SC-05678-76 Copy / of 2 1. | Fram October 1972 to January 1973, at NSA's request, the CIA intercept the radio portions of targeted radio-telephone cammmications between Latin America and the United States for the purpose of gathering intelligence on international narcotics trafficking. F““.“"..TNNnwWV_—— he intelligence product was finished to NSA which, in turn, forwarded it to BNDD. If the radio portions of international radio-telephone commmications are deemed "wire camunications” (see pp. 139-140, supra), the Ce would be in clear violation of 18 U.S.C. §2511(1), but for the apparent blanket approval of euch interceptions by Attorneys General and the Secretary of Defense in 1971 and 1972 (pp.81-84, supray. Such approval, together with the explicit Presidential insistence that CIA contribute to the "naximm extent’ and "to oobi its full resources to fight the international drug trade" (pp. 46, 58, 112, supra) , could be construed as Presidential direction and. authorization under 18 U.S.C. §2511(3). This defense is particylarly buttressed by prior Presidential declarations that narcotics, control is a matter of "foreign policy" (p.46, supra); that it is "imperative that the illicit flow of narcotics and dangerous drugs into this country be stopped as soon as possible" (p.47, supra); that illicit drugs are a "menace to the general welfare of the United States" (p.46, supra); that "winning the battle against drug abuse is one of the most important, the most urgent natioal priorities confronting the United States today" (p.57, supra); that "keeping dangerous drugs out of the United States [is] just as important as keeping armed enemy forces fran landing in the United States” (p.58, supra). Such Presidential language could be easily construed as equating narcotics control with national security.
$C-05C78-76 Copy / of 2 Congress has also recognized the need for international narcotics “) intelligence and the general propriety of utilizing CIA and NSA resources to obtain it. (pp.49, 63, supra; Tab 17) Although the foregoing does not conclusively establish legitimate authori- zation, it sufficiently clouds the issue to make proof of willfulness on the part of subordinates essentially impossible. Likewise, the purported "authorization" by the President, Attorneys General and Secretary of Defense is so general, 50. amorphous, that it would be impossible to prove beyond a reasonable doubt that et of them specifically "authorized" It thus appears that no real probability exists for convicting anyone involved [isos smenaeeee consequently, it would not seem to waxrant further prosecutive pursuit. (See Summary Outline, Tab D, for ‘complete listing of possible defenses.) too
SC-05078-76 Copy / of 2 (See Simmary Outline, Tab F4, for additional detail.) oe
SC-05C78-76 Copy / of 2 The chartering of MINARET on July 1, 1969, formalized NSA's de facto collection and dissemination of intelligence concerning Presidential protection and foreign influences on domestic organizations and individuals which might create civil disturbances and/or undermine the national security. The Attorney General advised the PFIAB on February 5, 1971 that electronic surveillance to obtain intelligence concerning violence-prone groups was clearly within the jurisdiction of the Presidential responsibilities for maintaining law and order (pp.107, supra). Such intelligence was gathered and distributed by NSA to Federal consumer agencies, 1.e., the CIA, FBI, Secret Service, ACSI, DIA, and State Department, all of whom levied requirements on NSA under NSCID 6 (pp. 78, supra). ENDD levied narcotics intelligence requirements on NSA 4 in April 1970. SES mae enansecoamatnenmeychomennananeayrwamerenanncnn MINARET intelligence, except one category of international voice commni- cations involving narcotics, was obtained incidentally in the course of NSA's interception of aural and non-awral (e.g., telex) international commmications, and the receipt of GCHQ-acquired telex and ILC cable traffic (SHAMROCK) MS eenenaaeenend Possible violations in MINARET are (1) aural acquisition (and/or use, disclosure, etc.) of wire and oral coummications (18 U.S.C. §2511); and (2) receipt or interception and divulgence or use of radio commmications (47 U.S.C. §605). In conformity with NSA's one-terminal rule (p.61, Supra), all MINARET commmications apparently had at least one terminal in a foreign comtry and,
