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testified before the Rules Committee and said, "I strongly urge the Senate, in considering the oversight issue, to concentrate oversight of foreign intelligence activities."

In the extensive hearings that Government Operations had on this issue, the theme of consolidation was struck time and time again. Among others, then Director of the CIA Colby urged consolidated oversight and that one committee should have exclusive, ultimate jurisdiction. Secretary Kissinger also urged that one committee review the intelligence process, although all committees could still review intelligence product.

In response to questions from Senator Allen at the hearing, Director Bush stated that creation of a new intelligence committee causes no problems. In fact, he said that consolidated oversight with more information being provided to the new committee, along with better protection of that information, has "enormous appeal."

He also stated in response to a question from Senator Allen that he is not happy with the proliferation of committees as it now exists. He said that he does not favor the status quo.

Therefore, I feel that George Bush and members of the Government Operations Committee agree. We need to have more consolidated oversight.

Mr. Bush did have some specific concerns, however. Let me address those. 1. Mr. Bush is concerned about the Budget Committee involving itself in the intelligence process and asking for sensitive information.

This issue had not surfaced before Government Operations at the time we were considering S. Res. 400, but I too hope along with Director Bush that an accommodation can be reached that will provide the Budget Committee the information it needs while maintaining security. I will speck specifically to the security of budget figures later.

2. He mentions that under the terms of the Hughes-Ryan amendment, Section 662 of the Foreign Assistance Act, that information regarding covert action is required to be reported to Appropriations, Armed Services and Foreign Relations. It is true that S. Res. 400 does not affect this law. However, should a new intelligence oversight committee be created to consolidate intelligence community oversight, then I think Hughes-Ryan should be repealed and I will introduce legislation to that effect.

3. Mr. Bush mentions that the committee or any member of the committee can disclose information to any other member of the committee can disclose information to any other member of the Senate. While he says that this information may be necessary for substantive intelligence, he sees no justification for unlimited dissemination of information about the Agency's sources and methods and feels that this provision must be tightened up. I agree, Mr. Chairman. Pending before the Rules Committee at the present time is a letter written by Senator Nunn and myself on precisely this point. In that letter we state that this provision is too loose, and we recommend that the Rules Committee change this section to require that no information can be disclosed to a member of the Senate not on the Intelligence Committee without the affirmative vote of the Intelligence Committee.

4. Mr. Bush is also concerned about disclosure of information over the objections of the President. S. Res. 400 as drafted would require that no such information could be disclosed by the Committee if 3 members of the new Committee objected. The full Senate would than have to decide. If the Rules Committee wanted to, it could tighten this provision even further by simply requiring that, in a case where the President objected to disclosure of information, the issue would automatically go to the full Senate. This would totally eliminate the committee's right to unilaterally disclose.

I would like to make one point in this regard. In his questioning of Senator Hruska, Senator Allen made the point that it seemed to him that there was more emphasis on disclosure of information in this resolution than on protection of security. Let me just say that there are tougher sanctions on staff, and members, in this resolution than exist for any other committee of the Senate at the present time. Further, there are NO disclosure prohibitions on the part of any other committee of the Senate. Any committee can now disclose anything it wants to. Any prohibition on disclosure written into S. Res. 400, no matter how weak, is stronger than anything covering any other committee. Today, for example, Foreign Relations or Armed Services could disclose anything it wants to to the full Senate. If the Rules Committee wants to write even tougher sanctions. fine, but it should be noted that the proposed sanctions are tougher than any other committee has at the present time.

5. Mr. Bush is also concerned about an annual authorization process of the intelligence budgets. He states that an annual authorization bill reported from the new committee would reveal at least the budget total. Why, I ask? Reviewing a budge and authorizing a budget are not the same as disclosing the budget. There could be a secret authorization process. Currently the Armed Services Committee looks at the CIA budget and decides whether it is appropriate. They don't put it in the Washington Post the next day. Nor would the new Intelligence Committee do so either. There is no contradiction between annual authorization and secrecy.

