The White House, the CIA and the Pike Committee, 1975

This letter from CIA Director William Colby to the Chairman of the Select Committee on Intelligence, Otis Pike, outlines procedures the CIA will employ to provide materials to the Committee. The letter notes some materials will be redacted to protect identities, sources or methods. Then Colby warns, "some proposed testimony and requests for documents may enter the area of the executive decision-making process in which the need to protect the confidentiality of advice or recommendations to policy-making bodies has long been recognized. This would apply, for example, to Presidential or 40 Committee deliberations relating to approval of CIA actions." The Committee will be advised when material falls under that criterion. It is not clear from the document if the material will then be provided. Similarly, the letter notes that the DCI needs to give prior authorization to CIA employees-current and former-to speak to the Committee. The DCI reassures the Committee that in "most instances" CIA personnel will be authorized to appear, although it is not clear this includes individuals involved in very sensitive cases or in decision-making (i.e. advice to policy-making bodies).

Here John Warner, the CIA General Counsel, advises Director Colby "with respect to giving classified testimony to a congressional committee in executive session when there are indications that such testimony would be publicly released." Warner cautions against such testimony, given that "The Director is charged by law with the protection of intelligence sources and methods from unauthorized disclosure. It would appear that the Director would be derelict in his responsibilities under that law if he were to proceed to give the classified testimony containing sensitive intelligence sources and methods if he were on notice that it would be publicly disclosed either by the committee or by any individual member of the committee." Warner then assures Colby that, "in my opinion, the Director would not be subject to legal action even if he were under subpoena in such a situation. The matter clearly becomes a political question."

In this memo, staff secretary James Connor complains that both the Church and Pike Committees are "demanding classified material from the Executive Branch and promptly leaking them [sic] to the press." Connor then stresses that, "unless steps are taken soon to deal effectively with the situation, the outlook will worsen. Church and Pike have latched on to the issue and are using it as a platform for furthering their political ambitions. There is no evidence that they intend to act responsibly or that they will restrain their efforts in order to preserve a functioning intelligence community." Specifically focusing on Pike, Connor argues that, "Otis Pike is attacking Secretary Kissinger in order to advance his own New York Senate candidacy. Yesterday, for example, he attempted to unilaterally declassify information which was especially given to him on the agreement that it would not be declassified without our consent." If Ford takes no action, Connor warns, the intelligence community will be increasingly demoralized, all of Secretary Kissinger's actions will be called into question, and "the Administration will be characterized in the press as faceless bureaucrats resisting the honest attempts of Congressional committees to get at the truth." Therefore, the president must decide how to wage this "political battle." He could enter the fray himself, or, "he can choose someone to wage that battle for him, thus preserving his own flexibility." Connor recommends the latter action.

Assistant Attorney General Rex E. Lee castigates the Pike Committee for voting "to declassify and release to the public... materials properly classified under law." Lee notes that such actions are "unconstitutional" and stresses that, "The Congress is vested with the powers to legislate and to oversee the administration of the laws passed by it, but action of this Committee is not a legislative act nor is it oversight. It is a vote by a single Committee to review and overturn an Executive act and, therefore, beyond any power vested in it." Consequently, the President requests, "the immediate return of all classified information previously provided to this Committee and, in addition, to direct all departments and agencies of the Executive Branch respectfully to decline to provide the Select Committee with classified materials, including testimony and interviews which disclose such materials, until the Committee satisfactorily alters its position." The Justice Department statement slides by the question of the powers Congress might have to release information by its own accord, particularly under the "Speech and Debate" clause of the Constitution, and Lee oversteps in terming the declassification unconstitutional. The Lee statement also makes no mention-and the assistant attorney general had probably not been told-that Secretary Kissinger had already given the same information to reporters.

In this note Deputy Assistant to the President, Dick Cheney updates President Ford on the Executive Branch's response to Pike's "unilateral" declassification of a document that contained "four words referring to communications security." Cheney explains that the Executive Branch will decline to provide further classified documents until the Pike Committee "satisfactorily altered its position concerning declassification."

