ISSUES AND RECOMMENDED OPTIONS THE EXAMINATION OF THE ROLE AND EFFECTIVENESS OF THE INTERAGENCY CLASSIFICATION REVIEW COMMITTEE (IC

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00674R000300070006-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 101
• Document Creation Date: December 19, 2016
• Document Release Date: March 30, 2006
• Sequence Number: 6
• Content Type: REGULATION

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ISSUES & RECOMMENDED OPTIONS
THE EXAMINATION OF THE ROLE AND EFFECTIVENESS OF THE
INTERAGENCY CLASSIFICATION REVIEW COMMITTEE (ICRC)
1. Abolish the ICRC. Establish a "Security Information Oversight
Office" within an existing office(s) of the Executive Office of the
President having current general oversight over internal operations of
the government and a close relationship with the President, e.g., in OMB.
Overall responsibility for monitoring, policy direction and implementa-
tion of the EO shall rest with the head of the selected EOP office. The
Oversight Office shall be headed by a Director and Deputy appointed by
the President. Administrative support for the Oversight Office shall be
provided by the selected EOP Office. In addition, establish an "Inter-
agency Security Information Advisory Committee" comprised of current
membership of the ICRC which shall be chaired by the Director of the
Oversight Office. The functions assigned to the Oversight Office shall
be the same as those currently assigned to the ICRC except that the new
Office shall act only on those appeals involving the declassification of
10 or more year old material which is not subject to the provisions of
the FOIA. In each such instance, representatives of the Interagency
Advisory Committee shall be requested to provide an advisory opinion on
the declassification or continued classification of the material. In
those cases where the Director of the Oversight Office decides, based on
the advisory opinions, to declassify the information, such action shall
not take effect for a period of 10 days during which time the head of the
affected Department may appeal the decision to the President through the
Assistant for National Security Affairs.
Another option was to expand the citizens' avenues of appeal in
the denial of information under FOIA where the denial was based on b(l)
by allowing the citizen to appeal to the new Oversight Office. This
option was favored by OMB, Domestic Counsel and unofficially by State.
IC Staff favors Option 1 above.
WHAT KINDS OF DISCIPLINARY ACTIONS CAN BE TAKEN TO PREVENT THE
MISUSE OF THE SECURITY CLASSIFICATION SYSTEM BY GOV'T OFFICIALS
2. Include in the Order provisions for administrative sanctions for
willful (e.g., specific intent could be inferred by a requisite degree of
negligent-type conduct) origination or continuation of classification of
information in violation of the Order or an implementing directive; will-
fully releasing or disclosing or causing the release or disclosure of
classified information in a manner not authorized by the Order or imple-
menting directive; or other violations of the Order as determined by the
head of a department. Heads of departments will specify the provisions
of the Order and implementing directives for which violation is subject to
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administrative sanctions, and will specify the applicable schedule of
sanctions in accordance with the major purposes of the Order and the
particular requirements of the departments.
3. Include in the Order provisions for a range of sanctions, e.g., repri-
mand, suspension without pay, removal, which may be imposed for Option 2
(above) abuses or violations in accordance with applicable law and depart-
mental regulations.
5. Include in the new EO a section which will require the use of a uniform
secrecy agreement whereby they agree not to publish, disclose or otherwise
make available classified information to any unauthorized person and that
all government employees execute such an agreement as a condition of obtain-
ing access to classified information.
IC Staf:E agrees with all positions above with one exception. They
want to delete the word "uniform" in Option 5 above on secrecy agreements.
HOW UNNECESSARY AND DUPLICATIVE PRACTICES AND PROCEDURES CAN
-- BE ELIM[NATED, REDUCING EXPENSES
For determining trustworthiness :
1. Continue to permit heads of departments of the Executive to determine
scope of investigation, in conformance with BO 10450, for purposes of
determining trustworthiness of individuals for access to classified information.
On compartmentation:
10. Establish standards for the creation or continuation of compartments
or special access programs. Such standards would require that all special
access programs be created or continued only by the authority of a head of
a department personally and in writing. Moreover, such special access pro-
grams shall be created or continued only on the specific showing that:
-Normal safeguarding procedures are inadequate to protect the info.
-The si:,e of the compartment (numbers of people requiring access) is
reasonable & limited to absolute minimum
-The special access controls balance the need to protect the info
against the full spectrum of needs to use the info
-All special access programs shall automatically terminate after 3
yrs un'Less renewed in accordance with above procedures.
IC Staf:E favors Option 11 which requires that special access programs
be created only by authority of the NSC and/or the DCI. (Tend to think this
does not recognize the need for compartmentation of other information than
S&M or classified information.)
