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INTELLIGENCE ACrrIVITIES-THE NATIONAL SEC[RITY AGENCY AND FOURTH AMEND~IENT RIGHTS WEDNESDAY, OCTOBER 29, 1975 U.S. SEX~\.TE, SELECT CmUIITTEF. To STUDY GOYERX1IEXTAL OPEr~\TIOXS ,VITH RESPECT TO IXn:LLIGEXCE ACTIVITIES, lVashington,D.C. The committee met, pursuant to notice, at 10 :15 a.m., in room 318, Russell Senate Office Building. Senator Frank Church (chairman) presiding. < • Present: Senators Church, Towel', 1Iondale, Huddleston, Morgan, Hart of Colorado. Baker. Goldwater. Mathias and Schweiker. Also present: 'VilliamG. ~fi1ler, staff director; Frederick A. O. Schwarz, Jr., chief counsel; Curtis R. Smothers, counsel to the minority, The CUAIR1IAN. The hearing "'i1l please come to order. This morning. the committee begins public hearings on the Xational Security Agency or, as it is more commonly known, the NSA. Actually, the Agency name is unknown to most Americans, either by its acronym or its full name. In contrast to the CIA, one has to search far and wide to find someone who has ever heard of the NSA. This is peculiar, because the Xational Security Agency is an immense i~stallation. In its task of collecting intelligence by intercepting foreIgn communications, the XS,," C'mplovs thousands of people and operates with an enormous budget. Its expansive computer facilities comprise some of the most complex and sophisticated electronic machinery in the world. Just as the NSA is one of the largest and least known of the intelligence agencies, it is also the most <reticent. ,Yhile it sweeps in messages from around thc world, it gives out precious little information about itself. Even the legal basis fOl' the activities of NSA is different from other intelligrnce agencies. X"O statnte establishes the NSA or defines the permissible scopc of its responsibilities. Rather, Executive directives make up the sole "cha]"ter~' for the Agency. Furthermore, these directives fail to deHne precisel~' what constitutes the "technical and intelligence information" which the NSA is authorized to collect. Since its establishment in 19:")2 as a part of the Defense Department, representatives of tIl(' NSA have never appeared before the Spnate in a public hearing. Today "'e will bring the Agency from behind closed doors, The committee has plectecl to hold p11blic hearings on the NSA only after the most careful considpration. For 2~ years this Agency has provided the Prpsic1ent and thr otl]('r intelli'!ypnce services with <:'omiunnications intelligence vital to dpcisionmaking "'ithin our Gowrn- (1) 2 ment councils. The value of its ,york to our national security has been and will continue to be inestimable. ",Ve arc determined not to impair the excellent contributions made by the NSA to the defense of our country. To make sure this committee does not interfere with ongoing intelligence activities, we have had to be exceedingly careful, for the techniques of the NSA are of the most sensitive and fragile character. ",V"e have prepared ourselves exhaustively: we have circumscribed the area of inquiry to include only those which represent abuses of power; and we have planned the format for today's hearing with great care, so as not to venture bevond our stated obicctives. The delicate character of communications intelligence has convinced Congress in the past not to hold public hearings on NSA. ",Vhile this committee shares the concern of earlier investigative committees, we occupy a different position than our predecessors. ",Vc are tasked. by Senate Resolution 21, to investigate "illegal, improper, or unethical activities" engaged in by intelligence agencies, and to decide on the "need for specific legislative authority to govern operations of * * * the National Security Agency." Never before has a committee of Congress been better prepared, instructed, and authorized to make an informed and judicious decision as to what in the affairs of NSA should remain classified and what may be examined in a public forum. Our staff has conducted an intensive 5-month investigation of NSA, and has been provided access to required Agency files and personne1. NSA has been cooperative with the committee, and a relationship of mutual trust has been developed. Committee members have received several briefings in executive session on the activities of the Agency, including a week of testimony from the most knowledgeable individuals, in an effort to determine what might be made public without damaging its effectiveness. Among others, we have met with the Directors of the NSA and the CIA, as well as the Secretary of Defense. Finally, once the decision was made to hold public hearings on the NSA, 'the committee worked diligently with the Agency to draw legitimate boundaries for the public discussion that ,,'ould preserve the technical secrets of NSA, and also allow a thorough airing of Agency practices affecting American citizens. In short, the committee has proceeded cautiously. We are keenly aware of the sensitivity of the NSA, and wish to maintain its important role in our defense system. Still, we recognize our responsibility to the American people to conduct a thorough and objective investigation of each of the intelligence services. We would be derelict in om duties if we were to exempt NSA from public accountability. The committee must act with the highest sense of responsibility during its inquiry into the intelligence services. But it cannot sweep improper activities under the rug-at least not if we are to remain true to our oath to uphold the Constitution and the laws of the land. We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. It has the capacity to monitor the private communications of American citizens without the use of a "bug" or "tap." The interception of international communications signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications. Indeed, as our hearings into the Huston plan demon3 strated, a previous administration and a former NSA Director favored using this potential against certain U.S. citizens for domestic int€lligence purposes. 'While the Huston plan was never fully put into effect, our investigation has revealed that the NSA had in fact been intentionally monitoring the overseas communications of certain U.S. citizens long before the Huston plan ,vas proposed-and continued to do so after it was revoked. This incident illustrates how the NSA could be turned inward and used against OUI' own people. It has been the difficult task of the committee to find a way through the tangled webs of classification and the claims of national securityhowever valid they may be-to inform the American public of deficiencies in their intelligence services. It is not, of course, a task without risks, but it is the course we have set for ourselves. The discussions which will be held this morning are efforts to identify publicly certain activities undertaken by the NSA which are of questionable propriety and dubious legality. General Allen, Director of the NSA, will provide for us today the background on these activities, and he will be questioned on their origins and objectives by the conunittee members. Like the CIA and the IRS, the NSA, too, had a "watch list" containing the names of U.S. citizens. This list will be of particular interest to us this morning, though we will take up another important subject as well. The dominant concern of this committee is the intrusion by the Federal Government into the inalienable rights guaranteed Americans by the Constitution. In previous hearings, we have seen how these ri.ghts have bC2n violated by the intelligence services of the CIA, the FBI, and the IRS. As the present hearings will reveal, the NSA has not escaped the temptation to have its operations expanded into provinces protected by the law. While the committee has found the work of the NSA on the whole to be of a high caliber and properly restrained and has tremendous respect for the professional caliber of the people who work there, the topics we shall explore today do illustrate excesses and suggest areas where legislative action is desirable. That is why we are here. Senator Tower would like to make an opening statement. Senator TOWER. Thank you, Mr. Chairman. Mr. Chairman, I shall be brief. From the very beginning, I have opposed the concept of public hearings on the activities of the NSA. That opposition continues, and I should like to briefly focus on the reasons I believe these open hearings represent a serious departure from our heretofore responsible and restrained course in the process of our investigation. To begin with, this complex and sophisticated electronic capability is the most fragile weapon in our arsenal; and unfortunately, I cannot elaborate on that, because that would not be proper. Public inquiry on NSA, I believe, serves no legitimate legislative purpose, while exposing this vital element of our intelligence capability to unnecessary risk, a risk acknowledged in the chairman's own opening statement. S. Res. 21 does authorize the NSA inquiry, and this has been done very thoroughly in closed session. But that same resolution also picks up a recurring theme of the floor debate upon the establishment of this committee. Specifically, we were admonished not to disclose ont4 side the committee information which would adversely affect intrlligence activities. In my view, the public pursuit of this matter does adversely affect our intelligence-gathering capability. Even if the risks were minimal-and I do not belieYe they arc minimal-the NSA is the wrong target. The real quarry is not lurg-ely mechanical response of military organizations to orders. The rea 1 issues of who told them to take actions now alleged to be Cluestionablc should be addressed to the policy level. It is more important to know "why names were placed on a watch list than to know "what the XSA dill after being ordered to do so. In summary, Mr. Chairman, I believe we have fallen prey to our own fascination with the technological advances of the comnutel' agr. 'Ve have invited a three-star militarv officer to come before us to explain the awesome technology and the potential abuses of a hng-e vacuum cleaner. 'Ve have done this despite the fact that our exhaustive investigation has established only two major abuses in 2:1 yrars, both of which have been terminated. And despite the obvious risks of this sensitive component of the Nation's intelligence-gathering capability. I am opposed to a procedure which creates an mmecessarv risk of irreparable injury to the public's right to be secure: eYen if offered under the umbrella of the acknowledged presumption of a citizen's right to know. In taking such risks. we both fail to advancr the grlwral legislative purpose and, 1 believe. transgress the clearly exprl',ssNl concerns of the Senate requiring us to, if "e err at alL err on the side of caution. It is my view that there comes a point when thr peonle's right to know must of necessity be subordinated to the people's right to be secure, to the extent that a sophisticated and effectiYe intelligence-gathering capabilit:v makes them secure. I do not think that any of us here. for examplr. "'ould want 11" to sacrifice our capability for Yerification of Soyiet strategic weapons capahility. And whether or not that capability "Was thonght posture in a first-strike configuration, I cite it only as an example. Hence. my opposition to the conduct of these public hearings. 1 am a,,'are, Mr. Chairma.n. that through the democratic process. the committee has. bv a maiority vote. voted to go this route. But I frH, a compulsion to' state l~y own reasons for being in opposition. The CIL\IK'L-\~. Senator Tower. I appreciate your statement. and I might say that thel'(~ are two levels of concern in the committep. ana relating to the t,,'o differrnt practices that are, aT questionable ]e~ality. Am] so, we have dividrd this hearing into two parts. proceedmp: with th" portion that has least objection from members or th" committee who frel as Senator Tower does. And then. we will haw an opportunity to discuss furthrr the. second part. after General Allrn ha" IrTt the witness stand. And that is the procedure, that is satisfactorY with you? Sen'ator TOWEH. I accept the procedure, and it is totally satisfnctory tome. The CTL\TlDL\X. Yrry well. Xow, General AlleTi has rome 1)J'l'pared "'ith his statr!llrnt. aftrr ,,-hich. General. there wjlJ he 0,llestions Trom tIl(' committeC'. I wish yon "'ould identifv those ,,-ho ,,-ill be sitting: with YOU: and if theY • '. L· .... • 5 might respond to questions, then I would ask them to stand with you to take the oath. Would you first identify them, please? Gmeral .ALLEK. Yes. On my right is Mr. Benson Buffham, who is the Deputy Director of the National Security Agency. On my left is :Mr. Roy Banner, who is the General Counsel of the National Security Agrllcy. Sir, I suppose-or at least for our initial purposes-that I be the only witness. 'i'he CHAIR3L\X. Very well. Then you alone may stand and take the oath. Do you solemnly swear that all of the testimony you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God? Gt'neral ALLEX. I clo. The CKUR3IAX. Thank vou. General. I know you l{ave a prepared statement. ,Yill you please pl'oeced with it at this time. TESTIMONY OF LT. GEN. LEW ALLEN, JR., DIRECTOR, NATIONAL SECURITY AGENCY, ACCOMPANIED BY BENSON BUFFHAM, DEPUTY DIRECTOR, NSA; AND ROY BANNER, GENERAL COUNSEL, NSA General ALLEX. 1\11'. Chairman, members of the committee, I recognize the important responsibility this committee has to investigate the intelligence operations of the U.S. Government and to determine the need for improvement by legislative or other means. For sen'l'al months, im'olving many thousands of man-hours, the National Security Agency has, I believe, cooperated with this committee to provide a thorough information base, including data whose continued secrecy is most important to our Nation. lYe are now here to discuss in open session certain aspects of an important and hitherto secret operation of the U.S. Gvernment. I recognize that the committee is deeply concerned that we protect sensitiyc and fragile sources of information. I appreciate the care which this committee and staff have exercised to protect the sensitive data "'e have provided. I also understand that the committee intrnds to restrict this open discll"-sion to certain specific activities and to avoid current foreign intelligence operations. It may not be possible to discuss all these activities completely without some risk of damage to continuing forrign intelligence capabilities. Therefore, I may request some aspects of our discussion be conducted in executive session where there can be opportunit:v to continue our full and frank disclosure to the committre of all the information you require. The committee may then de\'rlop an appropriate public statement. ,Ve are therefore here, sir, at vour request. prepared to cooperate in bringing these matters before your committee. In the interest of clarity and perspective, I shall first review the purpose of the National Security Agency and the authorities under \vhich it operates. Next, I will describe the process by which requirements for information are levied on NSA by other Government agencies. And finally, I will give a more specific description of an operation conducted in 1967-73 by NSA in response to external requirements, y,hich I \yin rcfer to as "the \vatch list activity." This ac6 tivity has been subject to an intensive review by this committee and staff in closed session. l~nder the authority of the President, the Secretary of Defense has been delegated responsibility for both providing security of U.S. governmental communicntions and seeking intelligence from foreign electrical communications. Both functions are executed for the Secretary of Defense by the Director. ~atiollal Security Agency, through a complex national system "which includes the NSA as its nucleus. It is appropriate for the Secretary of Defense to have these execntjye ngent responsibilities, since the great majority of the effort to accomplish both of these missions is applied to the support of the military aspects of the national security. The communications security mission is directed at enhancing the security of U.S. Government communications whenever needed to protect those communications from exploitation by foreign governments~ a complex undertaking in today's advanced electronic world. The United States. as part of its effort to produce foreign intelligence, has intercepted foreign communications, analyzed, and in some cases decoded these communications to produce such foreign intelligence since the Revolutionary ·War. During the Civil 'War and "World vVar I these communications were often telegrams sent by wire. In modern times, with the advent of wireless communications, particular emphasis has been placed by the Government on the specialized field of intercepting and analyzing communications transmitted by radio. Since the 1930's, elements of the military establishment have been assigned tasks to obtain intelligence from foreign radio transmissions. In the months preceding Pearl Harbor and thronghout World vVar II. highly successful accomplishments were made by gronps in the Armv and the Navy to intercept and analyze Japanese and German coeled mdio messages. Admiral Nimitz is reported as rating its value in the Pacific to the equivalent of another whole fleet. According to another official report, in the victory in the Battle of Midway, it would haye been impossible to have achieved the concentration of forces and the tactical surprise without communications intelligence. A congressionill committee. in its investigation of Pearl Harbor, stated that the success of communications intelJjgence "contributed enormously to the defeat of the enemy, greatly shortened the war, and saved many thousrrnds of lives." General George C. Marsh~ll commented that they~communicationsintelligence~had contributed "greatly to the victories and tremendously to the savings of American lives." Following World ",Var II, the separate military efforts were brought together and the National Security Agency was formed to focns the Government's enorts. The purpose was to maintain and improve this source of intelJjgence which was considered of vital importance to the national security, to our ability to wage war, and to the conduct of foreign affairs. This mission of NSA is directed to foreign intelligence, obtained from foreign electrical communications and also from other foreign signals such as radars. Signals are intercepted by many techniques and processe.d, sorted. and analyzed by procedures which reject imtppropriate or unnecessary signals. The foreign intelligence derived from these signals is then reported to various agencies of the Government in response to their approved requirements for foreign intelligenee. 7 The NSA works very 1mI'd at this task, and is composed of dedicated, patriotic citizens, civilian and military, most of whom have dedicated their professional careers to this important and rewarding job. They arc justifiably proud of their service to their country and fully accept the fact that their continued remarkable efforts can be appreciated only by those few in Government who know of their great importance to the United States. Congress, in 1933, recognized the importance of communications intelligence activities and acted to protect the sensitive nature of the information derived from those activities by passing legishttion that is now 18 U.S.C. 952. This statute prohibits the divulging of the contents of decoded foreign diplomatic messages, or information about them. Later, in 1950, Congress enacted 18 U.S.C. 798, which prohibits the unauthorized disclosure, prejudicial use, or publication of classified information of the Government concerning communications intelligence activities, cryptologic activities, or the results thereof. It indicates that the President is authorized: (1) to designate agencies to engage in communications intelligence activities for the United States; (2) to classify cryptologic documents and information; and (3) to determine those persons who shall be given access to sensitive cryptologic documents and information. Further, this law defines the term "communication intelligence" to mean all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients. After an intensive review by a panel of distinguished citizens, President Truman in 1952 acted to reorganize and strengthen communications intelligence activities. He issued in October 1952 a Presidential memorandum outlining in detail how communications intelligence activities were to be conducted, designated the Secretary of Defense to be his executive agent in these matters, directed the establishment of the NSA, and outlined the missions and functions to be performed by the NSA. ThB Secretary of Defense, pursuant to the congressional authority delegated to him in section 133 (d) of title 10 of the United States Code, acted to establish the National Security Agency. The section of the law cited provides that the Secretary may exercise any of these duties through persons or organizations of the Department of Defense. In 1962 a Special Subcommittee on Defense Agencies of the House Armed Services Committee concluded, after examining the circumstances leading to the creation of defense agencies, that the Secretary' of Defense had the legal authority to establish the National Security Agency. The President's constitutional and statutory authorities to obtain foreign intelligence through signals intelligence are implemented through National Security Council and Director of Central Intelligence Directives which govern the conduct of signals intelligence activities bv the executive branch of the Government. In 1959, the Congress enacted Public Law 86-36 which provides authority to enable the NSA as the principal agency of the Government responsible for signals intelligence activities, to furiction without the di.sclosure of information which would endanger the accomplishment of its functions. 8 In 1964 Public Law 88-290 was cnacted by the Congrcss to establish a personnel security system and proccdures governing persons employed by the NSA or granted access to its sensitive cryptologic informntion. Public Law 88-2DO also delegatcs authority to the Secretary of Defense to apply these personnel security procedures to employees and persons granted access to the National Security Agency's scnsitive information. This law undcrscores the concern of the Congress regarding the extreme importance of our signals intelligence enterprise and mandates that the Secretary of Defense, and the Director, National Securit~! Agency, take measures to achieve security for the activities of the NSA. Title 18 U.S.C. 2511 (3) provides as follows: Xothing containerl in this chapter of in S('ction no;; of the Communicationfl Af't of 1034, 47 U.S.C. HO;;. shall limit the constitutional power of the Pre.sident to take fluch meaSures as he deems neClc'ssar~' to protect the nation against actual or potential attack or other hostile actfl of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to proted national security information against foreign intelligence activities. In United Stf}t('.