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Report on Inquiry Into CIA Related Electronic Surveillance Activities

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- v~)l 80-05078-76 Copy of 2. -, - - -.. -nu?Lu-I' REPORT ON IRWIRY INIO CIA-RELATED ELECTRONIC SUMEMNCE ACTIVITIES a? Exam Fae-:2 cram; max - 5015013.: 0: c. :175'1. 5142:1123- ?sam. (-291: r? mare?Hv? 4- 42:14.55 .J w?m 1

I 80-05078-75 Copy I 032 PREACE Most of the information contained in this Report was obtained from personnel ezrployed by the various intelligence agencies under investigation. Predictably, their attitudes ranged from circurspection to wariness. One typically had to ask the right question to elicit the right met or docurent. It is likely, therefore, that we had insufficient information on occasion to frame the "tragic" question. One also had to ascertain the specific person or division to whom the right question should be addressed, since carparmentalization of intelligenceugathering often results in one hand not knowing what the other is doing. The latter was particularly true of the offices of general counsel with which we dealt. They were not always consulted beforehand con- cerning the legality of borderline Operations. Indeed, they were not fully aware, until our inquiry of certain questionable perations engaged in by their respective agencie a;areuse-oat: In addition, the offices of general counsel evinced a lack of legal expertise in the field of electronic surveillance and a general mcertainty and inexperience in the area of Federal criminal law. It is possible, therefore, that some exculpatory as well as inculpatory facts and docments were not revealed because general counsel did not perceive their relevance or significmce. 'i?he degree of overall cooperation with our inquiry varied asorg the agencies under scrutiny. NSA and DEX, for instance, were generally cooperative. from both DEA and NBA who had been directly involved in questionable operations readily submitted to interview and coOperated rat-ever guardedly) despite Miranda warnings. The CIA, on the other elected to inform us of the details of questionable CIA activities through CIA personnel who would not be given Miranda warnings, i.e. CIA aployees who had not been involved?in the quest??bre operations. Consequentl our briefings on CD. activities were conducted by CIA personnel with only second- hand knowledge gleaned principally from written records. Subsequently, however, several of the CIA personnel directly involved in questionable operations did submit to interview. Cocpliance with requests for documents and/or written reports also varied in degree of pronpmess. NSA and DE were reasonably prompt. Initially, the CIA was dilatory and the FBI tardy, but both improved as the inquiry progressed. iaterials gathered by the Senate Select Coomittee were not made available for our review until March 2, 1976. The foregoing inpadinents, while moonvenient, did not fmdaentally altar the final product of our effort to obtain the detailed overview reflected in this Report. Such obstructions might becone intolerable, box-ever, in tire. prosecutive pursuit of specific cases. Dougald D. Md-iillm June 30, 1976

012 new OF mamas Findings of on CIA activities . A. Office of Sectrrity - Telephone Taps and Bugs 3. Comterintelligence Staff Collection of Infomation on Dissidents. etc. C. Directorate of Operations - Telephone Toll Records D. Directorate of Operations - Narcotics Intelligence (Brandy Operation) 75? Directorate of Science and 'I?ecl?mology - Equiprrent Testing . F. ffice of Security - Assistance to Washington Metropolitan Police Department and Secret Service . Additional Areas of Justice Department Inquiry . A. Central Intelligence Agency . . . 14 Narcotics Coordinator and mecca . . . .. . . . - r-rJ - - um?. 7.1? 0_ n, '1 H. ?r A-n-"Hw 1L 2.3.: at .-- .-.. 8. Prmaient of Private Parties to Intercept Cwnmications B. National Security Agency . HANHHI VIA quutTJ-nu. I

C. Federal Bureau of Investigation . D. State Deparmmt . Exported Sources of Authority A. Presidential Power 1. 2. 3. 2.. WT. . 3005075326 COpy 01 2. ?age 39 40 legislative History . . . . . . . . . . . . . 40 Presidential Directives (HistoricalInterpretation of the Presidential Power . . . . . . 42 Presidential Authorization . . . . . . . . . 44 B. Narcotics Intelligence Gathering: Presidential. Direction . . 1:5 1. Presidential Message to Congress . . . . . . . . . 46 2. Waite House Task Force on Narcotics Control . . ?16 3. Cabinet Committee on International Narcotics Control . . 47 4 Office of National Narcotics Intelligence . . . . . . 56 5 International Narcotics Control Conference . . . . . . 57 6.. Pronomcenents by President Ford . . . . . . . . . 59 C. General Intelligence Gathering: Presidential Direction . . . 60 D. Narcotics Intelligmcelcathering: legislative Direction . . . 63 E. CIA: legislative and Presidential Directim . 1. National Security Council 2. Central Intelligence Agency . I I .

legislative and Presidential Direction . G. H. I. 1. Communications Intelligence . 2. NSCIDs . 3 . Line One-Terminal Rule . 4. NSA Participation in Draftarg i3 U.S.C. ?2511(3) . 5. rPropriety of Requirements . . ulna-United States mtelligmce Board (USIB) 1. Esau) 1 - 1954 2. NSCID 1 - 1972 L. 3. IGCP . 4. U.S. Intelligence Objectives President's Foreign Intelligence Advisory Board (PFIAB) . Intelligmce Evaluation Committee (IEC) IV. Possible?Violatims A. V. Applicable Statutes and law A. Interception of Commicatims Hav?mg One Tern?nal in the United States 1. Pertinent Criminal Statutes . Receipt of "Cable Traffic" Fran International Conwrications Carriers 1. Pertinent Criminal Statutes . Interception of Domestic Cmnmicatims in Testing Electronic Equipment 1. Pertinent Criminal Statutes . 47 U.S.C. 5605 100 105 113 115 116 116 117 117 118 118 Lew?w. an .

VI. 30'05926-10 Copy 012 B. 18 U.S.C. 52510, 32%. c. vaiifumes's . 1. United States v. Murdock 2. 18 U.S.C. 52520 3. WV. Mitchell . D. "Plain View" Analogy . E. "Border Search" Analogy . Possible Defenses A. Interception of Commications Having One Teminal . in the United States 1. Interception of International Radio-Telephone landline (Voice) Cmomications 18 U.S.C. ?2511 I Radio-Telephone . (ii) Wire Cmumications The "Nation' 5 Cmmications Network" . (iv) Justified bcpectations of Privacy -. Felony v. Misdemeanor . (vi) Oral (vii) Ovalapping Definitions Statutory Construction (ix) Prosecutive Options 47 U.S.C. 5605 . Presidential Authorization (18 U.S.C. 52511.0) Willfulness . . .?riJ 1'125 128 128? 130 130

0091 014 Interceptions of International Non-Voice Cc?rmmications . . 13 U.S.C. ?2511 . Interception . . . . . . . . . .. . . 145. Teletype and Telex Coommications . . 148 47 U.S.C. ?605 . . . . . . . . . . . . . . 148 Divulgence . . . . . . . . . . . . . I 148 (ii_149 Interception and Divulgence Different Parties . Presidential Authorization . . . . . . . . . . 150 151 B. Receipt of "Cable Traffic" International Cmmx?cadms . . 151 Carriers I 1.51- Personnel . . 151 Goverzment Agents and Officials ., 153 2. Presidential Anthorizadcn . 3. Willft?ness . Interception of Dcmestic Conmmications in Testing mm: . 154 1. 18 U.S.C. 52511. and 47 U.S.C. 5605 . . . . . . . . . 1.54 2. Presidential Authorizaticn . 154 3. Will??ness . . . . 154 HANDLE VIA COMINT CHANNELS I

800587546 CC:ij I 05.2 1222 VII. Sumaer of Possible Violations and Defenses . . . . 155 A. RecapitulatimofInquiry . . . . . . . . 155 - .$9.331 .- ?r #572 . - . 4,152? "Hi-.165 . . . . 168 . . . . . . . 169 Conclusions and Recamendations . . . . . . . . . 171 HANDLE VIA COMINT CHANNELS v1.1

Copy I 01 2 I. FINDINGS OF 0N 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 Conmission' Report or 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 Deparmmt 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 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 idemtify 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 lawft?. at the time, but would be prohibited under current legal standards. (RCR 160) Garment The analysis of available informtim (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 Imam 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 cmsensual. HANDLE VIA COMINT CHANNELS

-0 53-15- c: 2 With respect to CIA electronic surveillance of newsman, an exas?mtion 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. WINE STAFF, DEPUTY DIRIKTIDR 0F PINS Collection of Information On American Dissidents, etc. Coumission Findings The Commission 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, hovever, received materials from an international amica- tions activity of another agency of the government. These cconmica- tions passed between the United States and foreign countries. None was purely dcmestic. (RCR 24; 141-142) Camemt Investigation has developed nothing to contradict the Conmissim's finding that there is no evidence CIA eoployed or directed the domestic use of any electronic smeillance or wiretaps against any dissident group or individual in Operation CHAOS. (Tab Bl) The other government agency referred to by the Commission as having furnished Operaticn CHAOS with international ccommitatims materials has haen idmtified as the National Security Agency. (The electronic smveillance activities of NSA are discussed in II (B), infra.) HANDLE VIA COMINT CHANNELS

80-05073-76 Copy I 0:2 C. DIRECIORATE OF OPERATIONS - Telephone Toll Records Reflecting Contacts Between the United States and Hostile 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 countries. Sane 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 ccnmenced, the Office of the Gmeral Counsel issued a brief namrandtm stating that receipt of this information did not appear to violate applicable statutory provisions. Collection of this material was terminated in May 1973. The Commission was unable to discover any specific pmpose 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. CRCR 213-214) Cammt A review of CIA file 1971 to the 'Sorreflecting some 270 telephone call between the united States and Red China. The legitimacy of this source of intelligence was confirmed in February 1972, by the Office of General Cmmsel, CIA. (Tab Cl) The opinion of the OGC cites United States v. Covella, 410 F.2d 536, cg. 396 U.S. 879 (13595, and appears to be well reasoned and soundly based. HANDLE VIA COMINT CHANNELS 3

50-05075-26 Cow I as 2 D. DIRECIURATE OF OPERATIONS - Electronic Surveillance for Narcotics Intelligence (Brandy Operation) Conmission Findings Begirming in the Fall of 1973 the Directorate of Operations, at the request of NBA, Ironitored telephone comersations bemeen 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) Garment Examination of CIA files and the interview of various CIA officials established that from October, 1972 through Janna "fall of . . . the cm intercepted nigh trequency 1 radio telephone cmnmications between the United States and Latin America for the purpose of gathering foreign narcotics intelligence. (Tab D) The CIA undertook this narcotics intelligence collection effort at the request of NSA which had previously accepted tasking requests from BNDD to gather narcotics .. ternational cmicationsnew cripts of intercepted calls which were selected on the basis of a "Watch List" of names and telephone numbers pr 'ed NSA. NBA distributed the intelli to MD. I ?m ence . Tnis electronic surveillance activity presents prima facie questions of criminality and is well within the limitations period. (See "Possible Violatims", V, infra.) HANDLE VIA CHANNELS

5(3-05078-76 Copy. I Uf?buyer-rm -. r, Investigation has confined the Rockefeller . Corrmission's findings that the conducted without the knowledge of the CIA component with responsibility for narcotics intelligence collection." 222) . This CIA component was known successively as the 'Narcotics Coordinator" and which are also discussed herein. (See (A) (1), infra.) E. DIRECIDRATE OF SCIENCE AND TECHNOLOGY Interception of Domestic Conmmications In Testing Electronic Equipment Commission Findings In the process of testing monitoring equipment for use overseas, the CIA has overheard conversations between Americans. The names of the speakers were not identified; the contents of the conversations were not disseminated. All recordings were destroyed when testing was concluded. The acquisition of cormunications incidental to the testing of interception equipment appears to be prohibited by 18 U.S.C. 2510 et seq. (RCR 37; 64; 228) .- Comment . . . .Idh. . 5?1. - .- .- . . ?mew-rInl- . ti '1 . . human Sup,?- . - - .. -- . .. -.. - .4524.1,152 1? .. . 453.? - .. I :ikg-Ei? . HANDLE VIA COMINT CHANNELS

Wm cc-osm-m um I 4 The five?year statute of limitations would bar prosecution for possible substantive offenses involved in this project(shy. 4 . l' -. - 1:433}, 1"?tt?l14?. . .v'llo 12.35 1' .--. . 0' .. gun-Ir}, - 4" 44 . r4523}:The limitations period for prosecuting possible sub- stantive offenses related to this activity expired in 1974. . HANDLE VIA COMINT CHANNELS -

same: 80-05878-gm,? ??gt?tu use-.-. - . rbass or prosecuuve HANDLE VIA COMINT CHANNELS

mew-.2 80-05078-(nap . . - Add) - 14-? try-?hag. ..-. .?aln The limitaticns period regarding any possible prosecution arising from this activity will expire in May. 1976. See "Possible Violations" below. . . .. . 1ft Iu-n? i. a. gram-.1.- . Au. :1 HANDLE VIA CHANNELS

900567846 - COW I or 2 ?ii??fultHANDLE VIA COMINT CHANNELS

50-05075-76 COW 0" '4 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 from the Office of Security. The lamps were then placed back in the police informer's aparmmt by the police. The police informer was aware that the was being bugged and consented to the operation. (RCR 296) Content Pursuant to the request of AAG Richard Thornburgh on August 19, 197;:7' the FBI is marently 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 Cmmissim files reflect that in September, 1968. the CIA loaned "lanrps with to ruf .

'o C091 0t 4 of the Wasl?ngton Metropolitan Police Department, and that the lamps I were not returned to CIA. (Tab A3) 2. United States Secret Service The Rockefeller Coumission records also re?ect that the CIA furnished the following equipment to the Secret Service: (1) 411-113-170, loaned to . 583, on 27 July 73, and not (2) Clandestine Transmitter (Com' 1). to i and returned. (The date eqmpment was loaned is tmlmovm) . According to a :Metropolitan Police Departs-mt investigative report to Mayor Walter Washington on March 7, 1975, the only intercept utilized in connection with deminstration activities consisted of a recording device in the apartment of a sipecial 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 fran 1968-1972 was interviewed by FBI agents and stated that in 1968, she traveled to Ching with a representative of the MPD to cover radical activities which were expected to occur in conjuction with the Democratic National and that her hotel room was subsequmtly unnitored by electrmic smreillmce conducted by the Secret Service. She further acknowledged her role in electrmic surveillances conducted by the MPD of her residences on . 9?5 Win?st seems She indicated this mmitoring was accurplished . . 1" I HANDLE VIA COMINT CHANNELS

30-65979-76 Cow 0i 2 with transnattas which were present in two laps fro-?shed to her by theMPD. Secret Service personnel were interviewed and confimed that the Secret Service had participated in the consensual electronic smeillance of the informant's hotel in Chicago in 1968, and a residence occupied by her Prior to the May Day in 1971. the Secret Service is alleged to have participated with the MP1) 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 ?nished some of the equipsent utilized by the MPD in conducting this electronic smeillance. Secret Service officials confirmed to the FBI. that prior to the May Day in 1971, the MP1) requested and obtained the assistance of Secret Service in the consensual electronic smreillance of the above apartment. At the same time, the Secret Service also monitored, with the NED, two listening devices in the ath of the aforementioned ferale informant. The latter was also consensual. A former MPD Intelligence Division officer confirmed that he participated in an electronic surveillance of the female infomait?s apartment "several weeks" after the bombing of tie U.S. Capital in March, 1971. above surveillances were apparently wnducted between March 3.971 and May 4, 1971. - 12 err?Juan IIALIHIF in!

80-05078-76 Departmental Attorney James Robinson will endeavor to ascf?ftajn/any) ne?e? ther involvement the CIA might have had in the above or related activities. Ge0rge Clarke, CIA Associate General Counsel, advised as follows: . . . [Tlhroughout the Office of Security's research pur- suant to the Rockefeller Commission and Congressimal 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 DeparUrent. No assistance has been rendered or equipment loaned to the Metropolitan Police Department by Division in con? "3 nection with electronic surveillance activities. (Tab A5) However, Mr. Clarke furnished CIA memoranda reflecting loans of cornnmications equigrmt to the Metropolitan Police Department and other police departments. (Tab A6) I Mr. Clarke also furnished CIA mranda reflecting loans of counnmications equipment to the Secret Service (Tab A7), and further advised: The U.S. Secret Service under the authority contained in Title 18, U.S. Code, Section 3056, as amended by P1 90-331, regularly tasks the CIA to pro- v! vide real-time coonmications intelligence close sup- port to the [1388 during the foreign travel of the President and other protectees designated by the 11358. i The CIA, in response to such tasking, monitors, on the scene, those local, foreign military and internal semity communications supporting elmts responsible for the physical protection of visiting protectees. The results of this mitoring are immediately passed to the on-scene. On occasion, local may also be monitored by the CIA team. However, all such monitoring is at the specific request of the U888. 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 equipomt, capable of intercepting oral coommications, has been loaned to the U.S. Secret Service by the Office of Security. . .. The arrangmt between the CIA and Secret Service was formalized by written agreement in 1971. (Tab AB) In sun. the foregoing assistance to other agencies does'not indicate HANDLE VIA COMINT CHANNELS

Muriel 80-05078-76 Cepy 0x2 II. ADDITIONAL AREAS or mm: A. ,Central Intelligence Agencl l. Narcotics Coordinator and NARCOG (Tab E) In'October. 1969. the President desigiated international narcotics I 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 establishedunder 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 mite House Task Force was narcotics in Turkey and Southeast Asia. the CIA provided the Task Force with narcotics intelligence reports and studies concerning both areas. Additionally.Madv-ised, the Task Force was interested in the European comections 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. RIDD 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 deveIOpments overseas. Sane of this information was obtained as the

?ew? 30-05078-76 009;; ox .4 incidental lay-product of national security electronic surveillances overseas, Ema some from overseas. interceptions Specifically conducted for international narcotics intelligence. CIA assures, however, that none of these electronic surveillance operations was conducted within the United States or from lands reserved for use by the United States; neither were any of the interceptions targeted against 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 Cooudttee on International Narcotics Control (some) . 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 dmesticlm mforcement activities and domestic intelligence operations. CIA continued to provide ENDD (also a member of the Intelligence Subcommittee) with foreigz narcotics intelligence and various support . training, "flash rolls") for its overseas operations. The on Narcotics Coordinator fumished son with reports of the following types: 1. FIRDB TDFIRDB TDFIR, etc. (Foreign Intelligence Reports): Wm of Operations from foreign field offices with description of the sources included in the reports. 2. Cmpiled by the Danestic Collection Division usive from interviews of people who had traveled to foreign countries. HANDLE VIA COMINT CHANNELS