If the status-quo option 1 is not selected, the IC Staff would go to option 2 which would
designate an office in the EOP to develop & promulgate standards for uniform application
across the Executive Branch for scope of investigation $ for adjudication of results
to determine trustworthiness. 2
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12. Include in the new Order provisions requiring heads of departments:(A)
Take action necessary to insure that number of people granted access by
his department to each level of classification be reduced to and maintained
at the minimum consistent with operational requirements and needs; (B) Assure
that a demonstrable need for access is established prior to initiation of
action requirec'. for any clearance for access to classified information after
the effective elate of the new Order.
IC agrees with this Option. I question whether or not this is meant
to bring us in line with the DOD where access is granted to only certain
levels of classified information.
13. Include in the new order a requirement that heads of departments cause
a continuing review of safeguarding practices and procedures with a view to
eliminating these which are found to be duplicative & unnecessary.
IC agrees with this motherhood option.
IC Staff' also recommends the following option--
14. Include a specific provision in the Order which would authorize the ob-
taining of criminal justice information from federal, state and local law
enforcement agencies as an integral part of the scope of investigations re-
quired for determining trustworthiness pursuant to the Order.
WHICH INFORMATION REQUIRES PROTECTION $ FOR HOW LONG f WHAT
CRITERIA SHOULD BE USED IN MAKING THIS JUDGMENT
2. Retain he scope of the term "national security," i.e., national
defense and foreign relations as used in EO 11652.
3. Adopt specific classification criteria which would call for the
elimination of examples now included under Top Secret & Secret classifica-
tion categories. It would be mandatory that before information could be
classified, it would have to be established that the information falls
within one or more of the criterion.
IC Staff agrees with above 2 options.
7. Make the adoption of classification guidelines in departments
optional but encourage promulgation where practicable.
IC disagrees. Favors Option 6 which requires development, use &
promulgation of general classification guidelines and encourages departments
to amplify same with specific guides.
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10. Require mandatory paragraph classification with provision for the
head of a department to seek a waiver from an oversight body for specific
classes of information.
16. Retain current language of Section 4(C) of EO 11652 re "Information
Furnished by a Foreign Government or International Organization" which
states that information given in confidence will be classified in order to
protect it from release.
FYI, it does not address declassification of information received
from foreign governments.
19. Modify the definition of the standard for Confidential by including
a word such as "appreciable," "significant," or "demonstrable" to modify
the word "damage."
20. Retain the prohibitions against classification now prescribed in
EO 11652 and add others.
IC Staff agrees with 10, 16, 19 $ 20. Re option 20 above, what
other prohibitions are. they going to include?
WHICH CATEGORIES OF CLASSIFIED MATERIAL MORE THAN 20 YEARS OLD
COULD BE DECLASSIFIED IN BULK UNDER APPROPRIATE GUIDELINES
2. To direct heads of departments to develop & make available to their
employees , others declassification guidelines for information originated
within their jurisdiction; but to exclude from declassification provisons
information & material given in confidence which was classified by or jointly
with foreign gov'ts except for such information as may be declassified by
mutually agreed guidelines developed by the Archivist, the departments and
foreign gov'ts concerned.
IC Staff favors Option 3 below but would select 2 as a fallback.
3. The new EO should direct heads of departments to develop, use and main-
tain current declassification guidelines for information originated by their
depts or within their subject matter jurisdiction. Such guidelines shall
specify in reasonable detail what information requires continued protection
and for how long. If the period of continued protection cannot then be deter-
mined, the guidelines shall specify a date not more than ten years later for
a second review at which time a date certain for declassification shall be
specified. Depts which hold foreign classified information shall, with the
Archivist advise the foreign gov'ts involved that such information will be
subject to departmental guidelines for declassification or extended protection
unless those gov'ts develop mutually agreed declassification guidelines for
different treatment with the depts concerned.
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4. To avoid any waste of resources the new EO should clearly state that
only those records constituting the permanently valuable records of the
Gov't should be reviewed for declassification. Records scheduled for de-
struction should not be reviewed under this program.
5. To give appropriate recognition to the merit of the Foreign Relations
series, the new EO should include the following: "All Depts'will assist
the Dept of State in its goal to attain a 20 yr publication schedule for
the documentary series entitled 'Foreign Relations of the US'. The schedule
for compiling, editing, reviewing and publishing the series should not unduly
delay declassification of any agency's foreign relations-related classified
information and material."
IC agrees with options 4 E 5.
If the new EO directs that information classified by or jointly with
foreign gov'ts be systematically reviewed for declassification, the following
option was recommended for adoption.
7. Irrespective of the US timetable for systematic review, a parallel
arrangement fo:r declassification of foreign originated classified info
should take place at the end of 30 full calendar years after origination.
