DIRECTORS TESTIMONY BEFORE MOORHEAD

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700230025-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 15, 2016
• Document Release Date: October 10, 2003
• Sequence Number: 25
• Publication Date: July 31, 1974
• Content Type: MF

STATI NTL
STATI NTL
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31 July 1974 4A
MEMORANDUM FOR: Mr. Warner
SUBJECT : Director's Testimony Before Moorhead
The
-
The following tidbits came out at the ICRC meeting today which
are of interest in connection with Mr .Colby's testimony tomorrow:
a. Both Mr. Colby and AEC (Charley Marshall)
are scheduled for 10:00 a.m. I mentioned this to
who is attempting to take it up with the
Moorhead Staff.
b. When Defense testified, the staff told them a
former CIA employee is also scheduled to testify to-
morrow. is checking this one also.
c. When Defense testified, Bella Abzug chaired
the meeting for at least a major portion of the time. She
was particularly interested in the release of restricted
data from foreign governments.
d. When Defense testified, they received from the
Moorhead Committee a request to be furnished the quarterly
reports which Senator Muskie's Subcommittee has also
requested of all departments. It is assumed by ICRC that
Moorhead will request these reports of other departments
also. ICRC also took the position that they should be
furnished to both subcommittees.
Associate General Counsel
cc: OLC
STAT
STATI NTL
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CI:NTRAL INTELLIGENCE AGENCY
Type of Information anctgpir Release 2003/10/n3;DM t1100527
Reques
.9 requests: Of
to The National
documents prior
the 9 requests, 6 were refused, 1
Security Council, and 1 to Justice.
to 1950.
1) minutes of the "303" committ.ee
White House inter-agency body supervising
CIA (and named for the NSC orders creating
_them, e.g. NSM 303)
2) Intelligence reports on Chinese troop
movements :iust before Korean war (11/1/50)
3) Memoranda or reports providing basic
justification for U.S.-Laos involvement
(1961-62).
Nature of Response
0025-2
was directed to The Department of State, 1
Of the 6. CIA refusals, 5 involved
6/5/72
4) Early 1960 assessments by CIA, State, and
NSC re Khrushchev's speech about Mars of
National Liberation" and its bearing on U.S.
foreign policy.
5) State/CIA papers re Tito's decision to close
Yugoslavia's frontier with Greece and:termination
of Greek civil war.
6/12/72 CIA acknowledgment.
6/26/72
6/26/72
8/23/72
6/26/72
8/23/72
6/26/72
6/26/72
8/23/72
6) Reports on U.S. involvement in Trujillo's 6/26/72
assassination (5/30,5YRInned For Release 2003710/29 CIA-RDP76M00527R000700230025-2
Request denied; not
CIA documents.
?
Request lacks "sufficient
particularity".
Request denied, after mon
details provided by NYT.
Request lacks "Sufficient
particularity".
'Request denied, although
further details were give
unable to locate.
. (see State Chart for
final disposition).
Request lacks "sufficien
particularity."
Request denied, though
additional material sur
by NYT.
Unable to locate.
CIA (cont'd)
Type of rqfg
274111A4k6 025_2Nature
Request Agency
Responsa..
7) Reports on U.S. relations with French
underground during World War
8) Reports on U.S. relations with Italian
underground during World War II.
9) Reports to CIA on East Berlin uprising
and riots (1953).
7/11/72
8/7/72
8/9/72
8/10/72
of
NYT supplies more details
on items 2, 3, and 5.above
8/4/72 CIA says "We're working
on it."
? NYT adds 3 additional
requests: '
? 9/27/72 Request denied.
9/27/72 Request denied.
9/27/72 Request denied.
8/9/72 CIA acknowledgement
of 8/7/72 NYE letter.
? 8/8/72 DOD says in another
letter to try CIA fo:r JC
papers re Bay of Pigs.
NYT asks CIA for "basic
collection of documents
on Bay of Pigs.
8/10/72 CIA says "We're working
on it."
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NYT replies to DOD that
government's aim seems tc
be evasion.
'644
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u.re of Response
Type of Information Requestea-.
Request Agency
Response
?
9/7/72
8/23/72 :
9/25/72
9/27/72
3 requests in 7/31/72
NYT letter--items 2, 3, and
5--after review, are
denied. CIA suggests appeal.
NYT requests reasons for
denial, in order to appeal.
NYT requests 11.1At JCS
papers; no longer all Bay of
Pigs documents.
NYT writes NSC official
advising of last-gasp ef-
fort re JCS papers, Abel-
Powers, and RB-47.
Bay of Pigs request, says
CIA, doesn't conform with
"sufficient particularity"
requirement; are intelli-
gence documents, overlap
with non-classified material;
and segregation of two "not
feasible"; after consulta-
tation with DOD, NSC papers
can't be released.
Request denied for 3
additional reauests in NYT
letter of 8/7/72; appeal
suggested.
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CIA (cont'd)
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Type of Information Requested
Date of NYT Date of
Request Agency
Response
3/8/73
3/8/73
a
Nature of Response
Appeal of denial of ?
