THE SELECT COMMITTEE ON INTELLIGENCE SUBCOMMITTEE ON SECRECY AND DISCLOSURE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00821R000100150001-9
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 36
• Document Creation Date: December 14, 2016
• Document Release Date: November 19, 2002
• Sequence Number: 1
• Publication Date: August 21, 1978
• Content Type: REPORT

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D R. A F T
SELECT COMMITTEE ON INTELLIGENCE
SUBCOMMITTEE ON SECRECY AND DISCLOSURE
NATIONAL SECURITY SECRETS: THEIR PROPER
PLACE IN THE LAW
-/ ~:q~) -/zi
rT~r~ Jam, ~
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TABLE OF' CONTENTS
I. PREFACE ----------------------------------------
IT- SUMMARY ----------------------------------------
4
III. BACKGROUND OF SECRECY AND DISCLOSURE
SUBCOMMITTEE INQUIRY ------------------ _--_--
7
IV. "LEAK" AND CLASSICAL ESPIONAGE INVESTIGATIONS --
11
A.
"Leak" Investigations ---------------------
11
B.
Classical Espionage Investigations --------
14
C.
Damage by Confirmation Versus Augmentation
15
D.
Augmentation of the Damage in Criminal
Cases --------------------------------- -----
16
E.
"Gray Mailt": The Price of Failing to
Resolve the Dilemma --------- _-----
19
V. "TO KILL...TO LIE, CHEAT AND SPY" --------------
21
A.
A Case of Bribery -------------------------
22
B.
The KCIA Case: A More Recent Bribery
Conspiracy ---------------------------------
23
C.
.
The Khramkhruan Case: Narcotics
Trafficking -____-___
24
D.
The Nha Trang Murder ----------------------------
26
E.
The Watergate Case ------------------------
30
VI. PAST LEGISLATIVE AND ADMINISTRATIVE PROPOSALS
IN RESPONSE TO THE "GRAY MAIL" PHENOMENA -------
32
A.
Legislative Initiatives: Abortive Efforts
to Enact An Official Secrets Act ------------
32
B.
Administrative Initiatives --------------
36
VII. NEW INITIATIVES ---------------------------------
4o
A. Leaks and Espionage Generally --- - ------- 40
Facilitating Enforcement of Existing
Statutes and the Charters --~ - -_ - -- - 45
VIII. RECOMMENDATIONS -_-_-- ------ -----_ -----_-_- - 55
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z. PREFACE
The President learned of the new horror.
Bletchley (the site in England where British
intelligence was decoding German military com-
munications) was discovering ahead of time which
civilian targets Hitler planned to strike next..
Churchill and his War Cabinet had to decide
which was more important: to warn the families
marked for punishment or protect the secrets of
Bletchley's growing apparatus for divining Nazi
intentions.
A Man Called Intrepid by William Stevenson.
The secrecy necessary for effective intelligence activities
often forces upon government officials difficult moral dilemmas.
A Man Called Intrepid is the story of the secret extralegal
British and American intelligence apparatus established by
Churchill and Roosevelt to combat the.German war machine. The
book is rife with anecdotes about difficult decisions by the
President and the Prime Minister involving the need to protect
the ULTRA secret (the fact that the allies had cracked the German
code). Certainly the most famous of these was the foreknowledge
allegedly provided Churchill through ULTRA of the German plans to
firebomb Coventry.
According to Stevenson, Churchill decided not to evacuate
Coventry out of fear that the Germans would realize the British
had broken their code.* When confronted with Churchill's
decision on Coventry and similar questions, Roosevelt is said to
have remarked, "War is forcing us more and more to play God."
f St6venson's book contend that this anecdote is
i
i
cs o
t
Cr
inaccurate . Nonethel-ess,-there is little doubt that Churchill
onizing decisions in which he decided not to
a
man
f
t
had
g
y
o
ace
-
forewarn citizens for. fear of-. jeopardizing the ULTRA secret.
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Since World War II, intelligence activities and concomitant
secrecy have increased rather than subsided. The moral dilemmas
have increased. Certainly most officials of British and American
intelligence would agree with Sir William Stephenson, the man
code-named "Intrepid":
We live in a world of undeclared hostilities
in which such weapons (the weapons of secrecy) are
constantly used against us and could, unless
countered, leave us unprepared again, this time
for an onslaught of magnitude that staggers the
imagination.