HOW TO PROMOTE INCREASED PUBLIC ACCESS TO INFORMATION NO
F LONGER NEEDING CLASSIFICATION THROUGH A MORE RAPID #~
SYSTEMATIC DECLASSIFICATION PROGRAM
2. Establish a new declassification system which would (1) divorce the time
period of classification from the level of classification; (2) require an
original classifier, within the limits specified in the authority delegated
to him, to fix the shortest period of classification which he feels is
warranted; (3) limit the authority of original Conf E Secret classifiers to
continue classification to a period of six yrs; (4) limit the authority of
original TS classifiers to continue classification beyond 6 yrs but not in
excess of 20 y:rs; (5) prescribe that only a dept head may continue classifi-
cation beyond 20 yrs; (6) provide that unless declassified earlier or ex-
tended beyond 20 yrs information classified pursuant to this EO shall be
automatically declassified after 20 yrs; (7) require that authorities who
extend classification beyond 6 yrs record their identify and reason for
their decision; and (8) require that with respect to each original classifi-
cation, a date would be fixed for automfltic declassification or for review
to determine the need for continuation of classification.
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3. With respect to information classified under previous EOs, the new
Order should provide (1) If the material is already marked for declassifi-
cation within 20 yrs it shall be declassified accordingly; and (2) if not
so marked, sha:Ll.be declassified in accordance with declassification guide-
lines promulgated by heads of depts as prescribed by the new EO.
4. Build a presumption against classification and for declassification
into the scheme of a new Order. (see highlighted section of page 75)
8. Include in the Order a requirement that heads of depts designate
officials at the lowest practicable echelon of command and supervision to
exercise declassification authority with respect to classified material
in their functional areas of responsibility.
9. Include in the Order a requirement that heads of depts budget for
and provide adequate resources to carry out full and effective implementa-
tion of the Order.
Motherhood.
10. Include in the Order a section providing declassification criteria.
IC Staf:E agrees with all above options this category: 2, 3, 4, 8, 9, 10.
G. OVERLAPS BETWEEN THE NEW EO ? THE FOIA AND PRIVACY ACT
2. Drop the 10-yr prerequisite for mandatory review of Federal records
but not for Presidential materials, donated historical materials or other
non-federal records.
3. Amend the present phrasing of the mandatory review provision so as to
direct depts to declassify any reasonably segregable portion of a record or
donated historical document after deletion of information which must remain
classified.
IC Staff agrees with above options 2 & 3.
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 e
RGEIVEO
OFFICER'S
INITIALS
SECRET
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column otter each comment.)
Attached are copies of a rewrite by
Art Van Cook and Bob Wells dated
today of the papers they had prepare
as committee chairmen for forwarding
to the NSC Staff on the PRM-29 ex-
ercise. Also attached are copies of
a memo b in which heS'
.sets forth the options he believes
should be supported. Suggest you
pass out copies of both of these to
the Agency reps who worked with
you on the Cook and Wells sub-
committees with the view to develop-
ing a CIA position on options also.
John McMahon wants to be sure that
the IC and CIA positions are con-
sistent. I is schduled. S
to meet with him Tuesday afternoon
on that point. Probably I will be
there also.
Without awaiting responses from
those to whom you send copies,
suggest the 3 of us get together on
these at 2 o'clock Friday. I would
hope to put into Tony's hands by
the end of the day on Friday a paper
as to our views on the several
options.
I think also we should give particula
attention to the question of what, if_
any, issues, subjects, etc. have not
been addressed by the Van Cook and
Wells committees.
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ROUTING AND RECORD SHEET
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~~? 1 -L'f, ry }la -i C ~. CT o f' t 0 U~.TlT-7n rer7O ~?1 .. .t ..t TT
d s rt
:P LC c: c11c O 0, and
7r _~'o -o * ?_ .vnan
i. ti"'3 res'`l_ts of
I?1?-, t'_yl r"? the Te..,C -1 - e ",-L - ..?
eus
For vour _." fcr. dt n, -'r. e a c Je 1.V
).''reed .to recosionnd to r. Cry 3}?.Oi1 +' 1t he a no e 1~ C o s _ bohy!1_f
O the Tr jt t7 (O `,t"t o:rl:s _ TJ?ed to , se :? r t3 re-_ _ tS _ s';ryr al-! b`, cal
-
t)'.',~.or as tabs)
Tab A Opt ,On 1_
Tab B _ Ontion 2
Ou)tIon
Option 5 (if qucailf'l_er 1)i1.1f orr ofO. 5' - ee 'e en s I' lete )
~> 21_nn t 1'l e o f"Icac? re ^_ ~~ W T IT h
(t~;_. c~tit.7st_y o'_n ..,-c _, ... .= o,t s'L 'e absent
bo+ t-r statutory sun-')ort fo t'- -~w_ ~~3- s o: s".o - a r e1 onts, and
1 _ , '1 c
',Jp )Pl1PTrp,~.. 1,t C ?' .c \~. c..._.. ^+n C9 ---n
s~
%.' Coro = t S Twwoul,O'. by servr- b--,r t a''" ov . c, -i t song variation
on agreements so as '{".o reflect c
C ... ptj_o.1 r 1_ (but T.?o are c.d a .L?-.~ stat , !)'1o T,T_ 1, o
otnv,.reet'^-,.
