AUTHORITY TO CLASSIFY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00674R000200050006-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 20, 2016
• Document Release Date: July 9, 2007
• Sequence Number: 6
• Publication Date: January 1, 1975
• Content Type: MEMO

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MEMORANDUM FOR: DDA Records Management Officer
DDI Records Management Officer
DDO Records Management Officer
DDS&T Records Management Officer
DCI Administrative Officer
SUBJECT: Authority to Classify
REFERENCES: a. E.O. 11652, "Classification and
Declassification of National
Security Information and Material,"
dated 8 March 1973
b. National Security Council Directive,
dated 1 May 1972
1. This Staff has been assigned partial responsibility
for the implementation of Classification/Declassification
procedures established by E.O. 11652 and the implementing
NSC Directive.
2. Attached are copies of a pamphlet entitled,
"Know Your Responsibilities as an Authorized Classifier,"
provided by the Interagency Classification Review Committee
for all authorized classifiers. A copy of the pamphlet is
to be distributed to all authorized classifiers with the
name of the classifier typed on the pamphlet, and a note
reminding the classifier to read and be familiar with his
responsibilities in this connection. May we ask that you
please accomplish distribution to those classifiers in your
component (computer listing attached).
3. At the same time, may we request that a thorough
review be made of the listing of classifiers to determine if
the requirement for classifying authority continues in each
case.
4. Action should be taken to delete classifying
authority in cases where a real need does not exist. I
would appreciate having the results of such a review by
26 September 1975.
Chief, Information Systems Analysis Staff
Attachments (DDI~ DCI~ DDS$T- DDA ~-7 DDO~
ISAS:BEC:dr (2Sept75)
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The Washington Star Thursday, April 7, 1977
SECRECY-:
Continued From A-1
a' memorandum attachq~ to the
order, dated March 31 and signed by
Edward Dolan, acting assistant
attorney general for administration,
asked the heads of all Justice Depart-
meit divisions, boards and offices to
submit their comments on the
proposal by tomorrow.
"IF YOUR RESPONSE, is not re-
cei ed by that date," the memo said,
"wl will conclude that you concur
wits the proposed order as written."
Calls to some high-ranking officials
in he department whose comments
ha been solicited showed that they
ha never seen the proposal.
One Justice lawyer involved in
.haxidling Freedom of Information
and Privacy acts requests said, "I
.just saw it yesterday. It's absolutely
insane. It reads like an official se-
cres act, like something they would
putt; together over at the Pentagon.
Thtrre's an obvious need for s6cruity
here, but this thing is overkill."
Another Justice official said the
proposed classification plan "would
undercut everything we've' been
trying to do around here for the past
couple of years. We've been trying to
overcome the public's vision of the
Justice Department as clutching to
its bosom every record and docu-'
ment it has and saying, `No, you
can't have it.' I'll do my best to keep
it from being promulgated."
}`'j blew my stack when I'saw the
thifig the other day," another angry.
Justice lawyer said. "Besides the
secrecy, which would give the de-
ev~rthing. I think this thing will die
,of its own weight."
THE ORDER STATES that as
head of the Justice Department, "the
attorney general's authority to gov-
Atty. Gen. Griffin Bell: Role in Justice's secrecy order still not kiiovn?
-sufficient to support a system regu-
lating" the flow of information within
the department and to determine
what information can be given to the
public. -
The proposed order defines the
designation "DOJ Sensitive" as
being applied to any "unclassified
departmental information which for
a signficant reason must bE pro-
tected against uncontrolled
release. . . ." The order says that
this "control marking . . . denotes
unclassified, sensitive departnental
information exempted from >ublic
Information or Pea #., e
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"DOJ Sensitive" information
gating office or higher authority has
been consulted," the order states.
"oral disclosure" of the classified
information "during discussions,
prevention of visual access to the
information, protection against unau-
thorized assessing of the information
.. in telecommunications systems,--
and unauthorized release of docu
ments, either gratuitously or in re
sponse to a specific request for
information."
DOJ Sensitive material become
automatically decontrolled four
years after the designation." It says
that such materials can be released
for "official purposes" outside the
department, but it raises the possibil-
ity that the recipients might have to
undergo FBI investigation to deter-
The order goes into great detail-on
the methods for storing and transmit-
ting the classified material to
preclude unauthorized disclosure and
even warns department officials
about using the telephone td discuss
such information.
"In 'view of the ease with which
information can be compromised by
the use of the telephone, officials
should consider the risks 'involved
tion, and exercise discretion in;using
The order said that "DOJ Sensi-
tive" material which does not have to
same manner as classified waste,
such as by burning, pulping or shred-
Officials were instructed to ensure
that prompt and appropriate admin.
istrative action be taken against any
department officials or employes at
any level who are determined to have
been responsible for the unauthorizedI
release or disclosure of such classi-
wilt be immediately reported to the
4ep rent security officer."
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ove
KNOW
YOUR
AS AN
0
CLASSIFI
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A new system for classifying Government documents relating to national security matters
was established on March 8, 1972, by Executive Order 11652. and further implemented by a
National Security Council (NSC) directive on May 17, 1972. The change represented the first
major overhaul in the classification system of Federal documents in 20 years. Every authorized
classifier should obtain a copy of the order, the implementing NSC directive, and the regulations
of his or her own department or agency and become thoroughly familiar with their contents.
Authority To Classify
The authority to originally classify information or material
under Executive Order 11652 is restricted solely to those offices
within the executive branch, enumerated in the order, that are
concerned with matters of national security and is limited
within those offices to the minimum number of persons abso-
lutely required for efficient administration. This authority may
be exercised only by the heads of the departments or agencies
and certain other properly designated officials and subordi-
nates. No one else may assign original classifications. Desig-
nated officials may classify information or material only at
the level authorized and below. Authority to classify may not
be delegated to individuals not properly designated,
Security Classification Categories
Official information or material that requires protection
against unauthorized disclosure in the interest of the national
defense or foreign relations of the United States (collectively
termed "national security" information or material) shall be
classified in one of three categories; namely, TOP SECRET,
SECRET, or CONFIDENTIAL. No other categories shall be
used except as expressly provided by statute. These categories
may only be used in accordance with the following definitions:
to national security. This classification shall be used with the
utmost restraint.
SECRET refers to that national security information or
material which requires a substantial degree of protection.
The test for assigning SECRET classification shall be wheth-
er its unauthoribed disclosure could reasonably be expected
to cause serious damage to the national security. Examples
of serious damage include disruption of foreign relations
significantly affecting the national security
significant im-
,
TOP SECRET refers to that national security information pairment of a program or policy directly related to the na-
- or=material which=requires-the-highest-degree=of-protection: ~tiii al=security; ievelatibri=of-signifi-cant--military=plans or-_-= -
The test for assigning TOP SECRET classification shall be
whether its unauthorized disclosure could reasonably be ex-
pected to cause exceptionally grave damage to the national
security. Examples of exceptionally grave damage include
armed hostilities against the United States or its allies, dis-
ruption of foreign relations vitally affecting the national
security, the compromise of vital national defense plans or
complex cryptologic and communications intelligence sys-
tems, the revelation of sensitive intelligence operations, and
the disclosure of scientific or technological developments vital
1 lesp
nsibility .
Each person possessing classifying authority shall be held
accountable for the propriety of the classification attributed to
him. Both unnecessary classification and over-classification
must be avoided. Classifications must be based solely on na-
tional security considerations. In no case may information be
classified to conceal inefficiency or administrative error, to pre-
vent embarrassment to a person or department, to restrain
competition or independent initiative, or to prevent for any
other reason the release of information that does not require
protection in the interest of national security.
tific or technological developments relating to national se-
curity. The classification SECRET shall be used sparingly.
CONFIDENTIAL refers to that national security infor-
mation or material which requires protection. The test for
assigning CONFIDENTIAL classification shall be whether
its unauthoribed disclosure could reasonably be expected to
cause damage to the national security.
Other designations coupled with one of the above three cate-
gories pertain to access restrictions only.
Any Government officer or employee who unnecessarily clas-
sifies or over-classifies information or material will be so noti-
fied. Repeated abuse of the classification process is grounds for
an administrative reprimand. The term "classification abuse"
means unnecessary classification, over- or under-classification,
failure to assign the proper downgrading and declassification
schedule, improper application of classification markings, im-
proper placing of a document in an exempt declassification
category, any classification or exemption action taken without
authority, or an improper delegation of classification authority.