~ v. B1'01Cn, F.S. Court of Appeals, Fifth Circuit, dccided August 22, ID73, the court discussed this provision of the law as fo11O\ys: The constitutional power of the l'r('sidellt is l1dH~rted to, although not conferred, by Congress in Title III of the Omnibus Crime Control and Safe Streets Act of 19H8. Thus, while NSA does not look upon section 2511 (3) as authority to roncIuct communications intelligencr, it is our posit.ion that nothing in chapter 119 of title 18 affects or governs t.he conduct of communications intelligence for the purpose of gat.hering foreign intelligence. Finally, for the past 22 years, Congress has annually appropriated funds for the operation of the XSA, following hearings before the .\l'lllcd Services and Appropriations Committees of both Houses of CongTcss in which extensive briefings of the XSA's signals intelligence mi:::sion have been condncted. "Te app('ar before hoth the House and the Senate Defense Appropriations Subcommitte('s to discuss and rcport on the U.S. si~)lutls intelligencc and commllllications security programs, and to justify the budgetary requirements associated with these programs. ,VI' (10 this in formal exccutive session, in which we diseuss our activities in "vlmtever detail required by the Congress. In considering the fiscal year ID76 total cryptologic budget now ho£ore Congress. I appeared before the Defense Subcommittee of the House Appropriations Committee on two separate occasions for approximately 7 hours. In addition, I provided follow-up response to OWl' 100 questions of the subcommittee members and staff. ,Ve also appeared before armed services subcommittees concerned with authorizing research, development, test and evaluation, construction and housing programs and also before the appropriations subcommittees on construction and housing. In addition to this testimony, congressional oversight is accomplished in other ways. Staff members of these subcommittees have periodically visited the Agency for detailed briefings on specific aspects of our operations. Members of the investigations staff of the House Appropria60ns Committee recently conducted an extensive in9 vestigation of this Agency. The results of this study, ":hich lasted over a year, have been provided to that committee in a detailed report. ~\nothe1' feature of coni!],l':-sional rpyip,," is that sinec If)!):; residl'nt rlllditors of the (3l'11e1'al ~\.eeountini! Ollier haY(, hc'l'11 acsi[!·!lrd at t}lf' "' gency to perfOl'lll on-site audits~ Ac1c1ition~1 GAO a11~litors were (']ear('(] for aecrS8 in Ini:1. awl 0.\0. in addition to this audit, is initiatini! a eJas:-ijiecl 1'evir,,- of OUl' automatic data Drocessin,Q," flilletions. XSA's coo]Wl'atiH' rffol'ts in this arra ,\"ere notrd by a Senator in February or this war. Tn nddition, rrsident awlitors of the Oftice of Seeret:u:y of Drf(~nsr. Comptroller, conduct inclrpth managenwnt. re"ic,,'s of 0111' on~anization. A particular a~prct of XSA authoritil's whieh is prrtinent to toclfty's diseussion relates to t11(' definition of foreig11 comnmnications. Neitlwr the Pr't'sidential <Jirrctive of 10:;2 nor the Xational Security COlJlwil (]irectiYe No.6 defines the tl'l'ltl forl'ign communications. 'rhe NS.A has always confined its activities to eomnmnications involving at ll'ast one fOl'l'ign terminal. This intl'rprehltion is consistent with the definition of foreign cOlmmmicatiol1s in the Commlll1iclltions Act of 1934·. There is also II directiYe of the Director of Central Intelligence dealing with se{'urity regulations "'hieh employs II definition which excludes commnnications hl't\\'l'('11 U.s. eitizPllS or entities. While this directive has not hcen ('onstruccl as defining the XSA mission in the same sense as has the Xational Security Council dirl'rtive, in the past this exclusion has usually \)l'l'1l applied and is applied now. However, we will describe a particular aetiyity in the past whl'n that exclusion has not applied. XSA does not now. an(l "'ith an exrpption to be described, has not in the past conducted inteJ'rept operations for the purpose of obtaining the communications of U.S. citizens. However, it necessarily occurs that some circuits which arc known to carry forei,lJl1 commnnications necessary for foreign intellig'cnec will also carry personal communications between U.S. citizens. one of whom is at a foreign location. The interception of commlmieations. however it may occur, is condlle1l'd in such a manner as to minimize the unwanted messages. Xcvertheless, many unwantl'd eomll1unications are potentially available for selection. Subsequent proressing, sorting. and selecting for analysis is conductl'd in accordance with strict procedures to insure immediate and, wherevrr possibll', automatic l't'jection of inappropriate messages. The analysis am] reporting is accomplished only for those messag'es "'hich meet sperified ('onditions and requirements for foreig'n intelligl'nee. It is reltainly belicyed by XSA that our communications intelligence aetiYities are soleIv for thl' pnrpose of obtaining foreign intelIi,2:ence in a('eordance with the authQrities delegated hy the Pr't'sident stemming from his constitutional power to conduct forl'ign intelligence. NSA produces signals intplligl'ncl' in response to objectives, requirrml'nts and priorities as expressl·d hy the Director of Central IntelligencH with the ad"ice of thl' U.s. Intelligence Board. There is a separate committee of the Roanl ,yhich dl'yl'lops thl' particular requirements against which the KSA is l'xpl'rted to respond. The principal medranism used by the Board in formulating requirements for signals intellig'ence information has been one of Jisting areas of intelligence interest and sppcifying in some detail the signals intel10 ligence needed by the various elements of Government. This listing, which was begun in 1966 and fully implemented in 1970, is intended to provide guidance to the Director of the National Security Agency, and to the Secretary of Defense~ for programing and operating NSA activities. It is intended as an expression of realistic and essential requirements for signals intelligence information. This p,ocess recognizes that a single listing, updated annually, needs to be supplemented with additional detail and time-sensitive factors, and it establishes a procedure whereby the USIB agencies can express directly to the NSA information needs which reasonably amplify requirements approved by USIB or higher authority. In addition, there are established procedures for non-Board members, the Secret Service, and the BNDD at the time in question~ to ask the NSA for information. The NSA does have operational discretion in responding to requirements, but we do not generate our own requirements for foreign intelligence. The Director, NSA is directed to be responsive to the requirements formulated by the Director of Central Intelligence. However, I clearly must not respond to any requirements which I feel are not proper. In 1975 the USIB signals intelligence requirements process was revised. Under the new system, all basic reqUIrements for signals intelligence information on U.S. Government agencies will be reviewed and validated by the Signals Intelligence Committee of USIB before being levied on the NSA. An exception is those requirements which are highly time-sensitive; they will continue to be passed simultaneously to us for action and to USIB for information. The new system will also attempt to prioritize signals intelligence requirements. The new requirements process is an improvement in that it creates a formal mechanism to record all requirements for signals intelligence information and to establish their relative priorities. Now to the subject which the commIttee asked me to address in some detail-the so-called watch list activity of 1967 to 1973. The use of lists of words, including individual names, subjects, locations, et cetera, has long been one of the methods used to sort out information of foreign intelligence value from that which is not of interest. In the past such lists have been referred to occasionally as watch lists, because the lists were used as an aid to watch for foreign activity of reportable intelligence interest. However, these lists generally did not contain names of U.S. citizens or organizations. The activity in question is one in which U.S. names were used systematically as a basis for selecting messages, including some between U.S. citizens, when one of the communicants was at a foreign location. The origin of such activity is unclear. During the early sixties, requesting- agencies had asked the NSA to look for reflections in international communications of certain U.S. citizens traveling to Cuba. Beginning in 1967, requesting agencies provided names of persons and organizations, some of whom were U.S. citizens, to the NSA in an effort to obtain information which was available in foreign communications asa by-product of our normal foreign intelligence mission. The purpose of the lists varied, but all possessed a common thread in which the NSA was requested to review information available through our usual intercept sources. The initial purpose was to help determine the existence of foreign influence on specified activities of 11 interest to agencies of the U.S. Government, with emphasis then on Presidential protection and on civil disturbances occurring throughout the Nation. Later, because of other developments, such as widespread national concern over such criminal activity as drug trafficking and acts of terrorism, both domestic and international, the emphasis came to include these areas. Thus, during this period, 1967-73, requirements for which lists were developed in four basic areas: international drug trafficking; Presidential protection; acts of terrorism; and possible foreign support or influence on civil disturbances. In the sixties there was Presidential concern voiced over the massive flow of drugs into our country from outside the United States. Early in President Nixon's administration, he instructed the CIA to pursue with vigor intelligence efforts to identify foreign sources of drugs and the foreign organizations and methods used to introduce illiCIt drugs into the United States. The BNDD, the Bureau of Narcotics and Dangerous Drugs, in 1970 asked the NSA to provide communications intelligence relevant to these foreign aspects, and BNDD provided watch lists with some U.S. names [exhibit 4J.1 International drug trafficking requirements were formally documented in usrn requirements in August 1971. As we all know, during this period there was also heightened concern by the country and the Secret Service over PresidentIal protection because of President Kennedy's assassination. After the Warren Report, requirements lists containing names of U.S. citizens and organizations were provided to NSA by the Secret Service in support of their efforts to protect the President and other senior offic cials. Such requirements were later incorporated into USIB documentation. At that time, intelligence derived from foreign communications was regarded as a valuable tool in support of Executive protection. About the same time as the concern over drugs, or shortly thereafter, there was a committee established by the President to combat international terrorism. This committee was supported by an interdepartmental working group with USIB representatives. Requirements to support this effort with communications intelligence were also incorporated into USIB documentation. Now let me put the watch list in perspective regarding its size and the numbers of names submitted by the various agencies: The BNDD submitted a watch list covering their requirements for intelligence on international narcotics trafficking. On September 8, 1972, President Nixon summarized the efforts of his administration against drug abuse. The President stated that he ordered the Central Intelligence Agency, early in his administration, to mobilize its full reso~rces to fight the international drug trade. The key priority, the PreSIdent noted, was to destroy the trafficking through law enforcement and intelligence efforts. The BNDD list contained the names of suspected drug traffickers. There were about 450 U.S. individuals and over 3,000 forei~ individuals. The Secret Servlce submitted watch lists covering their requirements for intelligence relating to Presidential and Executive protec- 1 See J). 151. 12 tion. Public Law aO-331 of .Tune G, 1aG8. made it mandatory for Federal agencies to assist the Secret Service in the performance of its protective duties. These lists contained names of persons and groups who, in the opinion of the Secret Service, ,,'ere potentiallv a threat to Secret Service protectees, as well as the names of the' protectees themselves. On these lists were about 180 D.S. individuals and groups and about 525 foreign individuals and groups. - An Army message of October 20, 1967, informed the ::\S~\. that ~\.rmy _-\.CSI, assistant chief of staff for intelligence, hm] been designated executive agent by DOD for ci"il disturbance matters and requested any available information on foreign influence OYeL or control of, ciyil disturbances in the U.S. [exhihit IV TIlE' Director, NSA, sent a cable the same day to the DCI and to each L81B melllbel' and notified them of the" urgent request from the Army and stated that the KSA \,ould attempt to obtain communications intelligence regarding foreign control or influence m-er celiain L.S. indiyiduals and groups [exhibit 2].2 The Brownell Committee, "'hose report led to the creation of XS.\, stated that communications intelligence should be prO\'ided to the Federal Bureau of Inyestigation because of the essential role of the Bureau in the national securitv. The FBI submitted watch lists covering their requirements on foreign ties and support to certain U.S. persons and groups. These lists contained names of "so-called" extremist persons and groups, individuals and groups active in civil disturbancrs, and tC'rrm'ists. The lists contained a maximum of about 1,000 U.S. persons find groups and about 1,700 foreign persons and groups. The DIA submitted a watch list covering thrir rrquirements on possible foreign control of. or influence on, U.S. antiwar aetivity. The list contained names of individnals trawling to Xorth Vietnam. Thrre '\"ere about 20 F.S. individnals on this list. DIA is responsible under DOD directives for satisfving the intelligence rrquirements of the major components of the DOD and to validate and assign to XS_\ requirrmrnts for intelligence reqnireJ by DOD components. Between 1067 and 197;~ there was a cllll1n1ative total of about 4;)0 F.8. nameS on the narcotics list, and about 1,200 U.S. names on all other lists combinc<1. ,Yhat that amounted to was that at the hcight of the watch list activitv, there were about 800 U.S. names on thr \nltch list and about one-third of these 800 were from tl1P narcotics list. ,Ye estimate that on~r this G-year period, 1967-H)7~. abont 2.000 reports were issued by the XSA on international narcotics trafficking, and about 1,900 reports were issued covering the three arC'as of terrorism. Executive protection and foreign influence over U.S. groups. This \vould a,-erage about two reports per da~v. These reports included some messages between 17.S. citizens with one foreign communicant. but over flO percent had at least one foreign communicant and all mrssages had at least one foreign trrminal. Usinp: agencies rlid f)(>riodicall:' re" iew, and \\rre asked bv the XSA to review. their watch lists to insure inappropriate or unnecessary entries were promptly remon>'1. I am not. the proper person to nsk concerning the ya]ne of the p1'o(lnet from these fonr special efforts. ,Ye nrc aware thnt a mnjorterrorist ] ~pp p. 14:1. 2 See p. 147. 13 act, in the "Gnited States ,YflS prcwntcd. In addition. some largr: (hllgshipments ,YE'Te pl'PYented fron1 entC'ring- the Cnitrrl States !wcallsl' of onr efforts on international narcotics trafficking". 'Ye han' stntt'll:l']lts from the requesting- agencies in ,Yhich they hft;'e t'xprcssed appn'ciation for the vaine of the information which they hacll'eceiy~·clfrom 1IS. Xonethclt'ss, in my own jndgment, the controls ,Yhich wrl'(' placcd on the handling' of the intelligcnce ,,,cre so l'cstricti"e that thc' value "'as si!rnificantlv diminished. 'Sow let 'me address the qnestion of the lratch Jist activit,v as the SSA saw it at the time. This activity was reviewed b~' proper anthority ,yj(h!n XSA and hy competent external anthority. This includecl two former ~\.ttol'lleys General and 11 former SecretarY of Defense. The reqnirenH'nts for infonimtion had been approye(l h:, ofticia Is of the nsing agencies and snbsequently yalidatecl b~' the "Gllited St:ltPS Intelligence Board. For example. the Secret Sen-icC' and BN"DD requirements ,\ere formally included in USIB guidance in 1a70 awl 1971, respectiYel~·. In the areas of narcotics trafficking. tC'rrorism and reqnirmnC'nts rplilted to the protection of the lires of senior U.S. officials. the emphasis placed by the President on a strong-, coordinated Clonrnrnent f'lfort was clearly understood. There also was no question thnt tlwrC' \vas COJlsiderable Presidential concern and interest in detr.rmining thC' 0xistence and extent of foreign support to groups fomenting ci\-il disturhances in the United States. From 1967 to 1969 the procedure for submitting names was more informal, with written requests following as the 11snaI prnetiee. Starting in 1969 the procedure was formalized and the Jlames tor watr'h lists were submitted through channels in \\Titing [exhibit ;\].1 TIll' DiredDr and Deputy Director of the NSA apprond certain catpg"orips of subject matter from cnstomer agencies. and werr a Wal'i~ tlw t r.s. in<'lividllals amI organizations were being inr1nded on wat":l lji'ts. 'Vhile they did not review and approve each indi"idual nnnw. j-]I1»),(~ were continuing management l"Cviews at levels b<,lo,,- thC' DitPdoratr. XSA personnel somC'times mnde analytic amplifications on ellstollH'r watch list submissions in order to fulfill certain reqniremrnts. For pxample, when information was l'ecC'ived that a name on the wnt('h list used an alias. the alias was inserted: or when an address was 1111('O\'('red of a watch list name, the address was inclnc1<'d. This 11l'Pc"! ir'(' b~T analysts was done to enhance the selection process. not to expalHl the lists. The information proon('C'cl by the watch list adivit:'l' ml.,. with one exception, rntirely 11 byproduct of our foreign intelligence mission. All collection was conducted against internationa1('ommunicntiollS with at least one terminal in a foreign country, and for purposes llnrplatpc1 to the watch list activity. That is. the communications werC' ohtainE'<l. for example, by monitori'ng communications to and from Hanoi. All commnnications had a foreign terminal and the fOl'eig'n tHminal or communicant, with the one exception to 00 described, was th(~ initial obiect of the communications collection. The watch list acti"ity specifically consisted of scanning- international communications already intercepted for other purposes to derive 1 See p_ 14()' 67-;)22-76-2 14 information which met ,Yutch list requirements. This scanning was accomplished by using the entries provided to NSA as selection criteria. Once selected. the messages were analyzed to ddermine if the information therein met those requesting age~cies' refluirpments associated 'with the watch lists. If the message met the requirernent, the information therein was reported to the requesting agency in writing. Now let me discuss for a moment the manner in which intelligence derived from the watch lists was handled. For the period 1967-69, international messages between U.S. citizens and organizations. selected on the basis of watch list entries and containing foreign intelligence, were issued for background nse only and were hand delivered to certain requesting agencies. If the U.S. citizen or organization was only one correspondent of the international communication. it was published as a normal product report but in a special series to limit distribution on a strict need-to-know basis. Starting in 1969, any messages that fell into the categories of Presidential/ executive protection and foreign influence over U.S. citizens and groups were treated in an even more restricted fashion. They were provided for background use only and hand delivered to requesting agencies. ,V"hen the requirements to supply intelligence regarding international drug trafficking in 1970 and international terrorism in 1971 were received, intelligence on these subjects was handled in a similar manner. This procedure continued until I terminated the activity in 1073. The one instance in which foreign messages were intercepted for specific watch list purposes was the collection of some telephone calls passed over international communications facilities between the United States and South America. The collection was conducted at the specific request of the BNDD to 'produce intelligence information on the methods and locations of foreign narcotics trafficking. In addition to our own intercept, CIA was asked by NSA to assist in this collection. NSA provided to CIA names of individuals from the international narcotics trafficking watch list. This col1ection by CIA lasted for approximately 6 months, from late 1972 to early 1973, when CIA stopped because of concern that the activity exceeded CIA statutory restrictions. When the watch list activity began, the NSA and others viewed the effort as an appropriate part of the foreign intelligence mission. The emphasis of the President that a concerted national effort was required to combat these grave problems was clearly expressed. The activity was known to higher authorities, kept quite secret, and restrictive controls were placed on the use of the intelligence. The agencies receiving the information were clearly instructed that the information could not be used for prosecutive or evidentiary purposes, and to our knowledge, it was not used for such purposes. . It is worth noting that some Government agencies receiving the information had dual functions. For instance, BNDD was concerned on the one hand with domestic drug law enforcement activities and on the other hand with the curtailing of international narcotics trafficking. It would be to the latter area of responsibility that the NSA delivered its intelligence. However, since the intelligence was being reported to some agencies which did have law enforcement responsibilities, there was growing 15 concern that the intelligence could be used for purposes other than foreign intelligence. To minimize this risk, the material was delivered only to designated offices in those agencies, and the material "was marked and protected in a special way to limit the number of people involved and to segregate it from information of broader interest. In 1973, concern about the ~"S.A.'s role in these activities was increased, first, by concerns that it might not be possible to distinguish definitely between the purpose for the intelligence gathering which NSA understood was served by these requirements, and the missions and functions of the departments or agencies receiving the information, and, second, that requirements from such agencies \vere growing, and finally, that new broad discovery procedures in court cases were coming into use which might lead to disclosure of sensitive intelligence sources and methods. The first action taken was the decision to terminate the activity in support of BNDD in the summer of 1973. This decision was made because of concern that it might not be possible to make a clear separation between the re.quests for information submitted by BNDD as it pertained to legitimate foreign intelligence requirements and the law-enforcement responsibility of BNDD. CIA had determined in 1973 that it could not support these requests of BNDD because of statutory restrictions on CIA. The NSA IS not subject to the same sort of restrictions as CIA, but a review of the matter led to a decision that certain aspects of our support should be discontinued, and in particular the watch-list activity was stopped. NSA did not retain any of the BNDD watch lists or product. It was destroyed in the fall of 1973, since there seemed no purpose or requirement to retain it. With regard to watch lists submitted by FBI, CIA, and Secret Service, these matters were discussed with the National Security Agency Counsel and Counsel for the Department o£ De£ense, and we stopped the distribution of information in the summer. of 1973. In September 1973, I sent a letter to each agency head req,uesting him to recertify the requirement with respect to the appropnateness of the request, including a review of that agency's legal authorities [exhibit 6J.1 Somewhat later, on October 1, 1973, Attorney General Richardson wrote me, indicating that he was concerned with respect to the propriety of requests £01' information concerning U.S. citizens which NSA had received from the FBI and Secret ServIce [exhibit 7].2 He wrote the following: Until I am able more carefully to assess the effect of Keith and other Supreme Court decisions concerning electronic surveillance upon your current practice of disseminating to the FBI and Secret Service information acquired by you through electronic devices pursuant to requests from the FBI and Secret Service, it is requested that you immediately curtail the further dissemination of such information to these agencies. He goes on to say: Of course, relevant information acquired by you in the routine pursuit of the collection of foreign intelligence may continue to be furnished to appropriate government agencies. 