\—-FOP=SECRET. scosoave Copy / of 2 7) excluding SHAMROCK communications, were obtained through the interception of radio portions of interrctional cammmications from sites both within and without the United States. On November 6, 1975, the Attorney General noted in his testimony before the Senate Select Committee that it is arguable that "if matters are picked up out of the air, so to spez:., as waves of some kind across the ocean, that there is no reason for people to assume that the conversations are private and therefore the fourth amendment does not apply’. Hearings Before the Select — Conmittee to Study Governmental Operations With Respect to Intelligence Activities of the Senate, 94th Cong., lst Sess., V5, pp.115-116 (1975). Although the Attorney General expressly declined to make such an argument because "it goes too far", it nonetheless remains available as a tentative and plausible defense. (See pp.128-142, supra.) Assuming, however, such defense is not viable, the dissemination of intelligence incidentally derived fron clearly legitimate NSA operations to "provide for the SIGINT mission of the United States" (p.77, supra) appears to be lawful under the "plain view" doctrine (p.125, supra), particularly in view of the general absence of statutory restrictions on NSA intercept activities. Our inquiry confirms the following findings of the Senate Select Committee regarding the lack of statutory restrictions on NSA: k & ... [NJo existing statutes control, Umit or define the signals intelligence activities of
wt é ‘ SC-05078-76 Copy / oi 2 No statute or executive directive prohibiis ° } “NSA's monitoring a telephone circuit with ene terminal in the United States. x k * It is important to note that the decision to terminate the watch list was ultimately the administrative decision of an executive agency. There is no statute which expressly forbids such activity, and no court case where it has been squarely at issue. Without legislative controls, NSA could resume the watch list activity at any time upon order of the Executive.... (S.Rep. No. 94-755, 94th Cong., 2nd Sess., Book » pp.736, 756, 761 (1976). | . The apparent Lack of statutory restriction on NSA intercept activities was reinforced by a memorandum from NSA General Counsel to the Office of the NSA Director on July 24,'1968 reporting that the enactment of 18 U.S.C. §2511(3) on Jume 19, 1968 renoved “any doubt as to the legality of SIGINT... activities of the Executive Branch of the Government". (p.85, supra; Tab Y2) NSA's purposeful interception of the radio portios of international radio-telephone commmications to obtain narcotics intelligence for BNDD began in Septerber 1970 and continued until June 1973. Apparently, NSA only intercepted narcotics commmications having one terminal (at least) in a foreign comtry. Consequently, this activity conformed with NSA's long-standing "one- terminal" rule (p.81, supra), Presidential priorities (pp.46-58, 109, 111-112, supra), possible USIB approval (p.97, supra), "ground rules” approved in 1971 and 1972 by Attorneys General and the Secretary of Defense (pp.82-84, supra), and the "national security” nature of drug trafficking during the Viet Nam War (Tab X4). 162 HANDLE VIA COMINT CHANNELS ye
aor Sa eS SoD enendietiteieeest SC-05078-76 Copy / of 2 The broad, sweeping SIGINT responsibilities and powers of NSA, combined y, with vague or non-existent restrictions on NSA in exercising that power to carry out such responsibilities, would seem to render further prosecutive pursuit of MINARET futile. The plain view doctrine appears to legitimize the incidentally-acquired MINARET intelligence, and the aforementioned circumstances of gathering the narcotics intelligence for ENDD makes proof of willfulness highly improbable, if not impossible. (See Summary Outline, Tab N, for additional analysis and detail.) 6 prAyINTe VIA) COMINT CHANNELS
SC-05078-76 Copy / of 2 6. SHAMROCK _ ~ 7 In SHAMROCK, the NSA gathered international non-aural commmications from ILC carriers (principally TTT, RCA and WI) fran 1957 to May 1975. NSA inherited this operation from military agencies which began collecting cable | traffic during W) II and continued thereafter as essential to the national security with the approval of Secretaries of Defense, Attorney General Tom Clark and President Truman. The method of obtaining ILC cammmications varied with changing technology and circumstances, but from the mid-1960s to May 1975, NSA employees received or had access to virtually all ILC traffic which passed through the New York City offices of RCA and TIT. The offices of WI in New York City and Washington, D.C. furnished NSA with microfilm of Eero possibly other) ILC commicatios wtil 1969. The WI cammications were selected out and microlfimed for NSA by WI employees. (The offices of RCA, TIT, WII and other ILC companies in several other cities also contributed to SHAMROCK at various times.) | NSA also requested and received cable traffic from the FBI which the latter obtained from RCA, ITT and WI until the terminatio of its 'Drop-Copy Operation" in April 1973. In about 1967, NSA began extracting domestic , intelligence from the ILC conmmications (magnetic tapes) received from RCA and TIT. This was done without the knowledge of RCA or TIT and continued until the termination of . ———