?rm-T11 80-05078-76 Copy o: 2 3. Analytical Report: The only Imown report of type was a study entitled "Cocaine Trafficking Network in Colombia." 4. Dail Re orts USIB National Intelligence Bulletin); PertaineE primarily to geopolitical intelligence. It is not narcotics oriented. 5. Weekly Geopolitical bulletin. Not narcotics oriente . 6. Miscellaneous Reports: These included telewpes of specific information which may or may not have been cam, and also included Director of Operations Narcotics Control Reports (DONCS) which wee sent directly to BNDD's Chief of Strategic Intelligence, 'Ihere is no indication that the CIA Narcotics Coordinator furnished EDD with any narcotics intelligence reports other than the foregoing. CIA's Office of Narcotics Coordinator was reorganized on June 12, 1972, as the Narcotics Coordination Group, or NARCOG. The principal duties of NAREDG did not differ from those previously assigned the Narcotics Coordinator. - NARCOG provided wpport to the CCINC and coordinated the ClA's narcotics intelligence program. NARCOG also continued responding to intelligence requirenents by ?rrnishing with the described reports. The first chief of mono, (6/19/72. - 7/19/74). was reportedly instructed by the DCI and the to avoid involvement: in domestic narcotics enforcenent operations as well as foreigi operations targeted against American citizens. When overseas CIA stations inadvertently acquired information concerning the narcotics trafficking activities of 11.8. citizens, the local CIA official would reportedly made: the information to his local HANDLE VIA COMINT CHANNELS

80-05075-76 Copy I os 24 ENDD comiiterpart and take steps to insure that no further collection on the U.S. citizen occurred. Wile much of the information provided the CCDIC by CIA was obtained as a result of CIA's overseas national security electronic surveillmce neither conducted nor requested the conduct of electronic surveillance operations domesticially or against any cmmications having one terminal in the United . Wyanymme; -. A Inquiry has confirmed that NARCOG officials were keenly. aware of the prohibition againstfimrolvement in domestic operations. During his tenure as chief, @reportedly sought to insure against this sort of activity by CCINC Intelligence Subcommittee the Foreign Intelligence Subcommittee, and took steps to insure that U.S. citizens' nanes were excluded from the MINT Register, an inter-agency listing of individuals involved in illicit foreign narcotics 2. mm (Tab G) On August 18, 1966, Dr. louis Tordella, Deputy Director, NSA, met with Times Karamessines, tl'xen Acting Deputy Director of Plans. CIA, and requested ClA's assistance in setting up a small cover office in dath Mmhat-tan. Dr. Tordella explained that NSA needed the office so that NBA employees could copy internatimal telegraphic ccummications received f: HANDLE COMINT CHANNELS

commercial carriers . The copying process, previously performed in Washington, DC. had to be shifted to New York because of technical problems. CIA accepted NSA's requirement and assigned the project the WY. Beginning on November 1. 1966, and continuing through August 31, 1973, the CIA provided NSA with space in a commercial buidling in lower Manhattan and a front for the NSA operation. The CIA was reimbursed by NSA for expenditures incurred in this project. . . . -, .-.: them-1?1. .. 0" All Axel?30,;g our3.4.. {ivy-In.? .II-.. 1: - q. . . t" unI' - . Ki . . uni-la f, 073. c2; .. 1 . a?yfp ur' ?rlf?I? I an", lov?I Iii-{ugh Irwii?fd?tu-I I.I .- gr'vin5l1.?f??Man's\??y?gwh Ila?hm . Pu}. .2 v4 3.245v.14meanwr ., .. L, . 1' 33L -. when n5.? - .. I HANDLE VIA COMINT CHANNELS

If.1351bur-?5* . . .L I. . 15-3-I-luIf} ?ti?$555I.nIv - fawar-a?mL-s?- u. IfMIT-luff49:? rt?1:913: . - 24$ . 9. If?" 5 HANDLE VIA COMINT

COpy I 082 Overseas Intercepts (Tab J) The overseas electronic surveillance operations of CIA provided a source of information to various goverrntent agencies concerning such matters as the influence and participation of foreign in darestic militant movements, and the international narcotics control effort. With respect to the support of U.S. dissidents by foreign CIA stations were instructed to provide CIA headquarters with pertinent informationrun-?1? ad 3" ?v - (I Pt'tea-?- . i-?Aviva.kgf??u?f?UR? '3 34." .: . I c. I?nu.Nziki- . #5329211;fo t) - is. ,mehJim?s-- "flu; .3. 0? -: outta-r1" 5 - . I ml": Hintme.- ?Ltin}; T-hl?li- tr" . . 4b11'3"} 293.26.}; avg-its endeavor to provide with valuable international narcotics intelligence, the CIA conducted foreign coummications intercept Operations against specific targets overseas. These operations could rave been I initiated pursuant to requests from CIA Headquarters or from several different govermental entities including Headquarters and District or Regional offices. With respect to the tasking of CIA by BNDDI- foreign field offices, CIA officials advised that the CIA field ataticns would not undertake any such electronic surveillance activities without HANDLE VIA COMINT CHANNELS

com I 0?2 first obtaining authorization from CIA Headquarters. Although the cm provided with information obtained overseas electronic smeillances, the CIA took precautions to insure that the method of collection and the. source of the information would not be revealed. In some cases, however, the recipients of the information were officials directly involved in the CIA overseas operation aid the obfuscation of source was not possible. In such event, the CIA station would ask the officer not to reveal the source if he passed the information on to Headquarters. Thus, when Headquarters received communications intercept information from CIA Headquarters, the source usually would not be idmtified as an overseas interception. At tines, Weaver, the nature of the information made it apparent to the construe]: that it was obtained as a result of electronic surveillance. The CIA used electronic surveillance as a method of collecting narcotics I intelligence overseas, mid because CIA provided such information to 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 overseas collection methods and sources would be in jeopardy should discovery proceedings require disclosure of the electronic mirveillance activities. The follming investigade and cas m. Q. it"! HANDLE VIA COMINT CHANNELS

cu Vv'utu 0?1441Eastern District of New York on dcmestic narcotics distribution charges only, and nine others were severed from the indictment. (Tab J4) Gustavo Guerra - Montenegro: In 1972, an indictment 1Erich had been renamed in the Southern District of California charging Guerra and six oth co- tics trafficking was dismissed ?it: . .. HANDLE VIA CHANNELS

-. . .. I. . .A-ti. ?andtun-.4? "3 .- 11.. Licmga?' - 35." ..- ?91truth-7 - .. jiffiT?- . rim?: 0 avian-a - #334: n; 3-, we lgu?lak'lw "uf,vag?uf" gigabs" "4 -l - . . .3317- Rafael Alarconit'd"! .r wartHugg?qyf. . a; . m" "ti-?JinInvestigation indictment in- the Eastern District of New York and the Southern District of New York. He was eventual]. extradited disposition of was approved by Henry S. Dogin, DAAG, Criminal Divisiion. The chronology of CIA electronic surveillance coverage, at al'. in November, 3.974, indicates that telephlione cmnmications between I 'United States had been intercepted. (Tab J4) a inf. - i - (Note: This Report does not pmrport to deal with possible difficulties arising under 18 U.S.C. 53504 in closed narcotics cases. That is the subject of a 2/5/76 Meanrandtm of Study conducted by Phillip White, Chief, legis? lation aid Special Projects.) 6. Miami Operation (DRAGON I) (Tab K) In October, 1972, during a meeting with Director Ingersoll, DCI Richard Helms offered to recruit a former CIA contract employee to work for BNDD in Miami on its EJNCION narcotics intelligence project. The employee thereafter became a "staff agent" for EQDD but retained his CIA cover. The CIA has advised that . the Agate-y did not. cmtrol or participate in formulation of duties assigned the agent by DEA advised that although 137 received frun ENDD, but paid i I. Q. the CIA paid the agent, the funds were so

Copy 1 0* '4 by CIA to avoid having DOJ records reflect the payment: DEA advised that ENDD used agent as a Jig we for information concealing latin Merican narcotics traffickers and their organized crime cormectiorm in man-Ii. This project utilized agents in addition to the contract employee and?may be generally described as a narcotics intelligence collection program targeted at Latin America. It was first desigtated BUNCIN, and later, with the formation of DEA, became knom as DEACDN I. According to DEA, the former CIA contract employee reported to a ENDD official in Miami who reportedly was also an ex-anployee of the CIA. CIA advised that the Agency's J'm'olvermt 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 ccnnuiications were intercepted during the course 5? (.N - vowthe above activities?Wisernu. wipe g-I-f? ?it 5., I a 3-: air-~43 . . a? . 41.3. av.?Ihr'n' . . ow - suspeug?ihfm - 5' . .. -. mar-:?of7i?55:1; - .cuggz??mjw?f.55 :23. 1;,1339? hang-i. -. ?31 un?t-?Inifs-'1 - I w. 'a?hr' - :o?olsn-NBIHANDLE VIA COMINT CHANNELS

ego-0975.16 00p; I OK 2 h-I?u Procmanent of Private Parties to Intercept Coinmications (Tab M) An inEIuiry was made to determine whether the CIA has procured private individuals, parties, or corporations to intercept cwirmicaticns having one or both terminals in the United States since June 19, 1968, the . date Title was enacted. 'Ihe CIA advised that the . appropriate components of CIA discovered no record of interceptions. . relative to this HANDLE COMINT

SCI-0507546 Cepy ox (B) National Security Agency 1. mum: (Tab N) . PEENAREP was a applied by NSA to a project chartered on July 1, 1969 in which NSA selected from two primary foreign intelligence sources certain lay-product intelligence involving several areas of interest. The primary sources were: (1) NSA's interception of international commercial carrier (1113) voice and non-voice counmications and (2) copies (or tapes) of international messages furnished to NSA by 11.53. commercial communications carriers in the "Shamrock" operation. The by-product intelligence was initially sought in the following areas of activity: 1. Foreig?: goverrments organizations and indi- viduals attempting to influence, coordinate, or control U.S. organizations and individuals who might incite or fonent civil disturbances, or otherwise mdemine national security. 2. U.S. organizations or individuals engaged in activities which might result in civil distur- bances or otherwise subvert the national security. 4. Ccummications which indicated foreign contats or connections with various assassins, adewmm. 5. Military deserters involved in the anti-war movement. In mid-1970 the scope of WET was enlarged to include the selection of intelligmce concerning international narcotics particularly the illegal importation of dangerous drugs and narcotics into the United HANDLE VIA COMINT CHANNELS

COpy I 0i 2 States. September 4, 1970 until June 1973?, this included the interception_ of high frequency radio-telephone (coumercially) voice cotmmications between the United States and several South American The purpose of the project was to provide lay-product intelligence to various Federal departments and agencies in response to their requests or requirements. In. responding to such requirements, however, NBA purportedly relied upon implicit assm'ances of requesting agencies that their naed for the intelligence was legitimate. In addition, NSA dealt only with "foreign cormnmications", i.e. canmnications having at least one terminal on foreign soil. The WET charter also provided that appropriate measures would be taken, in dissen?nating intercepted coommications, to insure that NBA could not be identified as the source of the intelligence. Closely associated with the project are the "Watch Lists" - . shed NSA by such consumer agencies as the FBI, Secret Service:24up?: 553?. my" . 1.7 menu - Mia; . - HANDLE VIA COMINT CHANNELS

500507646 Copy 0?2 3- w, .. "inqul'u . unr-w 1' Imam-Inn . ?g . . . were used by NSA in processing I18 voice communications and "drop copy" messages obtained in the Shamrock Operatim.

80050-7646 0093 0"nu-gm:- .- ?rst? - ?Sf?e'?3h??gaw 1? .V. 0. . ?ain'sinIt. 5:23.? '1 fax! . . . a'tfg -- Vs?n.41?Eh-Fri" I .. 5.1 IL".ng 13"" A I I -I "gnu-o'avg-f: I a" 5.315,. .3 ?4 4,2? (r Ergy?j . if . . tit'33- . . - 121,5 -, 2.: I . *u-wu 5? sh} v3." r. by r? . h' "93-14" HANDLE VIA COMINT CHANNELS

800507806 com .wr" . . Sui{Nb ?dli I . . 1 . . 'd?i?mul'?v Ere-x I . . 9 41 "::1'1 1' b: 1 i. I. 7?19late 1971, when the DCI was designated by the President to assume the role of intelligence coordinator for the Presidmt's Cabinet Cmittee on Internatimal Narcotics Control (GOING) it appears that the CIA, FBI and MD were authorized to levy dung-related intelligence requirements tn HANDLE VIA COMINT CHANNELS

ll NSA. Later, in 1972, men 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 at least in general terms, were probably approved by two successive Attorneys General and a Secretary of Defense. (See infra.) . With respect to the CIA's involvement in drug-related intelligence gathering, it is noted that from October 1972 to January 1973, at request, CIA engaged in the interception of high frequency radio trans- missions of connercial voice coronmications between the U.S. and South America from a monitoring station in was terminated on January 29. 1973 when the Gmeral Counsel of CIA advised it was mlawful.- (See suImIary of It cannot be precisely stated when theWproject 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 drummed until October, 1973, when Attorney General Richardson instructed the directors of those agmcies to stop requesting information obtained by NSA through electronic surveillmce. On the same date, the Attorney General directed the Director NSA not to respond to requests from these agencies or "any agency to miter in comection with a matter that can only be considred one of dunestic intelligence". Our irwestigetim reveals that in Noverber 1973, NSA excised the nanes of all U.S. citizens the Watch List seneememene HANDLE CHANNELS

nun 80-05075-16 Copy 052 3. (Tab P) is code name 'of an operation" initiated by U.S. military intelligence officers in 1945 in which United States international communications carriers agreed to furnish them with copies of diplomatic messages received or routed over commercial circuits. NSA inherited this activity Wen it was created in 195?. to direct the national communications intelligence effort. A review of the circumstances surrounding the inception of SW in 1945 reveals that it was an outgrowth of the World War II "censorship" program and was conducted initially under the aegis of the Assistmt Chief of Staff for Intelligence, General Hoyt Vanderberg. There was a general reluctance on the part of the carriers (based on advise of their house counsel) to engage in such activity unless certain conditions were met, including the personal assurance of the Attorney General that the ccmpanies 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 intelligmce officers that such intelligence was a matter of vital importance to the national security. Investigation reveals that in Decanber. 1947, Secretary of Defense James Forrestal met with officials of RCA, and Western Union Inter- natimal and said he was speaking for President Tainan in cmmending than for their cooperation in W. He further requested their continued HANDLE VIA COMINT CHANNELS

. u. ouuntl COpy I 0i 2 assistance because the intelligence constituted a matter of great importance to the national security. On May 18, 1949, Secretary of Defense Louis Johnson met with officials of the same companies and stated that President 'I?runan, Attorney General Tom Clark, and he, endorsed the Forrestal statenent 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 When NSA assum?ed responsibility for the SHAMROCK operation in 1952, varying practices and procedures (which would later change) had already been established batween the military and the ccxmercial carriers which permitted NSA employees access to all diplomatic messages transmitted, routed or received by the RCA, HT and Western Union offices located in New York City and washington, D.C. as well as the RCA and HT 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 diplomatic messages for microfilming on NSA?onmed machines located on the RCA premisesinIn.? o' .- Irwtil 5., ?it-.nFHf-ojft.? Iii?Va-i? ?In135-21:"Investigation shows that NSA arployees were also given access to all perforated paper tape copies of international messages transmitted by RCA, and until 1965, were 33 a asp-*- HANDLE VIA COMINT CHANNELS

80-05078-76 Copy I or 2 receiving parcels from the New York City office which were believed? to contain perforated paper tapes or received by the HT office I Although SEW is cmnonly referred-to as a "drop copy" operation. this characterization is smavhat 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 accounting purposes. When RCA began using more sophisticated equipmmt in 1960, the "drop copy" operation became minimal. Investigation reveals that beginning in 1960, the visual screening and selecting?out process accomplished by NSA employees at Rm 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 HT obtained after 1965 vim 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 . HANDLE VIA COMINT CHANNELS

Copy 1"l? ?Turin: 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 earliest possible of discovery) there came a time in the late 19605. probably 1967, than imbeknown to RCA and HT, (Western Union participation ended in 1969), NSA selected-out international messages containing the names of persons on the Watch Lists. 'Ihis continued until October 1973 when Attorney General Richardson tenm?nated the practice by which NSA responded to specific requests from agencies. The Operation was terminated in May, 1975. .- I .-.. 1p:?'aamhni'tg9:Ifhlni ?t?mwuw?, .. anyIva-3FBI Movexmt in the Operation from 1963 to 1973. Ming this time, the FBI obtained copies of internatimal cable traffic from RCA and in New York City and Wasl'dngton, D.C. Investigation also indica Until 1973, ?ea-?ream;

Su-gaUlo-lo Copy 01?- NSA received a daily package of such cormmications from the FBI Helm-17 office in Washington, 13.6. These packages contained what are believed to have been "drop copy" messages of . . messages were discarded by NSA because they did not fit any of NSA's 4 intelligence criteria. (See infra.) I. ah HANDLE VIA COMINT CHANNELS

Uup"; v1.5 .. a) {viz-J" . ..- .547. I'l'llu - -. -. .v 'J-Qvlu?< . "?53,31733, (:?Ia?rhh'.507psi; neg-5393:3575 - . am: new! - .-, .- 9'45 l. . l-giant, - ?1 . .. 3" xvii-35f . I. u. 1? r- m. . 131:13?! i Ia- {Orr-05. urn3341?;va 5' .. .-.- ..3111?llafm3HANDLE VIA CHANNELS

80050-784 6 Copy I o: 2 HANDLE VIA COMINT CHANNELS

sec Er 80-05078-76 Copy 012 Federal Bureau of Investigation (Tab R) .. In July, 1975. the national press publicized the intelligence- gathering operations of NSA and the FBI lmom,respectively, as SHAMROCK and the "Drop Copy Operation". (See II (B), The FBI immediately ?nished the Attorney General with summaries of background information Crab R1) and provided the writer, et a1. 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 involvanent . in the operation. 2the report was received on February 24, 1976. (Tab R2) 3 (Note; 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 withNSA's W.) - D. Department :of State The attorneys for the Government in the case of Morton Halperin, et al., v. Henry A. Kissinger, et 31., C.A. No. 1187-73, DDC, advised that in 1969 and 1970-71, 'v-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 electronic surveillances since 1969, Le. since the enactment of Title Maurice Leigh, Legal Advisor, Department of State, responded on December 31, 1975 that no warrantless electronic meillmces of 11.5. citizens were conducted by his Deparment during that period. (Tab 5) a 39 scan HANDLE COMINT CHANNELS Mr 5

Copy 012 SOURCES OF AUTHORITY EUR 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 PRESEENTIAL 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 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. 525116) . The legislative history of Section 2511(3) expressly reflects that nothing contained in the Federal criminal prohibitims . . is intended to limit the power of the President to obtain information by whatever means to protect the United States ?rm 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 Goverrment. Where foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisimed for the administratint of dcmastic criminal legislaticn is not intended necessarily to be

m, [dz "It is obvious that whatever means are necessary should and must be taken to? protect national security interest. Wiretapping and electronic smeillance 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. Eggs 2156-57, 2182. 2. Presidential Directives (Historical) Prior to the enath 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 listerdng 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 Court aproval. the Court in United States v. United States District Court, 4:

(jgpy'll (3:12 407 U.S. 297, 310-312, 320 (1972), recognized the constitutional basis of the President's duty to protect the Government against those who would subvert or overthrow it by unlawful neans, and noted that the use of electronic surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946. 3. Interpretation of the Presidential Power The operational interpretation of the Presidential power prior to June, 1972, was demonstrated by the Government's argument in the landmark Keith case. United States v. U.S. District Court, 407 U.S. 297, 303, 309 (1972). Relying on 18 U.S.C. ?2511(3), the Government contended that Congress, in excepting national security surveillance from the Act's warrant requirement, recognized the President's authority to conduct domestic security electronic surveillance without prior judicial approval, electronic surveillances of U.S. citizens constituting a threat to domestic security but having no significant connection with a foreign power, its agents or agencies. The Government further argued that such surveillances were conducted primarily for the purpose of collecting and 42

of 2 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 0.3. 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 requirement, but a congressional disclaimer and expression of neutrality which makes no attanpt to define or delineate the powers of the President to meet domestic threats to the national security. mile 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 numer compatible with the Fourth Amendment which requires an appropriate prior warrant procedure; the prior express approval of the Attorney General is not sufficient. The Kid; case was decided on June 19, 1972. It is a \watershed in the development of the applicable law. Altl'nugh the Court studiously avoided expressing any opinion concerning the issues which might be involved in the activities of foreig powers or their agents, the decision obviously narrowed the scope of Presidentially? authorized drmestic security electronic surveillances previously considered permissible the Attorney General and Federal intelligence officials. 43

Copy oi2 (Presidmtial?authorization to conduct electronic sin-veillances solely for the purpose of gathering foreign intelligence information was subsequently upheld by Federal Courts of Appeal, e.g. Qn_i_t_e_d States v. 311153.112, 494 F.2d 593 (3 Cir. 1974); United States v. Brown. 494 F.2d . 418 (5 Cir. 1973)). The existence of criminal will??nessw could turn on whether an electronic surveillance occurred pre-Ijgith or post-Rig where the smeillance was purportedly under Presidential auspices .- significance of Ke__it_h_ 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 cconmications having at least one terminal in the United States which cmmunications do not directly relate to national security. Prior to Ke_ith_. Presidential authorization was probably sufficient ?3 to demon-- strate good faith on the part of those conducting the interceptions. Since ?ail}. a finding of good faith in such warrantless Sin-veillances might be more difficult. Zweibon v. WE, 516 F.2d 594, 67ln.279 (D.C. Cir. 1975). . 4. Presidential Authorization The ?mdanmtal question in the instant inquiry is whether Presidential authorization, or its equivalent, was given in the aforementioned areas of questionable activity. 0 44

lam/0?2 Prelixi?narily, it can be. stated that no {15% Presidential authorization for any of the interceptions has been found. Rather, the agencies rely variously upon National Security Council mtelligmce Directives . manoranda of conferences with the President. briefings of Attorneys General, instructions from White House staffers. Presi . speeches and press releases, and interpretations of Presi- dmtial p1. grams and priorities. These are discussed below under appropriate captions . I 1 45

800587646 Copy 052. B. nmconcs MIMEWG: Parsmm DIRECTION 1. Presidential Message to Congress On July 14, 1969, the President sent the Cmprehensive Drug Abuse Prevention and Control Act to Congress. In an accompanying message (Tab T1). the President stated in pertinent part: .. . 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 Adn?nistration 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 recount-aided 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 recmnended 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 . . . . - 2. White House Task Force on Narcotics Control According to CIA memramda (Tab T2), the CIA "first becme involved in the narcotic control problem on 24 October 1969 when the President aims-med a decision to make narcotics a matter of fore.ign__ poly. 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 neximm extent HANDLE VIA COMINT CHANNELS

900507846 CODY OI 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 Deparmmt, Treasury, BNDD, 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 mamranda (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 establith of a Cabinet Carmittee 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 coma-y be stopped as soon as possible." The 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 into the United States from abroad. To the HANDLE VIA COMINT CHANNELS

30-05078-76 (30p; I or 2 3:51:31; permitted by law. Federal offices and Federal departments and agencies shall cooperate with the Cabinet Committee in carrying but its functions under this directive and shall cg?? 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 international scope are properly coordinated . . . and (5) "report to the President, from time to time, concerning the foregoing." (Ephesis added.) I The Presidential also directed that the CCINC be emported by a 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, BNDD, NSC, Defense and CIA. The appointed a Foreign Intelligence Subcommittee chaired by the CIA "narcotics coordinator" and including members NSA, DIA. State. Treasury and the White House. (Tab T6) The mission of the Subcmmittee was to "provide for a coordinated national effort in the collection, dissemination and finished production of national foreign intelligence on narcotics and dangerous drugs." The functions of the Subconmittee included the forwarding of intelligence "collection requirements as necessary to appropriate and agencies", HANDLE VIA COMINT CHANNELS I 510%?"

80-05078-76 com. I 01 2 The "Terms of Reference? for the Intelligence Subcoqmittee 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 (+81 of the Foreign Assistance Act of 1.961 which provides: . The President shall suspend sales under the Foreign Military Sales Act. . . with respect to any country when the Presth determines that the government of such country has failed to take adequate steps to prevent narcotics drugs and other controlled entering the United States mlawfully. . . (Tab T7) In determining whether there was a prima facie case for questioning a country?s performer-ice, the Coordinating Subcommittee was to ascertain, 11.3.3325 alga, there was (I) evidence of substantial violations of treaty obligations or bilateral agreements relating to control of the production, processing or trafficking in narcotics drugs; (2) "hard evidence" that govemment officials were involved in illicit drug production, processing, smuggling 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) . . HAHN: VIA (EHANNELS

80-05078-76 Copy I as 2 Minutes and mrmda of CCIZNC meetings and activities reflect die following: August 17 1971 Establishment of the Cabinet Committee actually ammts to a shift of overall authority am from Justice to the White House and tate. . . . A Presidential Directive would designate the Cabinet officers to serve on the Can- mittee and mandate its establith and fmctions. Also, it would designate me [Krogh] as Executive Director of the Committee. This is inportant 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 Government takes somat- ever steps are necessary to reduce the supply of illicit narcotics available to American users. He reiterated to the Cwmittee that achievin real progress in this battle is one the President's highest priorities. Attorney General Mitchell raised the problem of narcotics through Latin America. This area, particularly Panama and Paraguay is an increasingly

30.05075-76 Copy: 1 012 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 Connittee 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. *nl'n'r To increase our intelligence gathering capacity, Mr. Krogh asked for increased assistance from the Central Intelligence Agency. General Cushnan 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 Cushnan 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 Cuslman made it clear that to expand its efforts the CIA needed sane increase in financial and personnel support and, most importantly, required additional coverage for its overseas personnel. Mr. Gross voltmteered to assist on the latter problem. (Tab 'I'll) 5 7% HANDLE VIA CHANNELS

Seasons-76 Cop-y ox 2 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 neaning there was no longer any interest in crop substitution, treatment, education or research overseas. The Group agreed that this extreme interpretation was incorrect. Other facets of the international drug control effort will continue to receive support where appropriate despite the Cabinet Conmittee?s decision to emphasize intelligence and law enforcement. a- Mr. Ludlum reported on the intelli ence review being mdertaken at Mr. Krogh a request by his Subconmittee. 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 I and to make recoonmdatims on a wide rmge of organizational problems. A number of initiatives in the intelligence field have already been taken. The Subcom? mittee authorized the creation of an ad noc group to accelerate the collection of high- priority drug intelligence on mjor European trafficking networks. The Subcwmittee 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) 52. at?. HANDLE VIA COMINT CHANNELS

80-05078-76 Copy 0?2 March 20. 1972 [Attended By the ?esident] The President opened the meeting by reiterating his deep coronth to finding a solution to the drug problen 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 elinn?nate the flow of hard narcotics entering the United States from abroad. . . . Present priorities for achieving this objective are the follming. . .: 2. Improved overseas law enforcement and intelligence. The problen of narcotics intelligence was next discussed. 5 Hr. Krogh described intelligence as being the most important, but currently weakest, element of our international drug control progr. 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 acme mechanism should be developed to ensure better coordination, collection, analysis. and disseninatim of narcotics intelligence. 5'5 HANDLE CHANNELS

SECRET 800507546 Copy I cl; 2 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 countries not cooperating on narcotics control. 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 unnecessary strain. He also asked that appropriate steps be taken to prevent Ricord being released on bail once he is in United States custody. Director Ingersoll replied that efforts were already underway to try to prevent bail being set. Once Rioord arrives in the United States, it: in unclear how quickly he can be brought to trial. The Attorney General agreed to look into the possibility of expediting judicial cmsideratim of the case. (Tab T14) 51+ HANDLE VIA COMINT CHANNELS

80'05378-76 COpy 0:2 November 27, 1973 [Attended by the President] a The President Opened the meeting by citing the Administrations record of progress in conbatting heroin abuse and enphasized the continuing priority which he intends the drug control pro- gram to have. - The President expressed his pleasure with the successes our drug enforcement efforts have had, both at hare and *ir . . . He asked the Cabinet to give new impetus to the attack on newly emerging problem areas and to do an even better job in ccmbatting the old. . . . The President emphasized that he waited to continue his ersonal involvement in drug control as appro- priate and instructed Mr. Laird to assume personal responsibility for overseeing the operation of the federal anti-dmg effort. . .. (Tab T15) In a telephone interview on April 13. 1976, Egil Kroghxadv-ised that in 1971, a White House meeting of high-level presidential advisers was opened to ABC-TV News during which President Nixon was briefed by DCI Richard Helms and BNDD Director Join Ingersoll on the problem of narcotics (particularly heroin) wiggling into the United States. An ABC-TV News Documentary containing excerpts ?rm the White House testing was produced and later published in the paperback, A. m, PERDES AND (1972). (Tab 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- telep'mne coomznications cmtaining narcotics intelligence but was We of the medianics or spec

seesaw-75 COW 0 '4 In a March 28, 1971 mermrandim to the CIA Narcotics.erdinator (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 EIDD already has underway. They should also be instructed that headquarters wants them (1) to penetrate the major hard drug collection, refining and distribution networks, and (2) to discover which foreign government and police officials are protecting or assisting the traffickers." 4. Office of National Narcotics Intelligence On July 27, 1972, the President issued Executive Order 11676 "[P]roviding for the Establith of an Office of National Narcotics Intelligence Within the Deparmmt of Justice". The Order states in pertinent part: This Administration is determined to eradicate the menace of drug abuse in America. I have hm determined that a National Narcotics Intelligence System is a necessary next step in our carpaign against illegal drug traffic. . . The Director shall call upon other agencies of the 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 develowment and maintenance of a National Narcotics Intelligence System . .. Each and agency of the Federal Gmrermmt shall, upon request and to the extent permitted by law, assist the Director of the Office of National Narcotics lnte ligence in the performance of functions assigned to him by or pursuant to this order. and the Director may, in carrying out those fmetions, 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 mes-cram to the various department?and agencies, including the NBA, prescribing the role and mission of the pursuant to the above Order. (Tab Tl?) The St: HANDLE VIA COMINT CHANNELS

800507546 Copy o! 2 Attorney General stated that "[g]iven the urgency of the narcotics problem and the-priority placed by the President upon the establith of a National Narcotics Intelligence System to ccnbat it, it is essential that the responsible departments and agencies involved join forces in an integrated program of action. . 5. International Narcotics Control Conference On September 18, 1972, in remarks to the International Narcotics Control Conference President said in pertinent part: [Wlirming the battle against drug abuse is one of the most important. the most urgent national priorities confronting the United States today .. . . [Hooking back over the three years since I declared total war on drug abuse and labeled 1t America's public enemy numb?e? one, I think the depth of our national cmu?tment is clear . . . . From an organizational standpoint, we have mobilized to meet this problem on all fronts . . . . I have named a Cabinet Committee on Inter- national Narcotics Control which coordinates our world-wide ai to cut off the sources of supply .. .. Here we are ?g the problem therefore on all fronts in the most effective way we can through our various government agencies . . . . I also have assumed same personal responsibilities. I have been deliberately cracking the whip, as many of you in this in my personal supervision of this program and I have to admit that we haves??ocked some 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 our om borders. The men and wcmen who Operate the global heroin trade are a menace not to Americans alone, but to all man- kind . .. . They must 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 governments in more than 50 countries around the world. 'Ihat is have 5'7 HANDLE VIA COMINT CHANNELS

(SC-0507846 COpy 08 2 ordered the Central Intelligence gang, early in this Administration, to mobilize its full resources to fight the international drug trade. a task.. incidentallyg in which it has performed superbly. . . . Tm ke riori here is the target on the traffickers wherever they are. to immobilize and destroy than through our law enforth and intelligence efforts and I contend all of you on the fine initial progress which has been made in these programs. . . Any government those 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 dangerous drugs out of the United States just as important as keeping armed enemy forces from landing in the United States. Dangerous drugs which come into the United States can endanger the lives of yomg Americans just as much as would an invading army landing in the United States. Every government which wants to move against narcotics should know that it can count on this country for our wholehearted support and assistance in doing We are living in an 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 against dangerous drugs? . . We are going to fight this evil with every weapon at our command. . (Tab T18) (Emphasis added.) HANDLE VIA COMINT CHANNELS

Copy I o: . 6. 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 Septetber 8, 1975, states: .. . [T]he Presida'xt, in compliance with the to the Foreig1 Assistance Act of 1961. . . has determined that the Agency should engage in the collection of narcotics intelli- gence abroad. In a paper entitled "Findings Pin-sumt to Section 662 of the Foreign Assis- tance Act of 1961, as Amended, Concerning Operations Abroad to Help Implement Foreign Policy md 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. . . internatimal narcotics directed against the United States" is important to the national security of the United States. (TED T20) (Emphasis added.) VIA (OMINT CHANNELS

800507846 COpy 0i 2 C. GENERAL INTELLIGENCE cam: PRESIDENTIAL DIRECTION On November 5, 1971. the President sent a memrandim (reportedly prepared by James Schlesinger. then of (MB) to the intelligence principals of the 11.5. Goverment (Tab U1) establishing goals for the intelligence comnmity and directing organizational and management changes to attain them. One of the listed objectives was that . . more efficient use of resources by the [intelligence] in the collection of intelligence information be achieved. Utilization of the means available must be in consonance with approved requirenents of U.S. security and national interests." (Bi-phasis added.) To achieve the objectives, the President directed, alga, that the Director of Central Intelligence (DCI) assume overall leader- ship of the intelligence mmity; that intelligence collection programs financed and managed by the of Defense [which includes must come more effective Irenath and coordination with other I intelligence programs; and that NSCIDs and 1301135 (Director of Central Intelligence Directives) be rewritten to reflect the changes ordered. The Presidmt "reconstituted" the United States Intelligence Board (USIB) under the chairmanship of the D01 and added to its umbership a representative of the Secretary of the Treasury. 'Ihe USIB was charged with advising and assisting the DCI with respect to the "production of natimal intelligdice reqx?remmts and priorities, the supervision of the disseminaticn and security of intelligence material, and the protection of intelligence sources and methods." 60 HANDLE VIA COMINT CHANNELS

30-05075-26 COpv 0: ?re?Presidmtfurther established a National Security Council Intelligence Cmittee to give direction and guidance on national substantive intelligence needs, and also directed the Department of Defense to establish a "unified National Cmmand under Director. NSA for the conduct of USG communications intelligence and electronic intelligence activities . In conclusion. the President stated that. while his directed charges were limited, he fully expected ?further changes in the intelligence commity consistent with maxim practicable attainment of my objectives" and that other "changes in the manner-producer relationship may be needed to achieve a more effective reconciliation of the demands from consumers with the limited resources available for intelligence production." The principal itans in the foregoing memorandLm were trade public in a cmtarporaneous White House press release. (Tab U2) 0n the sane date, the President sent a letter to the DCI (Tab U3) in which he desigmted, as a top priority, the production of "national intelligmce-required by the President and other national consmers". The President also emerated the following goals: (1) a more efficient use of resources in the collection of intelligence information; (2) a more effective assigment of within the intelligence cmznity; and (3) improvement in the quality and scope of the substantive product. The kresidmt's directives were incorporated in NSCIDs effective February 17. 1972. On October 9. 1.974, in a mrmdun to the DCI, President Ford affirmed at HANDLE VIA COMINT- CHANNELS

00513 I m?z "the responsibilities and authority charged to you as leader of the Intelligence Cormunity in the Residential memorandun of November 5. I shall expect that the heads of the having foreign intelligence responsibilities will cooperate with you and provide you with every assistance in fulfilling your responsibilities." .. (t 4,1 HANDLE VIA COMINT CHANNELS

'0 b'vb Copy 0t 4 D. Wes ammo: LEGISLATNE DIRECTION The Federal Narcotics and Dung 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 (CIA) and Secretary of Defense (NSA) have functions related to the trafficking in narcotics and dangerous drugs: Sec. 3. The Congress hereby finds and declares. . . (3) that overlapping jurisdictions, failure to share ,intelligence and other information, general lack of cemmication and cooperation. . . 2 law enforcenent agencies have resulted from the diffusion of efforts within the Federal govermnent against trafficking in narcotics and dangerous drugs; *ir'k Sec. 10. The President. after consultation with the Attorney General, shall direct the Director of the Central Intelligence with respect to all of the Director's functions related to in narcotics and dangerous drugs; Sec. 11. line President, after consultation with the Attorney General, shall direct the Secretary of Defense with respect to all of the Secretary's functims related to m'affiddng in narcotics and dangerous drugs . HANDLE VIA COMINT CHANNELS

800507546 COpy I on a E. CIA: AND AUIHORIZATION 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 11.5.0. 5401, 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 recouuendations regarding national security intelligence activities, the coordination of such activities, the dissemination within the Govermmt of intelligence relating to national security, and the performance of such other ?mctions and duties as the National Security Council may direct. 50 U.S.C. 5403(d). a. 4 The statutory authority of the National Security Council to direct the activities of the CIA and the Director of Central Intelligence - 1/ HANDLE CHANNELS

rec-0507546 00p} 012 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 Council. 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. 14 March 44 1964 NSCID 1, revised March 4, 1964 (and in effect until 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 Semrity Cmmcil directives". The 1964 NSCID 1 further provides that the Director of Central Intelligence "shall act for the National Security Council to provide for detailed implantation 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 Such directions shall, as applicable, be promulgated and implemented witl'dn the normal cmmaml channels of the and agencies concerned". (Paragraph 38) The contemplated DCI Directives include: (1) General guidance and the establislment of specific priorities for the productim of national and other intelligence and for collection and other activities in support thereof. including: establisl'n?ent of cooprehensive National Intelligence Objectives generally applicable to foreig1 comtries and areas; I - I ail. ?5 HANDLE VIA COMINT CHANNELS