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When Classifying a Document
Unless specifically exempted, pursuant to one of the four
exemption categories set forth in Section 5(B) of Executive
Order 11652, by an official authorized to originally classify
information or material TOP SECRET, classified information
and material must be subject to the General Declassification
Schedule (GDS). Alternatively, it may be designated for auto-
matic declassification on a given event or op a date earlier than
provided for in the GDS. This is called the Advance Declassi-
fication Schedule (ADS). The use of the exemption authority
shall be kept to the absolute minimum consistent with national
security requirements.
Proper marking of a classified document is important! Each
classified document shall show on its face its classification and
whether it is subject to the ADS or GDS. or exempt from the
GDS. Only authorized stamps, properly completed, may be
used. If a document is stamped "Restricted Data" or "Formerly
Restricted Data," such markings are, in themselves, evidence
of exemption from the GDS. The face of the document shall
also show the office of origin and the date of preparation
and classification. To the extent practicable, the body of the
document should be marked to indicate which portions are clas-
sified and at what level and which portions are not classified
in order to facilitate excerpting and other use. Material con-
taining references to classified materials, which references do
not reveal classified information, shall not be classified. Each
classified document must also identify in some manner, in
accordance with approved procedures, the individual at the
highest level that authorized the classification. Where the in-
dividual who signs or otherwise authenticates a document has
also authorized the classification, no further annotation as to
his identity is required. Every authorized classifier should be-
come thoroughly familiar with the proper marking require-
ments.
If the classifier has any substantial doubt as to which of the
classified categories is appropriate, or as to whether the in-
formation. or material should be classified at all, the least re-
strictive treatment should be used.
Special Responsibility To Protect
An authorized classifier or other holder of national security
information or material shall observe and respect the classi-
fication assigned by the originator, giving it the strict protec-
tion required by its level of classification. Y If a holder believes
that there is unnecessary classification, that the assigned clas-
sification is improper, or that the document is subject to de-
classification under Executive Order 11652, the holder shall
so inform the originator, who shall thereupon reexamine the
classification. Under no circumstances may a holder make an
unauthorized release of national security information. There
are provisions in the U.S. Criminal Code and other applicable
statutes relating to penalties for such unauthorized disclosures.
Implementation and Review Responsibilities
The Interagency Classification Review Committee (ICRC)
was established at the direction of the President to assist the
National Security Council in monitoring the implementation
of Executive Order 11652. The ICRC has extensive oversight
responsibilities, which are outlined in the order and in the
implementing National Security directive of May 17, 1972.
Within each department or agency, there is a departmental
review committee that has responsibilities to act on all sug-
gestions or complaints with respect to the individual depart-
ment's administration of the order. Such suggestions or com-
plaints may include those regarding over-classification, failure
to declassify, or delay in declassifying not otherwise resolved.
Interagency Classification Review Committee
Washington, D.C. 20408
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Central intdr nccAgency
OLC 77-3872/b
Honorable Howard W. Cannon, Chairman
Committee on Rules and Administration
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
requesting information on downgrading certain classified.
intelligence information from the Central Intelligence
Agency provided to the. Senate Select Committee on
Presidential Campaign Activities. I understand that
this information is now in the custody of your Committee
pursuant to a Senate resolution.
Thank you for your letter of 7 September.1977
All or a great art of that intelligence information
was compile through the use of sensitive intelligence
sources and methods. It is, therefore, exempt from
automatic declassification under Section 5, paragraph
B(2) of Executive Order 11652, and each classified
document in your possession should'contain a notice to
that effect. If such a notice has in any case been
omitted .through oversight, I request that you'
ou accept
this letter as equivalent assurance that the Agency
documents in your custody are not.subject to automatic
declassification. . .
I might add that our understanding with the Senate
Select Committee on Presidential Campaign Activities
has always been that information derived from intelligence
sources and methods would not be subject to declassification
in keeping with the provisions of Executive Order 11652
already cited.
I appreciate your interest in bringing this matter
to my attention.
Yours sincerely,
Distribution:
Orig - Adse
1 - DCI
1 - Acting DDCI STANSFIE D TURNER
1 - ER
I - OLC/Subj
1 - OLC/Chrono
OLC/RJK/ksn (13 Oct 77)
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 CLA0=0R1IE FELL. R.,. Approved For Release 2007/07/09: CIA-RDP86-00674R000200050006-0
. -
ROaOT C. SYRD. W. VA. RQ EWT r. GRIFFIN. MKR.
JAN" U. ALlJK. ALJ1. IYIWARO N. RAKER. JR? TENN. '
NAR3100N A. WILLiAMS. JR.. N.J. DICIE CLARK. IOWA /~$Qn~r /~~p~q.'/}
WSLLIAM MC WNORTER COCNRANE. STAFF DIRECTOR - ~? bite ~?e yO.i fez . e 6Fi6~
CHESTER N. 911TH. CNJEF COUNSEL
LARRY E. sMITT.. MRIORITY STAFF DIRECTOR
RULES AND ADMINISTRATION
WASHINGTON. D.C. 20510
.September 7, 1977
Admiral Stansfield Turner
Director
Central Intelligence Agency.
Washington, D. C. 20505 .
Dear Admiral Turner:
In the course of its investigation, the Senate
Select-Cammittee on Presidential Campaign Activities y
obtained certain classified material . from. the Central
Intelligence Agency. Senate Resolution 369 of the
93rd Congress transferred custody of these and other
%
IV'
,files to the Senate Committee on Rules and Administration.
rider Cha
Section A Subsection 2, of
Executive Order 11652, as modified, "in orma ion and
material originally classified "Secret"-.shall_become
automatically downgraded. to "Confidential" at. the end
of the second calendar year following the year in which
it was originated, and declassified. at the end of the
eighth full. calendar year following the year in which
it was originated."
These materials were classified "Secret" in the
calendar year 1974 and now seem to qualify under the
automatic declassification subsection of Executive Order
11714.
Downgrading the classification at this time would
permit us to include.this material in'the working files
of. the Watergate Committee, now housed in the vaults
of the Manuscript Division of the Library of Congress
and allow this material to..be made available by this
Committee, on a limited basis., to our highest need cate-
gory of requestors comprised of prosecutors,-
defendants-and Congressional Committees.
I will appreciate your early response.
Sincerely,
Chairman
HWC/SS/gr
STAT
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HOWARD W. CANNON,NEV., CHAIRMAN
ROBERT C. 331RW, r. rn. y- - HOWARD H. BAKER, JR., TENN,
JAM_S 9. ALLEN. ALA.A
HARRISON A.,WILLIAMS, JR: N.J.
DICK CLARK. IOWA
':WILLIAM MC WHORTER COCHRANE, STAFF DIRECTOR
CHESTER H. SMITH. CHIEF COUNSEL
LARRY E. SMITH. MINORITY STAFF DIRECTOR
COMMITTEE ON
RULES AND ADMINISTRATION
WASHINGTON, D.C. 20510
September 7, 1977
Admiral Stansfield Turner
Director
Central Intelligence Agency
Washington, D. C. 20505
Dear Admiral Turner:
In the course of its investigation, the Senate
Select Committee on Presidential Campaign Activities
obtained certain classified material from the Central.
Intelligence Agency. Senate Resolution 369 of the
93rd Congress s Senate transferred
and. Ad:minn.i3
Committee custody Rules these
files stra.tion.
fto o
Under Chapter IV, Section A, Subsection 2, of and
Executive Order 11652, as modified,
material originally classified "Secret" shall become
automatically downgraded to "Confidential" at the end
of the second calendar year following the year in which
it was originated, and declassified at the end of the
eighth full calendar year following the year in which
it was originated."
These materials were classified 111c'--c-et" in the
calendar year 1974 and now seem to qualify under the
automatic'declassification subsection of Executive Order
11714.
Downgrading the classification at this time would
permit us to include this material in the working files
of the Watergate Committee, now housed in the vaults
of the Manuscript Division of the Library of Congress
and allow this material to be made available by this
Committee, on a limited basis, to our highest need cate-
gory of requesters comprised of prosecutors, defendants
and Congressional Committees.
I will appreciate your early response.
Sincerely,
WARD `W: CANNON
Chairman
HWC/SS/gr
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President Carter is proposing new secrecyinform rulea-
s
that would strip the authority to classify
tion from 10 government agencies and cut back the
authorit
f f
r _t,_
y o
ou
The proposal, contained in a. draft of an executive
order, would take classification authority away from
agencies that seldom use it. One, the Department of
A
ri
lt
g
cu
ure never hasd it
, use.
