LETTER TO WILLIAM B. SAXBE FROM W. E. COLBY RE EXPRESS MY CONCERN OVER THE DEPARTMENT'S RECOMMENDATION TO THE OFFICE OF MANAGEMENT AND BUDGET AGAINST SUBMISSION TO CONGRESS OF LEGISLATION PROPOSED BY THIS AGENCY TO AMEND THE NATIONAL SECURITY ACT OF 1947

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 01482000
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 3
• Document Creation Date: December 28, 2022
• Document Release Date: August 7, 2017
• Case Number: F-2007-00094
• Publication Date: September 17, 1974

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C6�11-RAL INTELLIGENCE.: AGENCY
WASHINGTON, D.C. 20505
1 7 sEp 1,771
The Honorable William B. Saxbe
Attorney General
Department of Justice
Washington, D. C. 20530
Dear Mr. Saxbe:
On 24 April 1974 I wrote to you. to express my concern over the�
Department's recommendation to the Office of Management and Budget
against submission to Congress of legislation proposed by this Agency
to amend the National Security Act of 1947 to furnish additional protection
for intelligence information. In your reply on 14 May 1974, you expressed
.your agreement with my goal of preventing unauthorized disclosures of
:information relating to intelligence sources and methods and of success-
fully prosecuting violators. You noted that you had asked Assistant
Attorneys General Rakestraw and Petersen to work with my General
.Counsel so. that our proposed legislation would be acceptable to all con.-
terned
ensuing, months your staffs and mine have had several.
� conferences and have done a great deal of work in an attempt to draft-
:-legislation which would be acceptable to the Department and the Agency.
While progress. has been made and acceptable compromises reached on
some issues, the Department and the Agency are still apart On several
basic points. The Department has submitted a draft as a result of these
conferences which I believe does not answer our needs in three :major
areas:
a. in camera court review of the protected information;
b. statutory injunction authority; and.
�
C. recognition that heads of other departments and
agencies engaging in intelligence aCtivitiz.'s may designate
protected information.
'. I am enclosing .the most recc:ntly modifiod draCts of the Department
of Justice's and the Agency's proposed bills and a comparative analysis of
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them. The *Agency's newest draft attempts to accommodate some of the
points posed by the Department.
With respect to court review, I believe that our position is fully
consistent with the views expressed by President Ford in his letter of
20 August 1974 to the Chairmen of the Conference Committee Considering
the Amendments to the Freedom of Information Act. The President's
position was that he could not accept a provision of law which would
, place the burden of proof upon an agency
to satisfy a court that a document classified
because it concerns military or intelligence
. (including intelligence sources and methods)
�secrets and diplomatic relations is, in fact,
. properly classified..... .
-�
HOwever, the President did state that he could accept a provision with
an express presumption that the classification N,vas proper and with �
in canicra ;1.11c:it-A-A review. The President then stated: .
Following this review, the court could then
disclose the document if it finds the classifi-
cationto have been arbitrary.; capricious,
Pr: without a reasonable basis.
-It is our intent that the in camera review would take place with defense
counsel participating.
. As.I stated in my earlier letter to you, I consider the statutory--
. injun.ction provision extremely important and believe that the difficulties
in securing an. injunction in the Marchetti case sufficiently show that
.another court in another- case might not enjoin in the absence of statutory
authority. Also, in some cases I believe the injunctive authority can be
as great or a greater deterrent to disclosure than is a potential criminal
penalty and, more importantly, is more likely to prevent disclosure.
. While the Department's draft does not include the injunction provision.
I understand the Department now may be willing to consider suppollting
� it
The Department's draft deals only with designation of classified
information relating to. inteni genc.o sources and methods by the Director .
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of Central Intelligence. This Agency is .only one part. of the entire
intelligence community. Consequently, it is imperative that the coverage
of this bill extend to the entire intelligence community, and the designa-
tion of information should extend to other departments and agencies of
the United States Government which engage in intelligence activities.
There are a number of other differences of lesser importance
-between the positions of your staff and mine, but I believe some of fl-les
can be worked out. Nevertheless, there are significant differences in
the three areas mentioned above, and I feel the need to provide adequate
protection to intelligence sources and methods is impelling and well *
.demonstrated. I would hope that we can still work toward a more
effective compromise in time for it possibly to be included in the bill
(H.R. 15845) amending the National Security Act of 1947, which my be
. reported by the House Armed Services Committee in the near future.
To this end I would like to discuss this personally with you.
� Sincerely,
Enclosures
/s/ Bill
� W. E. Colby
Director
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