oe.-mi_ttc?d. Therefore, Si n of O".'. ; on 2
7_;3 .~ .~0:,, for a fa7.lna.cl,. n?
-e v--rc.-: (' -7 ()1
as :1 rosy o be ro ch^d ')-,r a-, _.c
coordinate the il.evel, r ?':1unt of C c es acre ?' c to 2..i? the
,f;-aY t r, nts and encodes )r'_^= ch :. -. a ce a fe c -d then b'.. )
Or?'t=;.Oln . '" r',m the sub^'ro,)n
1 ;?r 17 T,? Chh, as best as I could :f'ol .!_C - ?t, r:es ltC d in a
Conclusion that ...4, was G?Si r 3':~.~ e to reo,'A_rn nronara,t`.on and. use
of [r. er t-.~ 7_%SE CZ F l1l_C~.e~. _nes _ sonarate ?n. di Ct frr,m to _~_c 1
doS. )
Oot','LOn 1.0
Al 1,110 TO Ont i.on 13
OPPO3 D TO Ont;' on 1_4 ("To i_,=,1' -,ve it will cloud t1e slue on
ca-n ar't ent t? on, dealt rri t^ '-)-Y report uodor Tab C)
Y 'r: T3 Option ^at the ,.r Order sta't -
I th{ President`s recognit- on t'ra_t intell_-i --ence sources and
methods inforirat on is esnoci.ally sensiil ve , and his desire
that such information be classified end declassified with
na.rticnlar care.)
Ont-~. on 1.6
Ont_L nn 19
Ont:ion 20
A NO TO Option 21
Tab E - On3 (fallback is Option 2 if we 'have to)
Option ~~
Option 5
T' U FAT j Co
`'+- _J~. 0; rT :O u
DO ''.OT AM P, UFAT OIT-O:6 .,
^~1,T*T 3
Tab F - Ont:Lon 2
Ont:i.on 3
Ont ion 4
CTPdd',_G M TO Option 5
Opt:! on 8
Ont-* on 9
Ont7! on 1-0
Tab 0 - Out;'._on 2
O it `_on 3
A '~ ;? ? ;:TT NO TO Onti -)n 4
STAT
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-7 -7
0
TMOPANDLM FOR: Dr. Robert Cates
National Security Cour_cil Staff
Mr. Richard Neustadt
Domestic Staff
SUBJECT: Presidential Review Memorandum (PR2,1)/TSC.29,
"A Comprehensive Review of the Classification
System"
RL 6 13
Reference is made to our memorandum, same subject, dated June 28,
1977 and at'-achments thereto.
Pursuant to your instructions at the Joint 'Meting of the
Classificat:ion/Declassification and implementation/Review Workgroups-
on June 30, 1977, we have revised the issi-ie/option/recommendation
papers in such a manner as to now show as separate options those
items which-may have been included in the previous papers as proposed
actions eitaer as part of the discussion or as added recommendations.
Moreove.r,.we have included to the extent practicable, those points
raised at t'le June 30th meeting.
Attached are: (1) A listing of 33 issues for possible consideration
by the Ad Foc Committee; (2) a table of contents; (3) the revised
issue/optio:a/recommendation papers (TABS A thru G, each preceded by
an index of the issues and related options included therein).
"' 'AWAo _ i; 'L,, ' a++.-
ARTHUR F. VAN COOK
CHAIRMAN
CLASSIFICATION/
ROBERT W. WELLS
CHAIRMAN
ID'LE' ENTATION/REVIEW
WOR and will
permit more rapid monitorship actions.
e. This option continues to permit the oversight body to draw upon
Departmental resources and expertise.
f. Except for that information not subject to the FOLA, leaves the fi:aal
executive branch decision on appeals with the Departments. Further,
even in the case of the fb rmer, provides for advisory op_i_nions by the
Departments.
This option retains an interagency forum for the exchange of views and
ideas on security information.
a. The elimination of the appeals functions on all but _`nform.ation
not subject to the FOIA may have a slight negative piblic impa.:t.
b. This option does not provide as independent an appearance as would
be obtained by a separate office in the Executive Office of th
President.