Stephenson concludes his discussion of the need for secrecy with
the following insight:
So there is the conundrum: how can we wield
the weapons of secrecy without damage to ourselves?
How can we preserve secrecy without endangering
constitutional law and individual guarantees of
freedom?
Stephenson expresses the conventional concern that secrecy
could undermine democratic principles, and no one who has lived
through the past few years can deny the price that we have
sometimes paid for secrecy in intelligence and government.
However, in the course of our study of secrecy we found that
there is a part of the present-day dilemma which Stephenson does
not mention. Indeed it is not unlike the problem of
foreknowledge faced by Churchill and Roosevelt in "Coventry-type"
situations -Secrecy. and-..a desire on the part of the intelligence
community to preserve secrets has at times, posed certain threats
to the national security itself.. This. report demonstrates the
more difficult it becomes to enforce the laws that guard our
fact that the more sensitive the -information . compromioed, the
national secrets.. This occurs ~arincipally because: the legal
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officials that they were subject to a different standard of law.
Certainly secrecy and that estrangement were important causes of
recent crises concerning the intelligence agencies.
Therefore, the real dimensions of the problem that the staff
has discovered are broader than the conundrum posed by
Stephenson. The basic dilemma facing the intelligence community,
the Executive branch and this Committee is not just whether
secrecy and democracy are compatible, but whether maintaining
secrecy at any cost can undermine the national security, the
enforcement of the espionage statutes, and the general
administration of justice. in the words of one Justice
Department official who testified before -the Subcommittee, "To
but also threatens the administration of justice. Intelligence
agencies through the last several decades have, in the name of
"protecting sources and methods", attempted to hold themselves
apart from the rest of the Executive branch and the. Congress.
This phenomenon fostered the belief among some intelligence
sterns necessary to pursue a breach entail, almost inevitably,
some further compromise of sensitive material. This is not a
problem which is likely to be corrected by a revision of our
substantive espionage statutes.
This impasse may not only adversely affect national securi
what extent must.. ,ael.harm the national security in order to
.protect the national . security?"
Joseph R. Biden, Jr.,.Chairman
James Pearson, Vice Chairman
Subcommittee on Secrecy..
and Disclosure
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ITI. BACKGROUND OF SECRECY AND DISCLOSURE -
SUBCOMMITTEE INQUIRY
On April 26, 1.977, the Subcommittee asked the staff to
undertake (1) a review of unauthorized disclosures of
intelligence information and (2) an inquiry into the use of
compartmentation -- a procedure to place special limitations on
access to information that is especially sensitive. Although
some progress has been made on the second inquiry, most of the
Subcommittee's work has concentrated on the first question which
will serve as the focus of this report.
The Subcommittee -conducted its inquiry through both
interviews and file searches at the intelligence agencies. We
have conducted over thirty interviews and briefings with
officials of the Departments of Justice and State and the major
intelligence agencies (CIA, NSA and DIA). In the course of these
briefings we asked each agency to provide us with ten cases in
which intelligence information had been covertly passed to
foreign powers -- classical espionage cases -- or in which
intelligence found its way into the public media -- intentional
or accidental leak cases. We have reviewed over forty case files
or summaries of case files provided by these agencies. These
files have served as a valuable data base for our survey.
Indeed, we believe that they represent the most comprehensive
compilation of such information in either- th.e.Executive branch or
Congress. Each file contains information on an'intelligen.ce._-
compromise .which.has-. occurred in the last few Years
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On March lst, 2nd and 6th, the Subcommittee on Secrecy and
Disclosure conducted public hearings on the matters raised by our
inquiry. The Subcommittee heard from Admiral Stansfield Turner,
the Director of Central Intelligence; Benjamin Civiletti, the
Acting Deputy Attorney General; Philip Lacovara, formerly of the
Watergate Special Prosecutor's Office; Judge Pletcher, Chief
Judge of the Court of Military Appeals; William Colby, former
Director of Central Intelligence; Lawrence Houston, former CIA
General Counsel; and Morton Halperin, representing the American
Civil Liberties Union. The purpose of this report is to
summarize the Committee's findings based on these hearings and
its year-long inquiry, and to report its recommendations for
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legislative and administrative actions to facilitate
administration of certain statutes related to the national
security.
