COMMENTS ON H. R. 89 - - PROPOSED STATUTE ON 'CLASSIFICATION, DECLASSIFICATION, AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION AND MATERIAL'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82M00591R000300010006-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 22, 2016
• Document Release Date: August 27, 2012
• Sequence Number: 6
• Publication Date: January 1, 2000
• Content Type: REPORT

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COMMENTS ON H. R. 89 - - PROPOSED STATUTE ON
"CLASSIFICATION, DECLASSIFICATION, AND SAFEGUARDING
OF NATIONAL SECURITY INFORMATION AND MATERIAL"
This addresses only specific problems of meaning, structure,
consistency and purpose in the proposed bill. Justice Oliver Wendell
Holmes' comment may be kept in mind: We do not inquire what the
legislature meant, we ask only what the statute means. "
1. Section 502(b) -- that portion of this which gives any official
with classifying authority power to impose additional requirements on
access, distribution and protection from unauthorized disclosure
would confer independent authority to set up and maintain compart-
ments or other access-limiting systems. The exercise of such
authority by an intelligence agency head would appear not to be
reviewable by the DCI. This provision clearly would not give user
departments or agencies any lawful basis for challenging the nature
or extent of imposed restrictions.
2. Section 502(b)(1, 2 and 3) -- these definitions for Top Secret,
Secret and Confidential closely -match those provided in Executive
Order 11652, but, unlike that Order, are not amplified by examples.
Without such, it is unlikely that classifications will be applied uniformly.
Further, the courts, if called upon to adjudicate a classification for
prosecutive purposes, could substitute their own subjective judgments
for those of the classifying authorities.
3. Section 502(c)(l) -- the limitation of classifying authority
only to those officials in the Executive Branch who are designated in
writing by the President:
a. Would put an unreasonable burden on senior officials
as the apparent only authorized approvers of classifications;
or force the President to approve an excessively large list of
authorized classifiers, and change the list as lower ranking
personnel shift. This provision presumably means that no
document may be validly classified unless personally approved
by a senior official.
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b. Would preclude anyone in the Congress from having
lawful authority to originate classifications. Senator Inouye
comes to mind as one member who certainly would have need
to originate classified documents.
4. Section 502(c)(2) -- limitations on who may downgrade or
declassify information, as in the case of Section 502(c)(1), would put
a heavy burden on senior officials and could result in a large backlog
of material awaiting classification review. It would appear that these
same senior officials would be burdened with the initial decisions on
classification reviews required by Section 503(d) in the case of public
requests on 10-year-old material exempted from the General Declassi-
fication Schedule.
5. Section 502(d) -- the grounds stated here for administrative
disciplinary action against officials who wrongfully classify information
are the same as those cited in Section 508 as the basis for criminal
penalties for wrongful classification. Which would prevail?
6. Section 502(e) -- better terminology is needed; the requirement
that classified material "show on its face" its classification, etc.,
does not recognize that some information (e. g. , ADP material, sound
recordings) does not have a "face. "
7. Section 502(e)(3) -- conflict in terminology; this refers to
the "office which" originated a classification, while Section .502(c)(1)
would permit only designated "officials" to originate classifications.
8. Section 502(e)(4) -- the requirement here that documents
show the dates of preparation and classifications means that a time lag
between them is expected: What would be the classification status
during that interval? If that status is unclear, would there be a
statutory obligation.to protect the information while it is in staffing
enroute to the senior official who must "originate"the classification?
Further, what useful purpose is served by having these two dates
given on classified documents?
9. Section 502(e)(5) -- the escape clause of "to the extent
practicable" on paragraph classification is inconsistent with minimal
standards of classification management. The whole cannot be properly
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classified without assessment of the sensitivity, and hence classification,
of the parts. The proper classification of the parts should always be
shown for the benefit of subsequent users who may need to extract
the information.