6. Mr. Bush's last point is that the FBI should not be included in the jurisdiction of the new Committee. I disagree. I feel that the FBI intelligence division is an important part of the national intelligence community. In FBI counterintelligence the only difference between it and the CIA is that the CIA keeps track of people beyond the water's edge and the FBI keeps track of them within the continental U.S. One picks up where the other leaves off but they do the same thing.

The Government Operations Committee has tried to do precisely what Mr. Bush has advocated-consolidate intelligence oversight. A continuation of the present system means greater proliferation of oversight, gives greater rise to leaks of information, and is contrary to the wishes of the Executive branch. I look forward to working with you on this issue to reach consensus on how to resolve this most important matter.

Sincerely,

CHARLES H. PERCY, U.S. Senator.

STATEMENT OF WILLIAM V. ROTH, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE

Mr. Chairman, I want to thank you and your colleagues for affording Senator Huddleston and myself this opportunity to discuss the provisions and rationale of our amendment to provide for sanctions against Senators or staff members who make unauthorized, harmful disclosures of legitimate intelligence secrets. This amendment is incorporated in subsections (c), (d), and (e) of section 7.

I regard the inclusion of this provision in the resolution to create a new permanent Intelligence Activities Committee as essential for two reasons: First, to protect vital national secrets, and second, to help the Committee do an effective oversight job by winning Executive branch and public confidence in its ability to protect information that is necessarily secret.

I have been deeply interested in the problem of government secrecy for a number of years. The problem is two-sided. First, there is far too much classification in the Executive branch. To a certain extent this is inherent because each agency which classifies tends to interpret the public interest from a standpoint heavily colored by its own bureaucratic interests. The other side of the problem is that in some quarters excessive secrecy has bred a lack of respect for any secrecy. If there has been too much classification by agencies acting in their own interests, there has also been too much leaking by individuals for their own interests without proper and careful consideration of the reasons this material may be classified. In a 1957 article in the Yale Law Journal, Joseph W. Bishop, Jr., stated the problem very succinctly in this way: "The files of the executive bulge with documents which Congressmen, from the best and worst motives, are eager to examine and which bureaucrats, also from the best and worst motives, are determined to keep for themselves. Many of these documents, if published, would certainly cause headlines and headaches all across the nation, and some might create a stir in foreign chancelleries-a prospect from which the average legislator, especially if he be up for re-election, shrinks about as much as Brer Rabbit shrank from the briar patch, but which may cause exquisite pain to the executive branch."

In my judgment, our job consists in trying to ensure full public access to government information for which there is no compelling reason for secrecy, and at the same time protecting the information for which there is a public interest in secrecy from being disclosed by individuals acting from the "worst motives" or simply through carelessness.

It is not possible to define by legislation or Executive Order any precise, objective line between what must be kept secret and what should be available to the public. Two individuals, both acting honestly and in good faith, could arrive at quite different judgments about any particular piece of information. What we are saying in this amendment, however, is that when a majority decision has

been made by the Intelligence Activities Committee or the Senate that an item of information must be kept secret, in the public interest, then an individual senator or staff aide will not have the right to thwart that majority decision without an appropriate sanction.

It has been suggested in some quarters that this amendment violates the spirit of the "Speech and Debate Clause" of the Constitution. That clause, however, provides that for any speech or debate in the House or Senate, no Member of Congress shall be questioned "in any other place." As the Supreme Court noted in Gravel v. United States, the fundamental purpose of this clause is one "of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator." It does not mean that Congress cannot discipline its own members. That right is provided for in Article 1, Section 5 of the Constitution and has been long recognized by the Senate in cases of the kind we are discussing here in Rule XXXVI permitting the censure or expulsion of Senators who "shall disclose the secret or confidential business or proceedings of the Senate . . ." The Roth-Huddleston Amendment is an extension of this Rule.

