Chapter 1 Introduction What are the issues of the day?

The Independent Counsel

The attorney general (Meese) requested an independent counsel

Judge Lawrence Walsh was appointed

Became a huge project

Indicted Poindexter, North, Secord, and Hakim

Conspiracy to violate the Boland Amendment

Obstruction of justice

Money crimes related to improper expenditures

Problems with the Prosecutions

Complicated because they had been granted immunity so they would testify before congress

Did congress intend to stop the prosecution?

Is it better to have the hearing or a conviction?

The white house refused to turn over classified documents requested by North's attorneys, resulting in the dismissal of most of the money crimes

Is criminal prosecution appropriate?

Nuremberg Defense

Why is it called the Nuremberg defense?

Was North just carrying out the president's policy?

What is the advantage of not protecting the individuals who carry out the policy?

What did the appeals court say about North's requested instruction that authorization by his superiors was a complete defense?

When did the appeals court say this might be a defense?

North played it as a patriot caught up in technicalities and made the fall guy by higher ups.

The Outcomes

North and Poindexter were convicted

The convictions were thrown out on appeal because they depended in part on immunized testimony

The independent counsel did not re-prosecute, finding it impossible to prove the case without running into immunity.

McFarlane pleaded guilty to misdemeanor charges of withholding information from Congress. He was pardoned by Bush.

Casper Weinberger was pardoned, foreclosing trial.

Six were pardoned, 5 after convictions.

Intelligence Authorization Act of 1991

What are the limits on covert action?

What are the directions on notification to avoid long delays?

Did the president say that he would always report?

What provision might violate INS v. Chadha?

Does reporting to the intelligence committees constitute notice to Congress?

What are the powers of the new IG under the act?

Will the Act make any difference?

Chapter 16 - Other Legal Problems in the Intelligence Field

Sample Selection Bias

What intelligence cases do you hear about?

WMD in Iraq

Bay of Pigs

What do these have in common?

Why are the successes hidden?

Breaking the German codes in WWII

What policy problem does this pose, i.e., how can you know who is telling the truth about intelligence services?

The Domestic Role of the CIA

‘‘the Agency shall have no police, subpoena, law enforcement power, or internal-security functions,’’ 50 U.S.C. [§403-4a(d)(1)

The original order from President Roosevelt to J. Edgar Hoover to begin internal security operations was to investigate foreign communist and fascist influence within the United States.

Were these investigations considered foreign intelligence?

Did Congress intend for the CIA to operate in the US?

Halkin v. Helms, 690 F.2d 977 (1982) (CIA)

Who were the plaintiffs?

Who were the defendants?

What was Operation CHAOS?

Operation CHAOS

(1) the CIA letter-opening program, which was directed at letters passing between the United States and the Soviet Union, and involved the examination of correspondence to and from individuals or organizations placed on a ‘‘watchlist’’;

(2) the Domestic Contact Service, a CIA office which solicits foreign intelligence information overtly from willing sources within the United States;

(3) the CIA’s ‘‘Project 2,’’ which was directed at the infiltration of foreign intelligence targets by agents posing as dissident sympathizers and which, like CHAOS, had placed agents within domestic radical organizations for the purposes of training and establishment of dissident credentials;

(4) the CIA’s Project MERRIMAC, operated by the Office of Security, which was designed to infiltrate domestic antiwar and radical organizations thought to pose a threat to the security of CIA property and personnel; and

(5) Project RESISTANCE, also a creature of the Office of Security, which gathered information on domestic groups without any actual infiltration.

The Legal Issues

Was Operation CHAOS a valid CIA activity in the US?

What is the discovery fight and what did the court rule?

What is the effect of not allowing discovery on plaintiffs' efforts to get legal redress from a potentially illegal activity?

Where did the Court say the remedies should lie?

Executive Order No. 12,333.

Executive Order No. 12,333, anticipates that the CIA will engage in the

‘‘collection of foreign intelligence or counterintelligence within the United States,’’ §1.8(a), and

‘‘participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers or international terrorist or narcotics activities.’’ §2.6(b)

How can these be reconciled with the lack of law enforcement power?

Intelligence Reform and Terrorism Prevention Act of 2004

terms ‘‘national intelligence’’ and ‘‘intelligence related to national security’’ were defined to include

‘‘all intelligence, regardless of the source from which derived and including information gathered within or outside the United States, that pertains . . . to more than one . . . agency; and that involves threats to the United States, its people, property, or interests; the development, proliferation, or use of weapons of mass destruction; or any other matter bearing on United States national or homeland security.’’