Other parts of the draft propose that:
? Four years be cut off the usual 10 years the gov-
ernment may keep most of its top secrets and two
years cut off the usual eight years it may keep its
ordinar
---
y
However, anyone with top-secret classification au-
thority could grant extensions for up to 20 years.
And, after review, the extensions could be renewed
Gary Barron, a member of the National Security
Council staff who helped write the draft, conceded
this could keep information classified indefinitely.
But he said limiting extension authority to top-se-
cret classifier
w
___ ..
s
ould
? Agencies be allowed to make employees sign
promises to remain silent as long as secrets they
hold are under
r..__
w
Some agencies use secrecy agreements now. But
only a few, including the Central Intelligence
the
r_ u__
bef
y a
ore
The Supreme Court said two years ago that such
secrecy agreements give the CIA the right to censor
Barron said the secrecy agreements in the draft
were "a thing the lawyers did ... The whole idea
was to have something uniform. This thing was not
put in there to enjoin any publications. That was
The draft is the result of a Carter request to his
staff last June to review the government's entice se-
crecy system. During last year's campaign for the
presidency, Carter pledgbd an open administration.
In a first for executive orders, the draft of his order
will be sent to agencies, conaressionc1 committees
and some interested non-government' groups for
Then the National Security Council and Carter's'
to present to Carter for his signature. Once signed,
the
d
or
er will replace selt b
crecy rues sey President
Nixon in 1972.
Under the Carter draft, these agencies in addition
to the Agriculture Department would lose classifica.
tion authority:
The Federal Communications Commission; the
Civil Service Commission; the Department of
Health, Education and Welfare; the Civil Aeronau-
tics Board; the Federal Maritime Commission; the
Federal Power Commission: the National Science
Foundation; the Interstate Commerce Commission,
and the Office of Science and Technology Policy.
The Labor Department would have its authority
to classify information top secret cut to the power
to stamp it confidential. The Overseas Private In-
vestment Corp. would have its secret authority cut
back to confidential, the Agency for International
Development from top secret to secret, and the Ex-
port-Import Bank from secret to confidential.
`The Agriculture Department hasn't classified
anything," Barron said. "It has never used its au-
thority. The National Science Foundation, rarely
if ever. The Federal Power Commission, the Fed-
eral Maritime Commission, rarely."
Under the Carter draft, nothing may be classified
unless it meets at least one of 13 criteria, all related
to national security. They are designed to exclude
purely domestic matters with no tie to any threat
against the foreign policy or national defense inter-
ests of the nation.
Unlike the Nixon rules, the Cart ej , t specifi-
cally excludes -bagic scientific researci' lath is not
restricted under the Atomic Energy Act or "directly
related to the national security."
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 From the Architect of the Capitol's
new report on Capitol Hill planning al-
The last question on the survey asked
for any comments regarding the build-
ing and services on Capitol Hill. Of the
147 persons responding, 93 responded fa-
vorably and 54 unfavorably. Most people
were very pleased with what they had
seen at the Capitol, with the service of
the Capitol Police and Guide Force and
with the scale and beauty of the building
and grounds. Unfavorable comments re-
lated to tjie lack of convenient off-street
parking and the need for signs or other
means of direction to find their way
around the Capitol. Numerous sugges-
tions were made for painting and gen-
eral repairs. No one commented on the
lack of restroom or other facilities, prob-
ably because they were interviewed just
During the middle of March 1976, the
chief of the Capitol Guide Service and
his staff administered survey question-
naires to a random sample of
visitors....
Of the 533 visitors surveyed, 444 were
from 49 of the 50 states; 52 visitors came
from 15 foreign countries. The average
visitor stay in Washington was 3.3 days.
Approximately 88 per cent of the visitors
were staying for more than one day. One
of the most interesting aspects of the sur-
vey dealt with how people arrived at the
Capitol. On this question, 515 of the 533
persons surveyed responded, and of this
group 269 arrived by private car...
When asked if they plan to have any
meals in the Capitol area during their
visit, 379 indicated that they did and 134
indicated that they did not. The survey
was conducted before the tour of the
Capitol and the visitor probably had not
found out that eating facilities in the
ternatives:
E EDITOR
tists' Stand on `Soap'
Campaign the media to respond to the pleas of the
American people.
Christian God will not hold guiltless those who
:hern Bap- stand in the way of moral standards
ensure on that God himself has set. This includes
id not tell The Washington Post.
that those WILLIAM I. BARKLEY SR.
doing so Columbia
e
he
r
d
re
bers of the
two epi-
unity. You
Life Com- Museum. Zimmerman worked- very
Baptists in causes, including Historic Georgetown,
number h1- Inc., and the Woodrow Wilson House
re than 11,- Council. He has also served as a Presi-
ecause the Mr. Zimmerman has worked for many
the people. years on a variety' of preservationist
what it had tique row. I would like to point out that
Public-Spirited Restorer
In "A `Camouflage' for Old George-
town Market" [op-ed, Sept. 2], the thesis
of the article seems to be that John D.
Zimmerman Jr., who the article's
author, Padraic Burke, refers to as "a
former supermarket manager," is plan-
letters for ning to subvert the preservationists, in-
e Christian tent by turning the market into a boou-
nd by any Committee of the Citbzens Asitu-r
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Security by injunction
THE MARCHETTI CASE: NEW CASE LAW
John S. Warner*
The Marchetti case is truly a landmark case in the annals of the law-and it has
far-reaching implications for the Central Intelligence Agency, the intelligence
community, and the federal government as a whole, as will be demonstrated.
Actually, the legal story consists of two separate but related legal actions:
(1) The first case was initiated at the request of CIA by the. United States of
America, represented by the Department of Justice. CIA sought an injunction which
would prevent a former employee, Victor Marchetti, from publishing a proposed
magazine article by enforcing the secrecy agreement he signed upon entering into.
employment with CIA. After hearings, appeals, trials, and further appeals, a
permanent injunction was issued. The decision of the United States District Court for
the Eastern District of Virginia in Alexandria, Va., was appealed to the U.S. Court of
Appeals for the Fourth Circuit. There the original decision was affirmed, and a
petition for a writ of certiorari** was filed with the U.S. Supreme Court. That court
declined to review the decision of the Circuit Court, which is cited as U.S. v.
Marchetti, 466F 2d 1309(1972).
(2) The second case was initiated by Alfred A. Knopf, a,_.publisher, and
Marchetti and John D. Marks, co-authors of a proposed book, The CIA and The Cult
of Intelligence, submitted to CIA on 27 August 1973 pursuant to the terms of the
injunction issued in the first case. This latter case, against the United States, was filed
in the U.S. District Court for the Southern District of New York. On motion of
Department of justice lawyers, and after hearing arguments, that court ordered the
case removed to the Alexandria District Court which had heard the first case and had
issued the. injunction. The basic issue in this second case concerned the
appropriateness of the deletions CIA had made from the Marchetti-Marks
manuscript. After trial, the Alexandria District Court made a decision which was
extremely adverse to the government's position. Upon appeal, the Fourth Circuit
Court of Appeals reversed the District Court, fully approving the government's
position-i.e., agreeing with all the deletions requested by CIA. This case too was
appealed to the Supreme Court, but certiorari was denied. This case is cited as Knopf
v. Colby, 509F 2d 1362(1975).
Perhaps this is the place for some background on the central figure, Victor Leo
Marchetti. Marchetti served for two years, 1951-1953, in France and Germany as a
corporal in Army Intelligence, including six months of Russian Area study at the
EUCOM Intelligence School in Oberammergau. Returning to the United States to
complete his college studies, he graduated from Penn State in June 1955 with a
bachelor's degree in History (Russian Area Studies), worked three months as an
analyst at the National Security Agency, and entered on duty with CIA as a GS-7 on 3
*The author wishes to acknowledge the assistance of Lawrence R. Houston and John K. Greaney in
the preparation of this article.
**A writ of certiorari certifies that the Supreme Court agrees to hear the casein question; when such a
writ is denied, it means the Supreme Court sees no reason for taking. the case to the Supreme Court.
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October 1955 at the age of 25. He rose relatively rapidly, primarily through the Office
of Research and Reports, but also with tours in the Directorate of Operations and the
Office of National Estimates. From ONE, as a GS-14, he went to the Office of Plans,
Programs, and Budget in January, 1966, and served there for two and a half years. In
July, 1968, having reached the GS-15 level, he became Executive Assistant to the
Deputy Director of Central Intelligence for a period of nine months. He was then
assigned to the Planning, Programming, and Budget Staff at the National
Photographic Interpretation Center, and five months later resigned for "personal
reasons" in September, 1969.