Counselor to the President Jack Marsh argues in a strategy memo for the administration to continue to "press very firmly" its opposition to unilateral declassification of any Executive materials by any congressional committee. He suggests that many members of Congress and the public will eventually support the White House position, but he cautions that, "we must not permit ourselves to be dragged into, if at all possible ... the argument under the Speech and Debate Clause of the Constitution" as "a good deal" of Congressional support would be lost.

Congressman Robert McClory (R-IL), a Ford ally, recommends to Pike that while the committee should seek full cooperation from the Executive Branch, "it is my opinion that specific notice should be given in advance of a Session at which declassification may be voted and that an opportunity should be presented to Counsel for the President and such representatives of the intelligence community might be knowledgeable of the material to comment before the Committee with respect to the effect of any such declassification." McClory concludes by noting that he hopes such steps will lead to full White House cooperation with the investigation.

This document illustrates a number of the limits that the White House is planning to place on congressional committee staff members regarding access to NSC materials concerning the 40 Committee that approved CIA covert actions. In addition, HSC staff members are also given limits as to how they can present the material. For example, committee investigators are told that several categories they have proposed to collect statistics on covert projects are "unacceptable," including those dealing with "elections" and "Operations in Major Allied Countries." Finally, once the statistics are collected for each agreed-upon category, committee staff will only be allowed to choose "one illustrative program in each category," to be explored in-depth, but "that selection [is] to be approved by the NSC."

In this memo, the White House congressional liaison notes limits on what documents will be provided to the Pike Committee. The paper outlines a process under which the committee can seek to publish a document, giving the president veto power over publication when an Executive agency opposes public release. The White House notes it will not share documents that contain the identities of agents, or sources and methods; and will also deny materials where "the complete confidentiality ... which the President certifies is essential to the effective discharge of Presidential powers, may be withheld." Concerning the publication of certain documents by the committee, the memo makes clear that appropriate Executive agencies will be notified and given an opportunity to argue the case for or against release. If there is disagreement the dispute will be given to "a special review board, made up of Congressional leaders." However, if the review board disagrees with the Executive agency the matter will be decided by the president and, "The materials will not be published if publication would, in the opinion of the President, be prejudicial to the national security of the United States." Further cementing the power of the executive over the documents, the memo explains that, "Classified documents provided to the Pike Committee will, in fact, be loaned," and if a dispute is unresolved over the publication of any given document the committee will return the material to the agency of origin.

In this letter, Pike agrees to return a folder containing three letters stamped "Secret Sensitive" to the White House after an "alleged breach of security" is discovered after a staff member loses the folder by leaving it in a public place (a citizen would return the folder to the congressman). Pike recommends that the staff member be fired, but notes that he does not have the power to do so because, he informs, President Ford, the staffer is a member of the president's staff who also happens to be "the husband of a member of your Cabinet."

In this memo, Charles Leppert, White House special assistant for congressional relations, summarizes his meeting with Congressman Bob McClory of the House Select Committee, in which the latter asserted that, "The Committee will not return the classified material received." However, McClory agreed that the Committee "will not release information to the public without 24 hours notice to the Executive Branch and the opportunity for the Executive to comment or the Committee to receive comments from the Executive."

In this draft statement, the White House attempts to frame the dispute with the House Select Committee as "not a dispute over Congress' right to receive information" but instead, "the issue is over the procedure for disclosing such material. The House Select Committee on Intelligence insisted on disclosing documents on short notice, over the protests of the Intelligence Community, and without consultation and discussion with the responsible leadership of the Intelligence Community." The draft then acknowledges the committee's "positive step toward resolution of this difficulty by proposing a 24-hour notice." However, such a short notice will "not allow for the depth of research necessary for the intelligence agencies to take anything more than a conservative approach to the issue, which would be apt to lead to future impasses, not resolve them."