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^nited States v. Moore was the successful.: prosecution. last
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I
onto the Russian Embassy lawn here in washingto:,'United States
v. Boyce and Lee, also successfully prosecuted last year,
involves an employee of TRW, a large defense contractor in
California, who passed photographs of documents describing
extremely sensitive intelligence systems to the Russians. Both
cases were the subject of considerable tension between the CIA
and the Department of Justice. Both required protracted
negotiations on whether to use individual documents and witnesses
in the trial. In one case friction over those sorts of issues
became so intense that the lawyer assigned responsibility in
CIA's Office of General Counsel refused to participate any
further. In the Moore case disagreements between DCI George Bush
and Attorney General Levi almost required President Ford's
intervention on his last day in office.
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VI. PAST LEGISLATIVE AND ADMINISTRATIVE PROPOSALS
IN RESPONSE TO THE "GRAY MAIL" PHENOMENA
Over the years the CIA and its predecessors have responded
with two initiatives to the problems of enforcement of the
espionage and other statutes which risk disclosures of foreign
intelligence "sources and methods". First, especially with
respect to leaks and espionage violations, military and
intelligence agencies have called for enactment of statutes
similar to the British Official Secrets Act. Second, since 1954
the CIA has sought special arrangements with the Department of
Justice designed to avoid controversies in these kinds of cases
by relieving CIA of its responsibility to report to the
Department criminal activity where further investigation might,
in CIA's judgment, jeopardize clandestine operations.
A. Legislative Initiatives: Abortive Efforts
to Enact An Official Secrets Act
Obviously, some of the problems 'described earlier in the
administration of espionage statutes would be resolved if the
culpability requirements were eased. It would be immensely easier
to prosecute leaks and espionage if all that had to be proven was
that the defendant had passed classified information to
unauthorized persons -- essentially the rule under the Official
Secrets Act.*
According
to Professor Benno
chmitt of Columbia Law School,
one of the nation's experts on our espionage statutes,.prononents
* It should be noted that the Official Secrets Act not only
aoPlies to divulgence but also to publication of secrets, and
that its.scope extends to all official government: information,
-
not just national. security secrets.
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of such legislation "reached back to Civil war experience, in
which the Union cause had been hindered by newspaper detailing of
military plans prior to their execution." The most famous
confrontation in the Congress over this kind of legislation was
during the Wilson administration when, according to Professor
Schmitt, the administration "proposed to censor or make
punishable after the fact (exactly which option was never made
clear), publication of defense information in violation of
Presidential regulations, without any limiting culpability
requirement." According to Schmitt:
In response to this proposal, the Congress
engaged in its most extensive debate over freedom
of speech in the press since the Alien and Sedition
Acts. The preoccupation was not an academic one.
Opponents feared that President Wilson or his
subordinates would impede, or even suppress, informed
criticism of his administration's war effort and
foreign policy under the guise of protecting military
secrets.-The aggrandizing of presidential powers
during wartime was a recurrent fear of Republicans,
especially Senate progressives such as Borah,
LaFollette, Norris and Hiram Johnson.
The proposal was ultimately voted down and only the more modest
of the Wilson administration's espionage proposals were adopted.
That legislation serves as the framework for our present
espionage statutes.
Similar proposals were made during the World War II period.
in 1946 the Joint Congressional Committee.f_or Investigation of
the attack on:Pearl Harbor recommended that.Congress-enact
legislation prohibiting the revelation of _ any classified
information. During the. war there had also been a study jointly
conducted by Army and Navy Intelligence and the FBI which made
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similar recommendations transmitted by the Secretary of War to
the Attornev General in June, 1946.
In 1947, the predecessor of Section 798, making it a crime
per se to reveal communications intelligence, was introduced and
in September of 1948 an omnibus bill was proposed by the Truman
administration incorporating the Section 798 language and a
number of earlier proposals for simplifying the culpability
requirements of the espionage statutes. During this period the
CIA, objecting to what it called a "piecemeal" approach of
amending various sections of the espionage statutes to deal with
special limited problems, suggested a redrafting of the whole
espionage statute along the lines of the British Official Secrets
Act. A few Of the technical changes proposed by the Truman
administration, and the intelligence and the military departments
were incorporated into Title 18; the most significant of those
was Section 798 of Title 18. However, the intelligence community
and Department of Defense were not-satisfied with those
amendments and in 1952 Defense Secretary Robert Lovett proposed
to President Truman that the administration still seek
legislation similar to the British Official Secrets Act. The
Justice Department prepared such legislation but it did not reach
the floor in either House.