In his assignments with the CIA PPB office, where he handled the papers for the
"303 Committee" (later the "40 Committee") which passed on Covert Action
proposals, and particularly with the DDCI, Marchetti got an overall view of the
Agency and access to sensitive information afforded to extremely few Agency
employees. There was no evidence of serious disillusion or disenchantment with the
Agency before he left. -
After this departure from the Agency, Marchetti began writing, first a novel, The
Rope-Dancer, and then non-fiction articles concerning Agency activities. In March
1972, the Agency received a draft of an-article Marchetti had written for Esquire
magazine, together with the outline of a proposed book on CIA. The source expressed
the opinion that the Agency might be concerned with the content, because many
aspects seemed classified and sensitive. Indeed, the.Agency was concerned. Very
serious classified matters were discussed. Included were names of agents, relations
with named governments, and identifying details of ongoing operations. There were
items which might have led to the rupture of diplomatic relations between the United
States and other countries. Disclosure would cause grave harm to intelligence
activities of the U.S. Government and to CIA.
William E. Colby, then Executive Director, telephoned me in my capacity of
Deputy General Counsel at the time, asking what legal action could be taken. The
answer was that no criminal action would be successful once the material were
published, but this might be the proper situation for seeking an injunction. Colby
asked whether we were certain of our legal position as to an injunction. We noted that
extensive legal research within the Agency and consultation with the Department of
Justice had taken place five or six years before. Colby asked for some documents on
this as quickly as possible, and had them within 30 minutes.
It is useful to digress to look at this novel legal approach. For years the Agency
had recognized the practical impossibility, under existing law, of applying criminal
sanctions to employees and former employees who disclosed classified information to
unauthorized persons. In the mid-Sixties, however, under threat of a revealing book
by a disgruntled former employee, the lawyers looked into the possibility of civil
sanctions-namely, an injunction to enforce his contract based on the secrecy
agreement each employee signs at the beginning of his employment. It was known, of
course, that various industry agreements had been enforced in the courts-agreements
that protected industrial processes and other proprietary rights from disclosure by
employees, both during and after employment. Why shouldn't the U.S. Government
also be protected on the simple basis of a valid contract? The conclusion was reached
that a court action had a good chance of success. The Department of justice was
consulted, and after thorough review agreed. The pending threat went away, but the
papers were preserved against later need. -
What did Colby do with the documents when we produced them? He discussed
them with the then-Director, Richard Helms, who took the matter up personally with
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the President. The President said he would turn this over to John Ehrlichman, then his
Counsel. Helms asked CIA General Counsel Lawrence R. Houston and me to go to
the White House to see Ehrlichman and discuss possible action on the proposed
article and book by Marchetti. In late March 1972 we were shown into Ehrlichman's
office in the White House. In a few minutes Ehrlichman appeared, accompanied by
an assistant, David R. Young. They had done their homework, knew the factual
situation, had studied the pertinent criminal law, and had the proper law books in
their hands. After thorough discussion, it was agreed that the criminal statutes would
provide no remedy for the problem facing us. Talk then turned to the injunction
possibility. We presented our view in favor of a try in the courts for an injunction,
conceding that there was no precedent involving the U.S. Government in the case
law.
Finally it was mutually agreed to have a try at an injunction. Talk then turned to
the means of preparing the case. Houston and I urged care with respect to which
Deparment of justice attorney would handle the case, on the grounds that dealing
with classified intelligence information would require considerable understanding to
prepare a complaint, briefs, and oral argument while at the same time protecting the
sensitive aspects; this, after all, was what the case was all about. He then suggested
Daniel J. McAuliffe, an attorney in the Internal Security Division of the Department
of justice, who was on detail to the White House. Ehrlichman described McAuliffe as
very able and discreet. Within a day or so, McAuliffe came to the Headquarters
Building to begin his study of the case and to start his education into the intricacies of
classification and intelligence. There were to be many hours of joint study and
consultation. McAuliffe was indeed a thoroughly competent professional who
performed the research and prepared the documentation which was the basis for the
subsequent court action. When it came time to go to court, the matter was turned
over to Irwin Goldbloom, another thoroughly expert and capable lawyer in the Civil
Division of the Department of Justice.
One of the first problems came with the realization that if Marchetti published
the information about which we were concerned, then the injunction proceeding
would be useless. Normally, in seeking an injunction, the person against whom it is
sought is served with appropriate papers and given an opportunity to be represented
before the judge. We were afraid, however, that Marchetti, if served, might
immediately get in touch with the media and broadcast the very items about which
we were concerned. Accordingly, we took the backup documentation, together with
the proposed temporary restraining order, to judge Albert V. Bryan Jr., of the U.S.
District Court for Eastern Virginia, sitting in Alexandria. We met judge Bryan in his
chambers, showed him quotations from Marchetti's manuscript which, to us,
appeared most damaging if made public, and explained our theory of an injunction
based on the secrecy agreement. We also stated that Marchetti had not been served
and explained why we came in with an ex parte proceeding under these
circumstances.
judge Bryan agreed with the argument put forward by Goldbloom and signed
the temporary restraining order without hesitation on 18 April 1972. He then called in
one of the marshals and ordered him to serve Marchetti immediately with the
executed order.
This set in motion the proceedings leading to the first court hearing before judge
Bryan, at which Marchetti was represented by counsel for the American Civil
Liberties Union. The defense counsel appealed on technical grounds on an urgent
basis, and the appeal was heard within a few days by the U.S. Fourth Circuit Court of
Appeals sitting in Alexandria. While the appellate court refused to stop the
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proceedings, they did raise some troublesome questions, particularly about clearance
of witnesses for the defense who would.have access to the classified material. They
warned that nothing could be done which could be construed as intimidating or
warning off witnesses.
Some details of the actual trial are appropriate here because of their relevance to
the second case. Judge Bryan permitted the government to file classified briefs and
classified exhibits. Much testimony of witnesses was in camera-court closed to the
public. The judge issued appropriate protective orders, binding on all parties and their
attorneys, and at the close of the trial ordered all classified records sealed. This sealed
record, of course, was made available to the Fourth Circuit Court of Appeals. There
were affidavits and oral testimony by Agency personnel as to which matters in the
proposed Esquire article and the book outline were considered classified. Judge Bryan
had some difficulty in accepting simple testimony that a matter was classified. The
issue was not whether a matter had been properly classified, but rather whether it was
in fact classified at all, in instances where the defendant argued that it was not. For
example, in a situation involving the true name of an agent, the judge was satisfied
when shown an acknowledgment of an assigned pseudonym on a card showing the
agent's true name and stamped "Secret." Similar types of documents for other
situations were exhibited to support the, testimony of Agency employees, and the
judge appeared satisfied as did the defendant's lawyers. Judge Bryan issued a
permanent injunction on 19 May and an appeal was taken.
Now, what were the basic legal issues reviewed by the Circuit Court? From the
beginning, Marchetti's lawyers (from the American Civil Liberties Union) urged that
an injunction was a prior restraint in violation of the First Amendment providing that
"Congress shall make no law... . abridging the freedom . . . of the press." By case
law the amendment has been applied to the Executive Branch and to the courts. The
Circuit Court reviewed the. constitutional basis for secrecy within the Executive
Branch and its right and duty to maintain secrecy. The Court went on to say that First
Amendment rights and freedom of speech are not absolute rights, and that the secrecy
agreement was a reasonable and constitutional means for the Director of Central
Intelligence to implement his statutory charge to protect intelligence sources and
methods from unauthorized disclosure. In other areas, the Court said that the Agency
must review any submission within 30 days, and that Marchetti, if dissatisfied with
the Agency action, could seek judicial review. This burden, the Court added, should
not be on CIA. The Court went on to say:
Indeed, in most instances, there ought to be no practical reason for
judicial review since, because of its limited nature, there would be only
narrow areas for possible disagreement.
The Court also held that:
The issues upon judicial review would seem to be simply whether or not
the information was classified and, if so, whether or not, by prior disclosure
[by the Government], it had come into the . public domain.
Inasmuch as the Court held that "the process of classification is part of the
Executive function beyond the scope of judicial review," CIA would have no
obligation to establish the propriety of classification, but would be required to
establish only the fact of classification.
The three judges, Clement F. Haynesworth, Harrison L. Winter, and the late J.
Braxton Craven, Jr., agreed on the basic opinion except that Craven would not
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subscribe to a flat rule that there should not be any judicial review of classification. As
he put it,
I would not object to a presumption of reasonableness [on the part of
the Government], and a requirement that the assailant demonstrate by clear
and convincing evidence that a classification is arbitrary and capricious
before it may be invalidated.