1 See p. 158. 2 See p. 160. 16 The overall re~l11t of these actions ,vas that 'n' stopped accepting: "-atch lists containing names of F.S. citizens and no inrormationis produced or dissemInated to other agencies using these methods fexhibit 8].1 Thus, the watch list activity which im-olvec1 U.S. citizens ceased operationally in the summer or 197:3 and was terminated oflicially in the fall of 197:3. ~,"s to the futnre, the .Attorney G'E'lleral's dirprtion is that ,ye may not accept any requirement based on the names or l~.S. citizens unless he has personally appl'owc1 such a l:equi~'ement; m~c1 no sncl~ appr?val has been O'ive]1. ~\.dc1itiona]]v, cllrectlyes nmv III effect III ntl'lOUS agrncies, Gle1uding XSA, ~;]so preclude the resumption of such activity. fThe full statement of Lt. Gen. Lew Allen, .II'. follows:] PREPARED STATDIE:\T OF LT. GES. LE"- ALLEX, JR., DIRECTOR, XATIOXAL SECt-TIITY .\GEXCY :\11' .Chairman :\1embers of the Committee, I recognize the important rpspon" ihility this Committee has to im-estig-ate the inteIligence operations of the l:nited States noyernment and to determine the need for improvement hy leg-islatiYe or other means. For several months, involving many thousands of lllanhonrs. the Xational Security Ag-ency has, I helieve. cooperated with thiK Committee to pr<lYille a thoroug-h information base, including data whose con· tinned secrecy is IllOKt important to our nation. I am now here to discusli in opli'n session certain aspects of an important and hithli'rto seC'l'li't operation of the U.S. Goyernment. I recognize that the Committee is deeply concerned that we protect senKitive and frap;ile source~ of information, I appreciate the care which this Committee and Staff have exercised to protect the sensitiYe data \ye have provided. I also understand that the Committee intends to restrict this open discussion to certain specified activitips llIHI to a,oid current foreig-n intelligence operations. It lllay not be possible to diK('U8S all theKe actiYitieK complete]~' without some risk of damage to con· tinuing foreig-n intelligence capabilities. Therefore, I may request some aspectl'! of our discussion he conducted in executive session where there can be opportunity to continuli' our full and frank disclosure to the Committee of all information required. The Committee may then deYelop an appropriate pnblic statement. 'Ve are therefore here, sir, at your request, prepared to cooperate in bring-ing theKe matters before your Committee. "'HAT I PROPOSE TO COYER In the interest of clarity and perspective, I shall first review the purpose of the Xational Security Agency and the authorities under which it operates. Xext. I wii! describe the proeeKs by which requirements for information are leyicd on XSA by other goyernment agencies. And finally, I will give a more specific description of an operation conducted in 1967-1973 by NSA in response t(} external requirements, which I will refer to as "the watch list activity." This :lctivity has lleen sul)ject to an intensive review by this Committee and Stuff in closed session. XS.',:S MISSION {'nder the authority of the President, the Secretary of Defense hal'! been delpgated responsibility for both providing security of U.S. governmental COIllmunications and seeking intelligence from foreign electrical communications. Both functionK are executed for the Secretary of Defense by the Director. Xational Securit~' .\gency, through a complex national system which includps tilt' Xational Seeurity Agency at its nudeus. It is appropriate for the Secretary of Defense to have these executive agent responsibilities, since the great majority of the effort to accomplish both of these missions is applied to the support of the military aspects of the national security. 'See p. 102. Tile Communications ~ecurity mission is l1irecteu at enhancing the security "f r .~. Government communications \vhenever neeueu to protect the (,omlllunil" atiolls from exploitation by foreign governments-a complex undertaking in today·s adn\llced electronic world. The Uuited ~tates, as part of its effort to produce foreign intelligence, has iutl'rcl'pted foreign colllmunications, analyzed, and in some cases decoded, t lies" communications to produce such foreign intelligence since the Revolutiollary War. During the Civil War and 'Vorld War I these communications \ven, often telegrams sent by wire. III modern times, with the advent of wireless communications, particular emphasis has been placed by the government on the specialized field of intercepting and analyzing communications transmitted by radio. Since the 1930's, elements of the military establishment have been assigned tasks to obtain intelligenc-e from foreign ;adio transmissions. In the months preceding Pearl Harbor awl throughout World "'ar II, highly successful accomplishments were made by groups in the Anny and the Navy to intercept and analyze Japanese and German coded radio messages. Admiral Nimitz is reported as rating its value in the Pacific to the eqUivalent of another whole fleet; General Handy is reported to have said that it shortened the war in }<Jurope by at least a ~'ear. According to another official report, in the victory in the Battle of Midway, it would have l)(~en impossible to ha\·e achieved the concentration of forces and the tactical :-;urprise \vithout communications intelligence. It also contributed to the success of Ow Xormalldy invasion. Both the Army and Navy obtained invaluable intl'lligence from the enciphered radio messages in both Europe and the Pacific. "\ Congressional committee, in its investigation of Pearl Harbor, stated that the :-;nccc'ss of communications intelligence "contributed enormously to the defeat of the enemy, greatlr shortened the war, and saved many thousands of lives." (;Pl1prnl George C. ~Iarshall, referring to similar activities during World 'Yar II, cOlnmented that ther had contributed "greatly to the victories and tremendously to the savings of American lives." Similar themes run through the writings of nUln~' u.s. military officers and policy officials from that period and subsequentl.\' in our more recent history. FollOWing "'orld 'Val' II, the separate military efforts were brought together and the J'\ational Security Agency was formed to focus the government's efforts. 'I'he purpose was to maintain and improve this :-;ou1'c(' of int('lIigence which was consider('d of vital importance to the natiDnal :-;('('llrity, to our ability to \vage \val', and to the conduct (if foreign affairs. This mission of XSA is directed to foreign intelligence, obtained from foreign {'ll'etrieal communications and also from other foreign signals such as radar". Si;:mals are intercE'pted by many tedllliques and processed, sorted and analyzed by ]lrocedurp~ which reject inappropriate or unnece~~ary signali'!. 'The foreign intplligl'nce (Jprived from these signals is then reported to various agencies of the ,govprnment in resp.onse to their approved requirements for foreign intelligence. Thp Xational Security Agency work~ very hard at this task, and is ('omposed of dedicated. patriotic citizens, civilian and military, most of whom l1llYP dedicated their professional careers to this important and rewarding joh. Thry are .iu~tifiably proud .of their service to their country and fully accept the fapt that th('ir contimlPd r('markablp efforts can bp appr('ciated only by those fp\\" in govC'l'Ill1lcnt who kno,," of their great importance to the 'U.S, :'\SA AUTHORITIES ('ong-ress, in 1933, recognized the importancfl of communications intelligence acth'ities and acted to protect the s('nsitive nature of the information deriv('d from those acthities by passing legislation that is now 18 U.S.C. 952. This statute prOhibits the divulging of the eonte-nts of decoded foreign diplomatic messao·es or information about them. ,., , J~nter, in 1950, Congress enacted 18 U.S.C. 798, which prohibits the unauthori7, Pd disclosure, prejudicial use, or publication of classified information of the l!?yernment concerning communications intelligence activities. cryptologic actiy. 1tIPs. or the results thereof. It indicates that the President is authorized: (1) To (lesilmate agencies to engage in communications intelligence activities for the rnitf>d ~tate~. (2) to elassify cryptologic documents and information, and (3) to (ll't('rminp thosp pergons who Ilhall be given accells to Il('nsitive cryptolodc 11or'nments I111d information. Fllrther, this In'iv defines the term "communication infpl!igence" to nwan all llrocedures and n,ethods used in the interception of 18 communications and the obtaining of information from such communications by other than the intended recipients. After an intensive review by a panel of distinguished citizens, President Tru~ man in 195:l acted to reorganize and strengthen communications intelligence activities. He issued in October 1952 a Presidential memorandum outlining in detail how communications intelligence activities were to be conducted, designated the Secretanr of Defense to be his executive agent in these matters, directed the establishment of the National Security Agency, and outlined the missions and functions to be performed by the National Security Agency. The Secretary of Defense, pursuant to the Congressional authority delegated him in Section 133(d) of Title 10 of the U.S. Code, acted to establish the National Security Agency. The section of the law cited provides that the Secretary may exercise any of these duties through persons or organizations of the Department of Defense. In 1962 a Special SUbcommittee on Defense Agencies of the House Armed Services Committee concluded. after examining the circumstances leading to the creation of defense agencies, that the Secretary of Defense had the legal authority to establish the National Security Agency. The President's constitutional and statutory authorities to obtain foreign intelligence through signals intelligence are implemented through National Security Council and Director of Central Intelligence directives which govern the conduct of signals intelligence activities by the Executive branch of the government. In 1959, the Congress enacted Puillic La\v 86-36 which provides authority to enable the ~ational Security Agency, as the principal agency of the government responsible for signals intelligence activities, to function without the disclosure of information which would endanger the accomplishment of its functions. In 1964 Public Law 88-290 was enacted by the Congress to establish a personnel security system and procedures governing persons employed by the ~ational Security Agency or granted access to its sensitive cryptologic information. PUblic Law 88-290 also delegates authority to the Secretary of Defense to ,apply these personnel security procedures to employees and persons granted access to the National Security Agency's sensitive information. This law underscores the concern of the Congress regarding the extreme importance of our sig-nals intelligence enterprise and mandates that the Secretary of Defense, and the Director, National Security Agency, take measures to achieve security for the ,activities of the National Security Agency. Title 18 U.S.C. 2511 (3) provides as follows: "Nothing contained in this chapter or in Section 605 of the Communications Act of 1934 (47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelli,g'?llce activities..." In Unitctl States v. Brown, United States Court of Appeals, Fifth Circuit, decided 22 August 1973, the Court discussen this provision of the law as follows: "The constitutional power of the President is adverted to, although not conferred, by Congress in Title III of the Omnibus Crime Control and Safl' Streets Act of 1968." Thus, While NSA doel'; not lo()k upon Section 2511 (3) as authority to conduct communications intelligencr, it is our position that nothing in Chapter 119 of Title 18 affects or governs the conduct of communications intelligence for the purpose of gathering foreign intelligence. Finally, for the past 22 years, Cong-ress has annually appropriated funds for the operation of the National Security Agpncy, following hearings before the Armed Services and Appropriations Committees of both Houses of Congress in which extensive briefings of the National Security Agency's signals intelligence mission have been conducted. We appt'ar before both the House and the Senate Defense Appropriations Subcommittees to discuss and report on the U.S. signals intelligence and communications spcurity programs. and to justify the budgetary requirements associated with these programs. We do this in formal executive spssion. in which we discuss our activities in whatever detail required by the Congress. In considering the Fiscal Year '76 total cryptologic budget now before Congress, I appeared before the Defense Subcommittee of the House Appropriation!! Committee on two separate occasions for :lpproximately seven hours. In addition. I providNl foUow-up response to over one hundred questions of the Subcommittee 19 members and staff. We also appeared before Armed Services Subcommittees concerned with authorizing research, development, test and evaluation (RDT&E), construction and housing programs and also before the Appropriations Subcommittees on construction and housing. In addition to this testimony, Congressional oversig-ht is accomplished in other ways. Staff members of these subcommittees have periodically visited the Agency for detailed briefings on specific aspects of our operations. :Members of the investigations staff of the House Appropriations Committee recently conducted an extensive investigation of this Agenc~·. The results of this study, which lasted over a year, have been provided to that committee in a detailed report. Another feature of Congressional review is that since 1955 resident auditors of the General Accounting Office have been assigned at the Agency to perform on-site audits. Additional GAO auditors were cleared for access in 1973 and GAO. in addition to this audit, is initiating a classified review of our automatic data processing functions. NSA's cooperative efforts in this area were noted by a Senator in February of this year. In addition, resident auditors of the Office of Secretary of Defense, Comptroller, conduct in depth management reviews of our organization. A particular aspect of NSA authorities which is pertinent to today's discussion relates to the definition of foreign communications. Neither the Presidential Directive of 1952 nor the National Security Council Directive No. 6 defines the term foreign communications. The National Security Agency has always confined its activities to communications involving at least one foreign terminal. This interpretation is consistent with the definition of foreign communications in the Communications Act of 1934. There is also a Directive of the Director ot Central Intelligence dealing with security regulations which employs a definition which excludes communications between U.S. citizens or entities. While this Directive has not been construed as defining the NSA mission in the same sense as has the National Security Council Directive, in the past this exclusion has usually been applied and is applied now. IIowever, we will describe a particular activity in the past when that exclusion was not applied. NSA does not now, and with an exception to be described, has not in the past conducted intercept operations fol' the purpose of obtaining the communications of U.S. citizens. However, it necessarily occurs that some circuits which are known to carry foreign communications necessary for foreign intelligence will also carry personal communications between U.S. citizens, one of whom is at a foreign location. The interception of communications, however it may occur, is conducted in ~uch a manner as to minimize the unwanted messages. Nevertheless, many unwanted communications are potentially available for selection. Subsequent processing, sorting and selecting for analysis, is conducted in accordance with strict procedures to insure immediate and, where possible, automatic rejection of inappropriate messages. The analysis and reporting is accomplished only for those messages which meet specified conditions and requirements for foreign intelligence. It is certainly believed by NSA that our communications intelligence activities are solely for the purpose of obtaining foreign intelligence in accordance with the authorities delegated by the President stemming from his constitutional power to conduct foreign intelligence. OVERALL REQUIREMENTS ON NSA NSA produces signals intelligence in response to objectives, requirements, and priorities as expressed by the Director of Central Intelligence with the advice of the United States Intelligence Board. There is a separate committee of the Board which develops the particular requirements against which the National Security Agency is expected to respond. The principal mechanism used by the Board in formulating requirementi'l for signals intelligence information has been one of listing areas of intelligence interest and specifying in some detail the signals intelligence needed by the various elements of government. This listing which was begun in 1966 and fully implemented in 1970, is intended to provide guidance to the Director of the National Security Agency (and to the Secretary of Defense) for programming and operating National Security Agency activities. It is intended as an expression of realistic and essential requirements for signals intelligence information. This process recognizes that a single listing, updated annually needs to be supplemented with additional detail and time-sensitive factors and it estahlishes a procednre whereby the USIB agencies can express, directly to the National Se20 curity Agency, information needs which reasonably amplify requirements approved by L~IB or higher authority, In addition, there are established proce(/ urps for non-Board members (the Secret Service and the BXDD at the time) to task the Xational Security Agency for information, The Xational Security Agency does have operational discretion in responding to requirements but we do not g-enerate onr own requirements for foreign intelligence, 'rhe Director, XS.-\. is directed to be re~ponsive to the requirements formulated by the Director of ('E'nrral IntelligencE'. howE'ver, I clearly must not respond to any requirements wilil'h I feel are not proper. III 1H,;:; the LSIB signals intelligence rt'quirements process was revised. Under tlw nE'W syHem, all basic requirements for signals intelligence information on l:nited States Government agencies will be reviewed and validated by the Signals Intelligence Committee of USIB before being levied on the National Security Agrncy. An exception is those requirements which are highly time-sensitive; they will contiml(, to be passed simultaneously to us for action and to USIB for information. The new system will also attempt to prioritize signals intelligence re'1uiremt'nts. The new rt'quirements process is an improvement in that it creatt',; a formal mechanism to record all requirements for signals intelligence information awl to e~tablish their relative priorities. THE WATCH LIST Xow to the subject \.-1Iich the Committee asked me to address in some detailtill' so-called watch list acti.-ity of 1007-1973. 'l'h'C use of lists of words, including indh'idual names, snhjects, locations, etc, ha~ long heen one of the methods used to sort out information of foreign intelligenec value from that which is not of interest. In the past snch lists have been rpfpI'fed to oc-('asionall~- a:" "watch lists," lJecau:"e the lists were used as an aid to watch for foreign activity of reportable intelligence interest. However. these lists generally did not contain names of U.S. citizens or organizations. The actiYi(y in qut'stion is one in which U.S. names were used systematically as a hasis for splecting messages, including some between U.S. citizens when one of tlw communicants was at a foreign location. The origin of such activity is unclear. During the early '60's, requestin~ ageneies had asl,ed the l\ational Security Agency to look for reflections in international communications of certain U.S. citizens travelling to Cuba. Beginning in 19(1,. requesting agt'ncles provided names of persons and organizations (some of whom were FS. citizens) to the Xational Security Agency in an effort to obtain information which was available in foreign communiactions as a by-product of our normal foreign intelligence mission. The purpose of the lists varied, but all possessed a common thread in which the Kational Security Agency was refj\ JPsted to review information available through our usual intercept sources. The initial purpose was to help determine the existence of foreign influence on specified activities of interest to agencies of the U.S. Government, with emphasis on presidential protection and on civil disturbances occurring throughout the nation. Later. hecause of otht'r developments, such as widespread national can(' pm over snch criminal activity as drug trafficking and acts of terrorism, both (lon1Pstic und international, the emphasis came to include these areas. Thus, durin,!:!; this lJeriod. 