Created: 8/6/1975

OCR scan of the original document, errors are possible

C?.: Deputy SirteMr for

Legal Authority :crCentra; Ir.:ei:igence Agency

Xirccitu Ir.zeilijtr.cerogriBJ

This paper explores tMuthorirythe narcctics intelligence Election programs oi the Central Intelligence Agency. For she reasonsherein, this Cries is of.the oainicr. that there is lecal au Verity therefc

restrictionshe prccr^s

e discussed ir. "rsracri^"

narcencs intelligence co*-ecnon prcg described by the

the Agency, as

4. The legal authority for the Agency to undertake such activities can arguably be derived from two independent sources . The first is the Agency's statutory authorities as embodied in the National Security Actshe second is the President's inherent Constitutional authorities. With respect to the first.) of the Act provides. in part, that:

For the purpose of coordinating the intelligence activities of the several Government departments and agencies in the interest of national security, it shall be the duty of the Agency, under the direction of the National Security

to correlate and evaluate intelligence relating to the national security, and provide for the appropriateof such intelligence within the Government using where appropriate existing agencies and facilities: Provided. That the Agency shall have no police, subpoena,powers, or internal-security functions: ..

To perform, for the benefit of the existingagencies, such additional services of commonas the National Security Council determines can be more efficiently accomplished centrally;

to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.

narcotics intelligence program is authorized pursuant to statute. Congressional authorization of funds each year fcr Agency activities. Includingconcs Intelligence activities, further strengthens the argument that such activities have Congressional sanction.

he President has certain inherent Constitutional authorities regarding the foreign relations of the United States. The President takes an oath to "preserve, protect and defend the Constitution." He serves as the Executive in the conduct of the nation's defense and foreii

The President is the sole organ of the nation in its external relations (emphasis added]we are dealing not alone with an authority vested in the President by an exertion of legislative power but with such an authority plus the very delicate, plenary and exclusive power of tbe President as the sole organ of the Federal Government in the Geld of internationalt is quite apparent that if, in the maintenance of our international relations,serious embarrassment--is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to theegree cf discretion and freedom from statutory restriction which would not be admissible were domestic

affairs alone involved. [The President! has confidential sources of Information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of inicrmztsr. gathered by them may be highly necessary, and the premature disclosure oi ;tc: harmful results*.

Ir. this regard, see also United States v.) .

6. In later cases the Court seems to have tempered somewhat this rathe-strong position. The President is "the Nation's organ in foreign affairs.ChicagoSouthern Air Lines v.S.xecutive decisions as to foreign policy belong ir. the domain of political newer not subject to judicial intrusion or inquiry. Chicago Southern, supra at. 'Although there is in the Consntuticn no specific grant to Congress of power io enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the law-making organ of the Nation." Peres v. The President, in protecting relations of the United States with foreign nations. 'in the absence of any statutorymay act through such executive office or department as appears best adapted to effectuate the desired end. Rich v. NavieraE.D.. aff'd perdh Thus, in this field it seems that there are inherent rights in the President but Congress may also enact legislation applicable to the field.

Thus It follows that in ways short of making laws or disobeying them, the Executive is undoubtedlyrave constitutional duty to act for the nationalin situations not covered by the acts of Congress, and this is so even though his action may notirect expression of any particular one of the independent powers which are specifically granted to him by the Constitution. [Emphasis in original.]

ith respect to the President's Constitutional authority to collect intelligence, the court, ia United States v.3 CDbserved that

In Totten v. United States,,ha Supreme Court expressly recognised the President's power to employ agents to gatherinformation. Such power is derived from the Constitution itself, and is not dependent upon any grant of legislative authority conferred upon the President by Congress. See Chicago l_ Southern Air Lines, Inc. v...nited States v. Curtisa-Wricht Export, In theouthern Air Lines case, supra, which involved the President's award of internationalroutes, the Supreme Court said, at* ofCt.:

'The President, both asand as the Nation's organ for foreign

affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would bethat courts, without the relevantinformation, should review and perhaps nullify actions of the Executive taken onproperly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should beonly by those directly responsible io

the people whose welfare they advance cr imperil. They are decisionsind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the dcratin of political power not subject to judicial intrusion or inquiry.'


faenawlaHors -hat precluded judicial review ir.outhern Airould certainly be applicableituation such as we have here, where the Attorney General, acting as the President's alter ego, authorizes the use of electronic surveillances for the purpose of gathering foreign intelligenceI: is obvious that inetermination to use wiretappingarticular case, the Presider. cr the Attorney General mustudgment baaed on foreign policy considerations. It would be unrealistic to imposeudicial officer the burden of deciding what does or does nothreat to our national security. That decision should be left with the executive branch of the Government, which alone possesses the necessary expertise and factual data to assess the reasonableness of electronic surveillances in any given case and the need therefor.