The opinion of the Circuit Court remanded the case to the District Court to limit
the injunction to classified information so that on 15 March 1973 it finally read as
follows:
ORDERED:
That the operative provisions of the permanent injunction entered by
this Court on May 24, 1972 be and they hereby are revised and that the
"Ordered" provisions of said permanent injunction shall now provide:
That the defendent, Victor L. Marchetti, his agents, servants,
employees and attorneys, and all other persons in active concert or
participation with him, and each of them, be, and they hereby are
permanently enjoined from further breaching the terms and conditions of
the defendant's secrecy agreement, dated 3 March 1955, with the Central
Intelligence Agency by disclosing in any manner (1) any classified
information relating to intelligence activities, (2) any classified information
concerning intelligence sources and methods; Provided, however, that this
Injunction shall not apply to any such information, the release of which has
been authorized in accordance with the terms and conditions of the
aforesaid contract, and Provided, further, that this Injunction shall apply
only with respect to classified information obtained by said- defendent
during the course of his employment under the aforesaid secrecy agreement
and which has not been placed in the public domain by prior disclosure by
the United States; and it is
FURTHER ORDERED:
that the defendant shall submitto the Central Intelligence Agency, for
examination 30 days in advance of release to any person or corporation, any
manuscript, article or essay, or other writing, factual, fictional or otherwise,
which relates to or purports to relate to the Central Intelligence Agency,
intelligence, intelligence activities, or intelligence sources and methods, for
the purpose of avoiding inadvertent disclosure of classified information
contrary to the provisions and conditions of the aforesaid secrecy agreement,
and such manuscript, article, essay or other writing shall not be released
without prior authorization from the Director of Central Intelligence or his
designated representative.
CIA had fashioned a workable tool in a court of law, based on a simple contract
theory. This tool could prevent serious damage to the interests of the United States or
threats to the personal safety of individuals, by acting in advance of the threatened
disclosure. Even if the government were able to take criminal action on a disclosure,
the damage would already have been done. Other agencies in the Intelligence
Community were urged to establish secrecy agreement procedures. In the face of
increasing concern over publication of classified information, CIA had taken the
initiative in the courts and won a significant victory in a landmark legal case.
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The second case starts with a letter from Marchetti's lawyer dated 27 August
1973 which transmitted a proposed manuscript of 517 pages pursuant to the terms of
the permanent injunction issued in the first case. CIA had 30 days to respond. -A task
force was organized with representatives from the four directorates, and at the same
time each of the four Deputy Directors was charged with reading the entire
manuscript within a matter of days. At a meeting of the four deputies and the task
force, it was agreed that the manuscript was in fact "Top Secret-Sensitive," and
should be so marked. There were other difficulties: the manuscript included
compartmented information and sensitive need-to-know projects, and not all of the
task force members or Agency lawyers had the requisite clearances (which were
quickly granted). Also, some items were of prime interest to other agencies, including
State, NSA, and Navy. Excerpts were sent to other.agencies as appropriate. The task
force was informed that for each item adjudged as classified, the judgment would
have to be backed up with documentation. The process also began of sorting out
which items would be assigned to which. Deputy Director for final judgment.
Colby-by now DCI-was of course kept fully informed of precisely how this
mammoth judgmental and mechanical task was being planned and pushed forward.
There was careful consideration of which items, although classified, were so widely
known that no serious harm would result from publication. Colby made the decision
that we should proceed to list all classified. items consistent with the language of the
injunction, with the view that at a later date, possibly at trial, CIA could withdraw on
the softer items. I debated this with Colby-probably insufficiently and not
vociferously enough-on the grounds that the authors and their lawyers would
publicize the items withdrawn with the simple theme that CIA had listed them as
classified and-then changed its mind. The inference drawn would be that CIA thereby
confirmed the validity of each item previously deleted but subsequently cleared.
When the book was published, this was precisely what happened-all of the items
which CIA first deleted and then cleared were printed in boldface type so that any
reader knew what CIA regarded as classified as of the submission of the manuscript.
It is impossible to overemphasize the massive job of reviewing these 517 pages of
manuscript. Some reviewers had a tendency to delete three or four pages at a time so
as to drop an entire subject, when in fact deletion of a few sentences, names, or places
would have done the job. This happened particularly with the other agencies
involved, but inasmuch as the Agency was responding on behalf of all (no volunteers
here to go on the record or to provide witnesses in court), there had to be consistency.
Finally the job was done, and a letter dated 26 September 1973 was sent forward
attaching a listing of 339 deletions, referring, for example, to words three through
,eight on line 17 of page 276. This was done to avoid putting the classified words in
the letter, so that the letter itself could remain unclassified for use in the open court
record. In the letter, an offer was made for a conference to ascertain if by modest word
changes some of the listed deletions could be made acceptable to CIA.
Such a conference was held on 4 October 1973 with Marchetti, his ACLU lawyer
Melvin Wulf, myself as CIA General Counsel, and John K. Greaney as Assistant
General Counsel. It was an all-day session which got nowhere. They presented a
quantity of newspaper clippings which contained information similar to items in the
manuscript and urged that such information in the clippings in effect made the items
in the manuscript unclassified. We countered that this was not so, and that if
Marchetti would simply attribute the information in the manuscript to the media
sources, CIA would have no problem. But no, they wanted whatever authenticity
could be gained from asserting the information as Marchetti's knowledge. Other
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suggestions were made, such as deletion of names of people, substitution of a general
geographical area for a specific capital or country, or deletion of certain details of
operational projects. These too were rejected, and by the, end of the day it became'
clear that they were not going to make any changes. One can wonder whether they
came to negotiate, or simply to make a record that such a conference had been held.
The Agency in the next few days considered its position on the full 339 items, and
made the decision that it would withdraw its objections to the "soft" items, which
totalled 114. Later, after a thorough review of the remaining deletions, and more
careful study by the four deputies and the lawyers as to what they would face as
witnesses in the actual trial, CIA withdraw on another 57 items, leaving 168 deletions
on which CIA stood fast.
Marchetti, in submitting the manuscript, had included John D. Marks as co-
author. Marks was a former State Department employee, who had worked in
intelligence and had signed a secrecy agreement. It also developed that Marchetti had
signed a contract for the publication of the book with Alfred A. Knopf, Inc.
The court aspect of this second case now began with the filing of a legal action in
the U.S. District Court for the Sourthern District of New York. The plaintiffs were
Knopf, Marchetti, and Marks, seeking an order which would permit publication of
.the remaining 168 deleted items. One can only speculate about the motives behind
their choice of a court: sheer legal tactics, easier jurisdiction in terms of the subject
matter, or physical convenience for plaintiffs' lawyers, who were all based in New
York City. The case law and court rules clearly favored jurisdiction where the
injunction had been issued on 15 March 1973. Upon motion and after oral argument,
the action was transferred to the Eastern District of Virginia (Alexandria) where the
first case had been tried and where it would come before judge Bryan,-who had tried
the first case. So much for tactics or whatever. '
Now came the depositions preparatory for trial: sworn testimony with lawyers
from both sides present for cross-examination. Among the witnesses were the four
deputies, the DCI, Marchetti, and Marks. Marks had been granting interviews to
journalists and had appeared on radio and television discussing information similar to
that contained in the manuscript. Again, as earlier, it was argued that because the
information was in the media it was no longer classified. This was a bootstrap
operation: leak information in the manuscript, and then claim it is thereby
declassified by publication. Marks, however, was put in a dilemma when asked
whether he had given specific items to the press. If he admitted it, he could be subject
to a citation of contempt under the original injunction inasmuch as he now was a co-
author; if he denied it, he would be risking perjury charges. He resorted to pleading
the Fifth Amendment on five occasions. Later, at the trial, the judge took note of this,
saying, in effect, you can't have it both ways.
It is worthwhile to digress here for a moment to comment on the degradation and
dilution of security that characterized this entire matter. Obviously Marks,
Marchetti's lawyers, and Knopf's lawyers had access to a mass of sensitive
information. It should be noted that Knopf's lawyer, Floyd Abrams, voluntarily
undertook not to expose the manuscript to his client. In court, not only the judge but
his clerk, the bailiff, the stenographer, and others were exposed to sensitive classified
information. Papers and documents in the court and in the lawyers' offices were not
stored under the rigidly controlled conditions prevailing at CIA. Nor were most of
these people trained, by experience or otherwise, in how to deal with highly classified
information and documents. The crowning blow came when CIA asked the District
Court for access to the record of the first trial. Back came the answer: "We can't find
it." And they never have!