80-05078-76 Copy I 03,2 indentification from time to time, and on a elm-rent - basis, of Priority National Intelligence Objectives with reference to specific countries and subjects; and issuance of such comprehensive and priority objectives, for geieral intelligence guidance, and their formal trans- mission to the National Security Council. (2) Establishment of policy, procedures and practices for the maintenance, by the individual components of the intelligeice community, 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 cerumity within the limits .of their capabilities, of such intelligeice, intelligence infor? mation and other mformation with utility for intelligence purposes relating to the national security, as may be requested by one of the departments or agencies. (Para- graph 33) The 1964 directs that the Director of Central Intelligence disseminate "national intelligeice" intelligence required for the formulation of national security policy and concerning more than one deparmmt or agency) to the hesidmt, mariners of the National Security Council, embers of the USIB and, subject to existing statutes, to such other components of the Govermmt as the NSC "may from time to time designate or the U.S. Intelligence Board may recmmend." (Paragraph 4) The DCI was also directed to "call upon the other departmeits and agencies as appropriate to eisure that on intelligence matters affecting the national security the intelligence community is supported by the full 66 HANDLE VIA COMINT CHANNELS

knowledge and technical talent available in or to the Govenmut." {Para- graph 6). NSCID 1, February 17, 1972 NSCID (and other NSCIDs) were revised on February 17, 1972, to conform with the directives of the President contained in a November 5. 1971 Presidential amnrandim, infra. The 1972 NSCID 1 charged the Director of Central Intelligence with, . 113$, the following duties and responsibilities: 3. 'I_h_e_D_i_re?tor of Central Intelligence a. The Director of Central Intelligence will dis- charge four major reSponsibilities: (1) Flaming. 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) Chatting and staffing all intelligence coonnmity advisory boards and committees. (4) Establishing and reconciling intelligence requirements and priorities within budgetary constraints. c. The Director of Central Intelligence shall act for the National Security Council to provide for detailed implementation of National Security Council Intelligence Directives by issuing, after appropriate in} LIAMN VIA FOMINT CHANNELSA

5. consultation, such supplementary Director of Central Intelligence, Directives as may be require . Such directives shall, as applicable, be pramlgated and implanted within the normal coomand channels of the departments and agencies concerned. Director of Central Intelligence Directives to be issued in accordance with the provisions of subparagraph above shall include: (1) General guidance and the establish- mt of specific priorities for the production of national and other intelligence and for collection and other activities in support thereof and their forsal transmission to the National Security Counsil. (2) Establishment of policy, procedures and practices for the maintenance, by the individual carponemts of the intelligence if a In contnming' interchange inte ence, intelligence information and otheig' information, information with utility for intelligence purposes. The United States mtelligence Board Q1513) C. The Board shall be provided with a Secretariat staff. which should be under the direction of an Executive Secretaiy appointed by the Director of Central Intelligence. Subordinate committees and Working Groups should be established. as appropriate, by the Director of Central Intelli- gel-ace. HANDLE VIA COMINT CHANNELS VJ

seesaw-76 cap, ox 2 National Intelligence .. d. The Director of Central Intelligmce shall disseminate national intelligence to the President, members of the National Security Council. as appropriate, members of the United States Litelligence Board and. sub- ject to existing statutues, such other ccmponents of the Goveth as the National Security Council may time to time designate or the United States Intelligence Board may recosuend. . . . 7. Protection of Intelligence and of Intelligence Sources and Methods. The Director of Central Intelligence, with the advice of the numbers of the United States Intelligence Board, shall ensue the development of policies and procedures for the protection of intelligence and of intelligence sources and methods from mauthorized disclosure. Each department and agency shall remain responsible for the protection of intelligence and of intelligence sources and methods within its own organizationCommunity Responsibilities 3. In implementation of, and in conformity with, approved National Security Council policy, the Director of Central Intelligence shall: (2) Cell upon the other departments and agencies, as apprOpriate, to ensure that on intelligence matters affecting the national security the intelligence is supported by the full know- ledge and technical talent available in HANDIF VIA COMINT CHANNELS

sac-0507846 Copy of 2 7 or to the Govermnent. (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 reqwired in the interests of the intelli- gence for reasons of economy, efficiency or operational necessity. In this connection primary departme?xtal interests shall be recognized and shall receive mutual cooperation and support. *1'r1't (6) Be provided with all information required from all departure-ate and agencies of the Executive Branch required for the exercise of his responsibilities. b. Insofar as practicable, in fulfill- ment of their respective responsibi- lities for the production of intelli- gence. the several 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 cmuunity. A -. - a '70 HANDLE VIA CHANNELS

80-05078-76 Cepy I 0:2 in the CIA's statutory promenmt power, Le. . 50 U.S.C. ?403j. which authorizes the CIA, inter alia. to expend funds 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. HANDLE VIA COMINT CHANNELS

., Q.OC. \u Copy I of 2 5. CIA Narcotics Intelligence Gathering" In a themrandun of August 6, 1975 (Tab W) CIA General Counsel invokes two principal sources of CIA authority to collect narcotics intelligence: 50 U.S.C. 5403(d). and NSCID 5. Section 403 (3) charges CIA with the duty, mder 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 functions. 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 staunte 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 for U.S. clandestine activities abroad. including: 3a. The conduct of espicnage outside the United States and its possessions [defined as "that intelligence activity which is directed toward the acquisition of information through clandestine neans?] in order to meet the intelligence needs of all departments and agencies concerned in connection with the national security.? HANDLE COMINT CHANNELS

80058-7846 Copy 012 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 2/17/7211? 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 emu-ally. CIA contends that NSCID 5 is clearly within scope of Section 402 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 noo?nation to become Director of Central Intelligence. In response to a question specifically addressed to whether CIA was then engaged in assisting U.S. law enforth 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 cmgressional objection to the dissemination of such intelligence to lmmforcarmt agencies, and construes this as tacit approval by of such dissaninatim. HANDLE VIA COMINT CHANNELS

COpy I or 2 F. NBA: IEISIATIVE AND PRESEWIIAL AUTHORIMTION The National Security Agency was established under the authority and control of the Secretary of Defense by Presidential directive of Novanber A, 1952 pursuant to the provisions of Section 133, Title 10, United States Code. The organizational structure and functions of NSA 0, are set forth in National Security Council Intelligence Directive No. as revised 12/29/52 and superseded by National Security Council Directive No. 6 issued 2/17/72. Prior to the establith of NSA. Congress had enacted 18 U.S.C. 5798 which prohibits disclosure to mauthorized persons of classified information including. inter; 51g, the nature or use of any code. cipher or system of the United States or information concerning the communication intelligence activities of the United States. lhe term intelligence" is defined by Section 798 to include "all procedures and cathode used in the interception of communications and the obtaining of information from such connimications 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 algage in coummication intelligence activities for the United States." (Emphasis added.) Heron?: VIA CHANNELS

COpy'l 012 By the enactment of 18 U.S.C. ?798, Congress recognized the legitimacy and protected the product of intelligence activities of the United States, nomithstanding the prohibitions of 47 U.S.C. 5605 enacted in 1934. Section 798 also confirms the Presidential power to designate an agency, the National Security Agency, to engage in commutations intelligence activities for the United States. The foregoing statutes. together with 18 use 525110). clearly acknowledge the President's power to engage the National Security Agency in mmications 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 so. whether NSA exceeded that eutl'nrization. 'Ihe answers will turn largely on the operational definition of intelligence activities," as opposed to the sweeping statutory definitim in 18 U.S.C. 579803). '75 HANDLE VIA COMINT CHANNE - .

80-05078-76 . i Copy 1 012 l. lntelligmce '7 NSA operates pLu?suant to the definition of cmnmications intelligence (CEMENT) contained in National Security Council Intelligence Directive No. 6, Le. intelligence information derived by other than the intended recipients from foreig: cornmmications passed by radio, wire or other electromagnetic means. This encompasses the processing of foreign omnications (including the study of plain text) however trmmitted, but does not include the interception and processing of written NSCID 6, Paragraph 1. 2- 13.59.12; NBA takes the position that the President's constitutionaland statutory authority to obtain communications intelligence is implemented through the directives of his alter ego, the National'Security Council, and the subsidiary directives of the Director of Central Intelligence CDCIDs and supplemental Congress established the National Security Council in 1947 and designated its mmubership to include the President (as presiding officer) . the Vice President, Secretaries of State and Defense, et al. The primary fimction of the Council is to advise the Presidmt with respect to the integration of domestic, foreign, and military policies relating to national security. 50' U.S.C. 54-02. It is a u'uism that the President has the only "vote" on the National Security Comeil. Consequently. the operational directives (NSCIDS) of the Council are regarded by NSA as bearing the imprimatur of the President. HA mm VIA FHA t:

30-05078-76 COpy 0:2 (While the President does not attemd every NSC meetingr the NSCIDS distributed to the field obviously do not reflect the President's attendance record nor the extent of his personal participation in the promulgation of any particular directive.) NSCID 6, effective February 17, 1972, provides in pertinent .7 Secretary of Defense The Secretary of Defense is designated as Executive Agait of the Goverrment for the conduct of activities in accordance with the provisions of this directive and for the direction. supervision, funding, maintenance and operation of ?ie'National Security Agency. The Director of the National Security Agency shall report to the Secretary of Defense and shall be the principal 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. Naticnal Securig Agency partshall be the duty of the Director of the National Security Agency to provide for the mission of the United States. to establish an effective unified organization and control of all collection and processing activities of the United States. and to produce in accordance with objea?ves, requirements and priorities established by the Director of Central Intelligence Board. No other organization 6 defines SIGINI to include commnicaticns intelligence (CG-UNI) . \n

WEE: 50-05078-76 Copy 0? '4 shall engage in SIGINT activities except as provided for in this directive. Except as provided in paragraphs 5 and 6 of this directive, [re unique responsibilities of CIA and the Director of the National Security Agency shall exercise full control over all collection and roces ?7 activities, . The Director 0 the National Securig Igmcy is authorized to issue direct to any operating elements Engaged in SIGINI operations such instructions an as are reqmre . A issued by the Director under the authorityjrovided in this paragraph smalle tranc'atog, s?aject only to appeal to the Secretary of Defense. The Armed Forces and other departments and agencies often require timely and effective The Director of the National Security Agency shall provide information reouested, taking all necessary measures to facilitate its maxim utility. As determined by the Director of the National Security Agency or as directed by the Secretary of Defense, the Director of the National Security Agency shall provide such HANDLE VIA COMINT CHANNELS

80050] 8-76 COpy as 2 I g. 'Ilne intelligence components of individual 5' Do 11 departments and agencies ma}: continue to conduct direct liaison w?zh the National mm) 3 Securitv Agency in the interpretation and mlification of requirements and priorities 5 ?thin the framework of o?on?ectives, require- In ments and priorities established by the Director mantra]. Intelligence. (Emphasis added.) The foregoing NSCID 6 superseded NSCID 6 dated September 15, 1958 and revised January 18, 1961 which; in turn, superceded NSCID 9 dated July 1, 1948 and revised Dacennber 29, 1952. There has been no fundamental \change since September 15, in the definitions and duties set forth in pertinent part above. Paragraph 41) is a rephrasing of the old Paragraph 6; Paragraph he of old Paragraph 7c; and Paragraph 4c of the old 7.3. Prior to the issuance of NSCID 6 on September 15, 1958, its predecessor. NSCID 9, dated July 1, 1948. contained the follming HANDLE WA COMINT CHANNELS

SID-0507546 Capy otz "Conmmications is intelligence produced by the study of foreign communications. Intelligence based in whole or in part on Cmmications Intelligence sources shall be considered Cormmications Intelligence as pertains to the authority and responsibility of the United States Intelligence Board. Intelligence activities? comprise all processes involved in the collection. for intelligence purposes, of foreign the production of information from such cmmications, the disseminadon of that information, and the control of the protection of that information and the security of its sources. 1w? 1-11? .e HANDLE VIA COMINT CHANNELS

5040507846 COpy of 2 ?1 3. The One-Tern?nal Rule The foregoing definition of "foreign coonmications" is only less sweeping that the definitions of "coommications intelligence" in NSCID 6 md 18 NSA ptizrportedly operates. however, pmsuant to a more restrictive self-imposed "one-temdnal rule", i.e. . NSA will not intentionally intercept a unless at least one terminal is outside the United States. According to Dr. Louis Tordello, former Deputy Director of NSA, this has been practice from its inception in 1952 To further confirm its good faith reliance on the one-teminal rule, NBA cites mmranda reflecting separate briefings of Attorney General John Mitchell and Secretary of Defense Melvin Laird on February 1. 1971, by Assistant NSA Director B.K. Buffham. (Tab Xl) Mr. Buffhan?s memorandIn I I- A HANDLE VIA COMINT CHANNELS 81

80-05078-76 Copy or 2 of February 3, 1971 reflects that Messrs. Mitchell and Laird read and ?7 approved the contents of the following January 26, 1971 mrandim from- NSA Director Admiral Noel Gaylor: 26 January 1971 MEMJRANDLM FOR THE SECRETARY OF DEFESE 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 dcmestic. problems. Character To be consistent with accepted standards in respect to protection of individual constitutional rights and civil liberties. see with at least one foreign tenninal. Intelligence bearing on: (1) Criminal activity. including 95:55. (2) Foreign support or foreig'x basing of subversive activity. (3) Presidential and related protect-1m. Procedures Tasking by competent authority only. Special procedures to protect source, to include:

30-05078-76 COpy 0l2 . 7 C?cmpartmented reporting to F.B.I. 'or EDD - for crin?nal activity, to F.B.I. and 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 (4) Screening at source (NSA) .to insure compliance with the above criteria. It is father mderstood that NSA will insure full availability of all relevant material by carpetent and informed rgaresenta- Eon in the Justice working group. (BrphaSiS added) I 3/ Noel Geylor I Another mermrandum ?rm Admiral Gaylor attached to the above mrmdum of January 26, 1971, stated that the latter was read "in presence of Secy. Laird and accepted by Attorney General lileindienst 1 July 1972". (Tab X2) Mr. Kleindienst had no indepmdent 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 but couldn't disagree with Buffham'a commits, and that the mernorandim contained nothing he did not generally know as early as 1964 when he served on the House Armed Forces ApprOpriations Subcmmittee. (Tab X4)

53.050787? COpy or 2 Mr. Mitchell said he had no recollection oi: the briefing by Buffham but that his appoinmient book reflects a meeting with Buffham at 12:05 p.m. on . February 1, 1-971 for about five udnutes. crab 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).

'wr stunt: i 80-05078-76 012 4. NSA Participation In Drafting 18 U.S.C. 2811(3) :Having operated under the "one-tenninal rule" since General Counsel consulted in 1967 with officials of both the Justice Department and the Senate Subcommittee who were drafting Federal legislation prohibiting muthorized intercepticns of wire and oral cmunmications (1.8 U.S.C. 552510, gt sea.) . 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. 525110) which was incorporated in the statute enacted on June 19. 1958. (Y 1) On July 24, 1968. the General Counsel reported to NSA that the effect of the Presidential exception contained in 18 U.S.C. 525110) is to remove any doubt a. the legality of the and (INSEC activities of the Executive Branch of the Goverment." He further stated that the language . . precludes an interpretation that the prohibitions against wiretapping or electronic surveillance techniques in other lawapplies to and coast activities of the Federal Wiretapping and electronic surveillance tectmiques, are. therefore, legally recognized as means for the Federal Goverth to acquire foreign intelligence information and to monitor U.S. classified to assess their protection against eJ-cploitatim by foreign intelligence activities." (Tab Y2) NSA General Counsel sought. in his initially proposed draft of 18 U.S.C. 525116), to insure that no infomtion obtained in the exercise of such Presidential powers "shall be received in evidence in any judicial or administrative proceeding." Crab Y3) This proposal was - 85 HANDLE VIA COMINT CHANNELS

COpy o: 2 substantially diluted in the statute, as passed, and was essentially nullified by the enactment of 18 LL: .C. 53504 on October 15, 1970. 5 Propriety of Requirarmts It should be noted that Paragraph 7c of the 1958 NSCID 6 provided: It is recognized that the Aired Forces mid other and agencies being, served require direct . . support of various kinds. . . . Each member department or agency is responsible for stating to the Director, NSA its rgiirenmts for direct syport. (Emphasis added.) The rephrased Paragraph @of NSCIZD 6. effective 2/17/72, provides: . The Armed Forces and other departments and agencies often require timely and effective The Director of the National Security Agency shall provide informa- 1 tion r?sted. . . (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 requiranents to conform with the law. Paragraph 4g of NSCID 6 (2/17/72) permits the intelligence conponents7 of individual departments and agencies to "continue to conduct direct liaison with the Natimal Security Agmcy in the interpretation and amplification of requirezmts and priorities within the framework of obj actives, requirements and priorities established by the Director of Central Intelligence." HANDLE VIA FOMXNT CHANNELS

50-05078-76 Copy oi2 - Paragraph 41: (old paragraph 6a) of NSCID 6 (2/17/72) requires NESA7 to produce intelligence "in accordance with obj actives. I 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 of names of racketeers to NBA requesting information NSA might have, or subsequently obtain, concerning them. crab 2) On July 5, 1973, the Assistant Secretary of Defense (Intelligence) requested an opinion from DOD General Comsel as to whether. $511535 g3, NSA was clearly operating within the law. Assistant General Counsel Frank A. Bartimo responded by manoranchn of July 10, 1973 (Tab M1). in which he stated. in pertinent part: 87

sac-0507856 Copy o: 2 mer VIA FOMINT CHANNELS

80-05078-76 C0"?y 05 Z7 On Septanber 17, 1973, General Lew Allen. Jr., Director, NSA. wrote to DCI William Colby, et a1. . concerning "Watch List? procedures, stating that "as in the past, we at NSA will lack the Warmithal for verifying the of the Watch List entries, and we will continue to rely upon you. as the requesting age-may. for that assurance." (Tab M2)

HAth I: A TOP SECRET sc-oso78-76 Copy 012 FHANNELS

30-05978-76 COpy- I OS 2 G. UNITED STATES INTELLIGENCE BOARD 9 Pursuant to the provisions of the National Security Act of .the National Security Council (use) issued 9 on July 1, 1948 establishing, Elia, the United States Coummications Intelligence ?Board "to effect the authoritative coordination of activities of the Govermmt and to advise the Director of Centml Intelligence in those matters in the field of Intelligmce for which he is responsible," i.e. coordination of the foreign intelligence activities of the United States. I NSCID 9, revised December 29, 1952, reconstituted USCIB to operate {under the newly-created Special Committee of the National Seem-in? Council {for 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 Germ-a1 Intelligence. The United States Intelligence Board (USIB) was estahiisheg? NSCID 1 in 1958 to "maintain the relationship necessary for a fully intelligence ccommity and to provide for a sore effective integration of and guidance to the national intelligence effort. . (The ?intelligence ccunmity? includes the CIA, the intelligence components of State. Defense. Army, Navy. and Air Force, the F.B.I., ABC and NSC. Other components of the and agencies of the Goverment are included to the actent of their agreed participation in regularly established_ interdepartmental intelligence activities.) A

80-05078-76 COPY I oi 2 Tne tmanbership of the USIB since 1964 has been the Director and Deputy Director of Central Intelligence; the Diractor of Intelligence and Research, State Director, Director, an ABC representa- tive, and a representative of the Director, F.B.I. 1 effective 2/17/72 added a of the Secretary i may) . In addition, the Director of Central Intelligence, as?E?h?airmm, shall invite the chief of any other department or agency having fmctions related to the national security to sit with the USIB whenever matters within the perview of his department are to be discussed. 1. NSCID March 4, 1964 NSCID 1 (revised March 4. 1964 and effective until 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 intelligmce objectives, requirements and 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 recommdations to the Secretary 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 intelligaice sources and methods mauthorized disclosure. (6) Formulate. as appropriate, policies with respect to arrange- ments with foreign governments on intelligence matters.