As stated earlier In this memorandum, the finding of this Court is that the surveillances were conducted solely for the purpose of gathering foreign intelligence information. In operating in this area, the President is exercising his powers as Commander-in-Chief of our armed forces and as the Nation's sole organ In the field of foreign affairs to gather information he deems essential to protect the national security interest. Thai the Communications Act4 was not intended tc limit or interfere with the President's prerogative of obtaining foreign intelligence information is evident

eading of Title DT of the Omnibus Crime Control and Safe Streets Act. It is therein provided that:

'Nothing contained in this chapter or or [sicj inf the Coma uni cations Act4 *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 actsoreign power, to obtain foreigninformation deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained In this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against theof the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of Ihe Government. The contents of my wire or oral comraunicanon intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or otheronly where such interception was reasonable, and shall not be otherwise used or disclosed except aa is necessary to implement that power.'

In the Senate Reportn the Omnibus Crime Control and Safe Streets Actode Cong, and Adm.Ncws,he statement is made that:

It is obvious that whatever means are necessary should and must be taken to protect the national security interest. Wiretapping and electronic surveillance techniques are

proper means for the acquisition ofagainst the hostile action of foreign powers. Nothing in the proposed legislation seeks to disturb the power of the President to act in this area. Limitations that may be deemed proper in the field of domestic affairsation become artificial when -n' relations and interna! security are a: stake.1

It thus appears that when Congress enacted Title EI of the Omnibus Crime Control and Safe Streets Act, it expressly recognized the existence of the President's power to gather foreign intelligence Information, and made it clear that: the Communications Act4 die not limit tha: power.

11. The Third Circuit Court of Apneais affirmed the lower court United States v.d, cert,. Regarding the lower court's position on the President's authority, the court stated,, that:

..begin our analysiswith the proposition that the President is charged with the duties to act as Commander-in-Chief of the Armed Forces and to administer the nation's foreignowers that will receive fuller treatment in subsequent portions of this opinion. To fulfill these responsibilities, the President must exercise an informed judgment. Decisions affecting the United States' relationships with other sovereign states are more likely to advance our national interests if the President is apprised of the intentions, capabilities and possible responses of other countries. Certainly one means of acquiring information of this sort is through electronic surveillance. And electronicmay wellompetent tool for impeding the flow of sensitive information from the United States to other nations. {Footnotes omitted.]

In the absence of any Indication that the legislators considered the possibleof the Com-rr.unicattcns Act4 providing, in relevant part, that 'not being authorized by the sender shall intercept any communication and divulge cr publish the existence, contents, substance, purport, effect, or meaning of such interceptedto any person'r. the foreign affairs field, we should not lightly ascribe to Congress an intenthould reach electronic surveillance conducted by the President In furtherance of his foreign affairshis would seem to be far tooubject to justify resort to unsupported assumptions.

The court, continuing, stated that:

The Constiruccn contains no express provision authorizing the President to conduct surveillance, but it would appear that such power is similarly implied from his duty to conduct the nation's foreign affairs.

Then,. it stated:

The importance of the President'sin the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture cf foreign nations toward the Unitedhe intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign statesroad range of international issues.

To be sure, ir. the course of such wiretappingof alien officials and agents, anc perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourthproscribes only 'unreasonable' searches and seizures. And balanced against this country's seli-defer.see cannotat the district court erred ir. concluding tha: the electronic surveillance here did not trench upon [the defendant's} Fourth Amendment rights. [Footnotes omitted.]

12. Neither United States v. United States District Court) nor Zweibon v. Mitchell.. Cir.eems directly on point here. In Keith, the Supreme Court refused to speciiy what procedures would be entailed ii the national security threat had its origin with foreign powers. Zweibon dealt with warrant requirements relatingiretap being installed indomestic organization.

17. In its5 Report to the President, the Commission on CIA Activities within the United States discussed in some detail the Agency's foreign intelligence support to the Government's narcotics control effort (pp.7f the Report) . The Commission concluded:

Concerns that the CIA's narcotics-related intelligence activities may involve the Agency in law enforcement or other actions directed against American citizens thus appear unwarranted.