We have suggested this extension for several reasons. First, Rule XXXVI does not cover staff members. Secondly, our amendment establishes procedures to permit the free flow of classified information between committees which need it or among Senators under conditions so that it will be known who has received it. Thirdly, this amendment contains provisions to prevent a "cover-up" by a committee of any significant, harmful leak by a powerful or well-liked Member or staff assistant. To accomplish this, we have included a procedure under which 5 members of the proposed 11 member Intelligence Committee or any 16 Senators to require an investigation by the Senate Select Committee on Standards and Conduct and a report of that Committee's findings. This should be regarded as an exceptional procedure which will hopefully rarely have to be invoked, but will be readily understood and available if it is necessary to invoke it.

Finally, Mr. Chairman, let me point out that the Members of the Government Operations Committee believe that careful consideration should be given to extending whatever rules cover the disclosure and protection of classified information by the Senate Intelligence Committee to all Senate committees which handle sensitive information. This is a matter we felt was outside the scope of our jurisdiction on this resolution, but which we strongly hope your committee will address.

Whether or not you do deal with this question at this time, I believe it absolutely essential to have such procedures in place for the new Intelligence Activities Committee. This Committee will be handling some of our nation's most sensitive information and, very possibly, material that could be a life or death matter for those who serve our country as intelligence operatives. It is, therefore essential that this legitimately secret information be given the strongest possible protection while at the same time we establish the mechanism needed by our democracy to prevent any further misuse of intelligence agencies or further misconduct by those agencies.

Hon. HOWARD W. CANNON,

U.S. SENATE,

Washington, D.C., March 18, 1976.

Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: As authors of the so-called Roth-Huddleston amendment which is included in section 7(c), (d), and (e) of Senate Resolution 400 as reported from the Government Operations Committee, we wanted to advise you of our commitment to a strong, effective sanctions provision for Members of the Senate or employees who make unauthorized disclosures of intelligence data and to offer our assistance in any way which might be helpful to you.

Our amendment provides that no Senator or employee shall disclose, other than in a closed session of the Senate, information regarding intelligence activities which either the Intelligence Committee or the full Senate has determined should not be disclosed. If there is such a disclosure, the Select Committee may investigate and recommend appropriate sanctions. If five members of the Intelligence Committee or sixteen members of the Senate so request, the Select Committee on Standards and Conduct must investigate the matter.

As you may know, the amendment was discussed at some length in the Government Operations Committee. There was, we think it fair to say, both some confusion and some controversy over what was intended and what should be intended.

69-450 O 7614

Because we are charting somewhat of a new course here, we are certain that you will want to review both the language of the amendment and the report language in some detail. Basically, we are convinced that the amendment is entirely consistent with the Supreme Court decisions in Powell v. McCormack and Gravel v. U.S. and with the speech and debate clause of the Constitution. We view it as an exercise of Article 1, section 5 of the Constitution which authorizes each House of Congress to determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and with the Concurrence of two-thirds, expel a Member.

We would appreciate the opportunity either to testify, should public hearings be held, or to meet with the committee, should you deem that useful. Thank you for your consideration.

Sincerely,

Hon. How ARD W. CANNON,

WALTER D. HUDDLESTON.
WILLIAM V. ROTH, Jr.

UNITED STATES SENATE, Washington, D.C., April 6, 1976.

Chairman, Committee on Rules and Administration,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: The Committee on Rules and Administration is presently considering S. 400 to establish a new Intelligence Oversight Committee in the Senate. Last month the Senate Committee on the Judiciary met to discuss the issue concerning the extent of jurisdiction the new committee should be given regarding intelligence activities of the Federal Bureau of Investigation; we understand that the views of the committee, adopted by voice vote, have been provided to the Committee on Rules and Administration.

While a majority of the members of the Committee on the Judiciary present at our executive session last month favored the Committee on the Judiciary's retaining exclusive jurisdiction over F.B.I. intelligence activities, we, the undersigned members of the Committee on the Judiciary, wanted to bring to your attention our conclusions to the contrary: that the Intelligence Oversight Committee should be vested with concurrent or joint jurisdiction in this area.

Unquestionably the F.B.I. is predominately a law enforcement agency which sets it apart from both the C.I.A. and the Defense Department intelligence operations. At the same time, however, we recognize that the F.B.I. exercises both domestic and foreign intelligence responsibilities. The Bureau's foreign counterintelligence activities often do not relate directly to law enforcement purposes; its domestic security intelligence activities also frequently involve both law enforcement concerns and matters relating to activities of foreign powers or groups. Counterintelligence activities relating to foreign agents in the United States fall peculiarly in this category.