80-05078-76 . Copy 1 of 2 The 1964 NSCID 1 provides that the USIB shall establish subordinatej committees and working groups as appropriate and that the Erecutive Secretary and staff shall be under the direction of the DCI. (Paragraph 2c) . 'Ihis NSCID 1 ?n'ther directs that the USIB reach its decisions by agreement, and that its decisions and 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 wvmt." (Paragraph 2g) (Emphasis added.) 2. NSCID 1, February 17, 1972 user: 1, effective February 17. 1972, provides that the usm shall advise and assist the Director of Central Intelligaice with respect to: The establisl?mt of appropriate intelligence objectives, reqx?reomts and priorities. (2) The production of national intelligence. (3) The supervision of the dissemination and security of intelligence material. (4) The protection of intelligence sources and methods. (5) As appropriate, policies and with respect to arrangemaits with foreign governments on intelligence mattas. far/Items 2 and 3, above. are new additions. while Items 1. 3 and 4 of (?rm 1964 NSCID were deleted. 'Ihe'revision appears to be primarily one His m1 FOIVHNT CH ANNELS

MGR-ET 80-05078-76 0093'! 0:2 of form. however. The basic duties of USIB remain substantially the 7 same. Both the 1964 N803) 1 (Paragraph 3a) and its 1972 successor (Paragraph 3c) provide that the D01 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 promulgated and implemented within the normal command chamels of the departments and agencies concerned." The 1964 NSCID 1 specifically directs that such DCIDs shall be issued "with the concurrence of the 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 was deleted in the 1972 NSCID 1, but the continuing provision, we. that DCIDs be "implemented within the normal command channels of the departments and agencies concerned" seans to overlap the deleted phrase. I Paragraph Sc of the 1972 NSCID 1 effects a change in the authority to establish subordinate cmmittees 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 . supra) On April 10. 1970, the Director of ENDD, John E. Ingersoll, sent a list of requirements for cannmications intelligence to NBA. (Tab BB) 'Ihe meridian noted that "the consideration of the President's keen

80-05078-76 - COW or 2 interest in eliminating the problem of drug abuse, it appears appropriate to include "this re?uixexmt under Priority National Intelligence Objectives." The latter are set forth in DCID 1/3 of May 16, 1968. . I ha.16- . i?'r I. "z .. - .1. emIPI"King?vdrk r" . .30. . I ?We 535?. ?3 - - 1 .nt' I I .- 330 . Jig-?r ?may llarT?x?Ih.1..4w}. 2' "M?31" '3 ?:35 ?tr-$.4- Ihe formulation of IGCP requirements was reportedly instituted in 1966 to provide NSA with specific priorities and guidelines in its overall A responsibility for collecting signals intelligence for the United States. . 1 I- Mn}. 0-s- iniw .- 1 - 2.x 9 640:3. - . - 3-.- In!? .E-d '35 )1 :o MT- wu: ?g?f?zgk? 3 3" - hill- I 6 I .imiegaaiqr?It; {drags-.-.. :wf-?u-L-l 35435;" .: A i. I- 1,595.935. .H 1' ?1.37. ?hr ?28? Jana? ag?hx:?1., ?wap?u'45, . *r . @131? - mil a: 4-. .. cups.4. ?La-?l - . - hark5-3,ng - .. 395? .- . 4 - 5- ut?. r'ftZ'pu'C?k'? .- 2" .I .1, v-o?q. - . . rl? ?533.3 *f?v Luis. 1: . e. . I?d 50121.2- ?th I- '5?th tI I I .I Ten

A 80-05078-76 012 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 infomation. Individual consumer agencies may approach NSA directly for information with respect to the . carponent of the requirement. By doing so, they do not necessarily request additionalgcollection and/or processing efforts. mointed out. however, that consumers and NSA are often in direct contact and USIB cannot maintain oversight. Consequently, NSA may, without the knowledge I of USIB, embark a new collection requirazmt. because he did not want to unequivocally state that NSA strictly performs only those tasks spiecifically set out in the IGCP. Elie prescribed proce- dure for handling direct requests from consumer agencies to NSA is set forth in a (Tab CC) for the manbers of the Committee from =3Icmr Comnittee Chairman, dated July 14, 1.971: When an Agency submits a requirement to NSA which falls within a line item md does not require in NSA's view additional resource allocations it should be honored by NSA. A supplemental requiresmt is not the vehicle for levying a new or changed requirement that is an add-on or deletion to the existing IGCP line itans.. . should determine whether the supple-nli requirement can be met the managerial standpoint including feasibility and cost. . . . If'the desired reporting is either not within resources of constitutes an add-on, deletion or significant change, in scope, periodically or timeliness, to an estting line item, NSA will so inform the consuner in question who may then formulate a new line item requiranent for addition to the IGCP as guidance and forward it to the 168. When-J A

. 80-05018-16 COpy 0:2 - approved by the 195. the SIGINT Committee will consider. the item for incorporation as supplemental guidance to the IGCP. The Committee will issue changes to the IGCP as appropriate unless further action by USIB is required. On July 20, 1971. - manber of the IGS sent a memoradun (Tab DD) to other IGS which stated, in pertinent part: 1. Although it was recognized at the time the was drafted [1970?] that there was under development a processing effort against 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. com 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 moranda. We understand that it has also bee of considerable value to operational components, such as the Bureau of Narcotics md 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 Subelemait 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 which we mderstand NSA to be the level of the current effort. On August 11. 1971, the IGS approved, inter alia, the follcming change to the IGCP (Tab EE): 1. Add line item on international narcotics traffic activity (line item 8) . HANDLE VIA COMINT CHANNELS

00993-612 On August 20,1971. the new narcotics requirement was added to Group B. Subelement 32 of IGCP (Tab FF) which applied to no (international networks, as opposed to foreig1 internal communications. The specific requirement was to report the following "within 72 hours after recogn: International Narcotics activities. a. Report infcmation relating to the international trafficking in narco- tics and dangerous drugs." The July 22, 1974 revision of IGCP Subelezrent 32 contains identical language. (Tab GG) . On January 19. 1973, 'member of IGS, sent another (Tab HR) to IGS umwbers the following: 1. In July 1971 CIA recommended, and in August 1971 USIB approved, a change in the IGCP reporting specification to include a requirement for infor- mation on internadonal trafficking in narcotics and dangerous drugs from international commercial connmications (Subelemnt 32). NSA has further developed its processing effort against other conmmicatims carrying informaiton on this topic, to where we should now include a regular reporting requiranmt for such information contained in various national internal and external connmications. 2. The attachnent 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 supplerental reqmenmt merely points up that narcotics trafficking information is specifically required to be reported Mien recognized in the target coummicatims. HANDLE. VIA COMINT CHANNELS

80-050786 . Copy of 2 3. This requirenent has been coordinated with the .- Chairman, Intelligence Subcorrmittee, Working Group of the Cabinet Committee on International Narcotics Control. Upon this reccrmaendation, a change in the reporting specifications for Subelemmts 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 coutr?ies) 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. 5/ . (1) Travel of individuals related to narcotics trafficking. bj As specified by or through CIA bl 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. . a, ,7 131'? a 0.. . i 33.5- E??I?hv'37? ?1.9 4. - we ?an- . w- . ems?? Hygiene ?waif-bra L. 34 Err-1- T. ?Hz; In? .. wt? . 3- My?: .u i" (it, 2. I. run-AI", 3- aqua-f I 533113HANDLE VIA COMINT CHANNELS

7 Bow 012 4. U.S. Intelligence Objectives DCID No. 1/2. effective January 21,_ 1972. listed the U.S. intelligence objectives and priorities mich were to serve as guidance for plaI-n-?ng and for the subsequmt period of five years. lhese objectives identified intelligence targets in terms of information needed "to enable the U.S. intelligence coummity to provide effective support for the decision making, plaming and operational activities of United States Government relating to national security and foreign policy." (ElphaSiS added.) The listed objectives included the following: 71. Non- overrmtal activities detrinmtal to U.S. interests. Activities 0 in ?v1. 5 an non- govermental organizations in the subject country which have an adverse inpact 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. . of HANDLE VIA

Copy 012 iatin America was d?Signated as one of the areas concerning which such intelligence should be gathered. On January 31, 1972. the DCI requested the Critical Collection oblans 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: MUWATION ON WES 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 reporting on other national requirements. However, in order to. provide maxim support to U.S. Deparmments and Agenices in the field of international illicit narcotics activities, the collection and reporting system worldwide has been tasked to report any narcotics information which is collected. 2. Most reports on narcotics and dangerous drugs are dissen?nated electrically to custcmer agenciesJ HANDLE VIA COMENT CHANNELS

spasms-76 COpy 0:2 In the absence of a dim-same t?eletype cirmiit 7 to the special arrangenmts for regular courier service have been made. .- - - - . Drug operators coununicate covertly, concea mg 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-counter paid telegrams. This makes intercept and eJ-qaloitation of 'such ccummications 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 sane time protecting the source has been a problem. frequently produces information which is valuable in an operational sense, but if used indiscreetly will result in a serious Any compromise can result in iaproved foreign coummications security measures. The effect may be a pernment 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 SIGN, lmg-range interests mast not be I sacrificed for short-term gains. HANDLE VIA COMINT CHANNELS .-

COpy of 2 6. Successful usage of the product_is largely contingent upon close collaboration between the producers and the appropriate customer agencies. Frequent exchanges between NSA, BNDD and CIA will ensure that is exploited to its full capacity. I It is recommended that NSA. in conjunction with interested customers. particularly BNDD and Customs, make determination of what support is required on the narcotics problem and that the requisite priorities be establishedthrough the 310m Coomittee. (Tab Paragraphs (1) and (4) above, indicate an apparent lack of knowledge concendng the NSA's interception of international voice cormmications for narcotics intelligence which began -in 1970. There seems to be an awareness of everything else, however. including the courier service between NBA and BNDD by which the latter received the product of the voice interceptions. Based upon its study, the OCPC submitted reccomendations to the USIB on November 3, 1972 which were approved by USIB on January 11, 1972 and incorporated in the IGCP on February 23. 1973 to include a broader require- ment for "information related to narcotics inl?latin America and other specified mtries. In the 1111's August. 1973 "Perspective of the Intelligence anmmity," it is pointed out that as long as there exists a narcotics problem, intelligence agencies will be imolved. In the IGQ's (Refintelligence n: i974 and n: 1975, there are two questions meeting?the narcotics problem. firsthisfto?identify traffickers and producers and their methods the second relates to the effectiveness of anti-narcotics HANDLE VIA COMINT CHANNELS -

-0 0 8-76 Copy oi2 programs in Mexico, Framce, 'mrkey, Thailand, ?Burma, end Laos. The becond 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." HANDIF VIA CHANNELS

80-05078-76 COpy 01'2 H. FOREIGQ MIME: ADVISORY (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 . BO 10656 empowered the Board to review the foreign intelligence activities of the Government and the performance of ?znctions of the Central Intelligence Agency and report its findings directly to the President. Its authority also extended to a review of foreign intelligence functions 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 John F. Remedy and the was reconstituted as the President's Foreign Intelligence Advisory Board (PFIAB) . Its functions retrained essentially the same as its predecessor Board; contirming review and assessment of all functions of the CIA and other departments having similar respansi?oilities 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 (March 20, 1969) President Richard Nixon cancelled Executive Order 10938 and reconstituted the PFIAB. While predecessor Boards served a purely advisory function, President Nixon expanded the role of the PFIAB to ?receive, consider and take appropriate action withwrespect to 9-5? 5? HANDLE VIA CHANNELS

50-55078-76 Copy oi 2 matters identified to the Board . . . in which the support of the Board will further the effectiveness of 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 contirming direct access through both its Chairmm and the full Board to the President and his National Security Advisor: While independent of the NSC and its "1+0 Committee" on covert operations, the Board has had-continuing access to all material maintained by the NSC and its committees, accept during the Nixon Admnistration when the Board was denied access. to such materials. PFIAB udnutes and records reflect the following: My; 5. The President should not be publicly identified nor othmise publicly involved with non-overt political, propoganda, paramili- tary, or clandestine intelligence activities. 6. The Central Intelligence Agency should strive to achieve anonymity in its officials mid activities lOb HANDLE VIA COMINT. CHANNELS .-

sic-0507857"? Copy oiz Febniary 5, 1971 The Chairman opened the meeting by asking Attorney Gesneral 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 ?rm NSA and CIA which may be collateral to the primary collection goals of these agencies but which is recognized as beine use?? to the DOJ and is forwarded to u? He said that electronic surveillance is restricted to violence-prone groups, and that in these cases electronic surveillance is clearl witff?' the iurisdiction of the Presidmtial responsibilities for'mintaining law and order. (Errphasis added.) Mr. Mitchell said that NSA and FBI Director Hoover are having a rmning battle on this very point. VNSA is also urging resumption of physical entry. . . Mr. Mitchell said we have mre taps on now than men the Republicans came to Washington. . . March 31. 197l Mano for Board - - - - - operations. generally known as W, whereby U.S. comerical firms make available to the U.S. Goverrnent copies of international 1! r. 107 HANDLE COMINT CHANNELS

I SC-05078-76 Copy I at 2 commercial coummications transmitted by foreign 7 missions, or permit the U.S. communications by photography, etc. . . . ?Ihe vast majority of SHAMROCK collection is performed by NSA itself, i.e. through its own agreements with U.S. commercial cotrmuni- cations firms and utilizing its om persomel. NSA obtains, an a daily basis, large quantities of commercial telegraphic traffic originated by foreign governments and foreign private enter- prise within the United States. . . i 1 February 3-4, 1972 Discussion with Mr. Nelson Gross, Special Assistant for Narcotics to the Secretazgr of State, and with Mr. Walter Minnich Staff Coordinator for the Cabinet Carmittee on International Narcotics Control. Mr. Gross opened the discussion by saying that the Cabinet Committee had been establisle 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 from? abroad, prosecute the traffickers both at home and abroad, and to reduce demand through the provision of effective medical advice. The Deth of State's role is to work with foreign to reduce the production of heroin. . . and to stimulate and coordinate inter- national cooperation in breaking up trafficking networks. Mr. Gross that the success of these programs would be wholly dependent on intelligence. Mr. Gross was critical of CIA efforts to . Mr. Gross said that CIA has - HANDLE VIA comm CHANNELS

30.05078-76 COpy - of 2 besn given responsibility for coordinating all narcotics intelligence abroad, but has - assigned insufficient: manpower to do the Mr. Gross said that the FBI had not been asked to work on this program because the . has exclusive jurisdiction for narcotics. . . . Mr. Minnick said that the purpose in establishing the narcotics program at the Cabinet level was to add ?nhite House clout in getting the cooperation of all the necessary Goverment agencies and bureaus. Mr. Gross said that L'Laarlz the pro- gram had all the authority it nee (Emphasis added.) Discussion with . Chairman of the Intelligence SubcomrTittee of the Cabinet Cmmittee on International Narcotics Control. Mr. Helms" Special Assistant or narcotics matters and Chem of the Cabinet Committee Subcommittees for Intelligence. . . . I. said that the Agency's role in narcotics program began in October 1969 with a l-hite 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 enforth autl'aorities 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 from and. secondly, to provide intelligaice for the diplomatic effort to reduce production and trafficking. said that the Agency has craved slow for reason. . . . HANDLE VIA COMINT CHANNELS

800507876 Copy oi 2 r. said. .. the primary groups involved as criminal syndicates. . . :?stated he was satisfied that the Agency a sense of urgency. . . . . said that NSA provides regular coverage 0 persons on a watch list and is prepared to do more as soon as the Intelligence Submittee can develoP the necessary target amt 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 ii CIA couldn't give some direct assistance to the EDD in organizing their files and staff for participation in what is now a major Govermmt program. Discussion with Mr. John Ehrlichman to BE PresidEt for Di Io- matic KEIair' 5. Mr. had been asked to discuss. . . the role of foreign intelligence in coohating our domestic narcotics problem. . . In conclusion, the Chairman offaed Mr. Ehrliclmam any assistance which the Board could render with respect to the narcotics problan. . . February 3, 1972 (CIA) Piesorandxm on Intelligence SEEort for arcotics Contro . 1. Two years ago the develoPmmt of foreigi . HANDLE VIA COMINT CHANNELS

IX. M. 803557 8-76 COpy 01'2 on narcotics. . . was a wholly new enterprise - for the intelligence . .. B. We began to organize a narcotics intelligence effort in October 1969. when President Nixon declared international narcotics control to be a major goal of U.S. foreign policy and established a White House Task Force on heroin suppression, instructing all Federal departments and agencies, including the intelligence condu- nity, to cooperate fully with its efforts. . . . Organized criminal conspiracies tend everywhere to mopolize the illicit trade. . . a. South American operations are nm carrying a substantial part of the Frendl heroin to the U.S. via Latin America. As a result of the presidential initiative from mid-1971, intelligence support for international narcotics control has become virtually world-wide. A. 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. B. With the establith of the mm.. . leadership responsibilities for coor- dination of foreign intelligence tn narcotics passed from BNDD to CIA. HANDLE VIA CHANNELS

. 80-05078-76 Cosy 012 I XVII. 2. The targets bring us, both in operations and production, into a closer relationship with U.S. law mforceumt. Om.- 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. l. The thrust of current natiml strategy cocrmits the ccunmity to directly support domestic mforcement. . . 3. We must help than and still protect intelligence officers and sources abroad from irwestigative or legal disclosures. Otherwise the intelligence will find itself where it carmot afford to go - in court as a witness. April 12, 1972 mrandun to? om Egi Krog Executive Director, CCINC :I?he Prasident is intensel interested in usm' every means at His disposal to st? international narcotics tra it. includes covert action where appropriate. . . . (Emphasis added.) \e 12 HANDLE VIA

free-sees? 80-05078-76 COpy I oi 2 I. Intelligence Evaluation (and Staff) Background: Forned December 1970 to produce fully?evaluated national domestic intelligence studies, including studies on demonstrations, sub- version, extremism and terrorism. Membership: Department of Justice (Chairman); Federal Bureau of Investigation; Departrent of Defense; Secret Service; National Security Agency; Central Intelli~ gence Agency; and as necessary representatives of other Deparhnents or Agencies (following have participated: Treasury and State). Staff: IE8 Executive Director John Dougherty and later Bernard Wells supplied by Department of Justice with title of Special Assistant to the Attorney General reporting to the Assistant Attorney General for Internal Security Robert Mardian and later William Olson. IRS has received requirements directly fron and delivered reports directly to John Dean of the hhite House has insisted that the existence of this Cosn?ttee be?kept secret. (Emphasis addedl) 2. CIA Participation: Contributions on foreign aspects (by nrnorandun1with no Agency letterhead or attribution). Contributions occasionally include foreign intelligence provided by FBI and NSA. The Chief of the Special Operations Group serves as the Agency representative on the Intelli- gence Evaluation Staff and as the alternate to the Agency representative on the (who is the Chief, Counter Intelligence Staff). . The White House was represented by Gordon Liddy at an Intelligence Evaluation Staff meeting on August 4, 1971. The following are excerpts frtula summary of Liddy's remarks: a. White House action: The President is deeply concerned at leaks including the Ellsberg case, SAET talks, the U-2, and the recent Jack.Anderson cobuni; and the President wants this sort of thing stopped. JGELSECRET 113

Cepy 0's 2 Mr. Ehrlicl?man has been given the respmsiblity for handling this matter within the Waite House and is to be assisted by Bud Krogh, David Young (who has been borrowed Dr. Kissinger) . Gordon Liddy and others. b. Liddy's role: He is an expediter to break down bureaucratic problems by applying either grease or dynamite. He will sit with the IRS and audit the IEC meetings. Mr. David Young can speak for Mr. Ehrliclman and is "heavier" than Mr. Liddy; therefore, any requests from Mr. Yomg should be honored without checking with Liddy. c. IES role: 1) to prepare evaluation. Mr. Liddy noted that the ES 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. El'zrlicl'nan was not prepared to wait until agencies had polished their contributions and sent them back through channels, 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 1258 numbers and have them vested with the authority to get them and release them to the White House. Beyond the foregoing, the 1255 seems to have been preoccupied in 1971 and 1972 with foreign support for activities planned to disrupt or harrass the national political mentions in 1972.

