii) Statutory Construction When either of two statutes apply, the specific takes precedence over the general. Robinson v. United States, 142 F.2d 431 (8 Cir. 1944). Therefore, if 18 U.S.C. §2511 clearly applied to the interception of radio portions of radio-landline telephone commmications, it should take prece- dence over the general coverage of 47 U.S.C. §605. Section §2511, however, is not umequivocal in its coverage, and sin: ~*mxities in criminal statutes and conflicts in statutory construction mist +« resolved in favor of potential defendants, the misdemeanor statute would seem to apply. United States v. Bass, 404 U.S. 336, 348 (1971). 142
Cory / of 2 (ix) Prosecutive Options ; The Government has the option to proceed under 47 U.S.C. §605. Where a single act violates more than one statute, the Government may elect to proceed under either. United States v. Buomett, supra. (b) 47 U.S.C. §605 The second and fourth clauses of Section 605 prohibit, respectively, the interception and divulgence of radio cammmications, and the receipt of intercepted radio commmications and divulgence or use for one's on benefit or the benefit of another. | Divulgence by one who did not personally intercept the commmication, : however, or cause another to do so, is not a violation of the second clause of Section 605; and use for the benefit of the Govermment 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 States v. Lewis, 87 F.Supp 970, 974 @.D.C. 1950), reversed on other grounds, 184 F.2d 394 (D.C. Cir. 1950). The Government has consistently taken the position that disclosure within the Executive Branch is not "divulgence" within the proscriptions of Section 605. Nardone v. United States, 302 U.S. 379 (1037); United States v. Butenko, 494 F.2d 593, 600 (3 Cir. 1974), cert. denied, 419 U.S. 881 (1974). In any event, "person" in Section 605 does not include law enforcement ~ officers acting in the normal course of their duties. 1968 U.S. Code 143
SU-U90/8-/6 Copy / of2 Cong. and Adm. News 2197. The second clause of Section 605 prohibits any "person" from intercepting and divulging to "any person". It would seem, therefore, that disclosure by NSA personnel to law enforcement officers of EWDD/DEA would not constitute 'divulgence'' within the statute. (c) Presidential Authorization On October 24, 1969, President Nixon created the White House Task Force for Narcotics Control and reportedly armounced a decision to make narcotics a matter of foreign policy, and further directed the Director of Central Intelligence ‘to contribute to the maximm extent possible in the collection of foreign intelligence related to traffic in opium and heroin. (Tab T2) : } In August, 1971, the President created the Cabinet Committee as International Narcotics Control (which included, inter alia, the DCI (CLA), the Attorney General, Secretary of Defense, et al.) and directed that ail Federal offices, department and agencies cooperate with the CCINC in carrying out its fimctions, including the coordination of ‘all diplomatic, intelligence and Federal law enforcement programs and activities of inter- national scope. (Tab T5) President Nixon also issued additional orders and made additional statements directing the mobilization of the full resources of the Federal Government to gather intelligence on international drug traffic. (See LII (B), supra.)