In this important memo, Charles Leppert, the White House special assistant for congressional relations warns that after consulting with several Republican members of the House intelligence committee, "Pike's Committee staff is doing the legal research on the Committee's position for the purposes of proceeding to litigation on the issues of whether the Committee has the right to receive classified documents with no strings attached and the right to declassify and release such information to the public." Representative Bob McClory (R-IL) stressed that, "the right to declassify and release such information to the public is not exclusively in the Executive Branch," and that no member of Congress would take the position that Congress has no powers over classification. Consequently, the Republican congressman recommends that the Ford administration should "do everything it can to avoid litigation and bend over backwards to resolve the issues other than going to court."

After consulting with Republican Representative Bob Kasten (WI), Charles Leppert explains that the congressman thinks that, "the Republican members of the Committee, generally speaking, are in close agreement on most issues before the Committee." Furthermore, Kasten believes that the administration made a "serious mistake in selecting the 'four words' which has precipitated the present controversy because these four words do not, in the judgment of most members of the Committee, reveal the source or method of intelligence gathering." Kasten also warns that committee members disagree with a memo suggesting that Congress does not have the authority to declassify documents unilaterally.

This memo summarizes the events of the White House-Pike Committee controversy from the perspective of the Executive. The memo explains that the crisis arose over a single phrase on an intelligence postmortem of the Arab-Israeli 1973 war, (the phrase remains redacted in this document), that was considered so sensitive by representatives from the intelligence community that its release would, "indicate to other nations and American capability to monitor and analyze foreign communications and derive information from them. This specific knowledge of time and location would alert other nations to reexamine and tighten their communications security procedures and thereby impair the ability of the U.S. to obtain communications intelligence." Disagreeing with the Executive, the Pike Committee voted to have the phrase declassified and on Friday the 12 of September, the disputed phrase was read into the public record. The memo then explains that the White House sees the current dispute as resulting from the "unilateral action of one committee to release such material over the objections of the Executive representatives present... " and that, "if the Committee's position were to remain unchanged, large amounts of sensitive intelligence and other types of material would be subject to release without notice, which would require a responsible Executive to restrict the provision of such information to the Committee."

In this sober 31-page legal memo, Special Counsel to the Director of Central Intelligence, Mitchell Rogovin and Paul Reichler warn that if the Pike Committee goes to court, "there does not appear to be any realistic way in which the Agency can come out the winner." After a thorough legal analysis, Rogovin and Reichler conclude that, "If the House Select Committee on Intelligence goes to court to enforce its subpoena, it is a virtual certainty that the court will assume jurisdiction of the case." Worse still for the Executive, the memo stresses that, "If the Committee goes to court, there is an excellent chance that it will persuade the court to enforce its subpoena. The Committee would have no trouble demonstrating that the information it is seeking is relevant, and possibly even essential, to its performance of the duties assigned to it by the House of Representatives." Furthermore, Rogovin and Reichler explain that "Clearly there is no legal basis for the President to claim that he can withhold any such information on grounds of an absolute executive privilege. The courts have consistently rejected the notion that such a privilege exists."

In this memo, Jack Marsh, the counselor to the president, marks a number of hand-written annotations, including one short note where he asks "who watches Pike?" indicating a desire to keep a close eye on the chairman of the House Select Committee.

This draft paper with hand-written edits from the Office of the Counselor to the President sets an updated declassification procedure in order for the Executive to resume the supply of materials to the Pike Committee. The language in this memo closely resembles its predecessor document of September 16 (Document 9). For example, as with the previous memo, this draft memo also gives the president veto power when a disagreement occurs over the classification of a document between an Executive agency and the congressional special review board, "In order for the material to remain classified (thus overruling the Committee decision) the President must certify that disclosure outside of the Committee of such information would adversely affect the intelligence activity of the United States in foreign countries."

This memo presents an alternative procedure for "unresolved classification issues by action of the Committee," where the President no longer appears to have veto power over the final decision to declassify a document. Instead, the memo proposes, "Deferral of unresolved declassification issues until Committee finds information in question is important to its final report to the House, when if the matter still cannot be resolved, it can be considered by the House as a whole in executive session after consultation between the President and the House leadership."