Et-6y of Pigs, especially
JCS part.
separate letter asking for
declassification of CIA
material on Abel-Powers
swap (see also Justice
request of 9/6/72).
3/14/73 CIA acknowledgment of
Abel-Powers 3/6 letter;
says if no answer forth-
coming in 60 days, appeal.
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NATIONAL SECURITY COLAWbved For Release 2003/10/29 : CIA-RDP76M00527R000700230025-2
Type of Information Requested
Date of NYT
Request
Date of
Agency
Response
Nature of Response
2 request: Of the two requests, The New York Times finally was granted the first after appeal
and-reappeal. The second request is still pending.
1) Gaither Report on.the-so-called
"missile gap" (11/57)
6/21/72
j9/7/72
10/23/72
2) Technological Capabilities Panel (TCP) 3/2/73
report Chaired by James R. Killian in 1954
or 1955 and implementative of the Gaither
Report.
. Max Frankel, NYT's
Washington correspondent
and bureau chief, protests.
NYT last-gasp effort to
get RB-47, Bay of Pigs
collection, Abel-Powers
documents.
10/13/72 NSC refuses to declassify
Gaither Report.
NYT appeals NSC refusal
.to interagency committee.
11/6/72 Committee acknowledges
NYT appeal.
NYT asks for Killian TCP
report.
, Still pending.
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DEPARTMENT OF JUSTMEroved For Release 2003/10/29 : CIA-RDP76M00527R000700230025-2
I request: After a delay of more than 7 months, the one New York Times request was
Type of Information Requested
1) All documents, including diplomatic correspondence
and cables, leading up to U.S. government efforts
to obtain the release from jail of Rudolph Abel,
the convicted Soviet spy, in exchange for
Gary F. Powers (2/10/62) ?
Date of NYT S Date of
- Request Agency
Response
9/6/72
3/8/72
10/6/72
granted.
Nature of Response
Acknowledgment, gt. un.de
review.
NYT requests Abel-
Powers from CIA, whicl
it says it now learns is
source of documents.
3/14/72 CIA acknowledges
3/8/72 letter. Says
if no answer in 60 days,
well, then, appeal.
3/30/73 Justice releases the
papers.
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HARDING F. BANCROFT
Executive Vice President, The New York Times
before the
SENATE SUBCOMMITTEES ON
INTERGOVERNMENTAL RELATIONS,
SEPARATION OF POWERS,
ADMINISTRATIVE PRACTICES AND PROCEDURE
Wednesday, April 11, 1973
INTRODUCTION
I am glad to appear today in response to your request
for a report on the experience of The New York Times under the Free-
dom of Information Act, particularly our experience since the issuance
in March 1972 of Executive Order 11652. In the light of that experience,
I am delighted to give our comments on S. 1142, introduced by Senator
Muslcie, proposing amendments to the Freedom of Information Act.
When the Freedom of Information Act was signed on
Tuly 4 1966, President Johnson stated that it sprang "from one of our
most essential principles: A Democracy works best when the people
have all the information that the security of the nation permits". "No
one" he said "should be able to pull curtains of secrecy around decisions
which can be revealed without injury to the public interest."
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That gives gives us a batting average so far of 5 for 49, or
.102 ? not good enough even for the minor leagues. And, this
meager 10 per cent success record has come only after persistent
efforts by The Times, efforts which -Ire beyond the means of many
smaller news organizations, let alone individual scholars and members
of the public. We have come to conclude, as a result, that the President's
emphatic order is not enough, and that in declassification as in the
American League, what is now necessary is a Designated Pinch Hitter,
a compelling legislative response.
? ?THE TIMES EXPERIENCE UNDER E.O. 11652
Executive Order 11652 called for the automatic de-
classification of most documents within no more than 10 years. Some
materials could be specifically exempted, but even these were subjected
to mandatory review if requested by a member of the public.
The Times sought to respond to this opportunity in a
serious fashion. On Monday, Tune 5, four days after the executive order
took effect, we initiated our first of a series of declassification requests
which amounted in all to 51. These were directed to five agencies, on
topics ranging from 'United States relations with the French Resistance in
World War II, to the Bay of Pigs.
It is necessary to recount only a few of the responses to
indicate why we have come to feel almost total frustration now that we
have gone from the Prcq;ident'::; commendable language to the bureaucracy
di:?3sembling or dilatory action:J.
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The precise nature of our experience has varied from
agency to agency, but with the same general result. After numerous
exchanges of calls and letters, usually over months, the buck is passed
to another agency; or reasonable conditions in the executive order are
used to block declassification without explanation; or expensive charges
are proposed; or requests are denied, with an appeal suggested, though
the reasons for denial ? and hence for the appeal ? are refused.
One notable instance began on Tune 5 when we asked the
Department of Defense for the comments of the Joint Chiefs of Staff on
the Bay of Pigs operation. In a report dated July 24, the Departthent
responded: "The JCS papers can be identified and placed under review."