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Now came the trial. It was clear from the briefs filed that the plaintiffs wished to
re-litigate the First Amendment issue. It was also clear that the judge would have
none of this, but the issue was in the record for the inevitable appeal. The four
Deputy Directors were witnesses and collectively covered all the 168 deletion items.
They testified that the information was classified, and had been since the inception of
the program or from the witness's first contact with it, and was still classified. Then
excerpts of classified documents were submitted as exhibits, heavily censored so as not
to furnish new sensitive information. The witnesses than tied each of the deletion
items to information in the various exhibits, which was the procedure judge Bryan
found acceptable at the first trial. This time, however, judge Bryan was having even
greater difficulty in understanding the basic concept of classification and the
procedure followed. He appeared to think that the government should be able to
punch a computer button that would result in a showing that a deletion had been
classified by a. proper official on a specific date in the past. He accepted a few
documents which specifically stated that certain types of information should be
classified at certain levels. One such document, for example, was a DCI Directive
specifying that locations of communications intelligence collection facilities would be
classified "Secret." One. such deletion item was thus accepted by the judge, together
with an additional 25. In a decision stpnning to the government, however, judge
Bryan found that the fact of classification of the remaining 142 items had not been
proved.
To CIA, it seemed self-evident that matters such as names of agents and details
of ongoing clandestine collection operations were classified. In his opinion, judge
Bryan stated that it seemed to him that the four Deputy Directors were making ad
hoc classifications of material after having read the manuscript, although he
recognized that the Deputy Directors had denied this. No evidence or even assertions
contradicted the four deputies. Could the judge have thought that they were lying? It
was clear that the judge simply had not comprehended the classification system.
Further he had abandoned the method of proving classification which had been
acceptable to him and to the defendants at the first trial, and had also been
acceptable to the Circuit Court of Appeals. In the second trial, however, he neglected
to advise the government that he had so abandoned the procedure for proof, nor did
he state what would be acceptable.
Preparations accordingly were made for the appeal. The Department of justice
lawyers who had handled the trial, Irwin Goldbloom-by now Deputy Assistant
Attorney General, Civil Division-and his assistant, David J. Anderson, started 'writing
appeal briefs. There was the continuing close working relationship between them and,
for the Agency, John Greaney and me. Greaney and I, working with the information
supplied by the four Directorates, wrote the classified briefs; The Department of
Justice lawyers wrote their unclassified briefs; then we exchanged them for comment.
We all wanted to make certain that we made clear to the Circuit. Court what
classification in the intelligence arena was all about. The briefs and other documents
constituting the record were duly filed, consisting of several thousand pages. In any
event it was an enormous record for the Circuit Court to review. Oral argument was
heard on 3 June 1974 before the same three judges who had heard the first case,
Haynesworth, Winter and Craven. At the close of questioning judge Winter made an
observation to the effect that When this matter was before us previously, none of us
then realized how enormously complicated this matter of classification really is." This
observation clearly foreshadowed parts of the opinion, such as, in speaking of their
opinion in the first case,
we did not foresee the problems as they developed in the District
Court. We had not envisioned any , problem of identifying classified
information embodied in a document produced from the files of such an
agency as the CIA. . . . We perhaps misled the District judge into the
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imposition upon the United States of an unreasonable and improper burden
of proof of classification.
Finally, after an almost unprecedented length of time-more than nine
months-the Circuit Court on 7 February 1975 handed down its opinion: total and
complete victory for CIA and the U.S. Government on the fundamental issues. The
plaintiffs of course petitioned the U.S. Supreme Court for a writ of certiorari, but this
was denied. What were the basic issues decided?
1) The court declined to modify its "previous holding that the First
Amendment is no bar against an injunction forbidding the disclosure of" classified
information acquired by an employee of the U.S. Government in the course of such
employment, and "its disclosure would violate a solemn agreement made by the
employee at the commencement of his employment." The Court held "he effectively
relinquished his First Amendment rights." .
2) The District judge properly held that classified information
obtained by the CIA or the State Department was not in the public
domain unless there had been official disclosure of, it. . . . It is one
thing for a reporter or author to speculate or guess that a thing may be
so, or even . . . to say that it is so; it is quite another thing for one in a
position to know of it officially to say that it is so.
3) The Court referred to:
... the fact that Marks, on Fifth Amendment grounds, on five
different occasions declined to answer whether he was the undisclosed
source of information contained in five magazine articles offered by the
plaintiffs to show that the information was in the public domain. A
public official in a confidential relationship surely may not leak
information in violation of the confidence reposed in him and use the
resulting publication as legitimating his own subsequent open and
public disclosure of this same information.
4) . . . the individuals bound by the secrecy agreements may not'
disclose information, still classified, learned by them. during their
employments regardless of what- they may learn or might learn
thereafter.
Also
Information later received as a consequence of the indiscretion of
overly trusting former associates is in the same category.
5) The Court dwelt at some length on the well-established doctrine
of presumption of regularity by a public official in his public duty:.
.. . in the absence of clear evidence to the contrary, courts
presume that they [public officials] have properly discharged their
official duties. . . . That presumption leaves no room for speculation
that information which the district court can recognize as proper for
Top Secret classification was not classified at all by the official who
placed the "Top Secret" legend on the document.
The Court summarized by saying,
In short, the government was required to show no more than that
each deletion item disclosed information which was required to be
classified in any degree and which was contained in a document
bearing a classification stamp.
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-bear4fg-a-elassif ication--stamp-
This summary not only is reasonable, but also reflects exactly the standard
and procedure accepted by judge Bryan in the first trial! How or why he rejected this
standard in the second trial, one can only wonder.
6) While it is not one of the primary issues, it. is still important to note what
the Court said about the deletions of additional and irrelevant information in the
documents submitted as exhibits by the government:
Nor was it necessary for the government to disclose to lawyers,
judges, court reporters, expert witnesses and others, perhaps, sensitive
but irrelevant information in a classified document in order to prove
that a particular item of information within it had been classified. It is
not to slight judges, lawyers or any one else to suggest that such
disclosure carries with it serious risk that highly sensitive information
may be compromised. In our own chambers, we are ill-equipped to
provide the kind of security highly sensitive information should have.
7) The action of the Fourth Circuit Court of Appeals is embodied in the
following:
For such reasons, we conclude that the burden of proof imposed
upon the defendants to establish classification was far too stringent and
that it is appropriate to vacate the judgment and remand for
reconsideration and fresh findings imposing a burden of proof
consistent with this opinion... .
Thus was written the penultimate chapter of the Marchetti case. The final
chapter was the drafting* of proposed findings of the District Court, which act, it was
hoped, would close the case. Those readers who are lawyers can imagine the task. In
any event, the detailed findings of fact for court approval, involving some 142 specific
fact situations, were filed. On 22 October 1975 a final order was issued. No appeals
were filed, and the order became final. It was reported in the press that in answer to a
question about contesting the "findings of fact" and the order entered by the District
Court, Knopf's lawyer answered that more than $150,000 in legal fees had been spent
and that it did not seem appropriate to contest the matter further. The basic
constitutional issues were settled, and further legal action would only be nitpicking on
factual issues. The ACLU also had no stomach for further legal battling. The book,
meanwhile, had been published with gaps for the deletions and boldface type for the
original deletions subsequently withdrawn by the CIA.
Conclusion
What had all this accomplished and what were the implications for the future?
For the first time CIA had taken the initiative in the courts to prevent the
unauthorized disclosure of intelligence sources and methods. The courts had affirmed
in the particular circumstances the most fundamental of legal principles-the sanctity
of a contract. The courts had affirmed the right-and the duty-of the government to
seek enforcement of that contract to protect its secrets, i.e., sensitive classified
information. As previously mentioned, there was a degradation, and dilution of
security, and we have the acknowledgment by the Circuit Court itself that ".... . we
are ill-equipped to provide the kind of security highly sensitive information should
have." While it was not perfect, a highly useful tool had been fashioned.
*Originally by Walter L. Pforzheimer as a consultant to General Counsel.