196,-1973, requirements for watch lists were developed in four husic areas: international drug trafficking. Presidential protection, acts of terrorism, and possible foreign support or influence On civil disturbances. In the '60's, there was Presidential concern voiced over the massive flow of drugs into our countn- from outside the United States. Early in President Nixon's administration, he instructed the CIA to pursue with vigor, intelligence efforts to Wf'utify foreign sources of drugs and the foreign organizations and methods IIsed to introduce illicit drugs into the U.S. The BNDD in 1970 asked the Xational Security Agency to provide communications intelligence relevant to these foreign aspects and BNDD provided watch lists with some U.S. names. Internation:ll drug trufficking requirements were formally documented in USIB requirements in August 1971. As we ull know, during this period there was also heightened concern by the country and the Secret Service over Presidential protection because of President Kennedy's assassination. After the Warren Report, requirements lists containing names of U.S. citizens and organizations were provided to NSA by the Secret SelTice in support of their efforts to protect the President and other senior omduls. Such requirements were later incorporated into USIB documentation. .At 21 that time intellig'ence uerived frolll foreign cOlllmunications \yas reg<lrdeu as a valuable tool in support of executive protection. About the sallle time as the concern over urugs, or shortly thereafter, there was a committee established by the President to combat international terrorism. This committee was supported by a working group from the USIB. Requirements to support this effort with communications intelligence \vere also incorporated into USIB documentation. Now let me put tile "watch list" in perspective regarding its size and the nmnbel'S of names submitted by the various agencies: '1'he B)iDD submitted a "watch list" covering their requirements for intelligence on international narcotics trafficking. On September 8, 1972, President :'\ixon summarized the efforts of his administration against drug abuse. The President stated that he ordered the Central Intelligence Agency, early in his administration, to mobilize its full resources to fight the international drug trade. The key priority, the President noted, was to destroy the traffickingthrough law enforcement and intelligence efforts. The BXDD list contained names of suspected drug traffickers. There \vere about 450 U.S. individuals and over 3,000 foreign individuals. The Secret Service submitted ",,"atch lists" covering their requirements for intelligence relating to Presidential and Executive protection. Public Law 90331 of June 6, 1968, made it mandatory for Federal agencies to assist the Secret Service in the performance of its protective duties. These lists contained names of persons and groups who in the opinion of the Secret Service were potentially a threat to Secret Service protectces, as well as the names of the protectees themselves. On these lists were about 180 U.S. individuals and groups and avout 525 foreign individuals and groups. An Army message of 20 October 1967 informed the :'\ational Recurity Agenc~' that Army ACSI had been designated executive agent b~" DoD for civil disturbance matters and requested any available information on foreign influence o\'er, or control of, civil disturbances in the U.S. The Director, Xational Security Agency sent a cable the same day to the DCI and to each USIB member and notified them of the urgent request from the Army and stated that the National Security Agency would attempt to obtain CO:\IINT regarding foreign control or influence over certain U.S. individuals and groups. The Brownell Committee, whose report led to the creation of NSA, stated that communications intelligence should be provided to the Federal Bureau of Investigation because of the essential role of the Bureau in the national security. The FBI submitted "watch lists" covering their requirements on foreign ties and support to certain U.S. persons and groups. These lists contained names of "so-called" extremist persons and groups, individuals and groups active in civil disturbances, and terrorists. The lists contained a maximum of about 1,000 C.S. persons and groups and about 1,700 foreign persons and gTOUpS. The CIA submitted "watch lists" covering their requirements on international travel, foreign influence and foreign support of "so-called" U.S. extremistH and terrorists. Section 403(d) (3) of Title 50. U.S. Coue, provided that it was the duty of the Central Intelligence Agency to correlate and evaluate intelligence relating to the national security and to provide for the appropriate dissccniEation of such intelligence within the government using, where appropriate, existing agencies and facilities. TheHe lists contained about 30 U.S. indiyiduals and about 700 foreign individuals and gronps. The DIA submitted a "watch list" cm"ering their requirements on posHihleo foreign control of, or influence on, U.S. anti-war activity. The list containecl names of individuals traveling to Xorth Vietnam. There were ahout 2() CS. individuals on this list. DIA is responsible under DoD directives for satisf.'"in.~ the intelligence requirements of the maJor components of the DoD ami to validate and assign to :'\SA requirements for intelligence required by DoD components. Between 19G7 and 1973 there was a cumulative total of about 4:;0 U.S. nameH on the narcotics list. and about 1.200 U.S. nameH on all other liHtS combined. What that amounted to was that at the height of the watch liHt activity, there were about 800 U.S. names on the "\'latch list" and about one third of this 800 were from the narcotics list. We eHtimate that over this six year period (1967-1973) ahout 2,000 reports were iSi"ued by the National Security Agency on international narcotics trafficking, and about 1.900 reports were issued covering the three areas of terroriHm. executive protection and foreign infhwnce over U.S. groups. This would an'rfl.ge about two reports per day. These reports included some mes~ages between C.S. 22 citizenf'. but over 90o/c had at least one foreign communicant and all messages JJnd at least oue foreign terminal. rsing agf'ncips did periodically review (and were askpd by the :'\ational Security Agency to review) their "watch lists" to ensure inappropriate or unnecessary entries were promptly removed. I am not the proper l)erSOn to ask concerning the value of the product from these four special efforts. WI' are aware that a major terrorist act in the U.S. was prevented. In addition, some large drug shipments were prevented from entering the 1'.S. he('ause of our efforts on international narcotics trafficldng. We have statements from the requesting agencies in which they have expressed appreciatilm for the value of the information which they had received from us. Nonetheless. in my own judgment, the controls which were placed on the handling of th(' intelligence were so restrictive that the value was significantly diminished. Xow let me address the question of the "watch list" activity as the Xational Seenrity Agency saw it at the time. This activity was reviewed by proper authority within N'ational Security Agency and by competent external authority. This included two former Attorneys General and a former Secretary of Defense. The requirements for information had also been approved by officials of the using agencies and subsequently validated by the United States Intelligence Bonrd. For example, the Secret Seryice and BKDD requirements were formally included in usrB guidance in 1970 and 1971, respectively. In the areas of narcotics trafficking, terrorism, and requirements related to the protection of the lives of spnior V.S. officials, the emphasis placed by the President on a strong, coordinutpd go,ernlllent effort was clearly understood. There also was no question thnt t!JprC' was considerable Presidential concern and interest in determining' the existf'ncf? and extent of foreign snpport to groups fomenting civil disturbances in the Cnited States. From 1967~1969 the procedure for submitting names was more informal with written requests following as the usual practice. Starting in 1969 the procedure was formalized and the names for "watch lists" were submitted through ('hanuels in ,niting. The Director and Deputy Director of the National Security Agency approved certnin categories of subject matter from customer agencies, and were a,,-are that U.S. individuals and organizations were being included on ""'atch lists." 'While they did not review and approve each individual name, there were continuing management reviews at levels below the Directorate. Xational Security Agency personnel sometimes made analytic amplifications on customer "watch list" submissions in order to fulfill certain requirements. For example, when information was received that a name on the "watch list" used an alias, the alias was inserted; or when an address was uncovered of a "watch list" name, the address was included. This practice by analysts was donI' to enhance the selection process, not to expand the lists. The information produced by the "watch list" activity was, with one exception, entirely a by-product of our foreign intelligence mission. All collection was conducted against international communications with at least one terminal in a foreign country, and for purposes unrelated to the "watch list" activity. That is, the communications were obtained. for example, by monitoring communications to and from Hanoi. All communications had a foreign terminal and the foreign terminal or communicant (with the one exception) was the initial object of the communications collection. The "watch list" aetivity itself specifically cflJ1sisted of scanning international communications already intercepted for other purposes to derive information which met "watch list" requirements. This scanning was accomplished by using the entries provided to NSA as selection criteria. Once selected, the messages were analyzed to determine if the information therein lllet those requesting agencies' requirements associated with the "watch lists." If the message met the requirement, the information therein was reperted to the requesting agency in writing. Nflw let me discuss for a moment the manner in which intelligence derived from the ''\''atch lists" was handled. For the period 1967-1969, international me,sages between U.S. citizens and organizations, selected on the basis of "watch list" entries and containing foreign intelligence, were issued for background use only and were hand-delivered to certain requesting agencies. If the U.S. citiz(' n or organization was only one correspondent of the international communication, it was published as a normal prodnct report but in a special series to limit distrilmtion on a f'trict need-to-know basis. Stnrting in lD69, lllly messages that fell into the categories of Presidential! expcutive protection and foreign influence over U.S. citizens and groups were trf.'ll.ted in an e\'en more restricted faShion. They were provided for background 23 us~ only and hand-delivered to requesting agencies. When the requirements to supply intelligence regarding international drug trafficking in 1970 and international terrorism in 1971 were received, intelligence on these subjects was handled in a similar manner. This procedure continued until I terminated the activity in HJ73. The one instance in which foreign messages were intercepted for specific "watcll list" purposes was the collection of some telephone calls passed over international communications facilities between the United States and South America. The collection was conducted at the specific request of the BNDD to produce intelligence information on the methods and locations of foreign narcotics trafficking. In addition to our own intercept, CIA was asked by NSA to assist in this collection. XSA provided to CIA naInes of individuals from the international narcotics trafficking watch list. This collection by CIA lasted for approximately six months, from late 1972 to early 1973, when CIA stopped because of concern that the activity exceeded CIA statutory restrictions. When the ",yatch list" activity began, the Xational Security Agency and others viewed the effort as an appropriate part of the foreign intelligence mission. The emphasis of the President that a concerted national effort was required to combat these grave problems ,vas clearly expressed. The activity was known to higher authorities, kept quite secret, and restrictive controls were placed on the use of the intelligence. The agencies receivillg the information were clearly instructed that the information could not be used for prose~utiveor evidentiary purposes and to our knowil~dgeit was not used for such purposes. It is worth noting that some government agencies receiving the information had dual functions: for instance BNDD was concerned on the one hand with domestic drug law enforcement activities and on the other hand with the curtailing of international narcotics trafficking. It would be to the latter area of responsibility that the National Security Agency delivered its intelligence. However, since the intelligence was being reported to some agpncies which did have law enforcement responsibilities, there was growing concern that the intelligence could be used for purposes other than foreign intelligence. To minimize this risk, the material was deliypred only to designated offices in those agencies and the material was marked and protected in a special way to limit the number of people involved and to segregate it from information of broader interest. WATCH LIST ACTIVITIES AND TERMINATION THEREOF In 1973, concern about the National Security Agency's role in these activities was increased, first, by concerns that it might not be possible to distinguish definitely between the purpose for the intelligence gathering which NSA understood was served by these requirements, and the missions and functions of the departments or agencles receiving the information, and second, that requirementB from such agencies were growing. Finally, new broad discovery procedures in court cases were coming into use which might lead to disclosure of sensith-e intelligence sources and methods. The first action taken was the decision to terminate the activity in support of BNDD in the summer of 1973. This decision was made because of concern that it might not be possible to make a clear separation between the requests for information submitted by BNDD as it pertained to legitimate foreign intelligence requirements and the law enforcement responsibility of BNDD. CIA had determined in 1973 that it could not support these requests of BNDD because of statutory restrictions on CIA. The National Security Agency is not subject to the same sort of restrictions as CIA, but a review of the matter led to a decision that certain aspects of our support should be discontinued, in particular the watch li"t activity was stopped. ""SA did not retain any of the BNDD watch lists or product. It was destroyed in the fall of 1973 since there was no purpose or requirement to retain it. With regard to "watch lists" submitted by FBI, CIA and Secret Service. these matters were discussed with the National Security Agency Counsel and Counsel for the Department of Defense, and we stopped the distribution of information in the summer of 1973. In September 1973, I sent a letter to each agency head requesting him to recertify the requirement with respect to the appropriate. ness of the request including a review of that agency's legal authorities. On 1 October 1973, Attorney General Richardson wrote me indicating that he was concerned with respect to the propriety of requests for information concerning U.S. citizens which NSA had received from the FBI and Secret Service. He wrote the following: 24 "{'ntH I am ab{e more carefully to assess the effect of Keith and other Supreme Court decisions concerning electronic suneillance upon your current practice of disseminating to the FBI and Secret Service information acquired by you Through electronic de,ices pursuant to reques,ts from the .FBI and Seeret Sen·iee. it is requested that you !mmediately curtail the further disseminations of sll('h information to these agencies, Of course, rele,ant information acquired by you in the routine pursuit of the collection of foreign intelligence information may continue to be furnished to appropriate Government agencies ..." The overall resnlt of these actions was that we stopped accepting' "watch lists" containin~ names of U.S. citizens and no information is prodneed or dissemilll\tc(l to other agencies using these methods. Thus, the "watch list" activity which involled U.S. citizens ceased operationally in the summer of 1973, and was terminated officially in the fall of 1973. As to the future, the Attorney General's direction is that we may not accept any requirement based on the names of U.S, citizens unless he has personally approved such a requirement; and no such approval has been given. Additionally, directives now in effect in various agencies also preclude the resumption of such activity, General ALLEX. Sir, with your permission, I may make some COIlchIding remarks after the questions, if I may. The CHAlli::\IAX. Very good. Thank you very much for your initial statement. 'With respect to the legal questions that are raised by the vurious vlatch lists that you have described, I might say for the benefit of evervone concerned, that it is the committee's intention to call on the Attorney General in order that the questions regarding the possible illegality of these watch list operations, and also questions relating to the constitutional guarantees under the fourth amendment, can be taken up with the proper official of the Government-the Attorney General of the united States. "Ve would hope to have Attorney General Levi here to discuss the legal and constitutional implications of your statement at a later date, perhaps next week. So I woulcl hope that on that score, members would not press you too far since the propel' witness, I think, is the Attorney General. General ALLEX. Yes, sir. The CIIAIRMAX. Xow, Mr. Sclnvarz will commence the questions. )1r, SCHWARZ. )11'. Chairman, I would like to ask just two questions which lay a factual basis for the questioning of the Attorney General, ::md I hope that is not out-of-line in light of your comment. They arc not designed to have him discuss law, but to lava factual basis for a dialog next ,veek. . The CHAIR::\UX. '~ery "lYell. 'Ye will listen to your questions and tlH'll pass on them. )[r. SCHWARZ, Very well. General Allen, were any warrants obtained for any of the 'interceptions involving U.S. citi~ens which yon haTe recounted in vour statement? General ALLEX:XO. Mr. SCHWARZ. And the second question: you have stated that XSA does not, in fact, intercept communications which are wholly domestic. That is, communications between two domestic terminals, and that its interceptions are limited to wholly foreign, or second terminals, one of which is in the United States and one of which is outside. lYith respect to wholly domestic communications, is there any statute that prohibits your interception thereof, or is it merely a matter of your internal executive branch directives? General ..chI,EX. ::\IY understanding, ::\11'. Schwarz, is that-at least tho XSC intelligence' direeti\'e defines our activities as foreign COlllmunications, and "'0 have adopted a definition for foreign communications consistent with the Communications Act of 1934. And therefore, I think that is the-- ::\fr. SClnvARz. But vou believe YOU are consistent "ith the statutes, hut there is not any st~ltute that p'rohibits your interception of domestie communication. General..c\.LIJEX. I believe that is correct. ::\£1'. SCIIWc\RZ. I have nothing further, ::\fr. Chairman. The CIHIR~IAX. .Just so I may understand your last answer, Genend, so that the definition of foreign intelligence is essentially one that has been given you by an executive directive from the XSC, and is not baseclupon a statutory definition. General ALLEN. Yes, sir. The CHAm~IAN. Very well. 'Ve are going to change our procedures t()(lay to gin> the Spnators at the pnd of the table ,vho are usually the last 'to ask questions, and sometimes have to wait a good length of time. instead of moving from the chairman outward. This I must say, lws the con:;ent of our vice chairman. Senator TO\Yer-so we will move to the. ends of the table first, and tlult means our first Senator to question is Senator Hart. Senator Ibm' of Colorado. Thank vou, ::\Ir. Chairman. General.Allen, there are two bro(1c1 areas that this committee is concerned about in terms of legislative recommendations. One is congressional oversight, and the other is the issue of command and control. And it is in these two areas that I would like to ask a couple of questions. First of all. you went to some lengths in your statement to talk about the history of NSA's briefing of Congress and various congressional committees. In that history. was there any occasion when officials of tlw XSA briefed members of Congress about the watch list activities '? General ALLEN. Sir, I honestly don't know about that, prior to my coming on in the summer of 1973. And the reason for that is that the testimony is in executive session-and there are conversations, and I really don:t know whether prerious Directors discussed it with Congress or not. I would say that I have no evidence that they did. Senator HART of Colorado. That thev did or did not? General ALLEN. I would say that I have no evidence that previous Directors discussed the watch list matters with Congress prior to the summer of 1973 when I came on board. Since I went on board, there have been a number of occasions where this has been discussed with various elements of Congress which, to a certain degree, began early in 1974 with the investigations of the House Appropriations Committee investigating team. ~enator HART of Colorado. With what degree of specificity did you b.l'Jef ele.ments as you say, of Congress about the watch list activitJes? 