So far, so good. But then on August 8, we were told, It turns out that
the papers in question are in fact comments on documents prepared by
another agency and, there-fore, your request cannot be handled as a review
separate from the basic collection of documents which, as you know, is
under the control of the Central Intelligence Agency. " (Emphasis supplied).
We responded to Defense (protesting "agile side-stepping
and backpedaling") and, on August 9, made a new formal request to CIA
for the documents. Having received no response, we wrote again on
September 6, specifying particular interest in the JCS comments. On
September 25, CIA replied that it could not meet our request, the reasons
given were a bureaucratic tour de force.
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For one thing, CIA wrote "we do not hold a specific
group of documents formally Identified as 'the basic collection'.".
Second, while the agency acknowledged having a large volume of
documents relating to the Bay of Pigs, "your request does not fulfill
the requirement of sufficient particularity to fall within the Executive
Order." We pointed out that "...identification of specific documents
could be made only by employes of CLA, the National Security Council,
or the Departments of Defense and State. Merely to cite a lack of
particularity... is to seize a technicality to frustrate the Executive
Order and ignore the accompanying statement by the President."
Further, even if we had been able to divine the identity
of specific, highly classified documents more than 12 years old as a
pre-condition of their being declassified, CIA erected yet another
obstacle. In the same September 25 letter, CIA. wrote that intertwined
among the documents were "a large number of references to or reflec-
tions of intelligence sources and methods which could be jeopardized
by release of these documents". Thus, CIA argued that the papers
fell within an exemption in the executive order protecting intelligence
sources and methods. To separate out still sensitive material, CIA
wrote, "is simply not feasible".
In other words, Defense was prepared to review the
material for declassification, but then backed off because it was in
CIA's "basic collection". CIA :.;ald it had no "111..;ic collection".
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Nor, could it identify, among the files it did have, documents that
Defense could identify. And even if it could identify the documents,
CIA said it was sure ? even without any review ? that they could not
be declassified.
Finally, at the end of the letter, CIA wrote that it had
consulted with Defense as to the ICS comments on the Bay of Pigs.
In this specific instance, neither insufficient particularity nor jeopardizing
intelligence sources could credibly be cited as reasons for refusing.
But, in the absence of valid reason for refusal, we were simply refused
without a reason. The CIA letter merely said, "We jointly agree that
the ICS documents cannot be released. " Only since we appealed this
multi-layered denial has CIA relented somewhat. In a letter received
just last week, the agency backed off its claim that our request lacked
particularity. Now, on direction of the appeals committee, the agency
says it will, at least, conduct a complete review.
We had different frustrations with the Department of
State, to which we sent requests for 31 documents, At length, under
some prodding from the National Security Council staff, the Department
attempted more seriously than others to be constructive and helpful.
Three of our five successes involved the State Department.
But even before this meager achievement, we were
subjected to a remarkable exercise. On lune 27, we recieved a short,
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blanket denial of the 31 requests previously made on the grounds of
insufficient particularity. Then, the NSC staff urged State to make
at least a gesture of good faith compliance ? if not with The Times
requests, then at least with the President's order. State subsequently
offered a new response. Yes, the Department wrote us, it could
search for the information we requested, but The Times would have to
foot the bill. Not the bill for the copying, which would make sense,
but a bill estimated by the Department in the thousands of dollars ?
for searching out the documents themselves, which makes no sense.
Aside from the amounts involved which could be prohibitive for The
Tirrres, and totally out of the question for smaller organizations,
scholars, or private citizens, there are other practical considerations.
Even if we agreed in advance to pay open-ended fees for searching out
the relevant documents, the Department Could not promise that any of
them would, in fact, be declassified and made available to us.
And even after the payment of these fees, and even if the
documents were declassified, there was no way in the world for us to
know if they were worth reporting. I can readily understand the exas-
peration that last June prompted Max Frankel, then our Washington Bureau
chief, in a letter to the head of Declassification at the White House, to
describe this all as "research roulette".
Ultimately, we paid $124 in research asse:Istnents and
$70 fn copying charges for the three sets of documents finally declassified
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-12-
official records from governmental agencies is knowing precisely
what records the agency has. This was exemplified in the Bay of
Pigs request. At least one of CIA's excuses in that case would be
much less likely to be sustained under the new proposed language.
Secondly, the amendment expressly providing that,
in a review by the Court, the Court has the power to examine the
contents of any agency records in camera in order to determine if
such records or any part thereof should be withheld under one of the
statutory exemptions, is a particularly important one.
This amendment would meet and change the decision
of the Supreme Court in the recent ruling in Environmental Protection
Agency v. Mink, decided in 3-anuary of this year. In that case, the
Court in disallowing in camera judicial inspection of classified docu-
ments relating to possible environmental dangers of the Gannikin atomic
test in the Aleutians construed most narrowly the exemptions contained
in the Freedom of Information Act. Tustice Stewart observed in his con-
curring opinion in that case that Congress:
"has ordained unquestioning deference to the Executive's
use of the 'secret' stamp. "
Indeed, Justice Stewart observed that Congress had:
"built into the Freedom of information Act an exemption
that provides no means to question an executive's decision
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