IV. POSSIBLE VIOLATIONS This has focused on the interception of wire and radiO' having at least one terminal in the United States or a United States territory. Federal criminal sanctions have no applicaticn. to the extraterritorial interception of coumunications. i.e. communications 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 Dermcratic Club v. Rumsfeld, Civil No. 310-74 (D.D.C. March 17, 1976). (Evidence obtained from such interceptims which do not meet Fourth Arnendelrmt standards, however, is subject to exclusion in U.S. courts.) Three categories of interceptions discussed herein require prosecutive evaluation: The interception of international cmnications having one terminal in the United States (or a United States territory). (2) The procurement from commercial carrierspf "cable traffic" between the 11.8. and foreign countries. An initial review of available facts will indicate possible violatims of 18 U.S.C. 2511 and/or 47 U.S.C. 605. but a tentative analysis of the applicable statutes. legislative history, and convoluted sources of purported authorizatim together with anticipated difficulties in proving willfulness, preclude any unequivocal recmmendation for prosecution at this juncture. HANDLE VIA COMINT CHANNELS

80-05078-Interception of International Commications Ravine One Terminal In The United States or a.United States Territory. These interceptions were conducted by NSA in the gathering of foreigl intelligence information 1 in?; .Jhich, broadly defined. included (Tab tor?- . f? The CIA's meme devoted exclusively to the gathering.- of international narcotics intelligence through the interception of specific comercial voice frequencies between South America and the United States. The NSA's and mama 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 commnications concerning a variety of subjects. 1. Pertinent Criminal Statutes r' Title 18 Section 2511(e) Title 18, United States Code, mete. 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 and divulge or publish the existence, contents, substance, purport. effect, or meaning of such intercepted to HANDLE VIA COMINT CHANNELS

. . . no person having received any intercepted radio conmmication or having become acquainted with the contents, 'substance, purport, effect, or meaning of such commnication was intercepted, shall divulge or publish the existence, contents, substance, pmrport, effect, or meaning of such communication. . . or use such commication. . . for his own benefit or for the benefit of another not entitled thereto. . . B. Receipt of "Cable Traffic" International Conmmications Carriers. This activity was conducted by NSA under the SHAMROCK (Tab P). and by the FBI as the "Drop Copy Operation". (Tab R) Lama! was a CIA operation limited solely to providing NSA with a "front" location in New York City for processing material. (Tab G) l. Pertinent Criminal Statute Title 47 Section 605 of Title 47, United States Code, provides in. pertinent part: . . . person receiving, assisting in receiving, trmmitting, or assisting in transmitting, any interstate or foreign commieation by wire or radio shall divulge or publish the existence, con? tents, purport, effect, or meaning there- of, except authorized chamels of transmissim or reception, (1 to any person other than the addresses. .. (5) in response to a subpoena issued by a court of carpetent jurisdiction. or (6) darand of other lawful 117 VIA comm CHANNELS

80-05078-76 COpy 012 . . . No person not being entitled thereto shall: receive or assist in receiving any interstate or foreign coommication by radio and use such . . for his om 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) or 47 U.S.C. E605. infra. HANDLE VIA COMINT (EHANNELS

80-05078-76 COpy on V. Applicable Statutes and Law .u Prosecutive considerations in the instant inquiry are limited to possible violations of 18 u.s.c. 2511 or 47 u.s.c. 605. A. 47 U.S.C. 605 Section 605, originally enacted in 1934, was amended on June 19, 1968 upon the math of 18 U.S.C. 52510, gag. The new Section 605 was intended as a substitute rather than the nere'reenacment of the old Section 605. It is designed to regulate the conduct of coonmicatiorm personnel, and to prevent the mauthorized interception and disclosure, or use, by any person of radio cummications. 1968 U.S. Code Cong. and Adm. News 2196-2197. "Radio cormnmications" or "coummications by radio" means the transmissions by radio of writing, sips, signals, pictures, and sounds of all kinds, including, all talities. facilities. apparatus, and services (among other things. the receipt, forwarding, and delivery of coommica- tions) incidental to such transmission. 47 U.S.C. 5153(b). Section 505 consists of four separate clauses containing four distinct pairs of prohibitims: The first clause prohibits divul once by my person recei any interstate or foreigI comrunication wire or radio, except authorized channels of transmission or reception. (2) The second clause prescribes the unauthorized interception and divulgence of any radio cammication. (3) The third prohibits the recei of an interstate or foreigu radio a person not entitled thereto and the use thereof for his benefit or for the benefit?(3f another not entitled thereto. 2 . OLUIILI 119 - -1 cc: HANDLE VIA COMINT CHANNELS

- . 30'05078-76 COpy I 0: 2 (4) The fourth prescribes the receip. of any intercepted radio coon-mication and divul ence thereof or use for one's benefit or Senau: . of another 5313 entitled thereto. "Person" as used in Section 604 does not include a law emforceomt officer acting in the normal course of his duties. 1968 Code Cong. and . Adm. News 2197. 'T?oreigx communication" within the naming of 47 U.S.C. 605 is a communication from or to any place in the United States to or from a foreign country. 47 U.S.C.I 5153(f). Section 501 ofl' Title 47. United States Code, contains the general misdetneanor penalty? provisions for violations of 5605 and requires that such offenses by willfully and knowingly coomitted. B. l8 U.S.C. 2510, et seq. The regulationiof the interception of Big or gel commioations is governed by 18 552510, 1968 Code Cong. and Ackn. News 2195. Section 2511 of Title 18, United States Code, provides in pertinent part: (1) . . . [Alny person who willfully intercepts, endeavors to intercept, or procures any other person to intercept, any wire or oral coummication. . . . . *tk'k ornnW 120 HANDLE VIA COMINT CHANNELS

lesionstm sc-osc7s-7s COpy. I of 2 willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral conmmication, lmom'ng or having reason to know that the- information was obtained through the interception oi. a wire or oral .. willfully uses, or endeavors to use, the contents of any wire or oral conmmication, knowing or he reason to know that the information was obtained through the interception of a wire or oral .. . shall be fined not more than $10,000 or imprisoned not more than five years, or both. ire coommication" means any communication nude in whole or in part through the use of facili- ties for the transmission of coummications by the aid of wire, cable, or other like connection between the point of origin and the point of reception fur- nished or operated by any person engaged as a comma carrier in providing or Operating such facilities for the transmission of interstate or foreigi cumin-lice? tions. 18 U.S.C. 2510(1). "[0]ral coummication" means any oral couumicadon uttered by a person exhibiting an ewectation that such is not subject to interception under justifying such expec:tation. 18 U.S.C. 525106). "Intercept" means the aural acquisition of the contents of any wire or oral cornmmication through the use of any electronic. technical, or other device. 18 U.S.C. ?2510(4). '5 C. Willfu'lness Mllfulness is essential to the commission of each of the above offenses. 1. United States v. Murdock The legislative history of 18 use. 52511 indicates the applicable standard of willfulness in the instant context is that set forth in Un__it;elc_1_

500507846 COpy at 2 States v. Mirdock,. 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 follcming judicial connotations of the word "willfully": The word often denotes an act which is intentional, or bowing, or voluntary, as distinguished Eran 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 erployed 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 forumlated as follows: .. .[B]ad faith or evil intent. . . or evil motive and want of It is not the purpose of the law to penalize. . . innocent errors trade despite the exercise of reasonable care. . . . The requirement of an offense committed "willfLilly" is not met. . . if a taxpayer has relied in good faith on a prior decision of this court. . . The Court's consistent interpretaticn of the word 'willfully' to require the element of mens . 3e}; inplemmts the persuasive intent of Congress to construct penalties that separate the purposeful. . . violator fran 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 misxmderstanding, should become a criminal by his mere failure to measure up to the prescribed standard of conduct. United States v. Pin-dock, supra.

sc-osma-ie Copy osz 2. 18 U.S.C. 52520 Section 2520 'of Title 18, United States Code. provides that a good faith reliance on a court order or legislative authorization shall constitute a couplets defense to any civil or crin?nal actim brought under Title 18 or Title 47. The legislative history of Section 2520 cites v. 391, 286 U.S. 5A7 (1967), as the only supporting authority and guide to the "good faith" criteria contemplated by the statute. 1968 11.5. Code Cong. and Adm. News 2196. The case involved an action for damages against policemen for deprivation of civil rights under 42 U.S.C. ?l983 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 same 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 ?iture course of constitutional law." 'I'his indicates a legislative intent l? 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" relied upon by of the potential defendants herein is 18 U.S.C. 5511(3), the stamtory recognition of Presidential pwer to authorize warrantless electronic surveillances to protect the mtional security. This statute, upon its enactment in June, 1968, was vague with respect to the scope of such power, HANDLE VIA COMINT CHANNELS

800507846 0093 2 and it was'not until June, 1972. that the Presidential power to authoriae domestic security electronic surveillances was delineated by the U.S. Supreme Court. (See m3.) 'Ihe President's power to authorize the warrmitless electronic surveillance of activities of powers or their agents has not yet hem defined by the Suprane Court. It is likely, therefore, that potential defendants (particulary subordinates) will seize upon the decision in Mm 91112, 360 U.S. 423, 438 (1959), in which the Court held that "a State may not issue cmmands 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 more law than the judge. United States v. W. 139 F.2d 90, 92 (3 Cir. 1943). 3. Zueibon v. Mitchell The Court in Zweibon v. Mitchell, 516 F.2d 594, 671-672, (D.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 turn on the future course of constitutional law, as well as the fact that the legislative history and language of Title are themselves somewhat ambiguous concerning the applica- bility of that chapter to national security surveillance, and considering the policy that statutes in derogation of the commn law should be strictly construed, we do not believe Congress intended to preclude a good faith VFA r24

30-05078-76 3 Copy. of 2 defense that Executive officials acted under what they reasonably believed were the constitutionally inherent (and therefore stamtorily exempt) powers of the President. . . . In a footnote, the Court added: The rights of victims of mconstitutional actions trust to some 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) 'M?llfulness" in the instant context would seem to require bad faith rather than badjudgrrent. Good intentions coupled with bad judgment would not constitute such willfl?ness. Mullen v. United States, 263 F.2d 275, 276 (D.C.. Cir. 1958). I). "Plain View" Analogy Objects falling in the plain View of an officer who has a right a: be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States. 390 1.1.5. 234, ?36 (1967). This "plain view" doctrine serves to supplement the prior j?osti?oation and permits the warrantless seizure. Coolidge v. New H?gshire. 403 11.3. 443. 466 (1970). The plain View doctrine might be invoked, by analogy, to justify incidental coummications intercepts, e. g. . the incidental interception of coommications concerning internatimal narcotics traffic in the course of conducting Presidentially?authorized electronic ameillance for the purpose 125 HANDLE VIA COMINT CHANNELS

?zz: 80-05078-76 .. Copy 0t 2 of gathering foreign intelligence information. This analogous application of the plain view doctrine in the context of electronic surveillance finds wpport 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 cormmications relating to offenses other than those specified in the order of authorization where such coommicatims are intercepted while engaged in intercepting communications in the earner authorized by the order. NSA represents that over 50 per'cent of the narcotics intelligmce furnished by NBA to came coumunicatims incidentallx inter- cepted or incidmtallzreceived in the course of collecting foreign intelligence information pursuant NSA's Presidential mdate and authorizatim. E. "Border Search" Analogy . r'lhe Treasury Depardment supports receipt by the Secret Service of SIGINT intelligence from NSA on that the interception of messages crossing our natimal borders is analogous to conducting mrrantless border searches which are clearly legal (Tab Mi): If the search of the person is, this, permissible. is it not reasonable that equal latitude be afforded to the impersonal harvesting of international canonica- tion signals for purposes clearly of great consequence to our national security? Upon that premise, the incidental acquisition from international signal cumu? nicaticns of ioportant intelligence not supported by a foreign news is clearly an acceptable and reasonable intrusim into that realm of privacy protected by the Font}:

. 306507836 Copy of 2? The SIGINT activities of NSA constitute an essential?_1 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 foreign intelligence an importance which surpasses that attending the border search authority earlier characterized as "an indispensible exercise of the right of the sovereign to self-protection. . HANDLE VIA COMINT CHANNELS

copy 0? 2 . VI. POSSIBLE DEFENSES A. Interception of International Cmnmications Hiring One Terminal in the United States or a United States Territog. 1. Interception of International Radio- Landline Telephone gormmications 18 U.S.C. 52511 Radio-Telepl'me Cormmicatims The legislative history of Title (18' U.S.C. 52510, at sad 47 U.S.C. 5605) contains 'ho indication of how Congress intended to treat a radio-telephone conversation". United States v. Hall, 438 F.2d 193, 197 (9 Cir. 1973). In the absence of such indication, particularly with respect to the interception of radio portions of such coummications, the applicable statutes and legislative history must 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. Tne provisions of 18 U.S.C. 52511 and 47 U.S.C. ?605 are not mutually exclusive. They overlap. Section 2511 prohibits the interception of "wire coummications," as broadly defined in 18 U.S.C. ?2510(l) while Section 605 regulates the interception and divulgence of "radio camunications." as broadly defined in 47 U.S.C. 5153. A tentative application of either statute is possible in the instant context. 128

Com! Iiof2 Section 2511 prohibits, except as otherwise specifically provided: . the interception and disclosure of all wire or oral communications. Paragraph (1) sets out several prohibitions. Subparagraph prohibits the inter- caption itself. This eliminates the requirement under existing law that an "interception" and a "divulgence" must take place. [47 U.S.C. 5605 pre- viously required the interception and divulgence of both wire and radio . . . Subpara- graph establishes a blanket prohibition against the interception of ?wire communication. Since the facilities used to transmit wire communications form part of the interstate or foreign comnmicatimis network, Congress has plenary power under the commerce clause to prohibit all interception of such counuiica- tions, whether by wiretapping or otherwise. (Weiss v. United States, 308 U.S. 321 (1930). 1968 U.S.Code CE. 2180. (Emphasis added.) The above would seem. at first, to foreclose the applicability of 1+7 U.S.C. 5605 to the instant situation. The citation v. ?a_te_s. however, indicates that the legislative history refers to the ?_cr_3p_e_ of communicatims covered by 52511 rather than to the inclusion of additional of interception. Ewes a wiretapping case under the provisions of "old" (pre- Title 47 U.S.C. 5605 in which the Supreme Co-txrt held that the prohibitions of the second clause of ?605 applied to intrastate as well as interstate and foreign comomications when transmitted over wires used for both kinds of empirications. Weiss v. United States. 308 U.S. 321. 327-328 (1939). This would not seen necessarily to favor ?2511 in the coverage of the interception of 3.3132 portions of radio-laidhne telephone coummicatims. 129

Copy lof2 (ii) Wire Cmnmications Paragraph (1) of 18 U.S.C. 52510 defines "wire coummication" to include "all cmmications carried by a common carrier, in whole or in part, through our Nation's cmications nemork. The coverage is intended to be 1968 U.S. Code Cong. and Adm. News 2178. But does this encompass international coonin?cations as they pass over foreign countries? Or international bodies of water? Does it really mean, as it says, coummications "carried our Nation's conmmications network"? If so, is our "Nation's commications network" confined to the amications network the Nation? Whatever the answers to the foregoing, there is no question that ?2511 covers the "aural" acquisition of all wire portions of radio-la'ndline telephone omnmications. and may also be construed to cover the portions as well. There remins an obvious qualitative difference, however, between the radio and wire of radio-landline telephone cmmicadons (particularly international counnmications) -- a distinction?Congress pointedly recognized and reaffirmed in maintaining the conudtant viability of ?605 requiring both the interception and divulgence of radio coummications to constitute a mere misdemeanor. The 'Nation's Network" The "Nation's network", according to Essa, is generally regarded by those in the industry as the cmmercial 1.30

.5 0 Copy of 2 system within the United States. This system may be characterized? as contiguous, switched from wire to cable to micron-rave). autocratic, and self-routing: It's Hwireless? corponent is a mJlti?chamel micrmave carriers system capable of carrying up to 2,000 couumications on some channels. International commercial radio-telephone coommicatiorm. on the other hand, are transmitted by high-frequency, _single or multi- chazmel telephony which enters the national comunications network through what are known as "gateways". (The latter term sews to connote passage from one systan to another.) This high-frequency telephony is not as reliable as microwave transmission and is considerably more susceptible to inter- ception by unsophisticated equip-amt such as ship-to-shore radio or the ordinary Zenith trmsocemic-type portable radio. Microwave transmission is 'lstraight line" and covers much higher frequencies than "high frequency telephony" which follows the mrrvattre of the earth. It is estimated, for eats-cple, that the radio portion of a high frequency singlewcharmel radio-telephone {from Montevideo. Uruguay, to New York City, could be intercepted with msohpisticated radio receivers over an area of perhaps 30 per cent of the earth's surface. High frequency gig-ma may be de-charmeled by "ham; 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 Covert-mt Printing Office. The only guarantee of privacy in such high frequency radio maximissims is the use of special ciphony equipment to "garble" the ccummica- tims. Such equipumt, hmmer. is not in general use by commercial carrich 131 part; n- "1 r. . Jul-Jig: fedm? #5

COPY o'f2 (iv) Justified Expectations of Privacy.- The three general categories of communications covered by Title wire, oral and radio - are distinguished, implicitly and explicitly, according to the degree of justified expectations of privacy. bhile an almost total expectation of privacy seems to be justified in cmmications wholly by wire, the expectation of trivacy of oral coommications is justified only if uttered under justifying that expectation, coommications :in one's home or office. in a jail cell or an opau field, for:? example. would ?not normally justify such expectation. 1968 v.5. Code Cong. and Adm. News 2178. Felony vs. Misdemeanor The willful interception, alone. of a wire or oral communication con-plates the felony offense under 52511. In the case of a radio coommica- tion, however, there roast be both an interception and divulgence to? constitute the misdaneanor mder ?605. If we ignore both the explicit legislative distinction between radio cmnuiications and other types of mud the implicit legislative scale of justified expectations of privacy. the severity of criminal penalties imposed by Congress would appear in sane instances to be inversely proportionate to the extent of privacy violated. (See vi, Congress obviously placed radio communications below wire and oral carrmications on the ascending scale of justified expectations of privacy. 132

Copy l?tz The court in United States v. gag, 488 F.2d 193. 197 (9 cu. 1973), observed the radio portion of a radio-landline telephone communication, 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 Hillwas whether the contents of defendants' radio-telephone conversations monitored by law enforth 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 betwsen a radio-telephone and regular land-line telephone. The Court quickly found 1+7 U.S.C. 5605 inapplicable, stating: The legislative history also explicitly shows that Congress intended to exclude law enforcenmt officers from the purview of the new It is obvious that the legislature wanted law enforcement personnel to be governed exclusively by Chapter 119 of Title 18. Therefore, because the critical conninnications were intercepted by lawnen, ?605 offers no impedenent. 'I'he applying 18 U.S.C. ??2510, et seg., however, the Court reached an adnittedly "absurd result": [We are forced to conclude that, when part of a is carried to or from a land-line tele- phone, the entire conversation is a wire canmmicatim 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 produces what appears to be an absurd result. These conversations were intercepted By an Ewen-mm receiver and not by a phone tap. Logi- cally should be afforded no sore protection than those occurring between two radio transceivers. They

Copy/om should be oral cmmnications. Hmever, Congress?s definition of a wire coummication necessitates this conclusion. This is especially ironic since Title 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. (Exphasis added.) The "absurd result" could have been avoided, of course, by applying 47 U.S.C. 5605 to the radio portion of the radio-landline telephone connimications. Congress may have been silmt as to its intent in radio-telephone situations, but it can hardly be presumed to have intended a patently "absurd result", It is a fmdamental canon of statutory construction that a legislative math must be so interpreted as to carry out the legislative will and in a name: that would not reach an "absurd result". United States v. Lewis, 87 F.5upp. 970, 972, (D.D.C. 1955). Fourth mam: 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. ngach 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 oocrmnicatims" within the meaning of 18 U.S.C. ?2510(2) betause

mp'y? 0i 1: 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, homer, to be a case of reaching the right result for the wrong reason. The "new" Section 605, enacted sinmltaneously with 18 U.S.C. ??2510, $353., was expressly intended as a substitute rather than the mere reenactment of its predecessor. 1968 U.S. Code Cg_ng. and Adm. News 2196. If it has any substance at all, ?605 would seem to cover at'least the interception of all commications entirely by radio. It does not apply to law enforcement officer-gs, however, because "person", as used in the stamte, does not include a law officer acting in the normal course of his duties. 1968 13.5. Code Qg. and Ada. News 2197. In a letter to the Chairman of the Federal Commi- cations Commission on Septanber 15. 1975 (Tab NN) concerning FCC monitoring of citizen band radio transmissims. the Justice Department?s Office of Legal Counsel stated: Giving the word "person" such an interpretation would allow law enforcemait officers generally to intercept and divulge radio cmications. The application of 55605 in Hall would have achieved the same result with respect to the interception of purely radio ccnmunicatims, but without the strained application of 18 U.S.C. 552510, at sagwt.?