'VIth the same degree of specificity that is contained in your statement today-the numbers of names and so forth? ' General ALLE~. The investigation that I refer to by the Appropriations Committee investigative team did go into the nlatter in substantially more detail than we have described today. There were a number of pages in their report that \\e related to that.. 26 I would suspect that other briefings probably were of less detailwell, no, I would say the briefing before Mr. Pike's committee ,,-as in more detail, discussed today, in closed session. Senator HART of Colorado. For the purposes of our record today, did yon conduct some historical review, whether, prior to your assumption of the Directorship, such briefings on watch list activities took place? General ALLEN. "'Yell, to the extent that we're able to conduct those activities, we have. And we have no evidence that they did take place. Excuse me, I have just been pointed out an exception to that, and that is, Mr. Nedzi was briefed on the-at a previous time on the general subject of how tIlese kinds of communications are handled. And I presume that he was given a fairly thorough insight into this. Senator HART of Colorado. Do yon know when that was? General ALLEN. vVe will find that ont, sir.1 Senator HART of Colorado. The same question applies to the other program which we have under consideration here today, and over which there is some dispute. Could you tell us whether Congress, or any elements of Congress, were briefed on that program? General ALLEN. I do not know. I do not know that they were. Senator HART of Colorado. If yon could find out and let us know, I think we would appreciate it. The second broad area is the area of command and control: Who is in charge here? Who gives the orders? How high up are the officials who know what is going on? In this connection, it is my understanding that officials presently at NSA have testified, or given us information, that your predecessor, Admiral Gayler, and the former Deputy Director, Dr. Tordella, were completely aware of the watch list program, and their sworn testimony in the case of each or both of them is that they were not aware of thIS, or only became aware of it sometime aIter they assumed their positions. Could you give us a definitive answer as to whether both Admiral Gayler or Dr. Tordella knew about the watch list activities? General ALLEN. I am certain they did, sir. And I think the testimony you refer to must be misinterpreted in some way, because clearly, Admiral Gayler and Dr. Torclella knew, and have testified-I think, perhaps. sir, you may be referring to a question that did arise in our more complete closed discussions with the staff in which there was a question as to whether these analytic amplifications which NSA made to the lists-that is, where names were added by NSA people to enhance the selection process of the requirement already specifiedwhether those were approved by the proper command structure within NSA. And there has been a little bit of uncertainty about that. It is fairly clear to me in my research that there was an appropriate Directorship, Deputy Director review of those procedures. It has been a little unclear as to whether each name was approved, and so on. Senator HART of Colorado. In that connection, Admiral Gayler was asked" "Did people tell you the list included names of U.S. citizens or other entities?" and then came a rather long answer which includes 1 In II Nov. 6, 1975, letter from David D. Lowman, Special Assistant to the Director, XSA, the select oommittee was informed thllt the date of the briefing referred to above waH Jan. 10. 1975. 27 the following statement: "This particular subject didn't come to my attention until about the time this domestic problem was surfaced by the President." The staff then asked, more specifically, when that "as, and he said, "I became aware of that, I guess it was a year or so after I got there." So Admiral Gayler does not suggest that he was briefed on the existence of watch list activities until perhaps more than a year after he assumed the Directorship. Do you know why that would be? General ALLEN. No, sir, I don't. I was not aware of that aspect of hi" testimony. I do know, for example, of information that has been made available to the committee, that he was aware, and made fully aware, in 1971, early 1971 [exhibit 5].1 Your time refers, actually, to before that. Senator HART of Colorado. When did he assume the Directorship? In 19691 General ALLEN. Yes; it must have been 1969. Yes, sir. Senator HART of Colorado. So a period of time passed in ",hich the Director of NSA apparently did not know that this activity was going on. We find that extraordinary. You have stated that NSA officials or personnel were placing names on the list. There seems to be some dispute about that also. Admiral Gayler and Dr. Tordella both deny that they knew that NSA waS putting names on the list, yet, I think the suggestion here is that this was knowledge that the Director and the Deputy Director didn't know about. Is that the case? General ALLEN. 'Well, we have clearly had a conflict in people's recollections in that period of time. It is the clear recollection-and there certainly are some internal memorandums that reflect-that the procedures by which amplifications are made to lists were explained to the Director and Deputy Director at the time, and that they were aware of them. It apparently is also true that in the period of time when they gaye testimony. they didn't recall that particular briefing. . Senator HART of Colorado. 'VeIl your testimony here this mormng is a little confusing also. In your statement you say, we do not generate our own requirements for foreign intelligence, and yet the indication is that the staff or officials of NSA, do, or had in the past, added names out of the Office of Security, and so forth. General ALLEN. I'm sorry, sir, that is another question. That does not actually relate to foreign intelligence. I believe it is not the subject of discussion today. , The question of adding names that relate to the amplifications in tIlE' foreign intelligence field waS in no case a matter of adding anythiniZ new to the list. It was a matter of adding aliases, it was a matter of adding addresses in some cases where an organization had been specified, and it would assist picking np messages of that organization, the names of officials of the organization were added to enhance the selection process. Senator HART of Colorado. But it is "your testimonv that out of the NSA itself there was no generation of ii.ew names or organizations ~ 1 See p. 156. 28 General ALI.EX. That is correct,! :-:\enator H\P.T of Colorado. In connection 'w'ith the role of the Intelligence Board, YOU indicate in your statement that the U.S. IntelIig'ence Board 'r~yiewed these a'ctiyities and was kept cognizant of them. ,Ve luwe te:"timony~statements before this committee by people inyolnd in the Board's actiyities in the past, that the Board itself, in being' apprised that watch list actirities were going on was not a,yare of the bct that communications of 'C.S. citizens were being monitored. Is that the case. or not? GeneralALLEx. "~ell the difficultv that we haye here. sir. as I understand it, is there is no record that 'the U.S, Intelligence Board in its sc:'sions ever considered or had this information presented to them. The circumstances are that the requirements process of the U.S. Intellip:<' llce Board, which is directed toward substantiye requirements, did include in it yarious subject statements~that is, that related to these particular subjects. And on occasion, included such subjects as in satisfying the watch list individuals prodded by whatenr agency it was. So those things are in the U.S. Intelligence Board guidelines, It could he only presumed that U.S. Intelligence Board, which consists of membership of the requesting organizations, knew that the lists they were directing to us to follow were lists which their agency was preparing aIHl did contain some U.S. names. Senator HART of Colorado. And therefore, it is your testimony, or is it not, that the intelligence board knew that so-called civil disturbance names were beiug included on this list? General ALLEX. "~ell, the U.S. Intelligence Board certainly knew that, because my predecessor, General Carter, made it a yery specific point to notify them immediately upon getting what he considered to be the first request in this area. And that was his purpooo for doing that. Senator HART of Colorado. Including the civil di.sturbance names? General ALLEX. ,VeIl. yes, sir. His message is here in the record [exhibit 2J 2, but it states that he is being asked to respond to this requirement and to seek intelligence regarding foreign influence on certain organizations. Senator lim!' of Colorado. One final question, General. In connection with the Huston plan, one recommendation of that group was that communications intelligence capabilities should be hroadened and that the President was requested to authorize broadening of those rapabilities. To your kno\';ledge, did President Nixon know about the extent of this ,,,atch list? General ALLEX. To my personal knmvleclge? Senator HART of Colorado.1Vell, to your knowledge as Director. General AI,LEX. No. I have no such knowledge one way or another as to President Nixon's personal knowledge. 1 .\fter reviewing- a transcript of this testimony. NSA advised the committee that 50 to 7:) !l:lIllPS wprp IHlfled in its "amplification" of watch lists, and that this "was usually done pitllPr hy a(](ling the name of all eXE'cutl've officer of an organization, or by addin~ the organi," tinn name assodated with It person who was placed on the watch list by another agency." (Letter from David D. Lowman, Special Assistant to the Director, NSA, to the select commi1- tf'p, ~T()V. fl, 1975.) 'Srep.14', 29 Senator H.\I:T of Colorntlo. So YOl!o 01' pel'haps ::\11'. Buffham, can't account for the fact that the President was being asked to broaden a ea pn bility that he di(lnot knO\v existed in the first place? Grneral J.. LU:X. ,Yell. YOll aske(l me what I thought President Nixon knew. . C Sen:ltor II.\RT of Colorado. Yes. General .\LLEX.•\nd I say I really don't knO'v. There is some cyi( kncf' as to what :JIr. IIust;-m thou~ht because we have the various things whidl he 'Hote, and the docu;llents that he prepared. :Mr. Huston IlppareEtl," bf'lien>d that this activity which he knew of, and which II(> had seen the output of. "'as being condueted in a very restrictive and minimal mllllllel'-\vhieh ,vas true-and that it would be of value to those r"'qi:1('li\s ,v1lieh thr Pr('sidrnt hall on his minrl if it were expanded. And he also recognized that thr XS.\ would not respond to that kind 'Of a l'Nplest for expansion or broadening of this actiyit~· \\'ithont 'i("!.y deal' and slwcific Presidential (lirection to do so. So it is J1l v llmlel'st:wding that :JIr-. Huston was making such a recommendation. and of t'(lUrS~~ it (lid not C0111e to pass. . SPllatw H.\1tT of Colorado. That is all. ~Ir. Chairman. Than1c von. The CJi'\'I:'>L\x. Thank you. Senator Hart. Senator' ~('h\\"eiker? . Spn:,toI' Sf' f j WElK]':!:. Thank vou. ~Ir. Chairman. Ge11rr:1] ).1k11. who \\,(,l'e the hvo Attornevs General and the Secretary of Def('n,;e \yho approved this activity? . Gelleral Auxx. Our statrment said they rC\'iewed the activity. Senator SCIIWElKER. Reviewed it? . • Grnrral ALLEN. Yes. sir. ,Ye have documentation anlilable in looking- back at am records of this. that Admiral Gayler reviewed this actiyih" in detail 'Yith :JIr. Laird. Mr. Klpinc1ienst:and Mr. :Mitchell. on a c()uplr of occasions, one very clear one relating to }[r. Laird and ~Ir. Mitchell. ..:\.ppronl is an fmln'lard-it is not fair to those people in the f'ense that the memo for record sho,,"s that he discllssed it with them in S0me detail. that there was agreemrnt as to the procedurrs that ,wr('- to be folJO\vrd. and that hI' then submitted a memorandum back to thl'lll saying this is what \ve discllssed and this is thr procedure 'It' followerl. Srnator SCflWEIKEJ:. That is Admiral G:1vl(>r rcview(>d it with himwith thrTI1. I should sav? . GellC'raL\LLEx. Yes. sir. Sf'nntor Scrnnmom. _\nd then. just, a moment ago. we heard thrrr ,vas some discrepanry as to whether Admiral Gayler Ime\\' about the \vatch list himf'clf. GellPml Ar.u:x. ,YrU sir. that was at the time-apparently Admiral Gavler's lW'ol1edion had to do "ith a veal' or so afterward. I belirYE'o as ,ve look back at the records, it is pi'obably trne that that was not quite so long- as a year. Senator ~CHWETKER. General Allrn. in the course of intercepting intrrnational communications. does the NSA accidentally or incidentally intercept communicatiOlls between two American citizrns if one of thrm happens to be abroad? GrnrraI ~\.LLEX. Yrs, sir. 67-3~2-7G--3 30 Senator SCIIWEIKER. And what procedures. and what do you do after you intercept a message bebn~en two Amrl'ican citizens, either in terms of what YOU feel the law is or what your direchves arc? General ALLEX. The dil'echves are tl~at we do not do anything to those communications. and we reject it as early-reject such communications as early in the process as it is possible for us to do. For example, if by tuning the receiver, it is possible to reject them, that is what one does. It it turns out to be somewhat later in the process, one does it then. But the rules are clear, and that is that one rejects those messages as quickly in the selection process and as automahcally as it is physically possible to do. Senator SCIIWEIKER. Is there any Ilnv that you feel prohibits you from intercepting messages between Amrrican citizens if one is at a foreign terminal and the other is at a domestic terminal, or do you frr1tlw!'e is no law that covers this situahon ? General ALLEX. No, I do not believe there is a law that specifically does that. The judgment with regard to that is an interpretation. Senntor SOIWEIKER. General Allen, in a few words, what was Project MINARET? ,Vould you just describe. just briefly, what the objectin's of Proiect :\UXARET was? General ALLEX. ,Vell, sir, that was the project we have 1Wf'll talking aIJout. That '\"as a code word used for it during part of the time ,,'e described. Senator SCHWEIKER. Relating to the individuals, organizatiolls involved in civil disturbances, antiwar mon'ments. demonstrations. and things such as that: is that correct? General ALLEX. Yes, sir. :MINARET is n term thnt begnn in 1969. nndns we described somewhnt formali:>:ed the process hy which these messages ,\Ore handled, which had brgnn nppnrently about Hl67 [rxhibit 3].1 Senator SCHWEIKER. Now, in the initial communication on :\UXARET, is it true that one of thf' equall~' important aspects of :\UXARET was not to disclose that NSA ,vas doing this ? General ALLEX. That appears in the documentation regarding it. Yes. sir. Senator SClTWEIKER. And what ,,'as the rl'nson for not disclosing to the other intelligence agencies-because this information only 'wnt to other intelligence agencies-what ,,'as thr reason for not disrlosing to the other intel1igence agencies, who ,wre the consumers. that NSA was doing this? ~ (irnenll ALLEx. It is hard for me to 1'rall" nnf)'.wr it. becallse I am not l'xnetly sure as to what was the feeling ~f thl' people nt the timl'. 2\[y understanding is that the concrI'll was thrrt th0 peonlr at NSA felt it ,ns terribly important that the artiyit~, he solel~' reln.ted to foreign intelligence, and that bv c1eliyering these kinds of message'S to an Ilgency ,vhieh also hnd a law enforcement fmlC'tion, there wns n danger tllllt the material would end up being' used for n purpose which would. not he appropriate. Therefore. for that n'[\son then' were a srt of proc0clnrrs arlopted which made the materirrl be hancl1rcl in a (listincti"r nml srparate way to where it went to only specifird indiyidnals, only hand-carried, clearly marked "For Background Use Only;" also de- 1 See p. 149. 31 void of the kind of de3ignators that are placed on the kind of intelligence information which NSA produces for a broader range of users. :Senator SCHWElEER. Might there have been some cancel'll that this was a questionable legal area and that therefore dissemination of who was doing it and how they were doing it might also h:1\'e been injurious to the Agency? General ALLEN. It is possible. I think that of course the concern was that if the material was-the basic concern is, I imagine it was in people's minds at that time, was that if the material were used for some purpose associated with prosecutive or evidentiary bftsis. that the sources and methods which were used to obtain that intelligence would then be vulnerable to disclosure or demands by courts to see it; so there was a very great concern to insure that this material was handled in such a ,,-ay as to minimize the possibility that it ,,'auld be used in that fashion. Senator SCHWEIKER. "Yould it be possible-granted this is not your policy, and that you state you have not done this-,Yould it be possible to use this information and apparatus that you lwY(>, to monitor domestic conversations within the United States if some person 'Yith ma1intent desired to do it? Kat that you have done it, not that you intend to do, not that you don't have a prohibition about it; I am just asking you about capacity or capability. General ALLEN. I don't think I really knmy how to answer theqnestion. I suppose that such a thing is technically possiblr. It is c1rarly in yioIation of direetiyes procedures ,yhich are rstabJished throughout the entire structure and ,yhich are monitored with grrat care. Senator SCIlWEIKER. And it has not been done by your agency, is that correct? General ALLEX. Yes. sir. Senator SCIIWEIKER. The names that were pnt on the watch list could have been sent in by anyone of almost, I guess, a dozen security agencies or intelligence agencies. Did yon haw any criteria as to whether you accepted their names or not? In other words, suppose the FBI put names on a list; did you reject any of their names, or did you just accept that as the input and the recommendation or the suggestion from the FBI, for example? General ALLEn. It is my understanding, in going back and discussing how that process worked at that time, that there were, in at least two cases, discussions about substantial increases to names for a couple of different problems. These problems looked to the people at NSA as though they were in the law enforcement area, and therefore these agencies were told not to submit those kincls of names, and they were not so submitted. So, there was that kind of a review made, at least in some cases. In general it is true that the agencies did submit names and XSA accepted them based on the assurance of senior officials at those agencies that that was an appropriate thing to do. Senator SCIIWEIKER. Sa, it is KSA's basic position that the responsibility as to determining what criteria was used for putting names on the list, with the exceptions you have noted in terms of specifics, was basically the responsibility of the originating agencies, is that COlTect ? General ALLEN. Yes, sir. You will note in the record that when I arrived at NSA, one of the first things that I did 1-yas to contact each 32 i)f tll(' agency heads and l'Cfluest them to rppxamillc cxactly that point, ~lId to reassure 111(' that thev had reTicwecl these namcs on the list and that their requests for information ,,'ere appropriate within their statntol',\" and CXl'('lIti n' alIthorities, That. of course. ended up with having the cfred of t('!'minating the prOgram. But thc view that ,,'c had was that that l'l'sponsibility was one held by the rcquesting agPIl('Y . . Sen'ator SCHWEIKEH. Do yon think that the responsibility should rest with each agency ~ I am thinking of prospective legislation. "Where do yon think that l't'sj)()llsibility should lie as to who makes demands ()n your agency at this point for thc future? ShaH we forget the past? (}l'ncl'al ALLEX. ~'·l'lI. for tljf' futnl'l'. Wl' certainlv lu1\'C directiw's now ,,,hich prohibit this kind of activity in the futllre. and those are internal XSA dil'pctin's which I have issued. There are also, I under- stand. similar direetivrs at the requesting agencies. I believe that it has to be a responsibilit~, of both~ and I think the question of oversight was in the r:wcntin' branch is one that is appropriate for the €xeeutiw'. Senator SClnn:IKEH. Yes. And vet. Mr. Huston wrote a memo that ,ye referred to a Illomrllt ago~ wl{ere'the memo indicated, at least as far' as the memo ,ms concerned. he wasnl e,-en aware that the kind of aeti\'ity we are talking abont was going on. This was u memo to Hahlemull, to the whole '\'hite House struetm'p~ aIHI unless somebodY was misleading people in terms of writing a falsp mpTnO. or badly informed. the meIHo ,,"cnt out implying that none of this activity really was ]wing conducted now. Is that not corrpct? (~rl1Pral ALLE::-;-. Xo. sir. that is not conect. Senator SCInVF.IKEH. The Huston memo didn"t sav that vou nee(led more authority to (10 ,dwt you were doing? .. General AI-LEX. The Huston memo, according to my recollection, "il'. said that tIll' XS~\ was providing some intelligence pertinent to this problem at the prrsrnt time in accordance ,vith very restrictive and in a minimal ,yay. and that in order to do more of it, presumably ill accordance with the Presidenfs desires. thev would have to receive acl!litional instructions in order to do that. • Scnator SCIIWElKEJ:. Yet, the watch list was going on in full blast at the time with an~- agrncy having a right to put in any nume that tlll'v ,ytwtN!. I IUl\'l' trouble reconciling that. General ALLEX. ,Yell. Number on<:', sir, I am not sure what yon mean by "full blast." The program I rlcscribed was in process. Agencies ,ycre. I trust. constrain!'!l in their plaring namps on it. and NSA at least cXPl'cisrcl some constraints in their arc<:'pting of names. There 'vas It great dcnl of constraint in the manner in which the information was 1uHldlecl. There were also no activities undertaken by NSA, with the one exception ,ve noted, to obtain these communications~only to selrct them. And. it was to these issues. I think, that Mr. Huston was probably reTening when he said he thought there should be an expansion. Senator Scmncuu:R. One final question, General. You testified that in 1973, the CIA decided to discontinue certain activities because those activities might be in violation or the CIA's statutorY charter. Kow. XSA has no such charter. and wi. I think obviously you. too~ are concerned about the aetil'ities or the past. 33 Shouldn~t ,yp han a dun/PI' for XS~\, alHl ~houldn't ,ye write into ]aw some thin:,!s that won't be misconstrnrll 01' misunderstood or mi!!ht he abl1~ecl in the fntme? Shouldn't XSA haye a charter like t h~CIA does ~ General AU,Ex. 'YelL sil'~ I really must Iran that judgmrnt up to the Congress. It is certainly den!' now that the dil'Pctives rehlting to foreign intE']]igence~ and that the interprE'tatiolls of fOI'E'ign communications as they are appropriate at this tinw~ are both clear in executi\'c <lil'E'etiws, and are enfol'crd. Srnator SCInn:IKER. Thank vou, )1r. Ch:1irman. The CIL\m'L\X. Thank vou \~erv'much, Senator Schweiker. Senator l\fOI'!!an is next: ' Scnato!' )IOIl(;AX. GE'neral ~\llen, I noticed ill ~'onr testimony that vou said betwern t]l(' wars 10(;7 and 107:1 vou ha<] at most about 4iJO iwmes on the watch jist for the purpose of watching for narcotics. Is that correct? General ALLEX. Yes, sir, I beliew so. Srnato!' )[OR(;.\X. ~\nd about 1.200 other namE'S alto!!ether. C~rneral Au.Ex. Yrs, sir.' ~. Senator MOIw.\x. So clming that period of timr of about 6 years you had about 1,6;50 names on the watch list. (ieneral ALLEX. Yes, sir. Senator )[ORGAX. And I belieY(' vou said-Grnel'al ALLEX. U.S. names, sir: Spnator )[ORGAX. r.s. names, that is right. ~\Jl(1 that the most that vou had at anv one time ,,'as about 800 names. . GrnrraJ Jhi.EX. Yes, sir. Srnatol' )fORG.\X. Xow all of thesp names, Ol' r.s. names, were names that had brrn inyo]n·d in cOImmmications betwrrn a foreign station and ritlwr this ('ountl'~' 01' some other foreign station. Genrral AU,EX. 'Yell, thr reports which were generated as a result of those names fit that description~yes, sir. Sc>natol' ~fORG.\X. That is right. And you \',Cl'e' '''atching, of courseyou Jlnt thosr l:an1PS on. ~-on tpstine(1. for l1111ny Dnrposes; one. in an rffol't to stem the narcotics traffic. Is that one of the reasons? General.\u.r:x. Yes. sir. Senator ~IonG.\x ..\]](1 T br1irn' YOll trstifiN] pa rlirr that somr ]al'!!e shipments of narcotics "'el'r identified throngh this watch list :lIld wrJ'P pren'ntpd from coming' into this country. General ALLEX. That is my lInderstanding. ~-es. ,ir. Senator )IoRG\x. 'Yrl1. that y,'as yonI' t(',timonv and your bcst information. was it notf. ' " Grneral ALLEX, Yrs. sir. Senator )IoRGAx. You testifiE'd also that on One occasion an ns,sassination attrmpt on a promiJ1l'nt r.s. fignre abroar] was identified and pl'ennted by the use of this watch list. Is that col'lwt? Genrral Au.Ex. Sir. T ,youM han to srt the }'('('oI'11 straight. 