18. Fron: all of thetlear that the President, pursuant to his inherent foreign affairsas directed the Agency to participate ir, his narcotics programs, including the collection o: foreign intelligence related thereto . It shouldtec here,hat ir. referringo. Air Lines. supra: Pink. susra: United States v.) andigh: Exsor:upra, ihe court. In United States v.3, noted that:


None cf these cases purporr to deal with the constitutional rights of American citizens or with Presidential action in defiance o: congressional legislation. When such issues have arisen, Executive assertions o: inherent authority have been soundly rejected. See Kent y., Younestownube Cc. v.,,

Alleged Involvement of the Central Intelligence Agency ia the Watergate and Ellsberg.pecial Subcommittee on Intelligence, House Armed Services Committee. The issue of the Agency's assistance to local police departments was raised during the Hearings before the Senate Foreign Relations Committee on the Nomination of Richard Helms to be Arcbassacc to Iran. Regarding the issue cf the Agency training local police departments, Mr. Helms testified, at Pagef the Hearing Record, that the Agency has:

never enforced any laws. We have never arrested anybody. We have never done anything that infringes on this prohibition against subpena [sic] powers and law enforcement. These were simply technic_ues we have turned over to these people [the local police departments] .

Further, however, in an exchange between Senator Percy and Mr. Helms, it was stared:

SENATOR see that there is some conflict with the crime in the streets law [Omnibus Crime Control and Safe Streets Acthich says national assistance shall be provided. ould think that whatever technology CIA has in this field would also be available to,ould stronglythat you pass on to your successor at the Agency the feelingould much sooner see this done through the FBI, so the CIA really has no direct relationships of that type in briefing sessions or training sessions, because once getting started inrogram il could grow.

MR. HELMS. Senatorill convey that to the new Directorm sure he will abide by it. We have no desire whatever to get into these things, andave heard the desires of thisill certainly convey


19. With respect to the Agency assisting Federal law enforcement organizations, there is no clear delineation of strictly prohibited activity. This subject received extensive attention in the Hearings before the Senate Armed Services Committee or. the Nomination of William E. Colby on0 andssociated with those hearingsumber of questions asked ofolby . One of these questionsf the Hearing Records) was:

Question. At the present -me, is the CIA component engaged in training or assistance to any law enforcement agencies or bodies within the US asidehe FBI? Where and under what arrangements?

The answer, in pertinent part, was:

Yes. CIA disseminate* its foreignreports to several agencies concerned with the matters covered in these reports such as the Drug Enforcement Admtr.istranon, ihe Immigration and Natural!radon Service, the Armed Services, the Customs Service, the Secret Service and ethersoutine basis.

23. In Toscanino, the defendant was convicted of conspiracy to import and distribute narcotics. An appeal Toscanino alleged lhat electronic surveillance was conducted against him on behalf of American officials. He

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also alleged that he had been brought into the United States after he was kidnapped from Uruguay, tortured in Brazil and drugged before put on the airliner bound for. While the appellate court agreed with the Government that "the federal statute governing wiretappingtas no application outside the Unitedt remanded the case to the district court for an evidentiary hearing with respect to Toscanino's allegations . Further, the court stated:

Since appellant here alleges that he was the victim of

unlawful wiretapping conducted a: the direction of United

States employees in violation of his constitutional rights,

he was entitled to invokeShe

court was obligated to direct the prosecutor to put his

oral denial of the allegation in affidavit form, indicating

which federal agencies had been checked and extending

the denial not only to conversations of Toscanino but

also to conversations of anyone else occurring on premises

owned, leased or licensed by Toscanino.

later criminal prosecution in the same circuit courtlimited the scope cf Toscanino. In United States ea rel.c, tha court reviewed in someallegations of Toscanino. It found that5 .do notarte blanche to bring "defendants from abroadUnited States by use of torture, brutality and similar[the court] did not intend to suggest that any irregularityefendant's arrival in the jurisdiction wouldriminallso with respect to limiting theToscanino, see United States v.h

cases are illustrative of the facts that courts areat criminal prosecutions in the narcotics areas. New guidelinesformulated. Thus, it is difficult to define In precise detailthat may face the Agency in its narcotics intelligence collectionconclusion, then, this Office is of the opinion that the Agency haswithin the general guidelines outlined herein to conduct theintelligence program as defined above. As specific new aspectsprogram are proposed and as specific questionable issues areof this Office should be sought before the Agency engages therein.

Original document.

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