In this memo, Max Friedersdorf, the White House liaison with Congress warns that the situation with the Pike Committee "continues to deteriorate" and that "confrontation is coming unless lines of communication are kept open and accommodation reached soon." After consulting with several Republican members of the Pike Committee, Friedersdorf explains that the Select Committee is likely preparing for "action involving possible contempt and court initiatives on the classified documents controversy." Representative McClory once again warns the White House, "that the four Republican Members of the committee who all agree that the White House should agree to the procedure adopted by the committee for the handling of classified documents." Friedersdorf concludes by stressing that the White House has no basis of support in the Committee and that the "situation is grave and a confrontation seems imminent."

In this important memo, Henry Kissinger takes a hard position against any accommodation with the Pike Committee over the classification crisis given that the committee's "action constitutes a challenge to the President's constitutional responsibility to conduct foreign affairs and protect the national security of the United States." Although Kissinger acknowledges that he "cannot comment on the legal merits of the case," he nonetheless argues that if a disagreement over declassification arises between the branches, "I believe that the final determination must reside in the Executive Branch... it is my firm belief that Executive authority in this area is accepted by Congress, as witnessed in statutes and the absence of challenge through the years." Kissinger recommends that if the House leadership is unwilling to accept such a procedure then "I believe that the President's current proscription against providing classified information to the House Select Committee should be maintained and that the Committee should be left to consider an early court test of its position on this issue."

In this clear and pithy letter to the President, Representative Robert McClory explains that after a meeting between all four Republican members of the Pike Committee, there was agreement that "the procedures adopted by the Full Committee on September 17 should be accepted by the Executive Branch as a reasonable method for receiving classified materials necessary to our investigation." The Congressman also noted that there was "general agreement" among the Republican members of the committee that, "the subpoenas heretofore issued should be complied with in reliance upon the new procedures adopted by the Committee."

In this legal memorandum, the Office of the Counsel to the President considers "some of the legal problems presented by the failure of compliance with the subpoena served upon the Director of Central Intelligence on the 'Tet' offensive." The memo argues that if the "subpoena is defied it raises the spectre of Frankenstein" since the CIA is a "creature of Congress." The memo outlines the possible methods of enforcement of the subpoena and then moves on to the question of whether Congress has the power to declassify documents and concludes that, "A Congressional Committee may have no right to declassify a document, but it has the power to publish the document in its possession. The publication then places the document in the writing in the public domain and works the declassification-a tantamount declassification. There is no legal remedy through the courts for the Executive to punish or restrain the publication." The memo argues in favor of a compromise with the Pike Committee, "But that the right of the Committees (Select Committees) to have the documents (1) can be suspended if the Committee's conduct and lack of assurances threatens the security of the information, and (2) is not tantamount to a right in the Committee to release the information."

In this memo, the White House outlines and explains four different categories of documents with their respective release procedures. The first, "will not be delivered to the Committee" and include names and sources, intelligence exchanges with friendly governments, and "possibly sensitive" ongoing operations. The second category comprises sensitive and highly classified materials that the Committee can have access to, "but of which the Executive branch will not agree to unilaterally declassify and on which the final decision for publication is reserved to the Executive." The third type of documents are either unclassified or if unilaterally released by the committee will "not cause objection from the Executive branch although we did not agree to such unilateral publication." The final category are documents that fall within the area of executive privilege and the "precise scope of this area needs to be further defined." The memo concludes by stressing that this does not represent "a change in operating procedures involving jurisdiction committees, but by virtue of the special status of the intelligence committee."

This important decision paper outlines two options for the President. Option one represents a "compromise," and option two retains the President's "maximum control." Regardless of which option the President chooses, his advisors recommend, "that you immediately make available to the Committees that information which can be declassified or that you are unwilling to submit to the Pike Committee under their adopted rules for unilateral classification." The President initials his approval for all the options, indicating that if attempts at compromise failed, his subordinates should hold out for maximum control.