'Vr did identify that in an ral'lirl' nl'sion. In l'eYie,,,ing' that particular itrm, there is some question in our mind as to wllPthcr the actual watch list procedures that wr described here werr the reason for srll,cting out thr message that made' that n~,·elation. So, in un attempt to br completelY fnir. I ,Yonld like to not say that ,''us a rf'snlt of the 'mtelt list.' . . 34 Spnator ~IoHG,\x. It did come from a nwssage though that you intprceptccl. General ,\LLEX. Yes. sil'o SenatOl' ~r()RG,\X. Yon gave llS another example as a yalne of this seni('c. a notitlcaJion to the FBI of a major foreign terrorist act that "',1'0; p1a;mrcl in a Jarg'e cit:" in this conntry, ,dlich action ,,'as prevented because of iJlfol'l~1f.tionvon recein~d? (;en(,1'[\l ,\LLEX. Yes. ·sir. Sr;,r.tor ~rOHG,\X. Is this the sort of information that yon arc ]ookin! 2' for fln,l \vatchin2: for? . 'Ccllerd ,\LLEX. l~es. sir. Senator ~rom;,\x. In all tllat Jwriod of time. in all of thosp (; ::eftr~ tl1'.'n. is it fail' to say YOU l1:1c[ abollt l,(;.J() ,\meriCilJl ltal1H'S ont of about 2()() ml11lon Amrric~His? ' Grner:l1~ \ fLEX. Yes. sir. ~cnatol' ~IoHG,\x. ,\11 riQ'ht. sir. Xow. hayc YOIl made all of that information n\'aiJa111c to th~ memhprs of this c;nnmittee or to tbe staff of this committrp in executiyc session before? GcnCl'a1_\LLEX. Yrs. sir. Scnator ~rORG},S. Xow. there is another project that has been aJ] uclpcl to 1mt has not l){'en named here todav. Han~ yon also testified to tlJP mrmhers of this committee and/or to'the stafr'aU the information rrlennt to that project? Gpneral ,\U,EX. Yps. sir. ~enator ~IoRG.\x. Haye YOU been willing at all times to disclose any and all information about'the XSA to th~membersof this committe'e in i'xecutin1 srssion? General ,\LLEX. Yes. sir. Senator ~IoRGAx. Ai1d are vou still now rradY-are YOU now readv and "'illin!! to disclose that or any other information? ' . General'ALLEx. In closed session? Yes. sir. ~rnator ~I()nG.\x. In dosed session, to this committee of the united States Senate. Genpral.\J,Ll'X. Yes. sir. Spnator MORGAX. Now you tpstifled also aholli the law with regard to this disclosme of information. If you would bear with me just a minute-I believe you testified that: The Congress of the United States in 1933, both the Honse and the Senate. enacted a law encoded in 18 U.S. Code 952, which prohibits the divulging- of the contpnts of decoded foreign diplomatic mesMges or information about them. _\nd you also said that: Again in 1950. the Congres~, both the Honse and the Senate, enacted another law, encoded in 18 U.S.C, 798, which prohibits the unauthorized disclosure. prejudicial use, or publication of classified information of the g-overnment concerning- cOJlllllunication intelligence activities, cryptolo;dc activitie!', or the results thereof. Is it )'onr opinion that that is still the law? General ALLEX. Yes. sir. Senator ~IoRG \X. Is it your opinion that the information with regard to the otlwr proji'ct, if disclosed publicly, would be detrimental 01' ('ould he detrimrntal to the national secllI'ity of the Uliited States? Gi'neral _\I,Ll'X. Yes. sir. ' 35 Sc'nator ::\IoITGAx. To yom ]:no\Vledge, is it ,till Hot the position of the President of the l~nited Stutes th-at that information should not be disclosed publicly? General ALu:x. That is my understandinc:. sir. Senator ::\10ITG.\x. _"-nd tlle •\ttOl'llev G(,~,el'al of the l~nitec1 States has so ('ommlmicatecl that to tltis cOll1n~ittee. But yon arc still willin2"ill the first place, yon han~ cOllllmmicatecl that'infol'll1ution. all that yOll have bC'C'll asked for. to this COllllnitteC' and yOil arc now willing to cOInmnnicrrte any other information ,rithin your command to this committee in exccutinl session. (~eneral "\1.I.EX. Yes. sir. Senator ::\loHGAx. _"-llright. Thank yon, sir. Thank you, ::\11'. Chair- The C!L\IlDL\X. Thank vou. Senator ::\Iorgan. Spnator ::\rathias~ ." ~ Senator :\Ln'IIL\s. Thank YOU, ::\11'. Cktirmall. (,pnera], on the last page of your statement, you say that: Thl1", the watch list activity, \yhich involved U.S. citi7.en,. cpased operationally in the sumlller of 19,3 and \yas terminated officially in the fall of 1973. I think that is perhaps the most important sentence in your statemJ'llt. _\.ncl I ,vant you to te11us if that is now the status. General ~hLEl\'".'Yes. sir, it is. Senator MATHIAS. And this \Vas done on the advice of Attorney Grneral Richardson, but in fact, by the agency itself. Is that correct'? Grneral ALLEX. Yes, sir. I terminated the-well, the distribntion of materials ,,,as terminated in the summer. I requested each of the agencies to review it and it ,,,as shortly after that that the Attorney Genrral also then wrote to me and stiid he was questioning the ri>qnests from FBI and the Secret Senice. Senator MATHIAS. "'VeIl, this is the kind of judgment and restraint that I wish more of the agencies of the Gon'rnment had exercised throughout the years. I thiilk, General, you are to be congratulated for the action that you took. I think it is a very import~mt addition to the administratiye history of the Federal Gonl'fiment. I think it is an example that I wish others would follow. I ha,-e no further questions. Senator GOLDWATER. He is Air Force, that docs not surprise me. Senator MATHIAS. Do you want that on the record? General ALLEX. Yes, s'ir. The CHAIR:\L\X. Senator ~Ionc1ale? Senator MOXDALE. Thank you. :Mr. Chairman. General Allen, I ,,'ould }j'ke to say for the record that I think that the work of the :NSA and the perfo~manceof yom staff and yourself before the committee is perhaps the most impressive presentation that ,,'e haye had. And I consider your Agencv and Your work to be possibly the most single important somce of 'intelligence for this Xation. Indeed, so much so that I am not convinced that we fully perceived the reyolution that has occurred in recent veal'S in intelligence gathering as a result of technological breakthrollghs, and it is'~'yom'agency which basically deals with that area. But it is that most impl'essiye capacity which works so often for the pmposes of defending this country and informing it that also scares me in terms of its possible abnsr. That is why I am interested in knowing ,vhat limitations exist, in 36 ~'ollr opinion. lIPOll ih UO'l' that ('oultl Ill' .]e:-c'l'illl'(1 aO' an <:In;8l' of the ]e![aJ rights of ~\.mel'iCall citiz('lls, ~\.s I l!JJ(!pl'stalld yom t,'S(iillO!lY. you liniit yom'self to thp intel'ception of comlllllllientions beh'\eC'll~ C'itllPl' to or from-a forei![ll terlllillal and OIl(' ill the r !tired Statps. You do llot inten.:C'pt mess,lges to and f!'Ol!J jJl'rSf1]]S \\'itlJin tlw rnited States. Gencral.\LLEx. That is COITl'Ct. sir. Senator )IoxD.\LF:. But I also nndl'rstaJl(l that this is a m:,t!('r of polic'y and Hot of law. that the basis for this limitation is a jUdg'l1lC'llt Oll the palt of our GOH'l'll111ent that thal ought to be ns fll!' as 'you go. There is 1l0L in yom jnclgnwllt, 01' ill thC' judgment of tlw AgelJ('~', a restrietion that ,,'onld limit ~'Oll prC'ciscly to those polje'y gllidpl]]J('s that vOllno,," haH'. Ge'llcral .\.LLEX. ,Yell, I Iw]ieve that is ('one(·t, fiir. as rar as the precise rC'stl'iction is ('OIwel'lH'c1. BlIt there i:" llO misunc]C'!'stulldillg "'itll re![arcL to the ExeclItin' din·eti\'es that C'xi:-t. tIll' l'C'stri('(jon is to f(JJ'pigll inteJ1igcllcc purposc's and fOl'pign cOllln;Hnieatiolls ,dlieh ,He (kfined in sOllie way. :-\enatol' )Ioxu_\LI'. GiVPll anothf'l' day and Hnotllpl" I'l'f'sic1cnt. another perceived risk and someone bl'patliing hot down the' neek of t Iw militulT leadcr then in charge of the XS~\: demanding- a 1'2yiew ba:wd on another watch list, another ,,-iele s'Yt'C'p to det~l1l1ine whether SOllle of the domestic dissent is really foreign based, mv cancel'll is wlwthel' that pl'f'SSUI'f' could bp l'Psiste(] on the basis of tIle law 01' lIOt. (~cncrnl ALLEX. ,YC'1], it ifi wry hard foJ' Illp. of COllrS{', to pl'oje(·t into a fntHre unknown situation.•\nd th('rC' are ccrtainly risks that SP('1ll to han> oCC'lIned in the' past. I can c'C'rta;nly assure 'YOll that at the prpsent timC'. undcr any comhination of thc present players. as I umkrstund t he rules an(1 the phyC'rs thelllSl'l \"\'s. t IH're is no possibil ity of that. SPllutor .\fO);J)ALL I ",ill accept that. TIut what we han' to deal "'ith is whetlwr this incl'Pflibly powcrfnl and impn'ssi,-e institution that you head cOllld be lIsC'd hy I'rpsidf'nt ".A" in tIl(' flltme to spy upon tll(' . \.lllf'rican people, to chill and intelTupt pol itiea1 disscnt. And it is my im])1'ession that tlH' prC'sent eonditioll of thf' law Illahs that clltirely possible. Ancl th('refore m' lleprl to. in my opinion. yery cnrefully define the law, spell it out so that it is clear what yom authority is and it is also clear ,,,hat yonI' autllOritv is not. Do you ohject to that! ' Oelll'l':tl ALLEX. Xo. :"il'. Senator ~[OXDM,F.. I am WIT heartpned llY that answer. In the old days of the watch list, as I Ilnderstand alii· earlier testimony, when a, name was presented to you from the FBI, from the CIA, or from other somces, your agency really ('auld not dctermine whether the purpose of including that name was for a leg-al objective or for an illegal purpose. In a Sf>nse, your role was larg'ely ministerial. The names "ere received. They were placed on the watch list. You intC'rcepted information and sent it to the consumer agency. TIut why they really asked for it. other than the Wt'\' g-eneralized description they "'ould often gi"e you. or how the information was used. ,,-as largely unknown to the XS.\.. Is that correet ~ GpJ;pral ALLJ:X. "\Ycl1. it is certainly to some (leg-rcp C01'1'ert. sir. Thc points that yOIl ha H' made ,,'prc l'eco,!!nizpd at the timp and there were 37 ~tcps bken to try to prot{'et against the dangers that yon point out. For example, therc was, as a matter of practic{', a description of the foreign intelligence rcquircrnent to which names were requested. Senator MO:-'-DALE. Yes, they would say this would be for drugs or t his is for persona1scclll'ity of the President. or this is for the purpose of determining whether there is foreign influence in terms of the :mtiwar 1ll0\:ement, and so on. But there was no way that you really bww in most cases. what mUcy have been behind a request or how that informfltion was lJPill2: lL-x'CI. ,Yas there! Geneml ALLt::-'-. Y~'s, "ir. In a strict sense that is certainly correct. ~fll<ltor ~IoxnALE. Th11s similarly, tlw IRS is in the same position that if some agency like the FBI in its COIXTEL Program is pursuing an illegal objecti\"e, you may be tasked to interc{'pt messages in order to procure infol'lllation for an illegal purpose. That too, then, ought to be defined nry carefully to protect your agency from abuse. Would you ~OTee with that? General ALLEX. Yes, sir. Senator ~fOXD.\LE. r'find that answ'er heartening. During the watch list days, you were oppressed heavily, along with the other agcncies. to find evidencc of foreign invoh"ement, direction, 01' ('ontrol of the antiwar mOH'lllpnt. ,Yonld you say that you foun<lllllH:h 2'1idl'!H'e of such foreign control and direction! (;enend ALLE:-'-. Sir. Illy understanding of that is not complete. From a n·\,ip\\- of results of tho:-:e messagps \\hich \ye did proyide other agpncies. they essl'ntia l1y did deal \yith foreign influences and foreign sl1pport to certain 110nH'stic actiyities. "\nd so, in that sense. I would say that the results of the XSA activity did show forei2:n influence. It i" 'also my understanding that \yhen tl~at information \,"as put in prrspl'(' ti'1l' hy particularly thl' CIA. I lw!ien, that their conclusion was that the (legree of foreign ('ontrol \'1as wry small. Spnatol' JfOXD.\LE. The first part of your answer surprised me a littlp hit hel'tluse almost unifol'mly WP have heard evidence from the \"ar[0115 otller agencirs that they found little or no foreign direction, 1'\"PH though they wrre being pressed so hard to find it by the-- nenpl'al ALLEx. ,Yell sir, you must bear in mind that we "'ere only !ll'alillg with mpssagops that related to a foreign contact or a foreign interaction for tl\l' person inyolvcd. So all \yc saw was that. And so ollr perspcctive all it is clearly hiased. "ltYhat we saw was foreign ill\"ohemrnt and fon'ig'n sllpport. I don't \'1ant to usc thr word control 1)('('a usr I (10 not know how to assess that. But my understanding is that t,he ngpncies enlhmting it concllHled as you said. Senator l\foxruLE. Onr of mv concerns. and I thil.lk this has come lip ,,"ith the othpl' a~tPIll'ies-th~' Postal J)ppnrtment. the IRS and so Oil-is that when yOIl are tasked to rpyie\'1 something as vag-ue as forpign inyoh"enwnt or direction, it )wcomes so \"ague that it is very hard to restrain the J'l'\"ir'" at all. And \w haw one example that it is a!.!.Tl'l'd that wp couM raise todav. A ]radin~ U.S. antiwar activista; 1(l \yc know him to 1)(' a lllodr;'atr, perreefnl person, as a mattrl' of fad. someone who quit the antiwar movement e\'en though he was (lrC'rwratrly a~ainst the war. hecausp hp so much opposed some of thp militanrv and violent rhctorir-srnt a messagc to a popula.1' singpr in a forrig;n cOllntr\" asking for contributions to a peace concert-and also his participation. The I!lrssagr notrd tllP planned participation 38 in this concert of some of the most popular musicians and groups ill the l'nitecl States at that time and asked the recipient "either to participate directIy in IH'oYiding the entertainment, or snpport the concert finnncially.~'Kow, "'e have agreed Hot to nse the names. I do not know wh.\' "'C have agreed not to use the n[\n1('s. but ,,'e 1m\'e. The CHAIIDrAX. I might say there. Sf'nator. the reason being: that \ve have not first cleared it \yith these ilHli\'iduals and there is a matter of their Own pri,'acy that \\'e han~ to take into account. Senator ~IOXDALE. All right, finf'. But ill allY ewnt, when you arp picking up stuff like this from peacrful prople who just are Opposp(l to a ,,'ar which no", most Americans frel \vas llll\yise, do you not think that it raiscs ycry serioEs rmestiollS abont hmv you contain snooping "lHl spying all Amcl'ican citizcns-particularly whrn yonI' agency is required to pursue an objective \vhich vil'tua]]~' defies definition amI so easily can spill over in a \vay to undermine and disconrage political criticism and disscnt in this cOllntrv? General ;\.LLEX. I am afraid, slr, I haw to dodge the basic philosophic nature of your qeustion because the facts are, that as a technical collection agency, KSA was asked a far more simple qnestion. ,,'hich is a little hard for me to go back and construct all the emotion at the time. It is certainly not the same as today. But that question was that the Defense Intelligence Agency. in this paricular case. asked for information on the funding of certain U.S. peace and anti-Yiptnrlm war groups. And this messagp was from such an organization or lwrson to an overseas location where forpig:n funding and support was requested. It's certainly trne that in this tinlP in history one "'0111<1 certainly have a substantially different view of that than at the tinlP. Spnat<or MOXD.\LE. TI11t it shows hmv nry difficult it is to definr the o11trr parftmeters of a search like that. cioes it noti I mean. if \VC could use the names today. I think lwople would be snrprised at governmental concern 01' thp fppling that Gonrnment had the right t(~ snoop in such messages. \yould they not? Gpneral ALLEX. 'YelL I only can say I don~t know how to ans\wr your Cl"estion. The requiremen't to us. the reCl11est for information ,,'as \'ery s))rcific and \'C'r~' constrained alHl addressed to a ycry llaITmy point. The broader aspects of yOUl' qurstion, I think: I am not really qualified to ans\yer. Senator ~IoXDALF:. I think that is \vhy \w hftye to drfine yom requirenwnts to include somr verI' prrcise 'limits on the inteITui)tion of citizrns' rights, because as I see it nO\1'. at ]rast as the agency has defined its restrictions in the past, you are largely unrrstl'icte(1. It has been the interpretation of yonr agenc~' that you can roam wry far indeed. Thank you nr~' much. ~Ir. Chairman. The CIIAIR~[AN.Thank vou Senator ~Iol1(lale. Senator Goldwater. . Senator GOLDWATER. First. I want to be on the record as opposecl to public hearings on this matter. GeneraL as I remember correctly. wl1('n YOU were brfore our committee. vou stated that thr law clid'not allO\:' vou to testify on any asp£' ct oftll!' NSA. Is that correct? ' <' Grnera] ALLF:X. That is what I belien to he the case. yes. sir. 39 Senator GOLD\';<\TER. Then. theoreticalh'. YOU are \'iolatin o' the law in being here. . . . • e Gc'nera] ~ \LI,EX. It would ~eem so. -nc.. sir. Scnator GOLD\BTEH. ,Yell I wanted to ask that question to O'et hvo rules that bear on this committee that maybe some of our n~mbers have forgotten about. • In the Senate Rule 36 paragraph 5 it says: 'WheneHr, by the request of the Senate or any Committee thereof any aoeuments or papers shall be communicated to the Senate by the President or the head of any Department relating to any matter pending in the Senate, the proceedings in regard to which are secret or confidential, under the rules. said aocuments and papers shall be considered as confidential and shall not be disdosed without leave of the Senate. I wanted to make that a part of the record in the ennt that any classified information might be offered by memlwrs of this committee under the assumption that we have the power to downgrade or dmnlclassifY classified information. Theil, \w in our own rules, under Senate Resolution 21 ';a select committee is requirecl to protect classified information." Section 7 reads as follmvs : The Select Committee shall institute and carry out such rules and proe('dur('s as it may deem necessary to prevent ... (2) the disclosurE', outside of the Sl'lect COlllmittee, of any information which would adversely affect the intelligenee activities of the Central Intelligence Agency in foreign countries 01' the intelligence activities in foreign countries of any other department or agency of the Federal government. So you are probably, in your opinion, operating outside the la\Y. I just \vanted to set the stage so that this committee \,ould not try to operate outside the rules of the Senate and the rules of its o\\'n committee. I have no questions. The CUAIRUAX. Thank YOU Senator Gold\vater. I think at the appropriate time I \\'illl'cply to the suggc·stion that the committee is operating outside of the rules of the Senate 01' outside of the la\v. I do not belicye that to be a correct statement of the position of this committee. But I \vill not interrupt the line of questioning at this time, because I think Senators would like to have a chance to complete the questioning: of the \vitness. Senator GOLDWATER. }1r. Chairman. I did not charlIe that \ve had operated outside the rules. I said \ve may. .- The CUAIRMAX. Very well, we will discuss that at greater detail unless the Senator would like to discuss it now. I thought \ve \vould go through the line of questioning first. Senator GOl.DWATER. I just ,,-ant to protect you and an of us. The CUAIRUAN. All right, fine. Thank you Senator Golcllntter. I really appreciate that. Seilator TOWER. I must say. )11'. Chairman, I am n'ry touched by Senator Goldwater's concern for your safety. The CHAJRlIIAX. I am too. Sellator. Let 'lls see. who is lH'xt here? SenatorBaker.' . Senator BAKER. Mr. Chairman, tlwnk ~'on verv m11r11. General, I notice in your stat~ment in speaking of the utilization of the \Yatrh list and your efforts in that respect over the Years. This sentence: "Examples of the yalne of this effort inclmling the notifka40 tion to tIle FBI of a major foreign tCl'l'orist act planned in a large city which permitted action to prevent completion of the act and thus avoid a large loss of life.~' Are vou at liberty to elaborate on that at this point? ~. General ALLEN. I really am not, sir. Senator BAKEl:. ~\nd the balance of the statement is equally provocative to me. It says: ';~\n assassination attempt on a prominant U.S. flgme abroad was identified and prenntec1." Can you give us any frirther information on that 'I. I am not urging you to go beyond the confine" of those things you are permittec1 to testify to at this point. General ALLEX. Sir, 'Ye 'Yill certainly prO\'ide that in execntive session to you and go into some (leta1l. Senator B.\Iom, On ]Joth those' points in rwcutin' sef'i'ion? General ALLEX. Yps. SClULtor R\T\:EH. TIH'n I will not. General. insist on it. at t.his t.ime oxcept. to ask you "'hC'ther or not I am to assume by your st.atement that both of these actidties. "'hich I \"ill hear more about in execut.ive srssion bter, were in fad pren~nted as a result of your adiyities in conjunction with the 'watch list. General Ar,LEN. Xo. sir. 'Yell. Semto!' ~Iorgan askerl the question and you have an earlier draft of the statement, the one with regard to the as:-,assinatioll attempt. on marc carcfll1review, ,,-e really could not support that it ,vas a ,vatch l~st entry that cuused us to select the message that revealed that partIcular act. So that was an error on my part t(l lJave inclmle(l that. The situation is COl'n,et in the intcrception of the message and all of that is correct. But it is unfair to say that we srleeted because of the watch list. Spnator BAlCEI:. Hut both of thpm were inyohTc1 with your watch Jistactivities. . Genera] ALLEX. Yes. sir. Senator B\KEI:. "'Yell I "'i1llook 101'\ya]'(1 to YOlll' further statement on that a littlE' latpr. . On tl,e gCllPral watrh list operations. Genpral, did you evrr re('(' in th~ written appl'O\'al of any _\ttorney General of the United States about these neti"itips I. General ALLEX. Xot to nw knowlcche. no. sir. Senator B.\Iocl:. "Tas am~ oYer sOl1~ht that '1'011 know of? (~pnrral AT,LEx. Xo. sir.'The briefings 'Yhi.ell a prerlecessor of mine gayp hail som~ of those charartel'istics aTHl the record shows that tlH'Y WPI'O hridrd in somr ddail am] ha(] some a!!l'rement on the proce(]llI'es to follow. TInt it is prohahly unfair to the .AttO!'lll'YS General innlh'ed to say that it was a sIwcific \\ritten apprO\'al. Senator BAKEl:. Do you know of particular circlllnstances whore a President or an Attol'ller General or Hny C'abinet member for that mattr!' may han' suggested names to be includE'd on the watch list? (Tenprnl ALLEN. Xo. sir. I do 110t. ;';pnator R\T\:En. Y(pre any names Her suggested to the NSJL that WPl"0 rejected for inclusion on the watch list I. Gener~\l "\r.u:x. ~ry Hnc1rrstaml1nQ:. six. as we haw 100k('(1 back at the histon' of that is that there wei.·p substantial numbers of names which wel:c snggestl.'(1. a Jar!!e numher from the FBI am] from another aQ:ellCY ;IS wPII "'hich ",'ere rejected in the sense that a discussion took pInel' as to the nppropriatenes3 of t1w-e nmnps. The XS~\ people point elI 41 ont to them that it w'as too close to law enforcement and that thereforc they should not be included. And, therefore, they were rejected. But that is not docnmented in the sense of it ,,,as turned dO\Yll before it got to the Director of the FBI and he did not in fact submit the name. Senator BAKER. That is a fairly general statement. But let, me tell you the impression that I <Iraw from it. You nre saying that in these particular cases that thc XSA said these names and the purposes for which yon would include these names are not close E'nOllgh to intelligence gathering, which is om bag, and are probably only justified as law enforcement, which is your bag, and therefore we are not going to inc1mlc them. Is that the essence of ,vhat YOU hflye said? General jlLLEX. Yes. sir.