10
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When the Rockefeller. Commission (Commission on CIA Activities Within the
United States) was established by the President on 4 January 1975, there were
.immediate discussions concerning procedures to be followed by the Commission in
protecting CIA sensitive classification information. The Commission and its
professional staff were cooperative. CIA asked that all staff members sign secrecy
agreements. Bowing to. the inexorable logic of the question posed by CIA of what law
or legal tool could be used to protect classified information except the secrecy
agreement, the Commission directed its staff members to sign such agreements. Next
came the Senate Select Committee to Study Intelligence Activities, and the House
Select Committee on Intelligence. At the request of CIA, the chairmen of the two
committees directed all staff members to sign secrecy agreements. During this same
period the Department of justice was conducting an investigation of possible crimes
by employees or former employees of CIA. The Special Prosecutor investigating
Watergate was also investigating possible crimes by Agency personnel. At the request
of the CIA, the Attorney General and the Special Prosecutor directed all their
employees having access to CIA information to sign secrecy agreements. While there
may have been some leaks, no books or published articles not submitted to proper
authority have appeared attributed to any of the above sources. But for the Marchetti
case, it is not likely that secrecy agreements would have been obtained in all of the
above situations, and one can only speculate about possible publications.
In the meantime, CIA had been working closely with the Department of justice
on proposed legislation to provide criminal sanctions for the unauthorized disclosure
of intelligence sources and methods. As a part of that legislative package there was a
provision for CIA to apply for an injunction when there were threatened violations of
the proposed law. Justice for two years would not concur in this provision, arguing
that the Marchetti case established the principle of an injunction. CIA argued
strongly the well-established fact that the other ten judicial circuits were not bound to
follow the precedent established by just one circuit, the Fourth. CIA wanted a firm
statutory basis for an injunction in whatever jurisdiction a new case might arise.
Justice finally relented, and the President sent the legislative package forward to
Congress with the injunction provision. This was done in February 1976. with a
recommendation for Congressional approval. No action was taken in 1976, but it is
hoped there will be some action in 1977.
As a result of the various investigations of intelligence activities, the President on
19 February 1976 issued Executive Order 11905, entitled "United States Foreign
Intelligence Activities." The order vas to clarify,the authority and responsibilities of
intelligence activities-in other words, a listing of do's and don'ts. Section 7(a) is
pertinent here:
(a) In order to improve the protection of sources and methods of
intelligence, all members of the Executive Branch and its contractors given
access to information containing sources and methods of intelligence shall,
as a condition of obtaining access, sign an agreement that they will not
disclose that information to persons not authorized -to receive it.
Section 7(c) provides that when there is a threatened unauthorized disclosure of
intelligence sources and methods by a person who has signed a secrecy agreement, the
matter will be referred "to the Attorney General for appropriate legal action,
including the seeking of a judicial order to prevent such disclosure."
Section 7(a) directs all intelligence agencies to do what CIA had done since it was
established on 18 September 1947. Section 7(c) directs all agencies to do what CIA
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had taken the initiative to do nearly four years ago-i.e., take a prospective violator of
the secrecy agreement like Marchetti to court to prevent disclosure.
I feel that the above paragraphs under the'heading of "Conclusion" show vividly
and graphically the impact of the Marchetti case, not only as a legal precedent but
also as a guideline for the conduct of intelligence on a day-to-day basis. No one will
claim that the Marchetti case offers a panacea to prevent disclosure of classified
intelligence information. The United States needs criminal sanctions, as discussed
earlier, for unauthorized disclosure of intelligence sources and methods where the
injunctive remedy cannot or has not been applied. (This is clearly demonstrated by
the recent Department of justice announcement that Philip Agee will not be
prosecuted, should he return to the United States, for publication abroad of a book
replete with details of Agency operations.) If an author publishes a book or article
prior to submission to CIA for review as to classified information, obviously injunctive
relief is valueless. Current laws provide no usable criminal sanctions; thus the need for
the "sources and methods" legislative package.
Nevertheless, the Marchetti case has provided an extremely valuable legal tool,
helping the Agency in working with would-be authors and also helping to improve
security in Agency relationships with other government entities and agencies, the
Congress, and the Judiciary.
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#, 10~
STAT
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fact that they; have not been announced. lem: ands to secure. the integlity of the ized disclosure yin :the interests '.of national'
to.:,Qic;:noticedr,by;- other Members. .The House. of Representatives, J L. sup ecurit~ s
Problem-lsssenous because EXPLANATION -OF ERECIITFVE ORDER 1 185 2
such amend- port for the resolution which I am m
policy or program. We would all do well I '(Mr PREYER asked and was given. session if the disclosure of. such information,
in -.unannounced or unnoticed amend-; point 131 the RECORD and to include ex- "' da "`t "trtiona1 secu ?"
, - ... :...._,. ,;: tra?o.,,,e matter. 1--. - particular information requires a "Top Sec-
e
Whether
favor-. ofui announced or__unnoticed? weeks President Carter will issue anew dialepe reasonably expects such information to'
:a Exec tive order nn security cla siflration. a +n +Ae tTn;+eA e+a.+ea. if i+ ,
order, a
.eaaa.a t._.... a. ,..a.. .. ri _ .. .slnoaclon any spc-lanes cline:
comprgmised. Consider: yet another .rea ` and . has incorporated' its recommends =,
tin?c..+ r..?e ; a deter ileA mein orandum; All classified information whose declassifi-
.r IfIthe11 a ,rcllVrw 11 not been the memorandumh
1'classification- may,, after 10 years, be reviewed
,ulcu. .wiIl place in today's
naf the amendments are re adopted and, the ,R__ ___ __l__ th _ _ __t___ ,__l-__ ___t._ 1, _ quest.of a department nn:member of'.
will determine. the precise intent of Con--? vlucc_, he s aff re V111111enda ions w+wr_ is.warranted.tAny- . such request which is
greca in enacting them9 ObviouslyL these '.respect. to improvement.of:'the, classifi- + denied by the classifyin";authority may be .
ras> lcai -data, which i wua not Include -
ciehcY y and effectiveness In Government here: but-which may.-be obtained: from partment determines that: additional clash-
- .,dose .r. wasraingcotc, u.v. septembcr o 19 i operation
-amending -.the Rules of -the House of f?` CI w
scientious~deliberation 'in-the" House;- -r the-departments listed below, and designated-_
Briefly,. it would- provide that an amend To;Honorable Richardson Dreyer, Chairman - "senior principal deputies .and assistants",-,,'
he-efre the amndmt i
Hors Beoeens oa -- ,, p
Fw
_fered=for distribution to Members. To my' secrecg r- y then
' '-'~ -' ? ". ~ - O..-. T..4n..-.n 43.. r.nl rln.rnle.~m n?+
Ener y
elation woulu_ give Members ar chance- O???Ma ch i,,.,_I y..,. , esiden . icha. 1S .'. _ = . ~'- t 1 ""S' T
Nixon` issued Executive Order 11652 which; ,
Yo`familiarlie themselves with=the more .- _ . _ _ __ .d Department of. Commerce
an
tee hearings and reports this is the least ive Bran u, he "1"'osure of w`lleu could Interstate Commerce Commission.'
that' can he ackwl prove harmful to. the interests of. the United
-? _ .-? States th_ _ These same offlciais' have the authority to
.,:...r Speake. ,....tae not favor- stay eaaual_ perm.--.-p grey a .public .,e .....,rma-
been the ` and on en a In addition, the app
nation ?'OY -amendments. -tO rappTOArl- t ..ion than had Po . ssible under pre- . r.,,tt nerd of theta teCCAr etaaaifiratinna is au-..
i
available co us. 'However, ti believe that partmenrs, as bead as' Oesigna e Senior `
charged with oversight of its implementa- : ":
`
the letive?-process would,be greatly +ion +,,e ?e-, n .,er wae.Ar f+e, +. "classify principal deputies and assistants
ncd -
In an attempt to solve a Worrisome prob- truly requires protection against unauthor Footnotes at end of article
 ~,~- ~;:~ ~ i_ a~+s :::.... ?: A.,; ~,,. ~'~-rain Y- - y n~?
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CONGRESSIONAL RECORD p 1 77
HOUSE ,Se tember`
- -- - .. $ -ULM" were Qaaajnli d "Con-
= R ,?lassifieation of,?a .particular document: i&
ndential.,
II.S -Information Agency unnecessary or improper, shall inform'tha
er Services Admiitatio
,nsrn originator of tbp-. c ina s n who shallre classification,. actions i 197 classiSed?
Department of Health Sdnc more
Datioa
erwa Power civmml&sjorr - "iw ace f nllmoer OZli9
' tee act as a "watchdog- ieon tnludd-iCaSSCa-
?'Nations}3cienceFoundation _ `tee !st_-_ _ "over the ct t ,t -aconsi:the,MA with S. '
o- theh
rtmenand'th
__-- ..~asa +owcaa car. ?aauuevetOpmeaL: agency-
'-o= cation or overclassiflcation ;which tt d3s,-(with.118,551) s .-.