SC-05078-76 Copy / of 2 Notwithstanding the extraction of MINARET and§fL_ ew intelligence in addition Pe cane officials contend that it constituted only a small portion of the total traffic received. The remainder (90%+) was not used in any respect in an effort to minimize the NSA intrusion. SRAMROCK involves possible violations of 47 U.S.C. §605. (Section 2511 cf Title 18, United States Code, does not apply because nme of the commmica- tions were apparently acquired by "aural" means. Rather, they were mechanically transmitted and received through pulses of electrical energy, e.g., telex.) NSA finds support for conducting its SHAMROCK operation in the following: NSA's “inheritance” of the project which was continued after W) II at the instance of the Secretary of Defense, Attorney General and the President (pp.32-33, supra); the purported knowledge and receipt of SHAMROCK-type conmmications by the President and his National Security Advisor from 1966 to 1969 (p.41, Tab N); Presidential authorization (pp.46-60, 106-113; 144, supra); knowledge and approval of the Attormey General and PFIAB in 1971 (pp.107-108 ; supra); knowledge and tacit approval fran 1969 to 1973 of the Secretary of Defense (p.33, supra); and the mandate of NSCID 6 (pp.76-80, | supra). (NSA contends that the exclusion of unencrypted written coommicatios from its mandate under NSCID 6 is limited to mail and commmications other than those sent electronically. S.Rep. No. 94-755, 94th Cong., 2nd Sess., Book ee, pp.737-738 (1976) .) Tf NSA had prima facie authority to collect NSA traffic from ILC carriers for national security purposes, it may be contended that domestic intelligence incidentally derived therefrom was lawfully obtained under the "plain view" doctrine. (See p.125, supra) _
SC-05078-76 Copy / of 2 Section 605 of Title 47 prohibits (1) divulgence by anyone receiving | any foreign cammmication by wire or radio, except upon demand of lawful authority; or (2) receipt and use of such conmmication by a person not entitled thereto. | In addition to the purported "authority'' defenses above, potential SHAMROCK defendants may assert (1) there was no divulgence outside the executive branch and, therefore, no divulgence within the meaning of §605; (2) there was no divulgence or use by any person who actually received comumications; and (3) use for the benefit of the Government is not the type of "use" contemplated in §605 (pp.143-153, supra). Thus, the argunent may be made that no Federal criminal statute covers the SHAMROCK activity. Section 605 does not apply to FBI, BNDD or other law enforcement persommel (pp .133-132, supra) , nor to the mere receipt of commications and divulgence within the executive branch. While the foregoing defenses do not clearly absolve the participants, they would seem to provide the basis for a sufficient showing of good faith and lack of willfulness to preclude successful prosecution of NSA, FBI and other consumer agency personnel involved. (See pp.121-125, supra.) —_} (See Summary Outline, Tab P, for additional detail.)
: SC-05078-76 Copy / ot2 7. FBI Drop-Copy Operation From 1941 to April 18, 1973, the FBI obtained copies of international “cable traffic" from ILC carriers for purported national security purposes, ~] By 1947, the FBI was receiving the cable traffic of 14 comtries from RCA, WI and Mackay Radio. In 1947 and 1949, the Secretary of Defense assured RCA, TIT and WI that the assistance they were providing was essential to the national security of the United States, and both the President and Attomey General concurred in the request that it continue. Ven the Drop-Copy Operation was terminated in 1973, the FBI was obtaining the "raw’' cable traffic of 21 comtries from the Washington, D.C. offices of ITT, RCA end WU. The traffic of 10 of these countries was obtained for NSA. | | During the 30-odd years of the Drop-Copy: Operation, the FBI obtained cable traffic from various offices of six ILC companies in New York City San Francisco, Los Angeles, Portland and Washington, D.C. It appears that as late as March 22, 1971, the PFIAB and Attorney _ General were aware of the FBI's operation (p.107, supra). The FEL finds authorization for its Drop-Copy Operation in such Inowledge and acquiesence; in NSCID 6 which authorizes the NSA Director to issue direct mandatory assignments to any agency engaged in SIGINT operations (p.78, supra); and in the FBI's om authority by virtue of Executive Order to conduct counter-~ intelligence operations within the United States. (Tab R4) Possible violations and defenses are the same in the Drop-Copy Operation as in SHAMROCK, supra. - (See Summary Outline, Tab R, for further detail.) _J
Copy / of 2 VIII. CONCLUSIONS AND RECOMMENDATIONS This Report does not present particulars upon which affirmative prosecutive decisions may be made in specific cases. It rather provides the legal and factual detail for determining whether inquiry into specific activities should be terminated for lack of prosecutive potential or further pursued by grand jury. (If additional evidence of significant prosecutive value exists, it is not likely to be obtained without a grand jury.) The writer recommends that the inquiry be terminated in all respects for lack of prosecutive potential. There appears to be little likelihood, if eny, that. convictions could be obtained on the basis of currently available evidence or evidence which might reasonably be developed. The investigation has not revealed a single instance in which intelligence