• Senfltor JhKlm. ,Vho made that determination? Did YOU make that determination? . General ALLEX. X0, sir. It was made at a 10,Y('r l('\"el within the agency, so the rcquest ne,"er came. I am reminded it was actually not the FBI but the Denartment of .Justice. Senator R\KErt. i see. All right. General ALI_EX. And it ,yas turned down before it got to the Attorney General. Senator BAKER. Thank you yery much, Mr. Chairman. The CIIAm~L\x.Thank you, Senator Baker. Senator BAKER. Before we go on, General I do ,Yant to be briefed on the other two points, Mr. Chairman, either in executive session or if the General would agree to fill me in on the details at a later time, I would be grateful for that. The CHAIRl\fAX. Very well. Senator Tower. Senator TOWER. General~ you are familiar of course with the efforts that have been made by the committee, by representatives of the administration and your agency to be circumspect in this public inquiry. K ow, taking' into account that effort and the good faith of all concerned, is there, in your opinion, a substantial risk still that these open hearing,') may impact adversely on the mission of your agency? General ALLEX. Yes, sir. Senator TOWER. Thank you, General. The CJLUR~fAN. General, your answer to the last question reflects the position of the admini~tmtion,does it not, which is opposed to any publie hearings onaH matters past or present relating to the NSA. GenernJ ALLEX. That was terribly broad, sir. The CIL\lRJ\IAN. 'Yell it seemed to me that the administration took a terribly broad position. GCllPJ"al ALLEX. I believe it is probably fair to sayan all matters thnt relate to the intelligence operations of the NSA. The CUAJR1L\N. And it is also clear that although the administration opposed these hearings this morning on the watch list question, they did (l('('la~sifv the documents at the committee's insistence and did antho~'iz~ ;;01\ to .appenT as a witness this morning to respond to the COITumttee's questIOns. Gel~eral ALLEN. That is correct, sir. 42 'I'll(' CIf.\Im[Xx. I ha,'0 listened with great interest to your testimony, (~ellcr,lL and to the answers. And it seems to mc that the real area of ('oncel'l1· for this committee has nothing to do with the fact that on occasion. your operation, ,Yatch list operation related to a perfectly gooel ancl important matter. I do not think that anybody here would flnarrel abont the fact that information affecting the protection of the Prc"illent is a Yel',\' important matter and if you have a capacity to help in that regard, I do not suppose any member of this committee would ,,'n nt to argue that that is irrelevant or unimportant. The samo thing can be said about narcotics. ,Vc arc all concerned abont narcotics. So our inquiry here has not as its purpose criticizing gi,'en obiectivcs that you sought to serve, of the kind that you deSCl'ilH'll. But, rather the lack of adequate legal basis for some of this aetiYit~- and ,,-hat that leads to. For example, you yourself testified that in connection with some information that you obtained on narcotil's and fumed oyer to law enforcement agencies of the Governmcnt. prosecutions could not be initiated bccause it was not possiblc to illtm(lnce that eyidcncc into court. It was not lawful and under the l'ul<'s of the court and laws of the land it could not be used. So prosecutions could not be initiated. Is that not correct? Ocneral ALLEX. ,VeIl, I do not know sir. The reason that that conccrn \yas felt at the time was because the information could not be lIsed in court because to do so would renal intelligence sourctls and methods. The CIL\IRMAX. ,VeIl. for whatever reason we will question the Attorney General on the legality of the use of that information. But fa!' aile reason or another~ it could not be used in actual proseeutions. Xm\', Senator )Iondale, it seemed to me, touched upon the root cause of our concern. Here we have an agency, the NSA, that is not based ll]>on a statute, like the CIA, which undertakes to define its basic authority. And your testimony makes clear that whatever foreign initlllig- ence may meau, it is being defined, from time to time by the execut i \'e. Is that not correct ~ C;encral ALLEN. Yos, sir. The CUAIRl\IAX. Now~ ordinarily, the executive does not decide such ha"ic matters. Ordinarily, as in the case of the CIA, an agency of this importance finds its fundamental power derived from legislation. Suppose. for example we had a President, we cannot be so certain what kinds of things may happen in this country, suppose we had a Presiclent one day who would say to you: "I have determined with my adYisers, who are my appointees, that foreign intelligence is seamless and it is quite impossible to differentiate between domestic and foreign intelligence because we need to know it all, and some of it we Can gather from domestic sources. And so, in the overriding interest of obtaining the maximum amount of foreign intelligence you are instructed to intercept messages between Americans that are purely domestic and various agencies of the Government will furnish you with lists of people whose messages you are to inrorcept--all without \\'a1'1'ant. all without any judicial process, all without any sanction in the law.~' Now, under those circumstances, is there anything in the present law that would permit you to say we cannot do this, :Mr. President, and we refuse to do it because it is illegal? 43 (}eneral ALLEN. Yes. sir. Tho CIIAIR::\IAN. ,Vh'at provision is there in the law? General ALLEN. It is my understanchng that the interpretaHons "'hich deal ,vith the right to privacy of unreasonable search and seizure of the fmuth amendment. The CIL\IR::\L\N. ,Yell all of those questions-- General ALLEN. Those domestic intercepts '"I"'hich cannot 'be condnrted undrr the President's cOlistituHonal authority for foreign intdligence, then ,YO are not authorized by lawaI' constitutional authority and they are clearly prohibited. The CIIATIDL\N. But those nry questions were raised with respect to some of the ,vatch list activities. In other words, do you not think j hat it ,Yould be in the interest of all of us if we had some statutory ]a,"I"' like most all other agencies have that defines the basic mission and ddlnes as a matter o{law foreign intelligence and contains what(, Wt' oth(,r guidelines may be necessary to be sure that this tremendous ('apability you possess is outward looking and is confined to legitimate illtelligenre concerns of the country. General ALLEN. Clearly. sir, neither I nor the agency I represent has ohjection to laws which are needed hy this country. And we look to the Congress to make those decisions. On the otlier hand, I certainly do not want to leave the impression, sir, that there are these broad ranges of evil nctivities ,vhich would be clone which in themselves-in m~' imclerstanding of the statns of the law and the executive branch (lil'ectiws-are clearly prohihited. The CITAIR3L\N. The executive branch directives which are largely determinative of the scope of your action at any given time are subject to change within the executive 'branch. The point I make is that there is a legislative responsibility here. And since it normally obtains "'ith respect to the work of all other Federal agencies, it would seem to me advisable that it should also obtain with respect to the NSA. I have no further questions of you General. Are there any other further questions on the part of the members of the committee? Yes, Senator :Mondale. Senator MONDALE. ::\1ay I ask, is it :Mr. Buffham? General ALLEN. Yes, tl~at is correct. Senator MONDALE. If he is not sworn in, he doesn't have to be. I jnst want to ask, you 'were I understand, representing the NSA, or at least representing General Gayler, in the preparation of the Huston plan, is that correct ? ::\11'. BUFFHA~L Yes. sir. Senator MONDALE.Can you help explain to us the mystery of why XSA appeared to be requesting authority from the President to do "'hat it was already doing? What, in addition, waS expected if the President signed off? 'What did you want to be able to do that was not then thought to be w'ithin the authority of the NSA? Mr. BmFHAM. Wen, the activities which were ongoing at that time ,wre very, very carefully controlled and very, very restrictive and n~rv, verv minimal. The procedures which Senator Schweiker described under )fINARET were drawn up to insure the most careful handling of this very, very restricted, very, very minimal effort. It appeared when this-whrn ,vo were asked to cooperate by the President in providing more information that would be helpful in the domestic area, it ap44 peared to 11S that we ,;ere going to be requested to do far more than we had done 'before and it appeared to us that this might actually involve doing some collection. which ,ve had nenr clone before, doing some collection for this purpose, And ,ve did not feel that ,n' could pngage in such activity unless there was approval at the very highest levels. So that was the reason that there ,vas a reservation on NSA's part, and the feeling that any increase in these acti"ities must have Presidential approva1. Senator MOXDALE. So it was your judgment at that time that you ,;ere being asked, or "ere about to be asked, to do something that ,vent substantially beyond-- Mr. BUFFHAM. That ,ye could do, but we weren't certain. It appeared as if this ,vas a request to increase activities. Senator MOXDALE. Could YOIl tell the committee what kinds of thin!2's you would expect to follo": had the Huston plan been npprowd, In terms of the use of the NSA ? Mr. BUFFH.Ur. I don't think ,ve eYer made an analysis of that, Senutor. Senator ~IoxDALE, But vou indicated you 'Wl'e c011('pl'nerl about what would be expected of'you-the degre'e to i\"hich yon would have to go he:vond your CUl'l'ent praetices-should the Huston plan 1m approverl. Can you tell us what things concerned you? ~rr. Ih'l;'FILDL ,VeIl. remember there was a lot of confusion on this particular item. ' The committee, which Admiral Gayler ,ms a member of, was tasked to draw up a plan, not a plan, it ,vas tasked to draw up an analysis of what kind of foreign threat existed and where there were gups in intelligence and they were not asked to make any recommendations, they ,,~ere merely asked to identify gaps and to suggest various alternatives which could remedy possibly that gap. Senator .!\rIoxnALE. One of the remedies suggested ,ms to greatly broaden the authority of the KSA to intercept messages. Mr. BUFFHA:Jr. That was one of a "m'ies of alternativE'S under that particular item. There was no recOlmnemlation made by Admiral Gayler or any members of that Ad Hoc Intelligence Committee. 'What happened was that after the cOI11Elittee's report ,vent to the "lVhite House, :Mr. Huston ana}yzccl all of the alternatiYes and he selected those which, in his judginent, he felt the President should approve. And he then prepared a memorandum to the President through Mr. Haldeman, which was approyed and then later. withdrawn and rejected and never implemented. But those i"ere ~Ir. Huston's ideas of ,yhat should be done. Senator MOXDALE. 'lVhat did Mr. Huston haye in mind? Had this approval been given to the NSA? Mr, HTJFVJLDL That I do not know. sir. Senator .!\rIOXDALE, Yon have no idea whatsoeyer? I am told this option was submitted bv the NSA. Mr. Bm;TILDI. No, This was one of three or four alternatiYCs drawn up uncleI' that particular item. Senator l\!oxDALE, Did the XSA i"ant it? Did Admiral Gayler oppose it? Mr, RFFFlL\:JI. Admiral Guyll'l' did not want it, to my knowledge, 45 Senator ),IOXIHLE. III.' opposed it 10 Is tllC'l'e anything in "Titin~ suggesting-- Mr. Ikl''}'lLDL IIp ,,-ns sprcificalJy asked~ ns an thc J1w;:nb~rs of the committee were asked by Huston. not to make recommcndations. but merely to sppcify altel:natins. But the detcl'mlllatioll as to ~\Yhat altel1lativc~ if any~ was to be selected was to be a ~White Honse matter. Kow, the only exception to that was that }Ir. Hoover. after the report had DPen signed by the other members. he gave his personal views as to \vhat should he (lone with those yarious a1tel'nati\-es~ and that was not checked \"jth the other members of the ad hoc committee report:. In othcr \vorc1s. ~\.dmjl'Hl Gavler did not know that M:l'. Hoovcr \\'as going to submit separate comillents~ awl A,lmiral Gayler <lid not submit sppa mt(~ eommcllts himself; lwcnuse it \\'as his undel'fohtllding. as it was all of us that were involved in that exercise. that that was not what was required or desired. . Senator ~IOXj)ALE. Mr. ButYham, is it your testimony that you do not have any idea what }Ir. Huston had in lllind by the option which we arc discussing; namely, to greatly broaden the discretionary authority of the XSA? :Mr. BCFF1LUr. 1Yell, I don't know positively. But I would assume that he would have thought that the other intelligence agencies would then increase the numbers or names on their lists, and ask KSA to do something by way of specifically targeting those people, including for coJJertion. And that was not a practice that was done then or ever has been done by ~SA. Senator )foxDALF:, It was one that concerned yon a g-reat ckal? MI'. IkFFILDL Yes: it concerned all of us in the NSA. Senator }fOXDALE. "'~ere you concerned about its legality? ~rr. RUFFIIA",I. Legality? Senator .:\IOXDM,E. \\1lCther it ,,-as legal. Mr. IkFPILnr. In what sense; \\'hether that would have bern it legal thing to do? Senator MOXDALE. Yes. . ~rr. 13rTFJI-ur. That particular aspect didn't enter into the discusSIons. Senator .:\IOXDALE. I was askin,g whether YOU were concerned about whether thllt would be leglll and pI'oper. • Mr. IkrFHA~r. 1Ve didn't consider it at the time; no. Senator }[OXDALE. But at least vou would not do it without the President's direct authority. • Mr. BUFFHAM. That is correct. Senator }loxDALE. All right. May I ask one more question of the General Counsel? In your opinion, was the \vatch list legal? Mr. R\XXER. I think it ~was lerral in the context of the Jaw at the time. ~~ Senator ,rOXDALF.. Has a~1V law ('han~('dthat legality? ~fr. R\XXEH. 'Yell. m~ ha-i-e sinc(' h:1<1 (lecisions'sncli as in the United States v. C.S. Di.~h·j(.t COIf1't casein HJ7:2 \\'11ich pJacc(l-\rhich stated in effrd that the President does not ha\'e the :mthorit\- to conduct a \YaTranth~s survpillanf'(' for intemal spcurity purpose,:. 46 The CUATIDIAX. )Iay I just suggest that in line ,,-ith my earlier "tatenwllt, it seems to the committee that the Attorney General of the United States shoulrl be asked about the legal and eonstitutional (Illestions that are raised bv the disclosures this morning. I do not J;lC'un to cut you off, Senator: Senator ~IoxDALE. I ,villli,'e with that. But what I was trying to d<'JIlonstrate is ,,-hat I think the private record discloses; that they thought that to be legal. I think that is important to the determination of this committee of how these laws are interpreted. I belieye they still think it is legal. That is what "orries me. ~[r. lhxXER. ~Iay I make just one comment, Mr. Chairman? There is one court decision on the matter. It was held in that decision to be lawful. Senator ~ImmALE.Then vou think it is lawful? That is what it held? ::\11'. BXXXER. I think it ,,:as ltt,,-flll at the time. Senator ::\IoxD.\LE. That is my point. They still think it is legal. SenatoI' ::\IoRG"\x. ~Ir. Chairman, could we ask him to give usa deci- ~ion some time? S<'wltor GOLDWATER. He said it ,yas la,dnl at the time. The CIL\IR~L\X. I think all rde,'ant decisions on the matter should hB supplied by the General Counsel of the Agency. But ,YB .willlook, in the main. to the .Tustice Departmcnt on these legal questIOns. Grneral, thank you \'CI'Y much for your testimony. If there are no further questions, you are excused at this time. Tho CIIAIR~IAX. Kow we han another matter that needs to be bmught up before the public hearing concludes this morning, and I ,,,ill speak of it just as soon as these gentlemen have an opportunity to depali. Please come back to order. At the outset this morning, I mentioned that this hearing would be conduded in two parts. The reason for (loing so has been made evident in the course of the proceedings. Although the administration had objected to a public hearing on any matter relating to the NSA. the committee. by majority vote. believed that it was necessary to bring the facts relating to the watch lists to the attention of the American people through a public hearing. As I mentioned earlier, though the administration opposed the hearing, it did cooperate to the extent of declassifying the materials, and consrnting to General Allen's appearance as a witness. Now, we come to the srco11(l part, another matter that the committee must decide upon to which the administration has given no consent either to furnish witnesses or to declassify materials. Senator Goldwater, I think, had special reference to this second aspect. Senator GOLDWATER. It does, but I would like to correct the record. ",Ye did not take a vote on this subject. The CHAIR~IAN. Yes; in executive session yesterday, with a quorum present, the procedures which we have followed todav 'Yrrc nresented andapproyed without objection. And I took that to mean, i~ accordance with normal procedure, that the committee had given its consent. Senator GOLDWATER. I left a note to be recorded against it, and I had assnmed a vote would be taken. But it was not. The CHAIR~L\X.Wen, had a Yote been taken, or anyone on the committee had moved to take a vote, Senator, your objection would have heen recorded as you requested. 47 XOIV, in connection 'Yith the second matter. I "'ould like first to J'cspond to some of the questions that were raised earlier by Senator (}olclwater with respect to the legality of our making a pub~ic dis(' losure of the second subject. I personally haye no problem wltl~ the leO'alitv of doinO' so. The Constitution of the "Cnitecl States proYldes. ill'" artlC'le I, section 3, clause 2, that each House may determin(\~he l'llles of its proceeding; and in clause 3, that each House shall pubhsh its proceedings, except parts as may, in their judgment, require SetTCCY. This committee ,yas empowered by a resolution of the Senate to in' lnirc into this snbjcct matter, iI.lcluding the :XSA. And that resolut ion. S. Res. 21, g-i H'S the commIttee thc power to pass such rules as it may cleelll nec(~ssary on disclosure, and makes clear that the comlIlittc(~ rules can authoi'ize disclosure. So that the rulcs are based solidly on S. Res. 21, the underlying resolution by ,Yhich the committee was created. Senator GOLDWATER. ,Yould the Senator yield? The CHAIRMAN. If I may just complete the-- Senator GOLDWATER. I wish you would read section 2 of that also. The CHAImIAN. Yes. I will. I was just getting to the Senate rule, and I 'Yill read it all. In pursuance of S. Can. Res. 21, the committee adopted its rules, and the relevant rule is section 7. Section 7.5 is the relevant rule. If counsel will find it for me, I will read it. It reads: ~o testimony taken, inclUding the names of witnesses testifying, or material presented at an executive session, or classified papers or other materials received by the staff or its consultants while in the employ of the Committee, shall be made public in whole or in part, or by way of summary, or disclosed to any person outside the Committee, unless authorized by a majority vote of the entire Committee; or after the determination of the Committee in such manner as may be determined lJy the Senate. So, it appears to me that making a public disclosure of the matter now under consideration is subject to the will of this committee; and I would like to read into the record the reasons why I believe such a public disclosure should be made; after which I will invite SenatOr Tower, who disagrees with me on this subject, to express for the record the reasons why he thinks such a disclosure should not be made. It being 25 minutes of 1 now, Senator, it may not be possible for this whole matter to be discussed or debated. But if it cannot be resolved at this time, it will be taken up in the next session of the committee this afternoon, and with the hopes that the committee can then reach a final determination by vote. Senator TOWER. Mr. Chairn1an, if you would yield at that point. The CHAIRMAN. Yes. Senator TOWER. I will state my reasons briefly at the conclusion of your remarks. Obviously, it is difficult to pursue the matter in open session, because those who oppose disclosure have some difficulty in explaining the reasons why in an open session. The CHAIRMAN. And for that reason, I will certainly accommodate the request in the interest of fairness, so that there can be a full and complete discussion within the committee and the vote then can be taken by the committee. That, I would anticipate, would occur this afternoon when the committee goes into executive session. The reasons why I believe that this second matter should be made public are as follows. This committee has proceeded with great caution 48 throughout its inn:,stigation, "'hich has conred a broad range of KSA activities. Testimonv has been taken from 1111l1JerOUS ~SA officials, all in executive session lmtil this morning. The committee has also receiycc1 extensive briefings from General Allen and others in private. )10st of these anivities \i'e have found to 1)(' legitimate. clearly within the scope of the intelligence purposes of the ~lgency, a'nd for'reasons that the committee feels relate to scnsitiYl' Hat iOllal security matters. should be kept secret. But our investigation did uncover'two XS"\ activities which I Leliew are properly subject to some form of publie dise1osure. Because, one, they would appeal' to be unlawful; two, they h~l\'c now been terminated, and thus do not represent ongoing activitics; throe, they cun be diseussed without rc\'oaling the NSA's sensitive techniques; and four, legislation is needed to prevent their repetition. 'What has occurred yesterday could occur tomono\v, if we leave it all to executive decision. Xow, as I have said, as to one of these-the 'watch list-the administration agreed to declassify the documents, and authorize General ~\.llen to testify as he has. As to the other, the executive branch has consistently opposed public hearings or any other form of public disclosure. Yesterdav, the committee. in the manner I described in response to Senator' Goldwater, agreed that we nevertheless would disclose facts concerning the second program to the American public. I believe that the public is entitled to an explanation of why that decision was made yesterday, in face of the administration's strongly stated opposition. I do not suggest that the administration has acted in any way other than in good faith to exercise its responsibilities as it perceives them. However, Congress has a right and duty to exercise some judgment on its ovm. It must do so fairly, properly, and with due regard to the views of the executive. But it cannot simply abdicate to the executive. 'Ve belir\'!, t11:\t-or at least let me speak for myseJ£-I believe that ,\'esterday\, decision does represent a proper exercise of the constitutional responsibility of the committee, which is charged with an investigation of this importance, and charged by the legislative brllnch to perform it. .