Copy / o12 President Ford was recently quoted as having designated the illicit export of opium 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 Nan Conflict, he regarded the importation 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 emergency. (Tab X4) (For specific sources of purported authorization, see III, supra.) (d) Willfulness See V(C), supra. 2. Interceptions of International Non-Voice Commmications (a) 18 U.S.C. §2511 (i) Interception The legality of the interception of non-voice commmications tums upon the interpretation of 'iIntercept'' as defined in 18 U.S.C. 2510(4): | (4) "intercept'' means the aural acquisitim of the contents of any wire or oral coommication through the use of any electronic, mechanical, or other device. The statute thus restricts the definition of "intercept'' to “aural acquisition", and the legislative history specifically excludes all other means of acquisition:
ny / of 2. ... Other forms of surveillance are not within the proposed legislation... The proposed legis- lation is intended to protect the privacy of the communication itself and not the means c nication. 1968 U.S. Code Cong. and Aan Neos 2178. The dictionary defines "aural" as "of or relating to the ear or sense of hearing.'' The words "aural acquistion", literally translated, means to cane into possession through the sense of hearing. Smith v. Wmnker, 356 F.Supp. 44, 46 (S.D. Ohio 1972). The legislative history further amplifies the intended scope of "aural interceptions": Paragraph (4) defines '‘intercept" to include aural acquisition of the contents of any wire or oral commmication by any electric, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. See Lee v. United States, 47 S.Ct. 746, 274 U.S. 559 (1927); Corngold v. United States, 367 F.2d (9th 1966). An examination of telephone company records by law enforcement agents in the regular course of their duties would be lawful because it would not be an interception". ited States v. Russo, 250 F.Supp. 55 (.D. Pa. . propose ¥ legislation is not designed to prevent the tracing of phone calls. The use of a "pen register", for example, would be permissible. But see United States v. Dote, 371 F.2d 176 (7th 1966). The proposed legislation is intended to protect the privacy of the commmication itself and not the means of commmication. 1968 U.S. Code Cong. and Adm. News 2178. The foregoing clearly excludes from the coverage of 18 U.S.C. §2511 all commications transmitted mechanically, i.e., transmitted by signals independent of sound, e.g., electrical pulses. 146
Copy / ot z "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 conmmication which causes such coommication to be overheard by uninvited listeners, i.e., the contem- poraneous acquisition of the commmication. It is the act of contemporaeous surveillance (by hearing, recording, or otherwise) which was at the center of congressional concern. 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. 2511(1) (ec) which prohibits the subsequent disclosure of an intercepted commication. “Aural acquisition", would seem to include, for example, the de-channeling of tape recordings of intercepted multi-charmel "sound" commmications. In such cases, the acquisition of the intelligible contents of a commmication would not necessarily have to be contemporaneous with the interception and acquisition of the primary or "garbled soumds''. In short, “aural acquisition" would appear to generally cover the interception of sounds while in the process of transmission. 147
oer f Ole (iii) Teletype and Telex Commmications ~ 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 transmitting _ capacity. (b) 47 U.S.C. §605 (i) Divulgence The interception of non-aural comumications is covered, if at all, by 47 U.S.C. §605, which requires divulgence, or use, in addition to interception. There is absolutely no indication that Congress contemplated §605 situations where interceptions were not accompanied by divulgence. United States v. Butenko, 494 F.2d 593, 60 (3 Cir. 1974), ¢.d., 419 U.S. 881 (1974). The majority in Butenko observed that "restricting any divulgence to members of the Executive Branch.... does not necessarily mean that the
ne, is ae a FTF ee—uG surveillance and such divulgence does not fin 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 "person" to be viewed as inter- ceptor is, thus, the executive; divulgence to other agents of the executive, who receive the information in such capacity, hence would not violate the statute because the divulgees would be part of the same "person" as the divulgors.'' This has been the consistent position taken by the Government in such cases. Nardone v. United States, 302 U.S. 379 (1937); United States v. Butenko, supra. Whatever the validity of the above position; the Government could hardly prosecute one of its om agents for divulging the contents of am intercepted cammmication within the Executive Branch in reliance upon the Goverrment's long-standing interpretation of the statute. Furthermore, Section 605 does not apply to law enforcement officers acting in the course of their normal duties. 1968 U.S. Code Cong. 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. (44) Use Section 605 must 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