0 of'Mlcronesian Status Negotiations
grit It)UN enelea?nitn classinca-?
Panama. Canal Company &.,.The..Inte thorit th
eY Olassifieation
nn.:.mIliee .eview.. Lion au y? hthe e DepartnAnt of Aericul-
2. Authority to Declassify and'Downgrade_ R
mandat rs o doc ent'
ory review requests `?-.. ---uas,It had, scheduled Ior.
don'may be performed at-anytime by the of-t or classified documents: over 10 .years'-"old . , declassification.`in advance of the General
ficial-responsibls._t tf.d.~original a _
a
aa tion. Te 3 i y~}a j u ~c cW i t. _ vvavu .wucza v;"_vr cu9 nilmOer'.
.Prs&oRnaANCB;.VNn~-x~' m rerir.,~ . no..~. which .14 14 had" exempted from it:"- Without
-- In two yeaaa, and'be-ueetassmed entirely-, degree of compliancewiththe.order:_. -ally time" :in.. advance01::therGeneral Ae.,
eight years from the date" Of-orieinal clasai -.: ' e'~ subcommittee' staff, 1n= -makinv- the :claaaiftrartnn ,"c. hedule +his +L__.._
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ernments or' international.oanizations un a , ' ?`"'aa" ....' a 'ed~~' "m ly'/ti.
rsona were' deli wad for 'setting ucwuuaaes:aor declassification,
~ 13,997 ~
der a pledge'of confidentiality, or'pertains d+as.ihdivi it is being applied tn'i,ractice r, a relati. e, .
r
place a person In immediate e ? w.._ aro - -- - r .-
Jeopa dY' These_figures_represent aconsiderable re=? cent ofthe documents classified in 1976 were'
r ravus raecutive order..- under the old: order, +aaard,- despite the-language:in
quiremeatsthe Execu
s jam, _ ' " 59 318 -"Persons exercised such authority:' ih five-,Order' which states that "use or the ex
?{ , AU classified' informatina includine `4hit :1971 _ ~_.,-_
ayears-.~..... he date of vriganax classincation g far :the'De tendency. on-the part of some Executive de- r
. unless 'the head of the originating agency _r ? ~ Part ifie Of- DefenseE - with ?_ _+ _enta --
rs
-- - - - - - --- - ligen~cSources and metnods" Siill
.,- ._mary,
shat information-: be classified in order to number Of officials
authorized to classify fn- EliDA in taking ' 118,551 'classification - aC
concea i'. fficiency_ov adn,:,,ia+ratt^d formation there-has been' 'o ._._`'`__"'_, __
.:,acy.cu w.a uu~ a,vaa aocu-~
toprevent embarrassment, toa?person- :or-de-''duction'in the number of classincation ac- ments, from:. the. General =Declassification
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ieptember -8;.1074,i,--,-, 3e CONGRESSIONA- L-RECORD=HOUSE
exemption authority as a matter of routine - It should furthermore be noted that be - classified information. have challenged the
to the documents which it originates. ... ginning in 1976, the ICRC began hearing ap- ,-classification, as is contemplated in the Ex;
Fourth.: it is apparent that although the,- peals of Freedom of Information Act requests -ecutive order:
thority - may exempt. classified -,documents -'though the Executive order does not explic- of over-classification or unnecessary classi-
-from the General Declassification Schedule, fitly give: the ICRC this authority, these ap- ficatlon is discovered, it does not seek to de-
agency heads without-."Top Secret" classifl-Peals were heard on the -theory-.that the termine the circumstances of the abuse, nor-
cation- authority, have exempted .'classified .. "requestor, .being denied a request under the whether the corrective action taken was ap-
mQ+on the grounds that- they relate to_ docu- --,.the Executive order procedures and request . . Finally,- the ICRC does not; as a Practical
=s 82 classification actions in 1976 from the -D :. .- .' . _ ,. - .. - ;. .
eciass:jying old records _ One General 7>arls~cctfl rara~n c.?a.na?ao Irh. r>-- - ..; .. i . purpose
of the Executive. Order-i3..to
J?^--~-~?w eta ve. er to exempt classified documents u-- -.6.,a -- ... a',-ox1ila, 1li1VJ _T uares- a-?:.
sif n authorifrom the General Schedule. ? _? _~ , g_ ty =decides to continue the quarterly report of such violations
paztment may request declassification of agencies subject to the order have instituted 47-:unauthorized disclosures were reported-to..
.10 years from the date of original classifi- eliminate or- reduce their classified inven-.:''The ICRC does not require that it be in--
cation.- Until 1976, however, the number of tories. For the most part, these declassiiica- -- formed of the circumstances of each .unau-
quests were made in 1973; 1,017 in 1974; and ERDA reviewed. 250,109 documents in its' agency, e.g. whether-an investigation took
1,993 in 1975. In, 1976, the number rose to classified inventory in 1976 and declassified place, whether criminal charges;were brought,
_7OOTNOTE9
meats' held- by the Executive branch, even.:-, been even more significant.' Since 1970, DOD="-.
, , ~_?___ _ -
-noteworthy that many of -these requests meats; and-has declassified approximately 98 mittee,1975 Progress Report p.
a percent of. those records-reviewed. , Z' The Executive Office of the President in .
originate with -presidential ibraries, which ldes eleven offices: Council of` Economic
have been requested by. historians and, re- ty for. declassifying documents . ,-,_ --- ?-
-- rea fits
of Management and .Budget; . Office
-
sons for the relatively small use of the de- under this program
--' ----- .--- -- -1 ec pro --~--?o ?~ dons; Office of Telecommunications Policy,''..
can obtain. a similar declassification review at concerning improper use of the classification - the President's Foreign Intelligence Advisory
any time (not simply after 10 years) by. ' system. Furthermore, it requires anyone in .Board (abolished. in, 1977)-;'and. the white
filing a request under the Freedom of Infor- possession of a classified document who is of =Rouse Office. ?.
oration Act (5 U.S.C. 5
52(b)). If such a re:--, the opinion that,the document is overclas- sIncludes the Departments of the'Army,~'..;
the
.quest - 13 denied ce ed, the requester has the artme t .`- sifted or unnecessarily classified to inform _ Navy, and. Air Force; the National Security
P seek the original classification authority -of his- Agency and the Defense Intelligence Agency.
,ing ,judicial -relief, an option not available views. Finally, the Order implicitly directs . a The only agency with "Secret" classifica-
under =the Executive order. Second, the Pro-. the ICRC. to monitor the system for unnec- tion authority whihc is permitted to exempt--.-' cedure- for declassification review. under the : essary classification or overciassification since documents from the General Declassification.:
-order-is-not well-known to thenubile. F9- : it instruct the Tenn t,. report ,._ ___L
- r oced re -~ a? --- agency -and tine malvlauai..responsiole- any Conversely, one agency with "Top -Secret" ':.
able only for documents which are more than ,, improprieties it discovers - with - respect' to - classification 'authority; the Departnlerit' of:'.
10 years old, necessarily. limits its use, for the ' such misuse. Labor, Is - not authorized to exempt docu-..
'most part, to persons with an academic in - The ICRC requires each agency with clas meats from declassification. Both exceptions
terest in the subject. The procedure would - sification-- authority'- to. submit a quarterly_'- the general policy contained. In' Executive
not ordinarily be useful, for instance, to the report of _"classification' abuses". while -the 11652 -
press- or other institutions concerned with. -- IC ask each agencyto report the in Order- were made in an amendment
dated September 30, 1972.
Contemporary decisionmakine. IC -- e ?.s each g report
.... the in
view--requests received and acted upon by technical provisions-of.the Order, e.g., failure fication actions in 1976.
Executive agencies from 1973-1976, 53 per- to downgrade on schedule. failure to identify ? Presumably, due to the enormous volume.
were denied, either in whole or in part, 191.' : From 1973-76, . only' 7? of the, 28 agencies 7 ,In addition, to DoD,. the' Executive Office
were appealed within the agencies concerned. with classification authority have- reported- of the President also failed to categorize its
to special departmental committees. Of those any instances of unnecessary classification." classification - actions according to declassi-
requests appealed; 28 were granted in full,.- In all. 131-such instances have been reported. ficatton requirement, and.CIA reported only-
and 83 were granted in part: - ? to the IBCR during this period..' .. a sampling of such action-s--Ml other azen- '.
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