\s I unclershllld it, the executive branch makes two arguments, whj"Jl were stated often in executive sessions of the committeC'. ag-ainst a pnblic disclosure of this second matter. Xeither of them, as I heard tlw many spokesmen who came up to pl'esput them, made any particubJ' point of sC'J1sitive technology, or anything of a character that would ]'('\'('al the nature of XSA's opr1'ations. Their arguments sePllled, ratl!p1', to focus first on their ccncern that the disclosure of tll(' i(kntity of e\'rl ain eompan:cs and activities wonld rnrrke other companies hesitate to cooperate with our intelligence agencies in the fntnrc; all(l S('('OlH1. that such a disclosure might be of embarrassment to tho partin.b l' cOllll)unies concerned. I belirvp th~lt tflC answer to the first argument is that companiC's should hesitalc to comply with reqnests of the Government :It leaf't long en011!2'll to determine if the actions they are requcsted to do arc 1nwfnl all~l do not yioJate the constitutionai ri!!hts of American citizrns. AJlil I IJPliew the answer to the second argument is that fairness to tlw ('Oll!p:::lirs themselws reqnires that the fnets hr fully and fairly statr(l, \\")1>'11 I thjnk this committee is in a position to de. 40 ll>clieve that it wOlilcl br inappropriate to kepp secret the facts of I his ::,ccond program, since in my judgment they establish apparent ,"iolations of section 60.) of tbr Frderal CommlmiCi1tions Act. awl of tll(' fourth amendment to the Constitution. Spcond. the program ill," oln'd neither ollg'oillg activity nor teelmolo,'!ical secrets. And third. n:posillg it is directly related to whethrr the XS_\ needs a lcgislatin ('harter to govern and ('ontrol its activities in the f"ture. Finally. the J>nhlic debate that In' hope will ellsue from this sessioll may make both the Government aml pri\"ate I'ompanirs more carriul to weigh the lega1ity of programs tlmt ma.," he suggestc(lin 1111' future'. ;-;0 in balancing tile al'gnIlH'nts for awl against Ilisclosure. which ,,"e lWH' (lone most cHrefulh". we han) consultr(l rxtrllsivrlv with the execIllin' branch. Seve'ral ti;llPS WP ha,-e I](·bvell onr action'to make certain that we had hear,l all of tlie pxpcutiye Lranch's arguments. 'Ve haye l'l1gagrd in cxtensin> intprrogntions of Grnrml ..\JJen and Director ColLy and the Becret:11'Y of Defense, ::\11'. Schlesin~'eL nllll finally, from tll(' _\ttorney Genrral :lI1rlrf'lm'sentatin's of the Prf'sidf'nt. So we hf'lin" r we have listcnf'd fnl]y to thr argl1l1'lf'llt::-: that tlwy wish to present. If the commiUpe rcmains firm in its deCISIon. the srcond matter I" what fOllll of disclosnre wonM IJe most appropriate. Since witlwsses han' not. been made anlilalJle bv the f'xel~utjn' lmlll('h. it seems to me that the most appropriatf' forlll'of disclos1I1'(' IHll1M he that of a 5tatc! ilcnt issl:ed on tll(' autllorit,- of the committee iUil'lf. carefullv drawn to present the key fads l\Il(';llotIonally aml ""It]lOllt fanfare . ..:(s to tIl(' ;(ccnracy of t.he stateI1H·nt. it 'vould be eardulJy dwcked ,,,itll the _\~"(,IH'Y itself so that there "'ouM he no faduall1istortions in the nrf'Sl ·j;tnti<;n. The statelliPIlt. I llli::!ht ell1plJasiz('. ,voulll he based on testi1110llY received Iw tlll' cOlllmittee in eXf'('utin~ session. It would 110t <Plot'I' in wlwh 01: in part from tIl(' text of any classified document pre.~ l·lltrll by thr execl1tin' hranch to the committcf'. Drl'anse the trstimOllY given in executin' srs:"ion heIol'e this cOll1rnitt('e was classified h~tIl(' eOlllll1ittep itself. pursuant to tlw I'olllinittpe',; ruleii. the committpe has every right to releasp snr:h fads baspr!n}lon sneh tpstimony. In<leel1. it has the right. to relpi!:"e the trstilllon.,-" it:"elf shoull] it so decide. ~o t1~(', decision taJ.:pll ypstenla v to rpleasp this information was hasPI1 primarily on tIl(' 1)('lip£ 'that programs of sll(~h dubious legality shonld lle (lise1ospd: \)(,I':lllS('. allsrllt real nntiOlwl sPcllri!y fal'tors. which are not present in this c:\sp. f'1a:,,,ificatiol1 s]]()uld not hp 'used to hide or cov(']" \\"]"on::!<101ng. And. as I han said. in the tec1mical sense, I do not think tll,1t I:lassified information is lJeing relpasec] at all. Tlw decision to make this matter pnblic should, in my vim\'. he tested not only against its particular facts hut also in the light of scn'ral general principles. First, in a democratic society, there 8110nld he a strong preference in fa,"or of letting the people know what their Govrrnment has been doing. Democracy depends npon an informed electorate. As one of 0111' Founding Fathers, Edward Livingston, stated: Xo nation haR <'\'Pl" fOlllHl any inconvenience 1"1"0]]1 too dl,sf' an jll~pection into 0,,· ('onduet of it" oflippr". I,nt man.v han> hef'11 hrona:ht to I"uin anll I"l'du('p,l to "lan'I"~- by suffl'l"in::, g-I"aIltWI impositions aJl(l almse" ,dJieh al'e imperceptihle. 0111.\" !>peause tlJe llIean~ of !lub1icit~- hnllnot hl'l'l1 "p('un'l1. ~('c()nd, thr> g<'!wral principlf' f()l" rlisclosllJ'(' is particularly apt in the context ill which 1his comrni1tce finds itself. For 30 years this 50 country has had a huge and highly secret intelligence apparatus ,yhose actions han~ not been the subject of an informed public debate. La,Y::; O'oycrninO' their aeti,-itv have an too often been lacking. as with the XSA. or ~verlv vague, as with the CLt. The agencies have sometimes acted in ways that appear to he unconstitutional and illegal. The Congress an'd the public should now he given a chance to decide whether changes in the htws and procedures governing the intelligence 'a\oO(''ecnacnieasfaforerdnae}cdeesbsaartey.aTt heaatsthoanscneo1.t1lhaagpepneenreadtI.foonr. 30 years, and surely Third, it does not follow, of coursp. that eycrything we learn in the "ork of this committee should be disclosed. And from what I have previously said, much of what :ve have learned ab01~t t~e ~SA, wl,lich, in the judgment of the commIttee, falls clearly wlthm Its pronnce. "ill not be disclosed. This country should have strong and pffective intelligence services. but we must act legally. Keeping unla,,-ful progTams secret can only serve in the long run to weaken our intelligence efforts. Unless the people are convinced that the intelligence agencips are acting within the law and in the best interests of the United States. a dpmocratic people will not SUppO'l't these agencies for long. "Eternal vigilance," as Thomas .Jefferson said, "is the price of liberty." And as .Tames ~Iadison concluded. "the right of freely examining public characters and measures and the free communication thereon is the onlv effective guardian of every other right." For these reasons. I belie,;e that it would be proper for the committee to approve the disclosure of the second matter to which the discussion relates. Now, I defer to Senator Tower. Senator TOWER. Thank you, :Mr. Chairman. )fr. Chairman. I "-as unavoidably abspnt from the mepting ypstprrIay in which, without objection, it '''as dp('ided that this matter ,,"oulrI be spread on the public record today. Had I been there, I would have objerted. and perhaps this debate could haw ensued at that point. ~Iy justification for not being there is that I am the ranking minority member of the Banking Committee ,,-hich was at that moment considering the plight of New York City. So I was buried in the bowels of the fiscal mismanagement of that great city, and I am sorry that I ,ns not there. I really see no legislati,-e basis for this public disclosure. I do not think it is necessary, from the standpoint of our legislative mandate. rt anpears that Committee Rule 7.5 is the only point having any merit at all. And in my view, it must fail. This rule provides for procedures insuring the protection of classified materials. This rule does not auth?rize the unilateral release of classified information. A proper readmg would be that the rule goes to disclosure of information. not declassification. A majority Yote is necessary prior to committee release of any material of a classified nature. But it is spurious to state that a simple majority vote is enough to declassify a docllll1cnt or information, an action which I do not believe has before been l'(,f'ognized as a f'ongressional prerogative. Let me read from the resolution, which I believe is superior to any rule that we may adopt: . The Select Committee shall institute and carr, out such rules and pro('ednres as it may deem necessary to prevent the disclosure outside the Select Com51 mittpe of any informccation which would adYer~ely affect the intelligence aetiYities of the Central Intelligence Agency in foreign countries or the intelligence actiyities in foreign countrips of any othpr dpvartmcnt or agenCj' of thc Fl'deral government. At this point, I read into the record a note from :JIr. Dayid D. Lmvman, Special Assistant to the Director, XSA, for Congressional EeYiew, to Mr. Barry Carter of the Select Committee staff. Barry, we have reviewed Senator Church's proposed statement on SHA~IROCK. \Vith the exceptions noted here preYiously, the statement is essentially correct. After reyiewing the document, we have concluded that, since it docs rpveal sources, methods and capabilities, its classification should be ~ecrl't, Handle via CO~IINTChannels Only. It is my view that it is not necessary for us to make this matter public. Therefore, ,ye should not, b~- yirtue of the risks that "c run in doing so. It occurs to me that todais disclosure, should we do so, ,Yould be cited in some future date as a precedent to allow each ~Iembel' of Congress and committee the right to decide what should he publicly available from what the executive branch has determined to ue secret. This would mean revelation through public channels to our enemies and would lead to chaos and ultimatelv destruction of thc YCIT fragile intelligence effort. . . President Truman decided that this matter should be kept secret. President Ford has personally and specifically requested of the committee that it be kept secret. Of course, a :JIember of the other body has threatened to make this matter available to the public before we have acted on it. I do not think we should rush to do the same. I think, quite to the contrary, we should implore the House not to. I think olle :.\fember out of 435 in the House of Representatives should not be encouraged to reveal matters that impact on the lives and safety of the people in the other 434 congressional districts in this country. They have a stake in this matter, too. Now, I think that if this information is released, as the chairmall has proposed, the ripple effect will seriously impair the confidence that other nations have in dealing with us, impact on the efficacy of Strategic Arms Limitation Agreement, progress in mutual balance of force agreements, nonnuclear proliferation arrangements. Already the intelligence services of other countries are showing some indisposition to cooperate with the United Stntes, for fear that their own methods, their own resources, their own activities, to the embarrassment 0:£ their respective governments, or to the detriment of their intelligencegathering capability, will be affected. For these reasons, Mr. Chairman, I urge that this matter of the details of the SHAMROCK operation not be made public. I would urge the members of the committee to reconsider the decision of yesterday in an executive session. The CHAIRJlIAN. Thank you, Senator Tower. Before we close, are there any other comments? Senator Mondale. Senator MONDALE. 1\fr. Chairman, I just wanted to comment briefly on what I thought I heard to be the argument, that somehow the classification and determination of the executive department should goyern how this committee decides to release or not to release information to the public. I do not think we can accept that definition for a moment. If we do, I think we arc no longer a coequal branch of Goyernment. 52 ~Ye huyc just !)(,l'll through one of thl' most dispiriting periods of Amerieiln history. and the defense that was always raised, every timl' ,'on w:mted to finrl ant about it. was national security. So it'seems to me tlH're are occasions when the national security interests clearly (1ictate and reqnirr sr('rr(')". And there are instances when natiolU11 s('('mity if; raised. not to protect this Xation's security, but to protect :,onw contNnporar~' politicians from emharrassment. It is our joh, as :\[pmbers of the CongTpss, to decide where that line is and to do so with a firm notion of onr sacred responsibility not only to innstigate Jmt to inform the pnblic. I am glad that it has ])e('n decided that we will hoM this debllte in prinltr. I think it ongllt to be thoroughly aired, but finally, it is OUl' responsihility as nwmhrrs of the Senate and of this committee to make 0111' own determination as to whether or not these matters, if ilisdosed. wonM undrnnine the "Kation's spcnritv. I look forward to t hat argnment. • Bnt I (hI want to say that I (10 not think for a moment that m' can accrpt t!lC "illlplr (It·('lanl'tion by thr Exrcntin that it is classified. as precllHling or llllc!rrmining our capacit,\, to make an indepenclrnt i lHh"mrnt. Thr, CnAlr:~L\X. Thank Yon. Senator. T agree ,,·jth that. I thiilk m~ "'onlcl he a pl'ison~r of the Excctlti\'{, if \'\(. took snch a ]1o,;ition. Srnatol' 'TOWEH. "fay T say. :\Ir. Chairman. thnt I have hern coop(' rati\'P. I hrl iC'\'('. a"m1 ha~'C' snppol'trr1 {'wry pffort to obtain thr (]ocuJ1wnhthat ,yp l'f'quil'r. That is onr thing. I helieve that we shoul(1 JUlI"e t!l0f'e dOCUlllC'llt8. "Te should han' arr('S8 to th('m; we should haw ;IC('('''8 to ",itnessc's. antI \w should br fnlly informed, and we should make thorongh jnvrstigations. The ql1rstion here i" 'Yhrthpl' or not this information should 1w mil(lC' pnhlir. YC's. tll('rC' is a right of tIl(' peonle to know, hut that mnst he habncecl against the fad that when thesp matters arp mad!' puhlic rr('01'(1, they are anlilable al:::o to onr enemirs. Let me ('itr onr f'xamplC'. A wepkly magazine published tlw fact that wp hnd heen rC'a(1ing the te1C'J1wtry on Rnssian wrapons systems from Turkey..\s soon as that maHer \\"as made a mattC'l" of pnhlic reeord. it wns fllso anlilahlr tD tlw E'oyirts. and that SOlUTe \yas then :lnd therC'aftC'l' (jpniCfl 118. This impads on our eapability for nrification in tcrms of s!Tfltegie a·rms eapahilitiE's and deploynwnt. I do not think that thr puhlic inten~st was srlTer1 in the releasr of tlurt information. IndrC'd. it "';lS no! sc'T'yc'(1. So Tthink thC'l"c arr some very strong examples that can he cltNl. T appl'rci:1te thr chairman's disposition to take this mattC'l' 1111 in C'xrcll'tiyr session an(l. lwpdnl1,v. I can prryail there. I have no illusion" nhont. thrsr mattrr". ThE' CTL\TTI1f.\X. "Trll. T think thr ~rnntor always stat.es his casr with grrilt anthorit~· and hilS persnndr(1 the committr8 on occasion. T hope he will not l)('r-:l1a(le the committre on 'this o(,l'ftsion, hecalFr tlw rxnmplrs 11(' givrs that are so terrifyino. haw nothing to do with thr casp at hand. which relates to qllite a diffprent matter. . E'rnator TOWEll. Yrs. ,thC'y do. becallsr ,YO are talking about people"s J'Io'hts to know hrre. Th~ CHAmilL\x. T think what. we arC' talking ahont-- 33 Senator Towl:n. I t !link it is propel' to cl te p:\a 111 plf'~ of W 11c'1'(' 1l);l t l'i!e'ht call he snbonlinated. 'The CHAIJC\L\~. Of course, :-;enator. \vlH'n ~'ou cite yonI' eXHlilpll'~. \yl1O would ar~ue \yith thelll! But till' ca~e at hand has to Ii:> Il'it iJ linlawfnl con<1ncr that relatps to eertain dOllll'stic eompHllic,;; in thi.~ (·onntrY. ,And it is not a mattpr of SHC!t ~nl\'ity that it \vo1l1tl ('n'n impail: the lla'tional sP('mity of the rnitl~(l :-;ta'tes-- :-;enator Tmn:n. ,Yell-- The CHAnGlL\~.In \yays that your examples snggest. ~enator TOWFl1- That j:, a 1l1,lttf'!' to 1)2 (Idmtf'd in l'x(,(·11tivc,.~(',,~jOll. 'fhe CIL\llDU~. \'('5. YPl'y \vell. \VP \vill debate it in px{'cntiYe S(,S~lon. ~f'nator Tlnn:n, ThC're is Illore to be :'aid tlwn. The CnAJIC\r.\~••\ p.'ooil dea1. ~enat{)rs who \yish to he Iward; I \yant to l'eco~nizf' fi.r~t-~enator :\[oI'gan ,,'ant; to be rp('op:nlzel1. First. let me I'e('oinize Senator Bakel'. :-'e11ator BAK}:n. :\fr. Chairman. thank YOU. I will 110t take very Ion!!. I ,jmp],v want to sa~·. as a matter of l(:g':;l argullH'nt. that th~~ rul;·s of this ('ommittee can be no hroader no1' (,1'eatp allV authority and jnrisdiction h('yond the rules of tIll' ~pnatp from whi;'!l "oe deri ~'e oIll' authority. anti it. seems to me that the rille's of tlIP Senate. at ka~t ar~uah]\o. say that a rJas",ifi('l1 110clllnell't cannot ])(' d('claCisined or reiease(ito the puhlie \yithour the prior conSl'nt of the eXe{'uti\'c dl'p, u'tJllrnt. or at least. not without changing tIll' rules of the Sl'nat!· itself. f'o the argnlllent that onr committee rules !.6H' Wi that alit hOl'i (~' hy majority Yote. I think ll1U"t be tell1jleI'pd h,\' tIl(' prrpositiol1 that the commiUre rules are subordinate to and can he no 2'reater than t lll' rilles of the f'enate itsl'lf. \\'hich ap]Jl'ar to :"ay :"ollll'tl;ing e!sr. lk\'ond that. as til(' chairman knows. a]](l as 11)(']il'l'p otllPl' lIlt'mlll'I's of the COlfwlittee kno\\'. I hayl' sometimrs J)('C'n t]w only memlwl' of tIlt' ('ommiUl'e. always. hO\\'('\'er. in a minorit\'. \\'!lo ]m,.; c(;ntended that a]] of our proceediilg-s should ill' in puhlic: awl I am rather I)(,Tt!ll'brci l'C'al]v. that we al'r a];out to 2'0 into exel'utin' :,ession on this u:atter :111(1 to (h'aI with ollly just a r~pol't. I am mther jwrturlwd rathr!' thar \\'(' al'r going into public srssion instead of ('xC'cntiyc' session, wlwn ~'Oll ('Oll1pare tl](' relatin' jJotC'nti:l1 fo]' harm. th(' I'Platin' comparison fol' tlw potrntial for embarrassmC'nt ill tIll' ('ase of the assassination plots. \\'hicl1 \\,(,I"r some time ago, \"'rsus the potential for df'strnction of illte]] igrncc somcrs and 1l1l'tholls \yhrn \Ye an' dl'alillg with an ongoing pl'Ogralll today, In a wo]'(1. if yon arc going to Ilan~ pnblic hearillg, Oil XSA,. von surr shoulli ha\'e 11fI(I thrm on assassinations hecausp I think assassinations arr fal' Jess srnsitiyc, in trl'11l of thr welfare of this COlllltl'V. than tIl(' XS.\ sitnation is. tlw SH.DIHOCK sitnation. XO\~. ~Ir. ChairmHIl. I think that the 1)1'0])('1' ('Olll'se for us to takp al1fI the course we wi]]. 110 dOllht. dphate in expcutiw ses.sion this a1'tI']'lIoon, is to try to gain accrs" to as much information as we can and to ohtnia the concurrrnce of thp executi\'e c1epnl'tlllPllt on as much infol'matioll as we ('nn hefol'P \H' proceed then to puhlie hearings. I fa\'or public hearin!!s. I do not.howeYl'l'. fa\'or rmh]i(· hearinrrs unti] \\'(, ha\'11 exhausted ('\"pry opportunity to ohtain thr c!pl'1as.sification of :IS Illuch information as possibll', I wi]] oppose tl](' unilatrral (IpcJassifi54 cation by this committee of tIlis information. ,,'hich I am afraill is the SUIll tob;l nnd the fnnctional cned of ,yhat is beinlY proposed. Tho CJL\1IDL\X. I tlwnk the Senator. I know his positicn on public llcflrings. Imt frequently in executin'l session. he has Yoted against t hem on t ]le grounds that ,ye ,yere not adcqnately prepared. ~C'lllltOl' }\\1\.ER. XO. I haY(' not. The CIL\TR:\I.\X. I think in this case ,ye are yc'ry acleqnate]y prepared j'el'ause Wl' h,lYC hacl al1 bnc1s of cxecuti,'c hparings. and lye han' ]ll'ard j Jw cxcentin· agl'ncies and their spokesITJ'?n again and again relating to a11 the pn rticu]ars of this particular subject. Senator B.\K~:H. :;\11'. Chair!11nn. if I understand YOU corrertly. I he1i c\·(' ~'OU saicl that in cxecntin session I had n;tc(l agninst' puhlic hearim!:s. I do not beErY<' the record ·\Yill disclose that. I think the n'c'Ol'cr"Yill disclosl' that I yotec1 against clcc!assif~'ing 01' proceeding ,,'ith a particular piece of information. I do not belien the record will shO\\' that I Yoted against public hearinlYs on any issue. '[JiG CIL\TlDL\X. The rccord can speak for itself, but in any event, I ha,'e heard the Senator make the argument before in connection ,yith puhlic hearings that we ,ypre not preparcd. Srnator R\KER. And I persist in the hope that someday I may jH'p\·ail. The CHATR~L\X. I do not know what more exhansti,'e preparation could ha,'e been laid than the one that has been laid for the matter no,," before the committee. Senator Jforgan. Senator JIORGAx. ::\Ir. Chairman. I would not want to go awav from here ,Yith anyone having the misunderstanding that informat[on has hren withheld from this committee. As General Allen testified this morning-and that is correct according to my kno\Yledge-he has furnished to us all of the information that \yp haye asked for and has indicated his willingness to furnish it to us. The thing that concrrns mr-and I was in and ant of the meeting ~'l'steJ'day rlfternoon. Like Senator TOIyer, I had to be on the Banking Committee anel on the floor-the thing that concrrns mr is so Il1tUl~' people express thrir concern about going public with this hearing after we have been able to work out almost every difficult situation ill tlw, past. I know from vour o\Yn statements that the President himself has personall:'l inten~ened with you or talked with you. No later than this morning he talked ,'lith me about it again through his emissary. He llns rxpressecl his concern. I haye a great deal of confidence in the Prrsiclent. I think \Ye ought to pass judlYment on it onrselves, but I just ,,'ould want the recon) to reflect that nobody is withholding information from this committee. There is one other thing I think Senator TmYer's comments Dointed out-the danger of going public. A couple of times Senator Tower referred to a couple of things that, so far, mavbe we should not refer to, but since he referred to President Trumail, let me say President Truman long. long ago was inyolved in this nnd gave his word and, because of it. I am awfully reluctant to go against the word of the President of the United States. If ,ye cannot depenel on the word of the President of the United States, I do not know who rIs!', the Amrrican Drople can 100kto. The CHAIR3fAN. Well, I think just to complete that since the Senator has statrc1 it. President Truman also said that his word would not be binding. He conlll not bind future administrations. So I really believe that was it long time ago anel the commitment was one that he, himself, put a condition on, and moreover the program changed. It changed greatly after the original agreement was entered into. So, an}"ay, this is a matter for executive debate. Senator GOLDW,\TETI• .Jlr. Chairman, I want to emphasize that had we knmvn that this subject was going to be decided yesterday, I would have stayed a,vay from the floor, where I had to be to engage in a debate on the promotion of an Air Force General, and these other gentlemen 'Yould haw been there, too. I do not even know if there "'as a quorum present, 1m!, the rule calls for a majority vote, and I do not believe the question \\'as eYer put, so that the answer could have been from the Chainmm lJy nnnllillJOllS conscnt it is agreed. I have not found a mClllLcr Yet that could substantiate that kind of a Jllon~, so ,ye have not HJtecl on this. In facL as I recall it, ,ye have only had a couple of Yotes in t ]10 v;hole history of this Committee. The CII,mm,\:-I. ,,'ell. Scnator. it is deal' that this will be debated once more in executiH~'session a'ncl wi]] then be voted, so there will be no basis for a complaint that the rules hayc not becn completely, fait hfnlly, and scrupulously adhered to. If thcre is no furthcr comment, this public session is now adjourned. I"'hercupon, at 1 :07 p.m., the committec recessed, subject to tho ('all of tIw Chair.]
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