SECRECY AND PROTECTION OF INTELLIGENCE SOURCES AND METHODS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00823R000100080016-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 9, 2016
• Document Release Date: November 2, 2000
• Sequence Number: 16
• Publication Date: December 24, 1975
• Content Type: MF

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MEMORANDUM FOR: Associate Deputy Director for Administration
SUBJECT Secrecy and Protection of
Intelligence Sources and Methods
REFERENCE . Request for comments on Subject from
Associate DD/A, dated 19 December 1975
1. This memorandum is for information only.
2. Pursuant to your request, the Office of Security
has reviewed the Office of General Counsel paper, "Secrecy
and Protection of Intelligence Sources and Methods." We
found it somewhat difficult to deal with the paper because
a specific target was obscure at the outset. We concur
with the author's conclusion that no changes in existing
law should be recommended at least until completion of the
various studies-under way in the Executive Branch.
3. The author's conclusion that the substitution of
a statutory-classification system for Executive Order 11652
is not the primary vehicle for protecting information fur-
nished to Congress concerns us somewhat. However, realizing
that his conclusion is based partly on his sensitivity to
the current political climate, we have no real basis for
argument. It is difficult to be optimistic but we would
like to think that Congress can be convinced that it is in
the national interest to have an effective intelligence
system, and that inherent in the need for intelligence is
the need to preserve the ability to collect and produce it.
If any disclosure causes or has the potential for causing
the loss of an intelligence source or method, the intelligence
may be lost or diminished in value. This could deny to the
policy-makers information which they need to help preserve
the nation's security. Therefore, intelligence sources and
methods clearly are national security information as defined
in Executive Order 11652.
OS 5 11 044-A
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4. If and when it is decided to recommend new legis-
lation, such legislation should include the concept that
intelligence is a vital part of the nation's security and
should: (a) provide authority to classify intelligence
product, sources and methods; (b) provide elasticity for
the retention of classification as long as necessary to
protect sources and methods; (c) provide legal means for
dealing with unauthorized disclosures; (d) be applicable
to all, not just the Executive Branch; and (e) provide for
appropriate review by Congress to prevent abuse.
S. It would appear that a major stumbling block in
obtaining new legislation is the apparent special concern
of Congress that secrecy might be used to cover abuses in
the covert action area.. For the sake of enhancing the
possibility of obtaining adequate legislation for the pro-
tection of intelligence sources and methods, it is suggested
that consideration be given to the concept of distinguishing
between intelligence and covert action.
25X1A
Acting Director of Security
25X1A
Distribution:
Orig F 1 - Adse
1 - AD/Security
1 - OS Registry
1 - PPG Chrono
OS/PPG/ d1g
24 December 1975
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Secrecy and Protection of Intelligence Sources and Methods
I. General
1. The concept of protection of intelligence sources and methods is not
identical with that of secrecy of intelligence activities. Secrecy is required
with respect to intelligence itself. Often it is difficult to distinguish between
intelligence and sources and methods, or to separate the two. Further, in
many cases the time comes when the intelligence product no longer requires
the protection of secrecy because of its content, but does need to remain secret
because its disclosure might also disclose sources or methods for which there
is a continuing need for secrecy. This paper addresses both secrecy in the
intelligence area generally and the narrower area of protection from disclosure
of intelligence sources and methods information.
2. It should be emphasized that the basic legal problem is an affirmative
one--to make certain that necessary secrecy can be maintained. It is only
because the former must be accomplished that the secondary need--to guard
against and prevent undue secrecy and to make certain that necessary secrecy
not be a vehicle for non-disclosure of any wrongdoing--comes into play.
II. Undue Secrecy
3. To address first the latter problem, that of undue secrecy, that issue
essentially is one of improved and effective oversight and management,
subjects to be covered in other papers. Rockefeller and Murphy commissions'
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recommendations in this area are now in various stages of review and
implementation. To a degree, any undue secrecy also can be a matter of
improper implementation of Executive Order 11652. An interagency study of
the workings of that order, together with other aspects of the management of
classified information, has been instituted and appropriate recommendations
may be expected from that source.
III. Providing Necessar Secrecy
4. The secrecy practices and mechanisms of the intelligence agencies are
built on law deriving from all three branches of Government. From executive
branch authority, Executive Order 11652 is certainly the basic working tool.