2. Identical with Option 1 except that under this tio-1
tieeurit;r
Information Oversight Office would be charged with all actions currently
assigned to the ICRC under E.O. 11652 plus responsibility for act.n
on those FOIA appeals of Departmental denials involving the
exemption submitted to the Oversight Of-"ice voluntarily by reclues `,"rs .
a. Presents the appearance of ,a more independent and aut,horitativ~ body
than the TCRC.
b. This course is more compatible with current plans for reorgani?_.ation
of the Executive Office of the President.
c. Since this Option provides for the hearing of both Mandatory R,-view
and FOIA appeals it may be less susceptible to public criticism than
Option I.
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d. This Option also eliminates delays associated with Cocnittee ac-,Ion.
e. Retains an interagency forum for the exchange of views and ideas
on security information-
f. Allows the Oversight body to continue to draw on Departmental
sources and expertise.
a. Adoption of this course will require a significant increase in the
size of the Oversight staff, and consequently, in the selected
Executive Office of the President, in order to handle and
process the anticipated major increase in the number of FOIA appeals.
b. The course of action places the final decision on appeals with an
oversight body rather than with the heads of Departments.
c. In all prcbability, the majority of the effc--t of the Oversight
Office will be involved in the processing of Q_ peals -ather then
on substantive policy and monitorship matters.
3 ? Retain overall responsibility for oversiqr'.nt of tee Informa;,ion Security
Program in the National Security Council. Abolish the ICRC and hole the
head of each Department responsible for monitoring the implementaticir
of the program within his her Department. Require Denar mental reviews
and inspections and annual reports on program nroxrass to a designated
NSC office.
a. The adoption of this option would place fina2 authori--1y in the head
of the Derartment where responsibility for classification actions
rests, rather than in an oversight body.
b. Implementation could be effected more rapidly since D}partment: would
not be required to submit implementing regulations to an oversight
body for approval.
c. Departmental reporting requirements would reduced to an annual 'oasis
rather then semi-annual as now required.
d. A slight cost savings would accrue due to the eliminanion of the
current ICRC staff.
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a. There would probably be a negative public perception )f this co_irse
of action -- it would be viewed as retrogressive.
b. This course of action would contribute to a lack of a andardiza ion
in the application of information security procedures
c. Experience shows that Departments will not allocate siLfficient
resources to effectively implement the Order -- rathe?, resources
will be diverted to other programs or projects of gre~;ter immediate
interest to the particular Department.
d. The appeal function now handled by the ICRC would have to be elim-
nated in t.~e absence of an oversight body. Some other mechanism
would be required to hear appeals regarding information contain d
in Presidential materials since such information is nest subject to
the Freedom of Information Act, as amended.
e. No independent external group will be available by Executive action
to review, inspect or objectively analyze Departmenta' implemen;irg
actions.
f. In all likelihood, a slight increase in the ';3C staff will be r
quired.
g. This course of action eliminates the Interagency forr: for dealng
with mutual problems related to classified information.
h. This course of action is unlikely to contribute to greater open;t:nss
or better protection of national security information.
During the course of its deliberations the Sub-Group developed and considered
a number of possible options. There was consensus among the members that. the
new oversight body E hould be placed in a major office vi thin the F ecuti-e
Office of the President aLn order to provide the body sufficient authority to
carry out its monitorship functions. Similarly, there was agreement that the
Oversight Office should be headed by a Director and a Deputy Director appointed
by the President and, that an interagency advisory comttee should be esi a-
b.lished. Members agreed that the Oversight Office should be charged witl those
functions currently assigned to the ICRC with one major exception. This ex--
ception was a divergence of views on whether the Oversight should action
all appeals above the Departmental level, including PCY_-. appeaL. involving the
b(1) exemption, or whether the Oversight Office appeal authority should be
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P r'
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Limited to only those appeals involving 10 or more year old mat::rial -whic a
is not subject to the provisions of the K IA, as e -ended; e.g., President L 1
materials. The Sub-Group recommends that the ad-hoc Co; ittee ::onsider
both Options 1 and 2 in arriving at its decision on the eve sigtlt body.
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PRM ISSUE: WHAT KINDS OF DISCIPLINARY ACTIONS CA' TAE TO PPRE 4AT
TIE, MISUSE OF TIE S PURITY CL .SSIFIC_ =IC:- SYS`I ?i : Y
GOVEFUPM= OUEICIAT ?~--~---
ISSUES FOR TIE AD i[OC COMMITTEE: FACE
- i xpansion of adriinistrative sanctions
to include categories and range of sanctions
OPTION 1 . . . . . . . . . . . . . . . . . . . . . . . . .
OPTION 2 . . . . . . . . . . . . . . . . . . . . . . . . .
OPTION 3 . . . , . . . . . . . . . . . . . . . . . . . . .
