LETTER TO HONORABLE LUCIEN N. NEDZI, CHAIRMAN FROM GEORGE BUSH

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000200020043-3
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 4
• Document Creation Date: December 19, 2016
• Document Release Date: April 12, 2006
• Sequence Number: 43
• Content Type: LETTER

SECRET
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Honorable Lucien N. Nedzi, Chairman
Special Subcommittee on Intelligence
Committee on Armed Services
House of Representatives
Washington, D. C. 20515
Serious damage to our foreign intelligence effort is resulting
from the unauthorized disclosure of intelligence sources and methods.
A spate of recent disclosures and attempted disclosures of sensitive
intelligence information by former government officers and employees
have caused me grave concern and highlight the need for legislation
which provides criminal penalties for such actions.
As you are of course aware, the Director of Central Intelligence
is charged by the National Security Act of 1947 with the responsibility
for protecting intelligence sources and methods from unauthorized
disclosure. This charge is recognition that such disclosures are
damaging to the Nation's intelligence effort and must be prevented.
If permitted to occur and continue unchallenged and unremedied,
intelligence disclosures will lead to the curtailment of information
concerning foreign developments affecting our most vital interests.
Clearly, some steps must be taken to prevent this from happening.
Unfortunately, in my opinion the 1947 Act does not provide for such
steps and other options currently available under the law are
inadequate.
There are two fundamental problems facing the Intelligence
Community and the Department of Justice in this area. First, many
unauthorized intelligence disclosures cannot be prosecuted because
existing statutes do not clearly proscribe the conduct involved.
Thus, a former employee encounters no legal deterrent in his effort,
whether well intentioned or not, to expose intelligence secrets in
the press. Without a doubt, First Amendment Rights would appear to
be involved in such cases. However, to paraphrase Mr. Chief Justice
Holmes, an individual does not have the right to shout "fire" in a
crowded theater. This famous dictum embodies the principle that
important governmental interests limit the exercise of personal
rights. Thus, it is my firm conviction that current and former
government employees should not be permitted to shout our intel-
ligence secrets to the world, and that narrowly drawn legislation
which makes it a crime to do so would withstand legal challenge.
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Secondly, in some cases which appear to fall within current
espionage statutes, we face the ironic situation of being called
upon to give up the very secrets we wish to protect in order to
successfully prosecute. This is so either because the law requires
that the showing of damage to the national security be made in open
court or because discovery provisions allow the defendant and his
counsel to have access to the documents and information in question.
Clearly, the more important the secrets, the greater the government's
dilemma. I believe a way must be found within the framework of our
legal system to limit the disclosures the government must make in
the course of such prosecutions.
At present, the sole means by which the government may prevent
a current or former employee from disclosing sensitive intelligence
information is established by U.S. v Marchetti, 466 F.2nd 1309
(4th Cir. 1972). In Marchetti, the employee had signed a secrecy
agreement by which he agreed to submit any publication dealing with
information acquired in the course of his employment to the CIA
for review. Because the employee planned to publish a book
without doing so the government sought and was granted an injunction
which prevented publication until the agreed upon review had been
made. The government's deletion of classified material learned
in the course of employment and not placed in the public domain
was also upheld. In the absence of statutory authority the
government's ability to use even this method depends upon accep-
tance of the Marchetti decision by other federal courts and upon
the fortuitous discovery that publication by the current or former
employee is planned. Clearly, the government should not have to
depend upon such an uncertain remedy in an area so important to
the Nation's security interests.
Two recent cases emphasize the inadequacy of existing law as
a deterrent to disclosures of intelligence information. The classified
enclosure to this letter describes these cases. Unfortunately, they
are not isolated instances. I am continually confronted with damaging
disclosures, some of which threaten the lives of vulnerable sources.
The President, in a message to Congress of 18 February 1976
included a legislative proposal that would establish criminal penalties
for the unauthorized disclosure of intelligence sources and methods.
This proposal was subsequently introduced as H.R. 12006, a copy of
which is enclosed, but no similar legislation was introduced in the
Senate. I would strongly urge that such legislation be considered
promptly in the 95th Congress. This bill provides safeguards to
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protect our American standards of freedom of information and protection
of individual rights while reducing the problems outlined above so as
to enable the Government to prosecute cases without risking undue
public disclosure of sensitive information.
What those who leak classified information and those who publish
it may not fully realize is that in addition to the risks to national
security which their actions involve, the disclosures can also result
in sizeable monetary costs to the U.S. Government. Such costs are
oftentimes difficult to measure, but the fact remains that disclosure
of the manner in which certain information is acquired stimulates and
enables the target country to take new measures to insure against
further U.S. access to data of the type disclosed.
Public disclosure of classified intelligence gives the USSR and
other foreign powers keen insight into the capabilities and limitations
of our intelligence system. It also undermines the attitude toward
security at all levels of Government. If disclosures of our most
guarded secrets and our most sensitive sources and methods of collect-
ing intelligence continue to occur, the end result is a loss of faith
in the system designed to protect such matters. It threatens the very
safety and welfare of those who may be providing us intelligence at
a substantial personal risk.
It is a tragedy to see articles in the news media quoting our
intelligence reports verbatim without regard to possible damage to
sensitive collection programs. The inevitable result of such dis-
closures can only mean a sharp curtailment of the effectiveness, if
not the disappearance of some of our most important intelligence
sources, human as well as technical.
I sincerely believe that passage of a bill like H.R. 12006
would be a strong deterrent to exposure of intelligence sources and
methods by persons who have such information by virtue of their
relationship with the U.S. Government. I would hope that this matter
will be the subject of further discussions between the Director of
Central Intelligence and your Committee as the 95th Congress begins
its work.
Sincerely,
George Bush
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