10. Section 502(f) -- the meaning of this is not clear when read
in conjunction with Section 502(c)(1). This suggests that a senior
official may authorize others, presumably juniors, to show his name
on a classified document as the approver of the classification. The
earlier section appears to limit authority to apply classifications only
to designated senior officials.
11. Section 5078) -- the provisions here on treatment of foreign
classified information provided the US need to be amplified in later
sections of this bill. When a foreign government provides the US its
own classified information, it normally does so with the understanding
that such information will be protected for as long as the foreign
government concerned finds necessary. Such information, as opposed
to US-generated classified information about foreign countries, should
not be subject to US downgrading and declassification schedules unless
specifically agreed to beforehand with the foreign government concerned.
12. Section 502(i) -- the blanket provision herein exempting
from disclosure under the Freedom of Information Act all information
classified under this bill would appear to be bad public policy. Under
this bill, no private citizen could challenge the validity of any classi-
fication other than for 10-year-old classified material exempted from
the General Declassification Schedule. There clearly are circum-
stances in which the public should be able to appeal to the courts for
a judgment weighing the competing merits of official claims for
protection of information against the desirability. of informing the
citizenry of what their government is doing.
13. Section 503 -- the bill does not provide at all for classified
material to be designated for early downgrading or declassification at
predetermined dates or events. Instead, it would lock the government
in to use of either a fixed General Declassification Schedule (i. e. , Top
Secret to Secret after two years; Secret to Confidential after two years;
Confidential. to declassified after six years) or exemptions from that
schedule to permit longer term classification. Many event-related
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items, such as military operational orders, require classification
only for brief periods.
14. Section 503(c)(1~ -- this exemption from the General
Declassification Schedule perpetuates the misunderstanding that the
US somehow has the right to maintain the classification only for so
long as it chooses of information classified by a foreign government
or international organization and provided the US in confidence. Such
information should be exempted from US declassification rules, period.
The exemption here should be for US material concernin foreign
governments, international organizations or specific foreign relations
matters the continued protection of which is essential to US security.
15. Section 503(c)(2) -- the language of this exemption needs to
be clarified. One, official US practice is to use the term "cryptographic"
as pertaining only to security measures to protect our communications;
the term "cryptologic" embraces that as well as all communications
intelligence activities. The broader area should be covered by this
exemption. Two, intelligence sources or methods should not need
extended classification protection unless they are sensitive. Such
qualifier is absent here.
16. Section 50:3 c (3 -- this exemption, word for word the same
as in Executive Order 11652, is written in such a subjective manner as
to preclude reasonable uniformity in its application. The courts would
assuredly have difficulty in adjudicating the validity of its application
in prosecutions where its use was at issue.
17. Section 503(e) -- whether inadvertent or otherwise, this
section plainly states that all information classified under Executive
Order 11652--whether or not exempted from scheduled downgrading
and declassification--shall be subject to the General Declassification
Schedule set up by this bill. Thus, highly sensitive cryptologic or
sources and methods information would be subject to scheduled
automatic declassification. The language of this section also appears
to preclude the option of declassifying information earlier than 10 years
from its date of origin.
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18. Section 503( )M -- this section would perpetuate the
administratively burdensome and functionally unnecessary requirement
for statutory appointees (i. e. , heads of agencies) to certify personally
in writing that individual items of information need to remain classified
beyond a specified period (25 years in this bill). Further, this section
appears to permit continued classification beyond the 25-year period
only for information falling within the third and fourth exemptions
(i. e. , Sections 503(c)(3) and (4)); presumably, cryptologic and
intelligence sources and methods information would have to be
declassified after 25 years.
19. Section 504(1) -- this section does not specify who is
authorized to grant access to classified information; nor is this
specified elsewhere in the bill. Since the principal purpose of the bill
seems to be to criminalize disclosure of classified information to a
person not authorized access, it is critical to that purpose that the
authority to grant access be clearly stated.
20. Section 504(5) -- this requirement to keep records to "assure
accountability for all classified information" would require receipts
and log entries for even Confidential material. This would be an
administratively impossible burden for departments and agencies
which work with large quantities of classified information.
