10 extent of any conflict would depend upon what authority is vested in the advisor by the President. Less conflict would probably develop if the authority was limited to executive oversight. But if the advisor were assigned management responsibilities over the intelligence community, the conflict could become irreconcilable. In contrast with the DCI, the Secretary of State's direct responsibility to the President in either position he occupies, his advisory capacity, and the absence of an intermediate supervisory body like the NSC eliminates most of the organizational problems which the DCI would confront in a dual role. d. Appointing a separate intelligence adviser to the White House A second alternative is the appointment of a senior intelligence advisor apart from the DCI and not responsible to the NSC. The advisor would assume the additional duties the President would have assigned to a senior intelligence officer like the DCI. In fact, the use of advisory personnel whose functions would either supplement or duplicate the work of the NSC or the DCI is not a novel practice. Past Presidents have relied greatly on informal but regularly attended meetings of special advisory groups or advisors to help formulate intelligence related policies and operations. While there would not be legal obstacles to the appointment of an independent White House advisor on intelligence matters, it would encounter the same type of political objections as in the above dual role conception." Also, the advisor's functions should be consistent with the Act. 2. Altering the Responsibilities of the National Security Council Any changes in the duties and responsibilities of the National Security Council require a discussion of issues similar to those raised above. (See CHART B at the conclusion of this section.) The National Security Council is under the direct authority of the President and serves as the umbrella supervisory body over the intelligence community, filtering down the Presidential directives and assignments. While the President has certain inherent powers over the conduct of foreign affairs, it is doubtful that he can delegate the use of such powers to a Congressionally created body unless the delegation is consistent with the broad outline of the NSC's statutory duties. Neither residual or independent powers exist in the Council other than the basic ministerial authority to perform the advisory function. The Council does have the equivalent of a derivative ministerial authority from the President by virtue of the broad statutory grant vested in him to direct the NSC's activities. In this respect, the organizational structure established by Congress in the NSA gives the President a significant amount of discretion in using the NSC in its advisory role. But despite the NSC's functional administrative utility, previous Presidents have found it desirable to rely on informal high level advisory committees. Professor Jerrold Walden's analysis of the administration of the CIA traces the development of this type of parallel advisory structure by reviewing the frequency of NSC meetings. He states, for example, that President Kennedy eliminated the regular meetings of the Council and President Johnson "virtually abandoned" the NSC (quoting a news magazine story), relying instead upon the "Tuesday Luncheon" group."2 The propriety in utilizing these so-called informal groups rather than pursuing the policy objectives through the NSC is questionable. To the extent that these groups supplant the role of the NSC in the formulation of policies, possible conflicts under the Act could arise unless the President has authority to act independently. The formation of Presidential level advisory groups to supplement the work of the NSC is not inconsistent with the NSA. However, a transfer of duties to these groups which the statute expressly assigns to the NSC would violate the statutory scheme again unless the President can act independently. 3. Appointing of Advisory Committees Both the President and the NSC have established advisory committees to assist the intelligence community."3 Section 405 (a) of the Act provides that the DCI and 16 Earlier internal studies examined various options for the reorganization of the office of DCI. The primary objection raised in opposition to the appointment of what is in effect an Intelligence "czar" was the control of the military intelligence apparatus. This recurring conflict between the military establishment's needs and those of the civilian intelligence community reflects the fundamental distinction between the foreign affairs and war-making powers and the institutional rivalries which the Constitutional dichotomy facilitates in the executive departments. 11 See Note 10. supra. 12 Jerrold Walden. "The CIA: A Study in the Arrogation of Administrative Powers," 39 Geo. Wash. L. Rev., 66, 90 (October 1970). 12 These would include PFIAB, set up by Presidential Directive, and the various committees created by secret NSCID's or DSID's which aid the work of the NSC or the DCI like the NSCIC, IRAC, and the IC Staff. 