COpy ma (vi) Oral . There appears to be no more reason for re-classifying certain radio communications as "oral cmnmications" than there would be to include Wire cmnmications" under "oral cmnmications". Section 2510, Title 18, United States Code, contains separate and distinct definitions of "wire" and "oral" codmmications. There is no indication of a legislative intent to pre-enpt, under the caption of "oral cooumications", all wire transmitted with a reasonable expectation they will not be intercepted. Despite the eatpectation of privacy, the latter do not become "oral coonmnications". They remain, simply and exclusively, wire comnmications under 18 U.S.C. ?2510(l) . Similarly, there is no indication Congress intended to include under "oral coommications? all radio cwmmications transmitted with a reasonable expectation they will not be intercepted. These remain radio under the definition of 47 U.S.C. 51530:). It seems to be stretching 18 U.S.C. ??2510, etsgg? to construe purely radio commnications (even those with a reasonable expectation of privacy) intercepted by law mforcezmt officers as "oral Nowhere in the legislative history or language of 18 U.S.C. 552510, . is there any indication that Congress intended to single out, for prosecution, only law enforcement officers who intercept radio . cammicatims, while providing an option to prosecute, for misdmmeanors, all others who not only intercept. but $5.31ng such 136

Copy lon The statute specifically defines "oral communication" as: . .. [Alny oral cmieation uttered by a person exhibiting an expectation ?at?sEcTcormmication . is not subject to interception under circumstances justifying such expectation. (emphasis added) 18 U.S.C. ?2510(2). Ei-cairples of "oral communications" cited-in the legislative history of Title are coommications in one's home or one's office. 1968 U.S. Code Cong. and Adm. News 2178. 'Ihere are two references in 18 U.S.C. 52511 to cocnmications by ?11.93 One prohibits the interception of oral (not wire) counmications by devices which cmmications by radio or interfere with the transmission of such a (?2511(l) the other merely codifies the exception from criminal liability of FCC officials acting in the normal course of their duties. Neither provision pint-ports to expand or amplify the definition of "oral in 18 U.S-.C. ?2510(2). (Prior to the enactment of Title the exception of FCC officials was ?inplicit? in 47 U.S.C. 5605. United States v. Suede-n, 226 F.2d 281 (9 Cir. 1955); @353, 351 U.S. 916 (1956).) The legislative history of Title while not clear on the point, nevertheless tends to equate the interception of "oral cconmications transmitted by radio? with electronic eavesdropping (bugging) to overhear private oral cmversaticns. 'Ihe legislative history cites Ketz v. Unted States, 389 U.S. 347 (1967), in stating the definition of oral coummication "is intended to reflect existing law." Katz im'olved the use

3013' 052: of an electronic eavesdroppi'gg device. 'Wiretapping" is generally associated with the interception of wire 1968 Code Cong. end Adm. News 2153-2155; 2177-2178; 2180-2181. In the context of transmissions by radio, therefore, the definition of "oral ccn'cmications" in 18 U.S.C. ?2510(2) appears to contemplate private oral conversations intercepted by radio eavesdropping devices rather them the interception of commications transmitted by common carrier radio?telephone facilities. (Section 2511(1) would prohibit the use of leased or other telephone lines to transmit signals intercepted 1:3; eavesdropping devices. 1968 v.5. Code Cong. and Adm. News 2180.) (vii) Overlapping Definitions In neither 18 U.S.C. mm, 2553:}, not 47 U.S.C. 5605. does Congress reconcile the statutory definitions of 'koire" and "oral" tions with "radio" conmmications in the radio-telephone context. "overlap" was apparently not considered or even recognized by Congress. Even in United States v. Hall, Styra. the court conceded that definition of wire communication is not free from arrbiguity", and concluded that "[ny reading the sections together. we can only conclude that the Congress did not mean that every conversaticn aided in any part by any wire would be a wire ccomznicatim". 488 F.2d at 196-197. 138

012 Thushwe have two criminal statutes, one a felony: the other a misdeieanor, whose application must rest finally upon a reconciliaticn of the overlapping definitions of ?wire cormmication" and "oral cosm- cation" in 18 U.S.C. s2510(1) (2). and "radio coonnmication" in 47 11.3.6. ?153 Cb)- Ihe central question may be stated precisely: which statute covers the interception of portions of common carrier radio-telephone cormnmications between the United States and other coutries? Perhaps the most succinct indication of overall legislative propose in Title may be found. incidentally, in the definition of "oral cmmioations" in 18 U.S.C. ?2510(2): I . . . [A]ny. . . communication uttered by a person exhibiting an expectation that such coommica- tion is not subject to interception under cir- cumstances justifying such expectation. Obviously, the privacy of the wire portion of a carrier radio- landline telephone is inherently greater than the radio portion. While such cormmication, as a awhole, might the technical definition of 'R-rire mudcadon" in 18 U.S.C. the radio portion fits equally the definition of "radio ccrmumication" set forth in 1+7 U.S.C. 5153(b). As the Court observed in United States v. gall. gang. the latter is infinitely more vulnerable to both inadvertent . and intentional intercepticn: As with any broadcast into the air, the invitation to listen is afforded to all who can hear. In the instant case, the eavesdropper merely tuned their radio receivers to the proper staticn. B9

at 2 The legislative history emphatically states that 18 U.S.C. 552510, at sea. .is intended to protect the giva?y of the (emphasis added.) 1968 U.S. Code Cong. and Adm. News 2173. The purpose of the statutory protection. therefore, is not to maintain the absolute inviolability of the of commication, but to protect from inter- caption tl'nse which are transmitted by 3% means. If the method of 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 coummication elsewhere in the chain of transmission are private. A communication is only as private as the seal-ms of transmission employed at the point of interceptim. If the privacy of a communication if is to be protected, the itself mast first be private. If at some point in its a cormunication may be intercepted over 30 I - . per cent of the earth's surface with readily available and inexpensive radio up?, :?equipment, the camication at that mint can hardly be regarded as (See gm.) . t? The legislative history further indicates that 18 U.S.C. ??2510. gt gag. . was intended to govern "the regulation of the interception of wire and oral while A7 U.S.C. (5605 was designed to "regulate the comiuct of commnications persomel" as wall as prohibit the interceptim and divulgence, or use, or radio ccunnmicatims. 1968 U.S. Code Cong. and 140

Copy 012 Adm. News 2196?2191. Nothing in 5605 indicates that comm carrier radio cmnulications are to be excluded from its coverage. Nomithstanding the seemingly coverage of radio camications by 5605. however, the legislative history andgdefinitions of wire and oral cmmications in 18 U.S.C. 52510 permit an initial construction of 552510, . to cover, ?153; the interception of all radio-landline telephone conmmications transmitted. in part, by aid of common carrier wire (wire commications) and g1}: "aural" radio-to- radio communications where there is a reasonable expectation such commi- cations are not subject to interception (oral coummications) . This constructitn of 18 U.s.cl ??2510, 35 33., would leave ?605 with jurisdiction over only the interception of "non-amal" radio-landline cannon carrier coommications, and only those "amal" radio-to-radio cmicatims which might reasonably be subject to interception. Such a construction would. of course, remove the interception or radio-lmdline telephone counmications by "cormmications personnel" the coverage of ?605 which was specifically designed to "regulate the conduct of cocmmicatims persomel". (Section 2511(2) Title 18. United States Code, expressly recognizes and cmtaiplates that officers, employees . and agents of cammicaticns ccumn carriers may also wire The foregoing if nothing else. that the seemingly emprelmsive coverage of Wire cammicatim" in 18 U.S.C. 2511(1) is .t 141 I 1.nulti." .

neither all-vinclusive nor free of ambiguity. It is npted that the only specific reference to radio corummicatzions in the prohibitions of 18 U.S.C. ?2511 is that _which appears in ?2511(1) (ii) proscribing the interception of (not wire) connmications by the use of devices which trarisrnit by radio or interfere with the transmission of radio commieations. This reinforces not only the contention that "oral cammications" defined in 18 U.S.C. ?2511(2) contemplate private oral conversations transmitted by radio eavesdropping devices; it also points up the emission of any similar prohibition against the use of radio devices to intercept ?wire counmications" as defined in 18 U.S.C. 2511(1). Statutog 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 communications, it shonld prece- dence over the general coverage of 1+7 U.S.C. ?605. Section 52511, however, is not mequivocal in its coverage, and sin! 'zuities in criminal statutes and conflicts in statutory met .a-e resolved in favor of potential defendants, the misdmeanor stamte would seem to apply. United States v. 404 0.5. 336, 348 (1971). 142

605-a of 2' (ix) Prosecutive Options I The Govemnent-has the option to proceed 47 U.S.C. 5605. Where a single act violates sore than one statute. the may elect to proceed under either. United States v. Burnett, supra. 47 U.S.C. ?605 The second and fourth clauses of Section 605 prohibit. respectively. the interception Ed divulgence of radio cmmraioations. and the receipt of intercepted radio connrmicadons 31g divul?ence or use for one's can benefit or the benefit of another. Divulgence by one who did not personally intercept the cwumicatim, however, or cause mother to do so; is not a violation of the second clause of Section 605; and use for the benefit of the Goverrment is not the type of "use" prohibited by the statute. WV. 51111;. 193 F.8upp. 630, 640-641 (S.D.N.Y. 1961); United States v. Lewis, 87 F.8upp 970, 974 (D.D.C. 1950), reversed on other grounds, 184 F.2d 394 CD.C. Cir. 1950). The Government has consistently taken the position that'disclosm'e mithin the Executive Branch is not "divulgence" within the prescriptions of Section 605. Nardone v. United States, 302 1.1.8. 379 (1037); United States v. Bitenko, 494 F.2d 593, 600 (3 Cir. 1974), Earl. diuLieg, 419 0.5. 881 (1974). In any event, "person" in Section 605 does not include law enforcanmt officers acting in the normal course of their duties. 1968 Q. Code 143

SU-uoO/tS-lo . Copy 012 Cong. and Adm. News 2197. The second clause of Section 605 prohibits any ?person? from htercepting and divulging to "any person". It would seem, therefore, that disclosure by NSA personnel to Law enforcement I. officers of would not constitute "divulgence" within the statute. Presidential Authorization U8 U.S.C. ?2511(3)) On October 2h, l969, President Nixon created the White House Task Force for Narcotics Control and reportedly announced a decision to make narcotics a matter oi? foreign policy, and further directed the Director of Central Intelligencei?to contribute to the maximrn extent possible in the collection of foreign intelligence related to traffic in and heroin. (Tab 12) I In August, 1971, the President created the Cabinet Carmittee as International Narcotics Control (which included, inter the D01 (CIA). the Attorney General, Secretary of Defense, et al.) and directed that all Federal offices, departn'mt and agencies cooperate with the CCINC in carrying out its functions, including the coordination of?all diplomatic. intelligence and Federal law enforcazmnt programs and activities of inter- national scope. (Tab T5) President Nixon also issued additional orders and made additional statements directing the mbilizaticxn of the full resources of the Federal Government to gather intelligence on international drug traffic. (See (B), 112%.)

Copy I 612 President Ford was recently quoted as having designated the illicit export of opiin'n to the United States as a "threat to our national security." See (B) (6). Egg. Former Secretary of Defense Melvin Laird stated that during the Viet Nam Conflict, he regarded the importation of drugs into the United States to be a matter affecting the national security because it imdermined the capabilityr of the Armed Forces during a period of national emergency. (Tab X4) (For specific sources of purported autlwrizatim, see supra.) Willfulness See ma. 2. Interceptions of International Non-Woice Camications 18 U.S.C. ?2511 Interception The legality of the interception of non-voice coummications upon the interpretation of "intercept" as defined in 18 U.S.C. 2510(4): I (A) "intercept" means the aural acquisiticn of the contents of any wire or oral connunication the use of any electronic, mechanical, or other device. The statute restricts the definition of "intercept" to "aural acquisiticn". and the legislative history specifically excludes all other means of acquisition:

. .. Other forms of surveillance are not within the proposed legislation. . . The proposed legis- lation is intended to protect the privacy of the counmication itself and not the means of comm- nication. 1968 U.S. Code Cong. and Adm. News 2178. The dictionary defines "aural" as "of or relating to the ear or sense of hearing." The words "aural acquistion", literally translated. means to cane into possession through the sense of hearing. Smith v. Wanker, 356 F.Supp. M, ?6 (S.D. Ohio 1972). The legislative history further amplifies the intended scope of "aural interceptions" Paragraph (4) defines "intercept" to include the aural acquisition of the contents of any wire or oral cormmication by any electric, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. See Lee v. United States. 47 8.01:. 746, 274 U.S. 559 "(1927); Corngold v. United States. 367 F.2d (9th 1966). An examination of telephone ccmpany records by law enforcement agents in the regular course of their duties would be lawhll because it would not be an "interception". (%ited States v. Russo. 250 F.Supp. 55 (E.D. Pa. . proposed .. 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 coummication itself and not the ms of coummication. 1968 U.S. Code gag. . and Adm. News 2178. The foregoing clearly excludes from the coverage of 18 U.S.C. 52511 all commiications transmitted mechaiically, i.e. transmitted by signals independent of somd. electrical pulses. 146

Copy/012 (owing: "Am-a1 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 corrmmication which causes such coummication to be overheard by uninvited listeners, i.e. . the gogg- poraneous acquisition of the communication. It is the act of contemporaeous meillance (by hearing, recording, or otherwise) which was at the cats: of congressional concern. United States v. 11113, 526 F.2d 654. 658-659 (5 Cir. 1976) . This ?interpretadon of "aural acquisition" is reinforced by 18 U.S.C. 2511(1) which prohibits the subsequent disclosure of an intercepted counmaication. "Aural acquisition", would seem to include, for example, the de-chameljng of tape recordings of intercepted nmlti-chennel "sound" counmications. In such cases, the acquisition of the intelligible contents of a communication would not necessarily have to be contmporaneom with the interception and acquisition of the primary or "garbled sounds". In start, "aural acquisition" would appear to generally cover the interception of sounds while in the process of trmission.

01 Teletype and Telex Coammications 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. 2939; technology umdmizes the utility of teletype facilities by increasing the transmitting capacity. 47 U.S.C. 5605 Divulgence The interception of non-aural communications is covered, if at all. by 47 U.S.C. secs, which requires divulgence, or use. in addition to interception. There is absolutely no indication that Congress contemplated situations where interceptions were not accoupanied by divulgence. United States v. m, 494 F.2d 593, (3 Cir. 1974). 419 13.5. 881 (1974). The majority in observed that "restricting any divulgence to members of the Executive Branch. . . . does not necessarily man that the

m??f?w surveillance and such divulgence does not Em afoul of 5505", 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 arch cases. Nardone v. United States, 302 U.S. 379 (1937); United States v. We. aera- Whatever the validity of the above position; the could hardly prosecute one of its own agents for divulging the contents of an intacepted communication within the Executive Branch in reliance 'upon the Goverrmt's long-staiding interpretation of the statute. Rathermore, Section 605 does not apply to law mforcenent officers acting in the course of their nor-cal duties. 1968 U.S. Code Gong. and Adm. News 2197. Disclosure by NSA within the Executive Branch, particularly to BNDD. Secret Service and FBI agents is. therefore, not proscribed by the statute. (ii) Elsa Section 605 mat 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

0X 2 but quite mother 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 not include use for the benefit of the Govement. Plainly, such use is not for the government agent's own benefit. Pugach v. Klein. 193 630, 640-641 (S.D.N.Y. 1961); United States v. Lewis, 87 F.Supp. 970. 974 (D.D.C. 1950), reversed on other gromds. 184 F.2d 394 (D.C. Cir. 1950) . Interception and Divulgence or Use gr Different Parties Absent a conspiracy, mere divulgence by one who did not persomally intercept the contamination. or cause another to do so, is not a violation of the second clause of Section 605. Pugach v. Klein. supra. By the same reasoning, the "r_eoe_i?oLt and divulgence" prohibitions of the first clause of Section 605, and the "?33in and use" proscriptions in the third clause, would seem also to require that receipt and divulgence (or use) be accomplished by the sane person to constitute an offense under s605. . Presidential Authorization See 5932;. 150 ?9 4

cum I on: Willfulness See m. B. Receipt of "Cable Traffic" from International Commuications Car?ers (3mm and Drop- Cop): @erationi 1. 47 U.S.C. 5605 This activity is covered, if at all, by the first clause and/or third clause of 47 U.S.C. 5605 which prohibit, generally, the receipt and divulgence {accept upon demand of lawful authority, etc.) of inter- state or foreign corrmnications by wire or radio; and the receipt use of radio communications . Possible Violations of 5605 involve persons in two general categories: (1) commercial coununications persomel; and (2) goverrment agents md' officials. Cannmications Persomel The new Section 5605 is designed to regulate the conduct of cormunications personnel. 1968 11.5. Code Gong: and Adm. Nears 2197. As noted above. havever, 5605 apparently requires that both the willful receipt (or assistance in receiving) and the willful divulgence and/or use, he accou'plished by the same person, and "use" by a Govermmt agent for the bmefit of the Govth it not tIe type of ?use? contemplated in the proscriptims of the statute. Pugach v. Klein, supra; United States v. lewis. supra. HANDLE VIA CHANNELS

?t - . . SC-O?Cio-vo WY I 2 In addition to their reliance on the foregoing, couumications persomel I involved in SHAMROCK and the Drop-Copy Operation may contend their assistance resonse to requests made under the Presidmtial power recognized by 18 U.S.C. ?251l(3). "on danand of lawful authority" md, therefore, within the exceptions enmerated in ?605. The FBI asserts that the legislative history of ?605 indicates Congress intended the phrase "on danand of law?il authority" to be as inclusive as - the similar provision of the Interstate Commerce Act of 1887 from which the Commications Act of 1934, in part, was taken. (Tab 00) The Interstate Commerce Act of 1887, as mded in 1910 to prohibit the disclosure of cormmications transmitted by cocoon carriers, provided that nothing therein should be construed to prevent the giving of information in response to "any officer or agent of the Cover-th of the United States, or of any State or Territory, in the ext-noise 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 ccnumications persomel might also argue they mex'gg Q9129, agmts 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. w. ma. 1.52 HANDIF VIA runmmr

?1 or smith: -- 800507846 . Copy 012 Goverment Agents and Officials Agents and officials of NSA and the FBI were involved in the dailn conduct of 51W and the Drop City Operation will perhaps assert they never received or assisted in receiving any of the communications furnished to them, but rather obtained the commieations only age; the receipt of same by coammications personnel. They will likely contend also that there was no "divulge-ace" because dissemination was confined to a small segment of the Executive Branch. Those officials who negotiated or maintained the informal agreements between the Goverrment and the cconmications carriers were not the same persons who obtained and disseminated the actual counmications 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 themselves. As for criminal conspriacy, they will probably attempt to prove an implied delegation of Presidential power under 18 U.S.C. 2 . Presidential Authorization See m. 3. Will??ness See VCC) . m, HANDLE VIA FHANNFIQ

C. Interception of Domescic Cmnmioations 'In Testing Electronic Equipumt l. 18 11.8.0. 52511 and U.S.C. 5605 . All interceptions which are known to have occurred within the five-year statute of limitations were interceptions of "radio" cummioations. i.e. . the radio portions of radio?telephone counmications which were not "divulged" within the meaning of 47 U.S.C. 5605. The same defenses set forth in IVCA), m3, may be raised with respect to this activity. 2. Presidential Authorization See (4) and (F) (6). 3. Mll??ness See VCD) Era.