Whether to Adopt a Secrecy Agreement as a Condition cl'
Obtaining Access to Classified Information
OPTION 4 . .
OPTION 5 . .
OPTION 6 . .
OPTION 7 . ?
REC OMMENDAT IONS:. ? . . . . . . . . . . . . . . . . . . . . . . . . 6
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ISSUE: What Kinds of Disciplinary Actions Can be Taken to Pre;7ent the
Misuse of the Security Classification System by Government
Officials
:#;4cutive Order 11652 expressly prohibits classification in order to
conceal inefficiency or administrative error, to prevent embarrassment
to a person or a Department or to restrain competition or independent
i_TUtiative. The Order also includes a general prohibition against
classification "..., to prevent for any other reason the release of info:
nation which does not require protection in the interest of national
security. The sole administrative sanction prescribed by Section 13 of
Executive Order 11152 is "administrative reprimand" and, it becomes
operative only for "repeated abuse." There are no specific sanctions
or range of sanctions for unauthorized release or disclosure of classi-
fied information. Classification and continuation of classification in
violation of the Order are not explicitly subject to administrative
sanction.
During the course of its deliberations, the Sub-Group examinee. the foll _iw-
ing significant factors related to the main issue:
(a)
The sufficiency of sanctions currently provided in Executive Order
11652.
(b) The need for criminal sanctions for extreme misuses, such as use of
classification to cover up criminal activities or gross nismanage-
nt.
(c) The question of whether the new Executive order should r::quire thet
each person who has access to classified information execute a
secrecy agreement as a condition of being granted access.
(d) Preventative methods such as disciplinary measures, civil fines,
criminal sanctions and increased use of polygraph tests.
The Sub-Group members were of the opinion that some sanctions are
desirable for unauthorized disclosures, and that the problem of prosecuting
those responsible for unauthorized disclosures may not necessarily result
only from an unwi7.lingness to pay the price of enforcing existing statutes.
Rather, Sub-Group members agreed that existing statutes are generally r-ot
v;pplicable to all unauthorized disclosures, such as anonymous leaks to the
press.
Intelligence agencies have often refused, prior to any investigation, o-,
a leak, to declass;ify information determined to be essential for purpo+>es
of prosecution. it was the:popinian of the Sub-Group members that this
difficulty seems to be capable of resolution. They were persuaded tha-1 a
refusal to undertake any criminal investigation without an advance cotm-ait-
rent from the concerned agency to declassify this n information not only may u're preclude t ~F8 F 0 / 9 sC ik- -00"0a0300070006 4 3'
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but such policy very often may preclude fully informed and rational
determination of whether or not it is actually appropriate to {leclassif~
;uch information or reveal intelligence sources and methods. `Ihe Sub-
Group members were of the opinion that investigations may ofte.a be nece_-
sary for purposes tnrelated to prosecution, such as to provide valuable
insight into the vclnerabilities of security procedures or into methods
or corrective management actions. Existing policy may often -preclude
consideration of factors necessary to an informed decision of ?ihether of
not to declassify.
During consideraticn of whether or not the new Executive order should
require each person who has access to classified information to execute
a secrecy agreement, the Sub-Group took cognizance of the following:
(a) The desirability and effectiveness of using secrecy agreements as s
mans of preventing disclosure of classified information as dis-
cussed in detail in the ItM/NSC-11. subcommittee report.
(b) In Executive order 11905, the President required all employees of
the executive branch and its contractors to execute a sec"ecy agree-9
merit as a condition of obtaining access to information containing
sources and methods of intelligence.
(c) At present, most Departments and Agencies have executed as.;reements
to comply with Executive Order 11905 but there is some question as
to whether they are in full compliance. Exceptions are CAA and NSA
which already have secrecy agreement programs applicable to all
employees.
(d) Under the CIA and NSA programs an employee is required to execute a
secrecy agreement as a condition of employment, and other persons
execute such agreement as a condition of gaining access to classified
information.
Agencies which now use secrecy agreements would not like to see the new
Executive order contain any provision which would require their present
employees to reexecuate a secrecy agreement. Some members preferred a
Government-wide uniform secrecy agreement as a condition of obtaining
access to classified information. No member was opposed to secrecy afire.--
ments in principle. However, one raised questions about their utility
as a preventative tool and felt that the beneficial returns frc.m the use
of secrecy agreements are probably far less than the administrative burd_!ns
and costs. He agreed that secrecy agreements may, in some instances, pr,-
vide the Government with the legal vehicle of a civil injuncticn, but war
not of the opinion ';hat it will deter those who are predisposed to dis-
closure and will probably be demeaning and insulting to those sho are no
The usefulness of the secrecy agreement in seeking an injunction, accord`_ng
to one member, is perhaps even more limited since the Government will on:`.y
be able to seek thus writ where it has prior knowledge of the planned di-
closure, which will be the exception.