The Judiciary Committee, we believe, must maintain its historic jurisdiction over all aspects of the F.B.I. in light of this committee's responsibilities for and expertise in the areas of law enforcement and protection of constitutional rights and civil liberties. On the other hand, we feel that the new committee must also have oversight responsibilities over the F.B.I. intelligence activities for several

reasons.

Such review will be necessary for the new committee to analyze properly the foreign aspects of activities of other intelligence agencies. Because of the potential foreign aspects of counterintelligence, legitimate domestic security and anti-terrorist intelligence activities, the new committee should have authority to review the Bureau's operations in those fields as part of the overall picture of the American intelligence effort and in view of the threats it must meet.

We thus conclude that the Intelligence Oversight Committee should be given overlapping jurisdiction with the Judiciary Committee with respect to all F.B.I. intelligence activities.

Sincerely,

EDWARD M. KENNEDY,

PHILIP A. HART,

BIRCH BAYH,

QUENTIN N. BURDICK,

JOHN V. TUNNEY,

CHARLES MCC. MATHIAS, JR.,
JAMES ABOUREZK.

COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., March 19, 1976.

B-179296.

B-133200.

Hon. HOWARD W. CANNON,

Chairman, Committee on Rules and Administration,
U.S. Senate.

DEAR HOWARD: I am enclosing a copy of my letter to Chairman Frank Church on the subject of General Accounting Office audit authority with respect to intelligence activities.

Since S. Res. 400 is pending before your Committee, I thought you might be interested in our views prior to final Senate consideration of the resolution. Without a clearer indication of congressional intent, we can conclude only that no change in our role is intended.

Sincerely yours,

Enclosure.

ELMER B. STAATS,

Comptroller General of the United States.

COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., March 19, 1976.

B-179296.

B-133200.

Hon. FRANK CHURCH,

Chairman, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, U.S. Senate.

DEAR MR. CHAIRMAN: The General Accounting Office has been observing the progress of recent congressional and executive inquiries with regard to the intelligence functions of the Federal Government, particularly the investigations conducted by your Committee and the House Select Committee on Intelligence. Our interest has been to determine whether this activity will result in a clearer definition of the role we are to play in relation to the permanent congressional oversight structure that will exist after the conclusion of these studies. We are now writing to your Committee because the time for making critical decisions appears to be at hand and we have not yet seen strong evidence of a congressional intent to provide the kind of clarification we believe is necessary.

To date, neither your Committee report nor the report of the House Committee has been published. However, the House Committee has published its recommendations (H. Rept. No. 94-833, February 11, 1976). Recommendation "H." entitled "FULL GAO AUDIT AUTHORITY," represents the only clear indication of congressional sentiment on this issue; this recommendation states: "The select committee recommends that the General Accounting Office be empowered to conduct a full and complete management as well as financial audit of all intelligence agencies. There shall be no limitation on the GAO in the performance of these functions by any executive classification system, and the audit function of GAO shall specifically apply to those funds which presently may be expended on certification of a Director of an Agency alone."

However, even within the House Committee there was a degree of uncertainty as to the GAO role, in that the ranking minority member submitted an alternative recommendation which speaks only of "financial audits," a position which in our opinion would not produce a material difference in the type of audit work we are now able to perform.

Furthermore, legislation is now under consideration by the Senate Committee on Rules and Administration which would establish a standing Senate Committee on Intelligence Activities. The pending bill, S. Res. 400, derives from S. 2893, which was introduced on January 29, 1976, by you and a majority of the members of your Committee. S. Res. 400 was favorably reported by the Senate Committee on Government Operations on March 1, 1976 (S. Rept. No. 94-675).

Neither S. 2893, S. Res. 400, nor the Government Operations Committee report makes any reference to our Office and there is nothing in any of these documents which would enable us to know, better than we do now, what assistance the Congress will expect us to render in aid of the oversight function.

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