OLLREI SC-05078-7 6 Copy 012 v11. 9mm: pt Possum: VIOLATIONS AND DEFENSBS A. Recapitulation of Inquiry . The Rockefeller Conmission Report raised questions concerning 59351 I ?areas of CIA-related electronic surveillance activity: CIA personnel security, activities of U.S. dissidents, toll records of telephone calls between the U.S. and a hostile comtry, the interception of international narcotics trafficker's telephone mmications, electronic equipnmt testing. a me of the ?otmtial ca abili of a hostilejorei . terc If. mm I . Dis. coonmicagions and CIA assistance to the Secret Service and local u?u- police (pp.l-IL3. 7 However; our revealed 3'13 founding eleven additional areas of questionable activity involving the CIA. NSA and FBI: seas intercepts, a '5 MARBLE, - and the FBI drop-copy?operaticn (pp.14-39. ma) . 11132; of these may also contain the elements of Federal criminal offenses, mm (pp.26-29, Ema). Simmocx (pp.32-36, and the FBI drop-cow operation (p.39. ma). Eight specific electronic surveillance operations thus require prosecu- tive evaEuadm.

- 50-05078-76 COpy or 2 1. Fran October 1972 to January 1973, at NSA's request, the CIA intercept the radio portims of targeted radio-telephone cammications between Latin America and the United States for the purpose of gathering intelligence on internatimal narcotics trafficking. intelligence product was furnished to NSA which, in turn, forwarded it to m. If the radio portions of international radio-telephone are deemed "wire cadumications" (see pp. 139?140, was). the would be in clear violation of 18 U.S.C. 525110) but for the apparent blanket approval of \such interceptions by Attorneys General and the Secretary of Defense in 1971 and 1972 (pp.81-84, we) . Such approval. together with the explicit Presidential insistence that CIA contribute to the 'beximm extent" and ?to mobilize its full resources to fight the international drug 1+6. 58, llZ, Eggs), could be construed as Presidential direction and. authorization under 18 U.S.C. 525110) . 'Ihis defense is particularly buttressed by prior Presidential declarations that narcotics, control is a matter of "foreig1 policy" (p.46, supra; that it is "imperative that the illicit flow of narcotics and dangerous drugs into this comtry be stopped as soon as possible" (p.47, mg); that illicit drugs are a "menace to the general welfare of the United States" (p.45, me); that ?kwkming the battle against drug abuse is one of the most inportmt, the most urgent mtimal priorities tats:th the United States today" (p.57, m; that 'keepmg dangerous drugs out of the United States [is] just as important as keeping armed enany forces landing in the United States" (p.58, mg). Such Presidential language could be easily construed as equating narcotics control with natimal semity.

80-05078-76 or 2 Congress has also recognized the need for international narcotics ?7 intelligenc??nd the general propriety of utilising CIA and NSA resources to obtain it. (1:13.49, 63, ?22; 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. so_ arrorphous, that it would be impossible to prove beyond a reasonable doubt that eitha of them specifically "authorized" It thus appears that no real probability exists for convicting anyone involved Consequently, it would not seem to warrant: ?rther prosec?utive pursuit . (See Surmary Outline, Tab D, for "complete listing of possible defenses.)

30-05078-

80-05078-Ignt . . . .-. . . I - ltd; Mid mun?cl- - awn?Ir. .- ?nu-It tn- .Iui-u- uncu- cup-luHit- a HANDLE VIA COMINT CHANNELS

80-05078-76 COpy OIZ .7 collection and dissenu?nation of intelligence concerning Presidential protection The chartering of on July 1. 1969. formalized NSA's g_e_ facto and foreign influences on domestic organizations and individuals which might create civil disturbances and/or undermine the national security. The Attorney General advised the PFLAB 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.lO7, $1.223). Such intelligence was gathered and distributed by NSA to Federal consumr agencies. i.e. . the CIA, FBI, Secret Service. ACSI, DIA, and State Deparmaent. all of levied reqx?xeamts on NSA under NSCID 6 (pp. 78, m) . ENDD levied narcotics intelligence requirenents on NSA in April 1970. mass-r intelligence, except one category of international voice commi- cations involving narcotics. was obtained incidentally in the course of NSA's interception of aural and non-aural g. telex) international cummications. and the receipt of ?acquired telex mud 118 cable traffic (W) Possible violations in WET are (1) aural acquisition (and/or use. disclosure, etc.) of wire and oral cwnmicatims (18 U.S.C. 52511); and (2) receipt or interception and divulgance or use of radio (47 U.S.C. 5605). In conformity with NSA's one-terminal rule (p.61, My, all apparently had at least one termnal in a foreign comtry mad,

WEE: 30-05078-76 COpy or 2 4.7 excluding SHAMROCK cmnunications, were obtained through the interception of - ?113 Erti'ons of international cmmn?catims from sites both within and without the United'States. On November 6. 1975. the Attorney General noted in his testinony before the Senate Select Committee that it is arguable that "if matters are picked up out of air, so to speak. as waves of some kind across the ocean, that there is no reason for people to assure that the conversations are private and therefore the fourth amendment does not apply". Hearings Before the Select Comittee to Govemnental Operations With Respect to Intelligence Activities of the Senate. 94th Cong. . Sass. . V5, pp.llS-116 (1975). Although the Attorney General expressly declined to make such an arth because "it goes too far", it nonetheless remains available as a tentative and plausible defense. (See Assuming, however. such defense is not viable. the dissemination of intelligence incidentally derived from clearly legitimate NSA operations to "provide [for the 818M mission of the United States" (p.77, we) appears to be lawful under the "plain vieuf' doctrine (p.125, ?are . particularly in view of the general absence of statutory restrictions on NSA intercept activities. (hr inquiry confirms the following findings of the Senate Select Camittee regarding the lack of statutory restrictions :11 NBA: . . . [Nlo existing statutes control, limit or define the signals intelligence activities of

counts 50-05078-76 COPY 012 No statute or executive directive prohibits 3 monitoring a telephone circuit with one terminal in the United States. 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 NBA could resume the watch list activity at any time upon order of the Executive. . .. (S.Rep. No. 9h?755, 94th Cong.. 2nd Book . PP.736. 756, 761 0.976) . . The apparent lack of statutory restriction on NBA intercept activities was reinforced by a from NSA General Counsel to the Office of the NSA Director on July 24,i1968 reporting that the enactment of 18 use. mum on June 19, 196-8 resumed "any doubt as to the-legality of . . activities of the Executive Branch of the Govermmt". (p.85. m5; Tab Y2) NSA's pmposeful interception of the radio portions of international radio-telephone to obtain narcotics intelligence for man began in Septarber 1970 and continued until June 1973. Apparently, NSA only intercepted narcotics ooummicatims having one terminal (at least) in a foreign comtry. Consequently. this activity conformed with NSA's long-standing "one- terminal" rule (p.81. Era), Presidential priorities 109. 111-112, 525:3) . possible USIB approval (p.97, "ground rules" approved 111-1971 and 1972 by Attorneys General and the Secretary of Defense (pp.82-84, we). md the "national security" nature of during the Viet Nam War (Tab Xlo) . 162 HANDLE VIA COMINT CHANNELS

I 1-- Uhleb. 80-05078-76 COPY I or 2 The broad, sweeping SIGINT responsibilities and powers of NSA, cocrbined 7 with vague or non?existent restrictions on NSA in exercising that power to carry out such responsibilities, would seem to render ?n-ther prosecutive pursuit of futile. The plain view doctrine appears to legitimize the incidmtally-acquired WEE intelligence, and the aforementioned of gathering the narcotics intelligence for MD makes proof of willfulness highly inpro?bable. if not impossible. (See Sumnery Outline, Tab N, for additional analysis and detail.) I HAHN: \nA' CHANNELS

I 80-05078-76 Copy ?Lin? smagf HANDIF VIA FOMINT

80-05078-7 Copy I at 2 6. summon: 7 In SHAMROCE. the NSA gathered international non-aural coonunications {run 113 carriers (principally RCA and HUI) from 1957 to May 1975. NBA inherited this operation from udlitary agencies which began collecting cable - traffic during WW II and continued thereafter as essential to the national security with the approval of Secretaries of Defense. Attorney General Tom Clark and President m. The method of obtaining varied with changing tectmology and circunstances but the mid-19605 to May 1975, NBA employees received or had access to virtually all IDS traffic which passed tl'mwgh the New York City offices of RCA and The offices of WUI in New York City and vasrungtm, n.c. furnished NSA with microfilm of possibly other) or: corrmmications until 1969. The WUI were selected out and microlfimed for NBA by WI employees. (The offices of RCA. WI and other I18 companies in several other cities also contributed to 511m at various times.) I NBA also requested and received cable traffic fran the FBI which the latter obtained from RCA, and W1 until the termination of its "Drop-Copy Operation" in April 1973. In about 1967. NSA began extracting domestic intelligence iron the m: cmaications (mgrnetic tapes) received from RCA and m. This was dcne without the knowledge of REA or and continued until the termimtim of . .- a Such domestic intelligence was disseminated to cormuoer egmcies to the menu HANDLE VIA rnMw-r m,

. -- 30-05078-76 COpy o: 2 the extraction of manor mmtelligence in addition officials contend that it constituted only a small portion of the total traffic received. The reminder (902+) was not used in any respect in an effort to minimize the NSA intrusim. SHAMROCK involves possible violations of 47 U.S.C. 5605. (Section 2511 of Title 18, United States Code, does not apply because none of the tions were acquired by "astral" means. Rather. they were mechmioally transmitted and received through pulses of electrical artery, e.g. telex.) NSA finds dupport for conducting its SHAMROCK operation in the following: NSA's "ir?xeritance'lof the project which was continued after WW II at the instance of the Secretary of Defense. Attorney General and the Presidmt (pp.32-33. Lard); the pmrported lmowledge and receipt of cmnmicatims by the President and his National Security Advisor from 1965 to 1959 (p.41, Tab Presidential authorization (pp.45-60, 106-113; 144. knowledge and approval of the Attorney General and PFIAB in 1971 (119107-108: ma); knov?edge and tacit approval 1969 Nto 1973 of the Secretary of Defatse (p.33. and the mandate of NSCID 6 (pp.76-80, I we) . (NSA contends that the exclusion of written cmicaticns from its umdate under NSCID 6 is limited to mail and other than those sent electronically. map. No. 94-755. 94th 2nd Sosa. Book pp.737-738 (1976).) If NSA had ?3313 authority to collect NSA traffic m: carriers for natimal secrn-ity purposes. it may be cmtended that domestic- intelligence incidentally derived therefrom was lawfully obtained under the "plain doctrine. (See p.125, me) 166

80-05078-76 0093' I or 2 Section 605 of Title 47 prohibits (1) divulgence by: anyone receiving 7 any foreig: cmnmication by wire or radio. except upa't demand of lawful authority; or (2) receipt and use of such cmmnication by a person not entitled thereto. - In addition to the purported "authority" defenses above. potential SHAMROCK defendants may assert (1) there was no diwlgence outside the acecutive branch and. therefore, no diwlgence within the reaming of 5605; (2) there was no idivulgmce or use by any person who actually received ?and (3) ?5 for the benefit of the Goverment is not the type of "use" contemplated in 5505 (pp.143-153. we). 'Ihus. the arth may be made that no Federal criminal statute covers the SHAMROCK activity. Secticm 605 does not apply to FBI. BNDD or other law enforcement persomel (pp.133-132, m9 nor to the mere receipt of counmications and divulgmce the executive branch. While foregoing defenses do not clearly absolve the participate, they would seem to provide the basis for a sufficient shoamg of good faith and lack of willfulness to preclude successful prosecution of NSA, FBI and other consuner agmcy involved. (See pp.lZl-125. me.) A (See Smmary Outline, Tab P. for additional detail.)

80-05078-76 COpy I 0t 2 7 . FBI Drop-Copy Operation Fran 1941 to apt-11 18. 1973. the FBI obtained capies of international "cable traffic" from carriers for purported national security By 1947. the was receiving the cable traffic of 14 countries from RCA, WI and Mackay pun-poses . Radio. In 1947 and 1949, the Secretary of Defense assured RCA, HT and W1 that the assistance they were providing was essential to the national semity of the United States. and both the President and Attorney General concurred in request thatllit continue. than the Drop-Copy Operation was teminated in 1973, the FBI was obtaining the "raw!" lcable traffic of 21 countries from the Washington, D.C. offices of m. RCA WUI. The traffic of 10 of these countries was obtained for use. During the 30-03:: years of the Drop-Copy-Operation. the obtained cable traffic from various offices of six 115 companies in New York City San Francisco. Los Angeles. Portland and Wasl?ngton. 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, we) . 'Ihe FBI finds authorization for its Drop-Copy Operaticn in such knowledge and acquiesence; in NSCID 6 which authorizes the NBA Director to issue direct mandatory assigrrnents to any agency engaged in operatims (p.78. and in the FBI's own authority by virtue of Exewtive Order to counter- intelligence operations within the United States. (Tab R4) Possible violade and defenses are the same in the Drop-Copy Operatim as in SHAMROCK, 5E3. (See Sun-nary Outline. Tab R, for fm?ther detail.)

- . .

50-05078-76 Copy

Copy I 012 CONCLUSIONS AND 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 be terminated for lack of prosecutive potential or 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 recoanmds that the inquiry be terminated in all respects for lack of prosecutive potential. There appears to be little l?celihood, if any. that convictions could be obtained on the basis of mently 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 operation, however oblivious or umindful, appear to have acted under at least acme 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 bread discretionary power on . occasim. that ill-defined power was conferred upcn them and their agencies with the levy of sweeping legislative and executive requirewmts, e.g. . the National Security Act and NSCIDs. If the intelligence agencies possessed too uuch discretionary authority with too little that would seen to be a 35-year failing of Presidents and tie Congress rather than the agencies. - In addition to the previously enumerated defenses which may be invoked in the event of prosecutim, there is likely to be such "buck-passing" from sub- ordinatetomperior. agencytoagency, agencytoboardorcoumittee, boarder mitteetothePreside-nt. mdfranthelivingtothedead. 'lhedefense 171

Copy} 012' may be expected to subpoena every tezmously-involved government official and former official to establish legitimate authorization or convoluted theories or pun-ported author-cation. While the high office of prospective defense witnesses should not enter into the prosecutive decisim. the confusion. obfuscation and surprise testimony which might result cannot be ignored. Other practical considerations include the inplications and cmpladties of providing discovery of national security materials NSC, PFIAB. DOD, arm! White House documents and records) as well as sensitive foreigx intelligence-gaer methodology and tecl?nology. These considerations bectne particularly acute wtxen weighed against the minimal chances of sus- taining the technical proof of violaticns and the probable lack of juror entl'msiasm for convicting those whom the defense my plausibly portray as dedicated employees who only followed orders trying to protect the national interest, keep heroin out of the United States. etc. The above observations are sade with .?ill appreciation that the subject matter is an international gglebre involving fmdauental consti- tutional rights of United States citizens. While the violation of those rights, whether intentional or inadvertent, cannot be condoned, the prosecution of alleged male-factors without any reasonable probability of convictim would seem to be equally indefmsible. 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 pm'suit of pmitive md retributive memes which are likely to fail. To that end, the following ixmovatima appeartobeas essmtialastheyareobvioua: 172

. agencies charged with the research and development of electronic equipmt essential to the national security should be provided with clearly defined authority and procedures for testing such equipment against appropriate cormmications systems. Consideration should be given to seeking specific congressional and presidential designation of cer- tain international criminal activities as matters affecting the national security international narcotics trafficking, gin-naming, 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 opiun destined (initially) for Corsica, while at the same time deliberately dmying 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 enforth agencies with criminal intelligence incidentall obtained in the exercise of their WEI functions including infomation indicating crin?nal activity on the part of U.S. citizens. (There is no rational basis for protecting U.S. I citizm-crindnals the consequences of such "plain vim" evidence.) An effort should be made (consistent with the constitutional rights of criminal defendants) to secure legislation and/or rules changes to prevem the lic identification of natimal security agencies as the source of criminal intelligence incidentall obtained in the exercise of 1r functions, at least where such evidence is 1395 introduced at trial. 'IheauthorityoftheCIA, perform their respective missions in the field of electronic strveillmce should be clearly delegated and delineated with speci- fic procedures prescribed for the lawful exercise of that authority. 173

Copy on? 2 6. The Office of General Counsel for each intelligence agency should be staffed with one or more attorneys with expertise in electronic surveillmce law and Federal crindnal law and procedure. 7. Agency personnel should be re ed to consult their General Counsel and magi-rm, in advance, the legality of all electronic surveillance projects. 174

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