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The Sub-Group as a whole agreed that requiring the military, c=freer Civil
Service entrants or present government er. loyees to sign a secrecy agree-
ent as a condition to employment may not be legally dnossible. Eowever,
the Sub-Grog believes that requiring such persons to sign a secrecy
agreement as a condition of obtaining access to classified inforrm,it'lion
~zill not present any legal problems. The opinion was expressed , fat the
President has the purer to impose such a requirement upon the tail.terry
as Commander-in-Chief of the Armed Forces, and upon career Civil service
entrants and present government employees under 5 U.S.C. 3301 end 3302.
The question was raised: Since a secrecy agreement is a contrect, where
is the necessary consideration when the secrecy agreement is based upon
obtaining access to classified information? `embers were of the opinion
that the Government's consideration is the employee's promise to ,,afeguaxd
classified information and to refrain from disclosing the same, aid that
the employee's consideration is the ascertaining of a job that requires
access to classified information, which he otherwise could not hold.
Also considered by the Sub-Group for inclusion in the Cyder was a provisior.
calling for liquidated. damages or a civil fine. One mtenber objec.,ed to
such a provision on the grounds that a civil fine could not be irmmosed
through an Executive order, rather it would require legislation. And,
while a liquidated dame clause probably could be included, it would be
awkward to enforce because of the difficulty of placing a value of the
classified information disclosed.
The Sub-Group considered the efficacy of the sanctions in Executive Order
11652 with respect to repeated abuse. The Sub-Group concluded that the
current prohibitions against classification and those relating to the con-
tinuation of classification cf information not requiring protecti)n in
the interest of national security are sound policy and should be included
in any superseding Order. Further, that the present sanction in executive
Order 11652 is too narrow in terms of available sanctions, and is not
adequate to deal with the problems of misuse of the classification system
and unauthorized disclosure. Finally, the Sub-Group concluded that there
does not appear to be a need for specific criminal sanctions for viola-
tions of the prohibitions. In the extreme case that an obstruction of
justice is caused by EL classification made for a prohibited purpose, the
criminal sanction which attaches to that offense could be invoked.
1. Retain theprovisi.ons of Section 13 of Executive Order 11652
and of Section X.U. of the NSC Directive c' May 17 1 97
2.
21
Under this option Departments could continue present practices and systems
for enforcement of compliance with the operable provisions of the classi-
fication system.
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a. I?his option allows for only a single relatively weak sancta on which
becomes operative only for "repeated abuse."
b. This option does not provide for specific sanctions or a r.nge of
sanctions for unauthorized release or disclosure of classified
information.
c. Classification and continuation of classification in violation of
the order are not explicitly subject to administrative sanction under
this c9tion.
2. Include in the order provisions for administrative sa ctions for
xwillfu1 origination or continuation of classification of infortnat cn
wi_v13y
in violation of the Order or an implementin..g Directive;
releasing or disclosing or causing the release or disclosure of classi-
fied. information in a manner not authorized by the Order o,- an itrple_
menting Directive; or other violations of the Order as det.rmined b
the head of a zepartment. Heads of Departments will specie the
provisions of the Order and implementin F Directives- fog which violation
is subject to administrative sanctions, and will cnezif'y the Far-PlicE_ole
schedule of sanctions in accordance with the major r=ose's of the
order and the articular requirements of the Ienartnents.
a. This option places proper emphasis on the importance of strict comp-
.d-ance with Executive order standards and criteria for classification
declassification and disclosure.
b. The strict conq>liance with classification standards and criteria wh.ch
would result from this option would probably result in the generation
of less classified material, earlier declassification of that infor-
mation, and more and earlier public availability of information
concerning the affairs of Government.
c. Administrative sanctions can be imposed more proutly and more sure.;y
than criminal sanctions and at lower cost to the Government.
d. Responsibility for enforcement by use of administrative sanction w`_11.
.be in the heads of Departments, the officials to whom, the Order
delegates authority for classification and responsibility for pro-
tection of classified information.
a. Departments will be required to revise regulations per tairdng to
enforcement of compliance with the Order and itletenting Directive:}
and to revise security education and training activity and, materials.
-* The Sub-Group contemplates that the term "willful" would be defined,
or that the Order would be drafted in such a manner that specific
intent could be inferred by a requisite degree of negligent type conduct.
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b. This option would probably result in a lack of uaifortal ty a=ng
Departments in the application of sanctions.