After a conversation with Representative Robert McClory, the Special Assistant to the President for Congressional Relations, Charles Leppert reports that House Select Committee Chairman Otis Pike wants to take the declassification dispute all the way to the Supreme Court because "he wants a definitive decision on the question."

In this important note, Mike Duval from the White House Office of Domestic Council, writes to the President notifying him that Secretary Henry Kissinger has requested that an additional category of materials be created that will not be shared with Congress. The materials in the proposed category are, "Diplomatic exchanges or other material the disclosure of which would be embarrassing to foreign governments and damaging to the foreign relations of the United States."

This briefing memo by Jack Marsh explains the goal of an upcoming meeting between the President and the Congressional leadership as "an attempt to develop a compromise with the Congress concerning delivery and publication of classified material..." If Congress accepts the new procedures proposed by the White House, then the Pike Committee will be provided with the materials it requests with the exception of documents that include the identities of secret agents or sources and methods. However, mirroring the past procedures proposed by the White House, the president maintains the power regarding, "Other matters, the complete confidentiality of which the President personally certifies is essential to the effective discharge of presidential powers, may be withheld." Similarly, when a dispute arises over the declassification of a document between Congress and an Executive agency, the materials will once again not be published if "in the opinion of the President," they are "prejudicial to the national security of the United States."

This critical statement by Director of Central Intelligence William Colby, shows the Executive doubling down on the declassification controversy. Colby explains that, "I cannot agree to the transfer of sensitive material in response to this subpoena in the absence of some agreed procedure as to its possible disclosure which I am still hopeful we can achieve."

This memo shows that Republican representative and House Select Committee member, Robert McClory, sought assistance from the White House in order to challenge "the validity of the subpoenas issued by the Pike Committee." The proposed strategy is to criticize the subpoenas on the grounds that they, "were not issues in accordance with the Rules of the House of Representatives... that the subpoenas issued on motion are not valid, because the operative document, the subpoena, must be before the Members of the Committee and voted on by the Members of the Committee after the opportunity has been presented to the Members to amend the subpoena."

This memo and the attached letter by Director of Central Intelligence William Colby to Congressman Otis Pike, shows that the compromise reached between the Executive branch and the House Select Committee heavily tilted towards the procedure desired by the White House. The letter shows that the President will maintain its veto power over classification decisions in the event of a disagreement between the Committee and the CIA. Jack Marsh explains that, "Pike and Staff would like to be able to say that the President's earlier order has been lifted." However, from henceforth all materials provided to the Select Committee will contain the provision that, "In the event of disagreement, the matter will be referred to the President."

In this memo, Charles Leppert explains that Representative Robert McClory has shared with the Pike Committee a compromise reached with the President where, "the President had assured him that junior and mid-level officers from the State Dept. could testify before the Committee and to refute any misrepresentation made to the Committee by senior officials."

This memo notes that the Pike Committee by a vote of 10-3 (with Robert Giaimo, Ron Dellums, Les Aspin, all Democrats registering the nay votes), accepted the CIA materials under the terms set forth in the letter from DCI Colby to Chairman Pike (Document 30).

This document breaks down the number of subpoenas filed by the Pike Committee since the compromise and the degree to which several intelligence agencies (CIA, NSA, DIA) and the NSC have complied with those requests.

In this letter Secretary Kissinger notifies the Pike Committee that he will not comply with their request for a "dissent memorandum" from August 1974 concerning the crisis in Cyprus. Secretary Kissinger argues that the survival of the country is at stake, "If we are to prosper - indeed, if we are to survive - it will require the confidence of the American people and of the nations of the world in the wisdom of our foreign policy and the effectiveness of our foreign policy establishment... It is my view that to turn over the dissent memorandum as requested would inevitably be destructive of the decision-making process of the Department, and hence do great damage to the conduct of our foreign relations and the national security of the United States." Kissinger notes that his decision is not based on a desire to keep anything from the committee and he is ready to testify on the dissenting views put to him. Instead, Kissinger is withholding the document in order to protect his workforce since "Once the confidentiality of internal communications had been breached, it would be but a short step to public exploitation of the subordinate's views. The result would be to place Department officers in an intolerable position - at times praised, at times criticized for their views; at times praised, at times criticized for dissenting; at times praised, at times criticized for not dissenting."