Statutory authorities are provided by the National Security Act of 1947 (Tab A)
(and implemented by NSC, DCI and departmental directives and regulations)
and the CIA Act of 1949. (Tab B), both applicable as to CIA, and the former
having some application also to sources and methods activities of the
intelligence agencies generally. For the National Security Agency, Public
Law 86-36 (Tab C) provides authority for secrecy of activities. Exemptions
from certain provisions of the Code, mostly title 5 provisions, permit CIA and
NSA to refrain from certain disclosures. Judicial decisions have long
recognized and upheld the authority of the President in foreign relations and
defense and intelligence areas. In Totten v. U.S. (92 U.S. 105 (1876)), for
example, the court upheld the principle of non-disclosure of sources. "If
upon contracts of such a nature an action against the government could be
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maintained in the Court of Claims, whenever an agent should deem himself
entitled to greater or different compensation than that awarded to him, the
whole service in any case, and the manner of its discharge, with the details
of the dealings with individuals and officers, might be exposed, to the serious
detriment of the public. A secret service, with liability to publicity in this way
would be impossible; and, as such services are sometimes indispensable to
the Government, its agencies in those services must look for their compensation
to the contingent fund of the department employing them, and to such allowance
from it as those who dispense that fund may award. The secrecy which such
contracts impose precludes any action for their enforcement. The publicity
produced by an action would itself be a breach of a contract of that kind, and
thus defeat a recovery." The Marchetti case, in 1972, is a landmark decision
enforcing secrecy agreements not to disclose classified information.
5. In practice, there would seem to be several major areas of difficulty in
maintaining secrecy, specifically, problems under the Freedom of Information
Act, classification and declassification problems under the Executive order,
problems arising from the disclosure of classified information to Congress, the
absence of criminal law for the protection of sources and methods information,
and the absence of statutory injunctive protection. As suggested at an earlier
meeting of the Second Study Group, this is not the occasion to address the
matter of revising the Freedom of Information Act and, as indicated earlier,
any modification of the Executive order should await the current study of
Executive Order 11652.
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6. Secrecy As to Information Furnished Congress. Physical protection,
access restrictions, secrecy agreements --these normal administrative measures
by which agencies protect classified information under Executive Order 11652--
generally can be applied when classified information is furnished to Congress.
The major danger peculiar to the congressional situation arises when there is
an intent of public disclosure by Congress without executive branch agreement,
as in the recent Pike Committee incident. The agreement reached with the Pike
Committee--i.e., agency/ committee disagreement, Presidential certification and
committee resort to the courts--seems the logical and workable action in this
area.
7. Alternatively substitution of a statutory classification system for the
Executive order classification system could avoid at least some of the problems
of executive-congressional disagreement since the statute could be made
applicable to all, not merely the executive branch. But there are several
problems with this approach. One is that the statute might be written so as
not to apply to congressional members and staffs. Additionally, any new
statutory system might be considered insufficient from the executive's point
of view. Also, there would be constitutional implications concerning the
authority of Congress to restrict the President's authority in foreign affairs
and defense.
8. Criminal Law Protection for Sources and Methods. For some time,
the Director and the intelligence community have been concerned with the
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absence of criminal law penalizing the disclosure of sources and methods
information by past and present Government employees, employees of contractors
and others furnished such information by virtue of their relationship with the
Government. CIA and the Department of Justice have been negotiating the
development of an appropriate bill and it seems probable that an agreed bill
will be ready for submission to OMB early in the year. The essential problem
with existing criminal law is that it is limited in scope (information concerning
military installations and facilities, for example) or requires an intent to injure
the United States or aid a foreign power, and, as such, does not reach the case
of the former employee who simply elects to publish. This is particularly true
when the information to be published is only an identification of intelligence
sources, and even more so, if the source is no longer a productive one.
Moreover, existing law is now in the process of change as S. 1 and related
bills proceed on their tortuous course.
9. Protection by Injunction. The criminal legislation being developed
also would empower the courts to enjoin the disclosure of classified sources
and methods information again, however, applicable only to those who acquire
information by virtue of their association with the Government. This approach
is potentially the-most valuable of all, since the possibility of an injunction
against the author might deter publishers from committing resources to the
p_ eparation of a publication which might never become available, that is,
the author might deter publishers from committing resources to the
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preparation of a publication which might never become available, that is,
the author might be enjoined from proceeding. Further, since the injunction
would involve a civil, rather than criminal procedure, greater protection for
the information during the course of the necessary litigation should be
possible. And finally, injunction founded on statute would be on sounder
footing than one resting on the existence of a secrecy agreement, as in the
Marchetti decision.
IV . Conclusion
10. The foregoing suggests that no changes in existing law should be
recommended at this time. Executive branch agreement on sources and methods
legislation is being worked out elsewhere and will go forward when agreement
is reached. Similarly any revision to Executive Order 11652 is for study
elsewhere within the executive branch. In any event, it seems likely any
changes in that order would involve essentially changes in detail or procedure.
It suggests that the substitution of a statutory classification system for the
Executive order is not the primary vehicle for protecting information furnished
to Congress and would be undesirable for other reasons. -
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Remarks :
Your comments are requested by
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25X1A
Jon c a on
Associate eputy Director
for
Administration
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