In 1957 the Commission on Governmental Security suggested
legislation that would make-it.-a
whatsoever, information classified, knowin9.such information to
crime. "for any-.parson willfully
to, disclose without proper authorization for any. purpose
have been soc_lassified." The Commission justified its proposal
jr, terms of the "gray mail" problem:
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Since espionage cases may frecTuentlv- involve
national security information of the highest
classification, the government is confronted with
a serious problem of how far such information can
be compromised in the course of prosecution ...A
defendant who may have met with the greatest
success in securing our most precious secrets, may
also have secured an advantage in warding off
successful prosecution.
No action was taken on the commission's recommendation, nor
on suhsecruent initiatives in 1958 in the Eisenhower
administration, nor a similar initiative in 1966 by the CIA.
Indeed, legislation was never seriously considered in this area
until the Federal Criminal Code Reform legislation was introduced
by the Nixon administration. That legislation contained some of
the recommendations suggested by the intelligence community in
the past but met with strenuous opposition from media and civil
liberties groups. Similarly, those same groups strongly
criticized legislation drafted by the CIA and proposed by the
Ford administration in February of 1976. No action has been
taken on the CIA proposal.
Typical of the type of opposition that the Federal Criminal
Code Reform and the subsequent Ford administration proposal
provoked is the testimony of Jack Landau of the Reporters
Committee for Freedom of the Press before a Congressional
subcommittee which was considering the Federal Criminal Code
Reform:
it is abundantly clear that S. 1 (the Code
reform proposal) is an unwise and unconstitutional
proposal which could be used to silence the type
of aggressive news. reporting which produced articles ..
about the Pentagon Papers, the..Mylai massacre, the
Watergate cover--uP, the CIA domestic spying, the FBI
domestic .spyinq and other government misdeeds: News
reporting which has been embarrassing to some persons
in the government- and which is dependent in whole or
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in part on qovernment compiled information-and reports
Frequently supplied to the press by present or former
government employees without government authorization.
The new espionage provisions of the Federal Criminal Code
Reform were dropped prior to its consideration by the Senate
early this year; proponents realized that an" further action on
the Federal Criminal Code Reform would be indefinitely postponed
as long as there was significant controversy over its
constitutionality.
%3. Administrative Initiatives
In February of 1954 Lawrence Houston, General Counsel for
the CIA, established an arrangement with William Rogers, Deputy
Attorney General, to obviate the need to report to the Department
of Justice certain criminal activity coming to CIA's attention.
The ambiguity of the arrangement is highlighted by. an
exchange of corresoondence between the CIA and the Fureau of the
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Budget in August of 1.954. The CIA expressed concern regarding
legislation about to be enacted which would grant the Attorney
General exclusive responsibility for investigating all violations
of Title 18 by government officers and employees. Notwithstanding
the CIA's concerns, that legislation was eventually enacted and
codified as 5 U.S.C. 5.311(a) (since recodified in 28 U.S.C.
5.535 (b) (2) , see Appendix)
In November of 1958, Rogers sent a memorandum to the heads
of all departments and agencies in the Executive branch of -
government emphasizing their responsibilities tinder the
legislation. Subsequent Attorneys General have issued the same
reminder soon after taking office. However, for over twenty
years the CIA, based on its 1954 arrangement, assumed these
directives exempted reporting the kinds of cases Houston had
described to Poqers. Although there were minor changes in the
procedures described in Houston's original memorandum --- in 1955
and again in 1964 -- the basic thr-ust of the arrangement wherein
CIA took primary responsibility for balancing the need for
secrecy.against the administration of justice remained until
In January of 1975 DCI William Colby and Lawrence Silberman,
Acting Attorney General, reviewed the 1954 arrangement. At that
time Silberman took the,bosition.that the agency should comply
with 5-U.S.C S.311(a).by providinq a summary-"but not. an
-investiaa:tive report as such" inessentially every case and. that
-General, not the CIA, -would make the decision on whether or not
the. basic security issue should be raised,-but that the Attorney
o orosec-ute. The - responsibility of the CIA to report evidence
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of crimes by its employees to the 'Attorney General was the
subject of a specific provision in Executive Order 11905 issued
by President Ford (designed to regulate the activities of the
intelligence community) and its successor issued by President
Carter, Executive order 12036.