21. Section 504(7) -- this requirement to downgrade and
declassify "at the earliest practicable date" is inconsistent with
Section 503, which would lock the government in to the General
Declassification Schedule as the earliest permissible time frame for
such actions.
22. Section 506(a)(3)(C) -- the qualification "senior" before
representatives from the Departments of State and Defense, etc. ,
could mean that an appointive official would have to represent the
stated departments and agencies. Such officials do not have the time
to perform the functions specified.
23. Section 506(b)(2)(D) -- unless the proposed Interagency
Classification Review Committee (ICRC) is to interfere in. the day-
to-day management of departments and agencies, one wonders how
they are to go about "eliminating unauthorized disclosure of classified
information. "
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24. Section 506(b)(3) -- tasking the ICRC to act on all complaints
from and appeals by those aggrieved by agency declassification reviews
would impose an extremely heavy burden on the "senior" representatives
making up the committee. Since the bill does not specify how the ICRC
is to decide appeals, it is possible that a majority vote of committee
members could override a DCI determination on classification of a
sensitive source or method.
25. Section 506(41 -- the annual reporting requirements on
the ICRC could not be fulfilled without imposing onerous requirements
on the several departments and agencies. Since no practical benefit
would seem to accrue to the President or Congress from knowing the
numbers of documents classified and declassified in the preceding
year, one may well question the need for this reporting system.
Further, subsection (d) speaks to investigations "in each agency into
suspected violations of this title" or of Presidentially issued regulations.
The bill's silence on who shall conduct such investigations suggests
that the ICRC may assert authority to come into a department or agency
and investigate any actions it believes may be contrary to law or policy.
Since no threshold for such investigations is stated, they could be for
very insubstantial administrative infractions.
26. Section 506 -- the mandatory language of this Section
would require the ICRC to notify the Attorney General of even trivial
infractions of the proposed statute.
27. Section 506(d -- the authority this would grant the ICRC
chairman (an FES-IV appointive official per Section 506(a)(2)) to
employ a staff whose size is not limited by this bill, would appear
to be inconsistent with the President's stated intent to reduce the
size of the Federal bureaucracy.
28. Section 507(a) -- this punitive Section appears to suffer from
some of the defects which characterize the existing Espionage Statutes
(e. g. , 17 USC 794). Thus, would this language subject to possible life
imprisonment the private communication to a foreign friend of information
classified at a low level?
29. Section 507(c) -- this punitive Section appears on its face to
be designed to reach private citizens, including journalists, who
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knowingly communicate classified information to unauthorized persons.
But what is the meaning of the qualifying sentence that !'nothing in this
subsection shall be construed to infringe rights or liberties guaranteed
under the Constitution or laws of the United States"?
.30. Section 507(d)(1) -- this defense to a prosecution would not
cover the situation where the communication was to a foreigner and
the information had been publicly disclosed before the offense was
committed. Thus, prosecution could be brought under Section 507(a)
against someone for telling a foreign friend something the defendant
believes to be in the public domain but which the government contends
is still officially classified.
31. Section 507(d)(2 -- this defense to a prosecution would
apparently not permit a defendant to argue that the classification of
the information at issue was substantively improper without regard to
the administrative propriety of its application. The possibility that
the court may question the substantive basis for a classification is
inadequate safeguard for a defendant.
32. Section 507(e) -- the procedure herein for in camera judicial
review of the lawful basis for classifying information at issue would be
a meaningful safeguard only if the bill provided clear standards for the
application of classifications and exemptions from declassification,
and was also clear as to who was authorized access. Since the bill
falls short of necessary clarity in these and other respects, judicial
determinations which would issue from this process would be anything
but uniform and would. likely tie up the whole process in appeals.
33. Section 507(f)(3 --these definitions for prosecutive purposes
do' not specify what is meant by "legal authority" when used to define
who has authorized access.
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