15 the NSC "are authorized to appoint" the advisory committees they deem necessary to assist them in the execution of their advisory functions and duties." The President is not included in the authority conferred by this section of the Act. The President's authority to appoint committees to aid the NSC or the DCI must, therefore, be implied from his authority to direct the NSC.16 The President's power is thereby procedurally limited in that it must be exercised through the NSC. In contrast with the advisory committees established to facilitate the work of the NSC and the CIA, the President has the direct authority to appoint advisory panels to advise him on intelligence matters. An example of such a panel is the President's Foreign Intelligence Advisory Board (PFIAB) which advises the President on intelligence activities after examining the "objectives conduct, management and coordination of the various activities making up the overall national intelligence effort."" However, as in the case of other delegations of Presidential authority to non-statutory bodies, and such delegations to PFIAB of functions or duties which have been expressly reserved by statute for a body like the NSC, would be contrary to the allocation of such functions and duties as set forth in the Act.18 4. Conclusions a. The President can add to or change those duties of the DCI which would not amend the NSA and which are within the range of duties that can be implied from 50 U.S.C. 403(d). Such changes may be initiated by the NSC or the President through the NSC. b. The appointment of a senior intelligence advisor, coordinator, or other assistant to aid the President is a valid exercise of Presidential authority provided that the duties and functions of such an advisor do not conflict with those assigned by the NSA to the NSC or the CIA. However, the appointment of such an assistant to the President would be politically undesirable because it would increase the rivalry between the civilian and military intelligence services. c. The President can direct the NSC to perform additional functions and duties provided that they are consistent with the advisory role of the Council and are otherwise consistent with the provisions of the NSA. d. The President should work through the NSC in directing the creation of additional advisory committees to aid the work of the CIA and the NSC. The President's own advisory committees can perform advisory activities which parallel the work of the NSC but such committees should not usurp the management and supervisory functions the NSA directs the Council to perform. 14 50 U.S.C. 405 (1964). 15 President Truman apparently circumvented the requirement that the NSC or the DCI, at the time, the Chairman of the Resources Board, appoint advisory committees they needed. Truman established the National Advisory Committee on Mobilization Policy by executive order to aid the National Security Resources Board. E.O. 101609, 15 F.R. 6901 (Oct. 13, 1960). 16 Section 405 could be interpreted merely as a procedural provision, thus, not excluding the President from directly appointing advisory committees to aid the NSC and the DCI. The provision was probably enacted to facilitate the work of the NSC and the CIA and not to restrict the President from taking a direct and active role in helping to organize the then newly created civilian intelligence community. In contrast with the procedural nature of Section 405, Section 402, for example, is more substantive and the failure to include the President in direct CIA supervision reflects the Congressional intent to place the Agency under direct control of the NSC. 17 PFIAB was created in 1961 by President Kennedy, replacing the President's Board of Consultant's on Foreign Intelligence Activities which was appointed by President Eisenhower in 1956. E.O. 10938, 26 F.R. 3951 (May 4, 1961). President Nixon changed PFIAB in 1969. E.O. 11640, 34 F.R. 5535 (March 20, 1969). 18 See generally Note 8, supra. CHART A DCI'S FUNCTIONS IN THE INTELLIGENCE COMMUNITY CENTRAL INTELLIGENCE CENTRAL 1 --S. 403(d) (1)-(4) Perform various functions and coordinating duties |--S. 403(d) (5) Perform other "functions and duties" apart from (1-4) above -S. 403(c) DCI can inspect FBI intelligence -S. 403(g) Exempts the DCI from disclosure laws to protect "sources and methods" -S. 403 (h) Determines with Attorney General and Immigration Commissioner the admission of essential aliens IC STAFF OTHER 227 SENATOR FROM OKLAHOMA HEARINGS AND MEETINGS OF THE COMMITTEE ON RULES AND ADMINISTRATION AND ITS SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS NINETY-FOURTH CONGRESS FIRST SESSION ON THE PETITION AND COMPLAINT OF ED EDMONDSON CON- JUNE 3; NOVEMBER 17, 18; DECEMBER 4, 12, AND 15, 1975 Printed for the use of the Committee on Rules and Administration United States Senate 63-007 O U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1975 |