The Attorney General and DCI are currently attempting to
develop a memorandum of understanding which would serve as a
successor to the 1954 arrangement. The new Executive Order and
the draft memorandum of understanding between Justice and CIA_
retain the principle established by acting Attorney General
Silberman that the Department of Justice has the responsibility
of balancing the needs of secrecy against the ends of justice.
Both the memorandum of understanding and the Executive Order
purport to impose a burden on the intelligence community to
report criminal acts by its own employees.
with respect to non-
employees, the new Executive Order reads as follows:
... (the bead of any intelligence- agency must)
report to the Attorney General evidence of
possible violations by any other person of
those federal criminal laws specified in guide-
lines adopted by the Attorney General.
No such guidelines have yet been adopted and, therefore, the
reporting requirements under that provision are unclear.
Furthermore, neither the memorandum of understanding nor the
Executive Order address the way in which 'the Department of
Justice should handle evidence necessary to investigate or.
prose7cute an allegation brought to its.. attention under these
p+ provisions. In other words,neither. the memorandum-of.
understanding nor the Executive Order are intended to resolve
controversies on the use of classified information .in the
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prosecution or investigation of crimes, the problem to which this
report is addressed.
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VII. NEW INITIATIVES
legislative charters.
The Committee agrees with former DCI Colby's testimony
before the Subcommittee on Secrecy and Disclosure that, "We would
be irresponsible if our revision of intelligence structure did
not recognize the need to protect the necessary secrets of
intelligence better than we do today." A resolution of the
dilemma presented by this report must be a part of the charter
legislation being considered by the intelligence Committee. _
To meet the problems set out in this report, the Committee
has prepared a recommended program.* This program is designed to
serve two basic ends: first, to facilitate the enforcement of
espionage statutes and thereby protect our national secrets
without jeopardizing constitutional principles; and second, to
facilitate enforcement of the criminal sanctions set out in the
The Comm-it tee's recommended program is contained- in seven
recommendations found in Part VIII, infra.
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- -A.5-,
Facilitating Enforcement of Existing
Statutes and the Charters
The review of the cases described earlier and the hearings
of the Secrecy and Disclosure Subcommittee have led the Committee
to recommend a program of both administrative and legislative
action designed to facilitate enforcement of the espionage
statutes. In essence, on the administrative side, the Committee
recommends a streamlining of decisionmakinq within the Executive
branch on cases where leaks or espionage occur and to encourage
the use of administrative sanctions in less serious breaches of
security or other violations of the law. On the legislative
side, the Committee recommends a variety of new judicial
-procedures intended to strengthen the hand of the judge and
encourage accommodation between the defendant and the prosecutor
concerninq the use of classified information in litigation -- to
seek solutions which encourage proceeding with prosecution rather
than dropping_ the case out of fear of disclosure of sensitive
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-47--
the more important it is to bring in the FBI and the Attorney
General, regardless of the inability to prosecute.
The Justice Department is properly concerned that such cases
waste time and money because they often turn out to be leaks
either formally or informally sanctioned by appropriate
authorities. Nevertheless, where such a leak endangers sensitive
sources or methods and violates the criminal statutes
investigation is appropriate. The higher the criminal leaker,
of damaging criminal leaks where administrative action, rather
than prosecution, is the intended result.
These standards do not go as far as the recommendations of the
Rockefeller Commission (on alleged CIA abuses), which proposed
FBI investigations without evidence of a crime or the Attorney
General's approval. Nevertheless, they break sharply with
current Justice Department policy foreclosing FBI investigatin
The-Director of Central Intelligence has extraordinary
powers under the 1947 National Security Act, and will have
similar authority under the new legislative charters, to dismiss
be delegated to the FBI except in the case of explicit criminal
violations. Some organization with intelligence community-wide
CIA employees. With that authority comes the implied
responsibility to investigate employees' past activities which
would warrant dismissal. This investigative authority should not
-intelligence agents; emolo.yees or informants which violates
authorityshould berreauired to investigate activity by
security or charter prohibitions...
stated,
the advantage of administrative sanctions over.
criminal prosecution is that ;Procedures under the former, do not
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require extensive public disclosure of classified information.