but quite another to expand its meaning where to do so works against the accused. A strict construction in favor of the accused impels the con- clusion that the provision “use... for his own benefit or for the benefit of another not entitled thereto", means another person and does net include use for the benefit of the Goverment. Plainly, such use is not for the government agent's own 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 (@.C. Cir. 1950). (ili) interc tion and Divulgence or Use By Different Parties Absent a conspiracy, mere divulgence by one who did not personnally intercept the commication, or cause another to do so, is not a violatim of the second clause of Section 605. Pugach v. Klein, supra. By the same reasoning, the "receipt and divulgence" prohibitions of the first clause of Section 605, and the "receipt and use'' proseriptions in the third clause, would seem also to require that receipt and divulgence (or use) be accomplished by the same person to constitute an offense under §605. ) (c) Presidential Authorization See III, supra. 150
wpy / Ore | (d) Willfulness ° See V(C), supra. B. Receipt of ''Cable Traffic" from International | Conmimacations Carriers (SHAMROCK and Drop- mo Copy Operation) | 1. 47 U.S.C. §605 This 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 inter- ; state or foreign commmications by wire or radio; and the receipt and use | ; of radio communications. | Possible Violations of §605 involve persons in two general categories: (1) commercial coommications personnel; and (2) government agents and’ officials. | (a) Conmmications Persormel The new Section §605 is designed to regulate the conduct of commmications personel, 1968 U.S. Code Cong. and Adm. News 2197. As noted above, however, §605 apparently requires that both the willful receipt (or assistance in receiving) and the willful divulgence and/or use, be accomplished by the same person, and "use" by a Government: agent for the benefit of the Goverrment is not the type of "use" contemplated in the proscriptions of the statute. Pugach v. Klein, supra; United States v. Lewis, supra. HANDLE VIA COMINT CHANNELS —
SC-UsCso-s0 Gapy / ol2Z In addition to their reliance on the foregoing, commmications persormmel | involved in SHAMROCK 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, within the exceptions enumerated 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 Commerce Act of 1887 fron which the Commnications Act of 1934, in part, was taken. (Tab 00) The Interstate Commerce Act of 1887, as amended in 1910 to prohibit the disclosure of commnications transmitted by coomon 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 United States, or of any State or Territory, in the exercise of his powers, or to any officer or other duly authorized person seeking such information for the prosecution of persons charged with or suspected of crime..." The cammications persormel might also argue they were de facto agents of the United States Goverrment 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. = HANDIF VIA COMINT CLARINET?
—~ TO CRETE SC-05078-76 Copy / of 2 (b) Goverment Agents and Officials Agents and officials of NSA and the FBI who were involved in the catty / conduct of SHAMROCK and the Drop City Operation will perhaps assert they never received or assisted in receiving any of the commmications furnished to them, but rather obtained the commmications only after the receipt of same by commmications persormel. They will likely contend also that there was no "'divulgence’’ because dissemination was confined to a small segment of the Executive Branch. Those officials who negotiated or maintained the informal agreements between the Government and the commmications carriers were not the same persons who obtained and disseminated the actual commmications within the Executive Branch. They will, of course, seek to avoid the application of Section 605 by claiming not to have received and divulged any commmications themselves. As for criminal conspriacy, they will probably attempt to prove an implied delegation of Presidential power under 18 U.S.C. eS See III, supra. 3. Willfulness See V(C), supra. HANDLE VIA COMINT CHANNFIS
Copy / of 2 C. Interception of Domestic Commmications ‘In Testing Electronic Equipment 1. 18U.S.C. §2511 and 47 U.S.C. §605 All interceptions which are now to have occurred within the five-year statute of limitations were interceptions of "radio" commmications, i.e., the radio portions of radio-telephone commmications which were not "divulged" within the meaning of 47 U.S.C. §605. The same defenses set forth in IQ), supra, may be raised with respect to this activity. 2. Presidential Authorization See III(E) (4), and III ©) (6). 3. Willfulness See V(), supra.
$C-U5078-76 Copy / of 2 VII. S'MMARY OF POSSIBLE VIOLATIONS AND DEFENSES : A. Recapitulation of Inquiry. de The Rockefeller Camnission Report raised questions concerning seven i j areas of ClA-related electronic surveillance activity: CIA persormel security, 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 coummications, electronic equipment testing, - fi a survey of the potential capability of a hostile -foreign.power_to_intercept _ v. Se commications 3,.and CIA assistance to the Secret Service and local police departments (pp.1-13, supra). eleven additional areas of questionable activity involving the CIA, NSA and FBI: NAROOG, LPMEDLEY, seas intercepts, sr . an ROK Qo and the FBI drop-copy operation (pp.14-39, Supra). Five of these may also contain the elements of Federal criminal offenses, i.e., MINARET (pp.26-29, surpra) ,Mlfsommencoaamrnenion ey Las SHAMROCK (pp.32-36, supra), and the FBI drop-coj'y operation (p.39, supra). __ Eight specific electronic surveillance operations thus require prosecu- tive eva!uation. ala otatane Ji OULU 155