obtained by means of electronic surveillance was gathered or used for per- sonal or partisan political purposes. The participants in every questionable cperation, however oblivious or unmindful, appear to have acted under at least sane colorable semblance of authority in what they conscientiously deemed to be the best interests of the United States. While they may be regarded in current perspective as having abused their broad discretioary power on occasion, that ill-defined power was conferred upon them and their agencies with the levy of sweeping legislative and executive requirements, e.g., the National Security Act and NSCIDs. If the intelligence agencies possessed too mich discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies. . In addition to the previously emmerated defenses which may be invoked in the event of prosecution, there is likely to be much "buck-passing"” from sub- ordinate to superior, agency to agency, agency to board or comittee, board or coumittee to the President, and from the living to the dead. The defense 171
Copy J otZ may be expected to subpoena every tenuously-involved government official and former official to establish legitimate authorization or convoluted theories or purported ‘authorzation. While the high office of prospective defense witnesses should not enter into the prosecutive decision, the confusion, obfuscation and surprise testimony which might result cannot be ignored. Other practical considerations include the implications and complexities of providing discovery of national security materials (e.g., NSC, PFIAB, DOD, and White House documents and records), as well as sensitive foreign intelligence-gathering methodology and technology. These considerations became particularly acute when weighed against the minimal chances of sus- taining the tecknical proof of violations and the probable lack of juror enthusiasm for convicting those whom the defense may plausibly portray as dedicated employees who only followed orders in trying to protect the national interest, keep heroin out of the United States, etc. The above observations are made with full appreciation that the subject matter is an international cause celebre involving fundamental consti- tutional rights of United States citizens. While the violation of those rights, whether intentional or inadvertent, cammot be condomed, the prosecution of alleged malefactors without any reasonable probability of conviction would seen to be equally indefensible. It is suggested that the remedy for the peculiar wrongs discussed herein might be more effectively and appropriately sought in corrective legislatim and adminstrative revision than in the pursuit of pmitive and retributive measures which are likely to fail. To that end, the following irmovatios appear to be as essential as they are obvious: 172
. Governmental agencies charged with the research and development of electronic equipment essential to the national security should be provided with clearly defined authority and procedures for testing such equipment against appropriate commmications systems. Consideration should be given to seeking specific congressional and presidential designation of cer- tain international criminal activities as matters affecting the national security (e.g., international narcotics trafficking, gun-rurmming, etc.) for pur- poses of foreign intelligence-gathering. (It is pure folly, for example, to pay millions of dollars to Turkey to reduce the production of opium destined (initially) for Corsica, while at the same time deliberately denying U.S. law enforcement agencies the benefit of our most sophisticated and effective apparatus for gathering intelligence on heroin en route to the United States.) National security intelligence agencies should be authorized to provide appropriate U.S. law enforcement agencies with criminal intelligence incidentally obtained in the exercise of their ctions, including information indicating criminal activity on the part of U.S. citizens. (There is no rational basis for protecting U.S. _citizen-criminals fran the consequences of such "plain view'' evidence.) An effort should be made (consistent with the constitutional rights of criminal defendants) to secure legislation and/or rules changes to prevent the public identification of national security agencies as the source of criminal intelligence incidentally obtained in the exercise of thelr TavtaL: fimctions, at least where such evidence is not introduced at trial. The authority of the CIA, NSA and FBI to perform their respective missions in the field of electronic surve!llance should be clearly delegated and delineated with speci- fic procedures prescribed for the lawful exercise of that authority. 173
Copy / of 2 6. The Office of General Counsel for each intelligence _ agency should be staffed with one or more attorneys with expertise in electronic surveillance law and Federal criminal law and procedure. 7. Agency personnel should be re ed to consult their General Cowmsel and confirm in advance, the legality of all electronic surveillance projects, 174