Therefore, both the staff of the Committee and representatives of
the Executive branch should explore what possibilities exist for
formalizing and upgrading administrative review and investigation
procedures for violations of security and other unlawful acts by
intelligence officials. For example, a possible alternative is
an administrative review procedure for employees similar to
courts martial in the military. Officials of the agency would
hear complaints of violations, especially in circumstances where
the decision has been made to forego criminal proceedings for
national security reasons. These administrative review
procedures could be applied to former employees who violate
charter prohibitions, assuming that a deferred compensation
pension plan has been conditioned upon continued compliance with
security and charter requirements. Former employees who violate
prohibitions could be subject to loss of pension rights through
the administrative procedure, although this procedure would raise
constitutional "due process" issues.
Another major goal of the Committee recommendations for
administrative action is to improve accountability in Executive
branch decisionmaking concerning cases involving national
secrets. The Committee agrees with the testimony of Philip
Lacovara before the Secrecy and. Disclosure Subcommittee:
I have the sense that the government maybe
aborting cases prematurely or unecessarily because
of a failure to. press the alternatives to their
fullest, as we did, for example, in. the -Spe-cial
Prosecutor's office in the Ellsberg break-in
prosecution, where-defense efforts to use."natio.nal
security threats" to stymie the case were beaten in
the courts.
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Durina the course of the hearings the Subcommittee members
and witnesses agreed on a number of fundamental points about
decisionmakinq in these cases. There is little controversy that
the ultimate decision on whether to proceed on these types of
cases must be centralized within the Attorney General's office.
The DCI should have shared authority with the Attorney General
through the "sources and methods" provision of the National
Security Act to halt investigation of a criminal case. The
Deputy Attorney General and the DCI. in testimony before the
Subcommittee agreed that it was up to the Attorney General, with
disputes settled by the President, to decide whether or not the
jeopardy to national secrets in pursuit of an investigation
outweighs the ends of justice.
If the intelligence community disagrees with an Attorney
General's decision, the DCI may appeal to the President. The
decision to drop a national security case should be made in
writing by a high-level official within the Department of
Justice, an Assistant Attorney General or a Deputy Assistant
Attorney General. Included in that written decision should be a
detailed explanation of the information which would have been
revealed in the course of trial, why the information would be
revealed, and what damage the disclosure of the information would
have to the national security. The mere fact that a written
record must be made will discourage thoughtlessly dropping a-
t proaecutio.n:
-)otent~_al'
.A-final area appropriate,for administrative action pertains
to the requirement that intelligence agencies report to the
Department of-Justice evidence of. criminal activity-by employees.
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As noted in Part VI of this report, the administration is
currently at work attempting to implement provisions of the new
Executive Order and to update the so--called Silberman--Colby
understanding as to the reauirements of the intelligence
community to report crimes of its employees to the Department of
Justice. If there is no mechanism through which the Department
of Justice is so notified, the law enforcement process is likely
to break down.
Thus the so--called Silberman--Colby understanding should be
updated and formalized. It is eoually important that the
memorandum of understanding be exnanded in scope to address not
only criminal activities of intelligence agents, employees or
assets, but also criminal activity knownwby.the intelligence
community which does not involve its employees or assets... Such
an understanding must consider the protedtion of sources or
methods.
STAT
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V f I I . PFCOr'^MENDATZONS
The recommendations which follow were formulated by the
Secrecy and Disclosure Subcommittee and are-endorsed by the full
Committee. They will serve as an agenda for the Committee as it
proceeds with consideration of legislative charters.. The staff
will be developing specific legislative proposals to implement
these recommendations for inclusion in the charters to be
discussed in the course of its ongoing hearings. It is,the
Committee's hope that the Executive branch will work with the
Committee on these matters and, in particular, on its
recommendations for administrative action.
I. The Congress should not at this time consider any
general recasting of the federal espionage statutes
along the lines of the British official Secrets Act
Limited further Protection of sources and methods,
especially human sources, may be required, however.