Include in the Order provisions for a rye of sa= c_t{ ons, `;~,
r e ritnand, susrr.ension without -pay, removal, vhic h r r be i osed
for Option 2 abuses or violations in accordance -;it:: roli,-able
law and D artasntal regulations.
a. This option would tend to ensure the uniform airplizaticn o,' sanctions
along the Depaxtments.
b. This option would provide a range of sanctions.
Departments will be required to revise regulations pertaining -,o enforce.-
went of compliance with the Order and implementing Directives axed to
revise security education and training activity and rzaterisl.s.
1k-.
Include in the new Executive order a section which will rep zi re all
government etr loyees to execute a secrecy e reeme~t as a condition
of obtaining or continuing access to classified irfcrratio a.
ADVANTAGES :
a. Has educational value
b. Will serve as El deterrent.
c. Will allow the Government to seek a civil injunction
to prevent the disclosure of classified info_-rmation.
a. The administeri.ng of the program may outweigh its benefits.
b. The Government's ability to seek an injunction wool probably
prove useless in most instances because it would not have prior
knowledge of the planned disclosure.
c. Most employees would probably find the require;nt cf signing such
an agreement insulting and demeaning.
Include in the new Executive order a section which will req24Li~e the
use of a uniform secrecy agreement whereby th! d s. ree not to rublisl :,
disclose or otherwise make available classified ir_?cr ation - o any
unauthorized pfsrson. and that all government err/loyees execute such
eTn. : reement as a condition of obtaini access to classified ~infor-
A~ration.
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a. Same as Option 1+
1). Added advantage of reducing legal problems in attempting ti enforce
the agreement because of its uniformity.
DISADVANTAGES: Sams: as Option 4.
6. include in the new Executive order a section which vill require au
,provernment employees to execute a secrecy agreement as a condition
to obtain ealrment or continuing in their present e~ rent.
ADVANTAGES: Same as Option 4.
DISADVANTAGES: Same as Option 4 but has added disadvantage that it coulc
present legal problems in attempting to apply it totthe
military, career civil service entrants and present gover-n-
ment employees.
7. Include in the new Executive order a section which will require all
government eS~lcyees to execute a secrecy ag=reement as a coadition of'.
nbtaa nine access to classified information with a_ provisiaz calling
for liquidated damages or a civil fine.
ADVANTAGES: Same as Option 4 but also adds two add-Li tiona! dete,-rents
through the liquidated damage clause or a civil fine require
ment .
DISADVANTAGES: Same as Option 4. Also has the disadvantage that any
provision calling for a civil fine could not be mandated
by an Executive order, and would require legisl~1tion.
While legislation would not be necessary in the case of e
liquidation damage clause, such a clause would prove awk-
ward to enforce because of the difficulty of placing a
value on the classified information disclosed.
RWO RATIONS: It is the consensus of the Sub-Group that there be included
in the new Executive order sections which would incorporate provisions as
set forth in Option 2 and in Option 3. Further, that a section be included
requiring all government employees to execute a uniform secrecy agreement
as a condition of obtaining access to classified information, as set forty
in option 5. Additionally, that the new Executive order should continue
to direct that violation of relevant criminal statutes, e.g., lb USC 793,
,(94 and 798, be refe:-red promptly to the Department of Justice for invest
gation and for pros,.cution as appropriate.
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'RM ISSUE: HOW UTJNECESS, Y AND DUPLICATIVE PRACTICES AND PROCEMUBM
CAN BE =MIN ED, REDtCfl G E TSLS.
ISSUES FOR THE AD HOC COMITTEZ:
- Whether to standardize investigative/adjudicative pro-
cedures for determining trustworthiness.
OPTION 1 . . 8
OPTION 2 . 9
OPTION 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
OPTION 4 . . . . . . . . . . . . . . ? ? 10
OPTION 5 . . . . . . . . . . . . . . . 12
OPTION 6 . . . . . . . . . . . . . . . . . . . . . . . ? . . ? . 12
OPTION 7 . . . . . ? ? ? ? ? ? . . . . . . . . . . . . . . . ? ? 13
- Whether to establish standards and criteria for Compartments.
OPTION 8 . . . . . . . . . . . . . 13
OPTION 9 . ? ? . . ? ? ? ? r ? . ? ? ? 1+
OPTION 10 ? ? . ? . . ? . . u . . . ? . . . . .. . . . ? . . . . 1} 5
OPTION 11 . ? ? ? ? ? . . . ? a? a . 16
.. Whether to provide for reducing numbers of people authorized to
have access to classified information.
Whether to require demonstrable need for initiating clearance
procedures.
Whether to require a continuing Departmental review of
current safeguarding practices with a view to eliminating
duplicative and-unnecessary practices.
. ? ? ? ? ? ? ? ? ? s ? ? .. ? . ?
OPTION 13 . ? ? . . . . . .
16
17
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