After meeting with the members of the Pike Committee, Secretary Kissinger reiterates that he is not withholding documents for the sake of secrecy or to "win a theoretical dispute," and that he is committed to reaching a compromise. Kissinger proposes a solution where, "I provide the Committee an amalgamation of State Department documents criticizing our Cyprus policy. This collection of material would include, interspersed among the other paragraphs and without any identification of authorship, the full contents of Mr. Boyatt's memorandum to me." This way, the Secretary explains, the committee will get the information it desires, Boyatt's name remains secret, and "no precedents - either for Congress or the State Department - will have been established."

In this letter President Ford expresses his "deep concern" after a November 14 vote on three resolutions passed by the House Select Committee which could lead to the full House finding Secretary Kissinger in contempt for refusing to comply with three subpoenas. The president starts the letter by highlighting the stakes as, "This issue involves grave matters affecting our conduct of foreign policy and raises questions which go to the ability of our Republic to govern itself effectively." While President Ford recognized the power of Congress to compel the production of documents, "However, this power, as broad as it is, is subject to recognized limitations. Not only is it limited by powers given to the other two branches, but it also must respect requirements of procedural due process as they affect individuals."

After a 10-2 vote in the House Select Committee on Intelligence that finds Secretary Kissinger in contempt for failure to subpoenaed documents, Chairman Otis Pike, notifies the rest of Congress of his intention to file a Report against Kissinger on December 8. In an attempt to allay concerns, Pike notes that, "Contrary to widely published rumors, neither the filing of such a report nor its adoption by the House will cause the earth to tremble nor the sun to stop in its tracks. No one is seeking to place Mr. Kissinger in jail, and the worst that can happen to him is that he might have to provide the documents subpoenaed to Congress." Pike finished the letter by stressing that, "No committee of Congress can ever exercise oversight as long as the Executive branch alone determines what facts it may have."

This important memorandum briefly outlines eight proposals that the Pike Committee staff has developed for possible recommendations to appear on the final report of the committee. The first set of recommendations revolve around the intelligence community's budget, including: a consolidated intelligence budget, that is approved by Congress, reviewed by the Government Accountability Office, and where the total figures of the intelligence budget are made public. The second set of proposals relate to the creation of a standing House Committee on Foreign Intelligence, and that Congress should be fully informed before covert actions begin. The final set of recommendations involve the "limiting of secrecy." Here, the proposals endorse the creation of a clear process for Congress to release classified information, and the establishment of an independent body to de-classify information.

Here President Ford notifies Representative Pike that, "I have reviewed the House Select Committee documents on covert action. I have concluded that the publication at this time of these documents would be detrimental to the national security." The president warns that disclosure of covert operations would make it more difficult for foreign governments to cooperate with the United States in the future. Ford also rejects the claim that, "The question of whether the U.S. should, in fact, engage in covert action can be debated, but it should not be resolved by a systematic exposure of past and current programs. The fact that many details of the two programs in question have appeared in the press does not alter the principle involved. There still is a serious difference between press speculation, however informed, and a Report issued by a Congressional Committee."

President Ford reminds House Select Committee Chairman Otis Pike in this letter of the HSC's prior agreement concerning the President's veto power over declassifying materials. In this case the issue is the Pike Committee's final report. The President tells Representative Pike that he has been informed that "there are still some issues regarding inclusion in the report of certain classified information which have not been resolved by your Committee and the various agencies of the Executive branch concerned." The President concludes by noting that "I await your submission of these unresolved issues to me so that I might determine whether or not the disclosure of the information involved would be detrimental to the national security."