Congressional energies would be better spent on
developing procedures to facilitate enforcement of
existing statutes.*
TI. The Executive branch should interpret the new
Executive Order on security classification with an
emphasis on decreasing the amount of unnecessary
secrecy. The intelligence community, the Intelligence
Oversight Board, and the intelligence committees of
the Congress should declassify as many as possible of
their reports and studies on matters of public concern
to discourage the "leaking" of versions which have not
been sanitized to protect "sources and methods"
information. These reports and studies must be
declassified in a disinterested manner, so that the
public receives the true view'of a given situation.
III. The intelligence community should develop,, in
conjunction with the Committee, administrative review
.procedures for the exercise of the DCI's authority for
the dismissal of employees for violations of security
For discussion of the Committee's rationale for
recommendations I and TI, . see pvs . , sur
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56-
or other provisions of the intelligence community
charter. At the same time the intelligence community
should centralize authority, perhaps in the
Intelligence Oversight 9oar.d, for investigations of
breaches of security and violations of charter
prohibitions which do not constitute crimes. The
purpose of these procedures would be to permit
sanctions against employees who violate the charter
through procedures similar_ to a military court martial
where it is easier to cope with classified documents
or testimony than in traditional public criminal
trials. Some consideration should also be given to
applving these administrative review procedures to
former employees through withdrawal of pension rights
for former employees who violate security or
provisions of the charter.*
IV. The FBI should continue to have exclusive
responsibility for investigating criminal violations
involving the intelligence community. In leak cases
the FBI should initiate investigation if:
(1) the leak endangers sensitive intelligence
sources or methods and is reasonably believed to
violate the criminal statutes of the United States;
(2) the persons investigated are Government
officials having access to the information leaked;
(3) the investigation and any intrusive
investigative techniques are authorized in writing by
the Attorney General;
(4) the investigation terminates within 90
days, unless such authorization is renewed; and
(5) the Attorney General submits information
concerning the leak to the head of the employing
agency, or to the President, for appropriate
administrative action.
The Attorney General should issue regulations that are
binding upon all departments of the government which
set out the procedures whereby agencies of the
intelligence community are to report crimes that come
to their attention and to.or_ovide necessary
information to attorneys of the Department of Justice
to proceed with a criminal investigation or
prosecution.
'or discussion of the Committee's rationale for
recommendations I'll, IV, V, and VI, see Pps. ,
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The regulations should also set out how the decision
is to be made not to proceed in national security
cases and who is authorized to make such a decision.
These regulations should require that any such
decision be made in writing and the decision pager
should include the precise intelligence i.nfo._{.cati-c_>n
which would have been disclosed~in the course of the
trial, w).y the official believes it would have been
disclosed, and the damage the information would have
to the national security if the case proceeds. The
decision paper should he available to the intelligence
oversight committees of the Congress and such cases
should be reported to the committee annually or as
rewired.
VI. The Executive branch should complete its m!emdrandurl of
understanding bet~,;een the Attorney General and the DCI
on the responsibility of the intelligence community to
report crimes to the Department of Justice. The
memorandum of understanding should be expanded to --
cover reporting of all activity in violation of U.S.
laws coming to the attention of the intelligence
community, but must consider protection of sensitive
sources and methods.
VII. Congress should consider the enactment of a special
omnibus pre-trial proceeding to be used in cases where
national secrets are likely to arise in the course of
a criminal prosecution. The omnibus procedure would
require the defendant to put the prosecution and the
court on notice of all motions or defenses or
arguments he intended to make which would require the
discovery and disclosur-e of intelligence information
or the use of intelligence community witnesses. The
judge would be required to rule in advance of the
trial on the admissibility of the intelligence
information and on the scope of witnesses' testimony
as well as the general relevancy of the motion or
defense prior to granting discovery of any
intelligence information to the defendant. On the
other hand, the defendant would be permitted a
discovery motion during the course of trial if the
prosecution presents a matter not originally suggested
by indictment or for which the defendant could not
fairly have been expected to be on notice at the time
of the omnibus procedure.*
* For a discussion of the Committee's rationale for
recommendations VII and VIII, see pp. f.f., sunr .
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ViIi. The Congress should reconsider the secret of state
privilege proposed by the Supreme Court in 1974.
That privilege needs to be considerably revised
along the lines described above but at a minir?up
should provide for an in camera adversary
procedure on the privil.eqe, define the scope of the
privilege, the standards for its invocation, provide
increased judicial authority for its procedural
administration, and provide a sliding scale of
sanctions available to the judge in the case where
the privilege is successfully invoked.
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