UNITED STATES V. HARRY A. JARVINEN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00552R000800080024-8
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 22
• Document Creation Date: December 16, 2016
• Document Release Date: October 6, 2004
• Sequence Number: 24
• Content Type: IS

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Another privilege
claim upheld
Cu, THE COURTS AND EXECUTIVE PRIVILEGE
Lawrence R. Houston
Over the years, CIA has had many occasions to negotiate in the various
courts on the problem of security of its records and particularly of its intelligence
sources and methods. Normally, some sort of accommodation has been reached
to cover the needs of the court and the requirements of security. Only twice
has the Agency been forced to the final step of. claiming executive privilege.
Both of these occasions were in civil actions wherein the claim of privilege
is given weight by the court but does not bring about dismissal of the action
as would be the case in a criminal trial.
The most recent case resulted in an interesting opinion by judge Marvin E.
Frankel, the Federal District judge in. question. The case arose out of an in-
surance dispute in which action was brought by Pan American Airways, On
September 6, 1970, Pan American was operating - a Boeing 747 airplane. on
its scheduled route from Brussels, Belgium, to New York City, with a stop
in Amsterdam, Holland. On the flight from Amsterdam to London, two of
the passengers produced hand guns ' and grenades, forcibly took command of
the crew and the passengers, and ordered the pilot to proceed to Beirut,
Lebanon. The hijackers, though not themselves Arabs, were working with and
for the Palestinian operation called the Popular Front for the Liberation of
Palestine (PFLP). In collaboration with other PFLP people who met them in
Beirut, they laced the aircraft with explosives during and after a stop in the
Lebanese capital Then they. caused the airplane to-,be .flown to Cairo, -Egypt,.
lighting fuses just before--landing to ignite the explosives. The large complement LL:
of passengers and crew thus had scant minutes to disembark and flee as the
plane landed at Cairo, before the craft exploded, burned, and was totally
destroyed.
Pan American, of course, carried insurance coverage. This was in two
packages. The so-called "all risk" insurance was carried by a group of American
insurance companies to the full value of the plane, $24 million, and the policy
contained a "war risk" exclusion. In other words, the American companies would
not pay for loss caused by an act of war as defined in the policy. Pan American
then obtained war risk coverage in two lots, $14 million from a Lloyd's group
in London and $10 million from the United States Federal Aviation Authority.
The "all risk" defendants were adamant that the loss was due to an act of war,
and the other two defendants were just as firm that this hijacking did not come
under the war risk exclusion. Pan American, therefore, brought suit against all
the groups, and left it to the Federal District Court in New York to interpret
the various policies.
Several large and expensive teams of lawyers started research into all
aspects of the episode and the background of A hose involved. Early in the
course of this preparation, Mr. Lawrence- E. Walsh, representing the American.
defendants, came to see me and Mr... John S. Warner, then Deputy General
Counsel. He claimed that the British defendants had had the help of docuinenta-
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tion from official British intelligence-components to assist in building their
case and, therefore, he claimed that the American defendants had the right to
inspect any and all American intelligence records in any way pertinent to the
subject. We explained the security problems involved, particularly in the source
and method area, and that these would present real obstacles to making available
intelligence documentation. As a former Attorney General, Mr. Walsh actually
had some familiarity with this subject.
We did not commit the Agency to any production of records. Mr. Walsh
subsequently obtained an order for discovery directed, among others, to the
Department of Defense, Department of State, and CIA, directing the production
of all records having to do with the episode in which the plane was destroyed,
with the complete background and history of the PFLP and a large number of
named individuals connected therewith, ,and with a number of other specifically
identified subjects. The only bod of unclassified material that was responsive
in any way was a compilation ofJeports on the subject, which was offered ST4T
"
but not accepted by the
all risk insurers. We asked the United States Attorney
to try to negotiate some middle position, as did State, but State finally gave
defense counsel access to its records including classified material.
A-roughappraisal of what a full rc ponseto the discovery order would mean
for- CIA indicated that there -would be a minimum of over 5,000 -items, the
majority of them raw" reports,' many' from highly, sensitive sources, all involving
security problems to one degree or another. We also came to the conclusion that
while there was much valuable intelligence material in this, the salient facts
pertaining to the destruction of the plane and to the PFLP were readily available;
from open sources. We, therefore, felt the American defendants would not be
prejudiced in their case by failing to have CIA records. Accordingly, we entered
a formal claim of sovereign immunity in answer to the discovery order, an action
that must be taken personally by the Director. The claim was supported by an
affidavit which set forth the security problems, including the danger, particularly
in this case, to lives and well-being of sources who might be exposed. through
the court process. The case was argued at great length by eminent. counsel.
for some of the outstanding firms in the 'country, as well as by the United States
Attorney.
On 17 September 1973, judge Frankel handed down his opinion, which was
long and dealt with the issues in great detail. In short, he came to the conclusion
that the PFLP was not an organized military operation, and the hijacking was an
isolated act not related to any military operations so that it did not come within
the exclusion of the war risk policy and the American companies defending
were ordered to pay the judgment in full. He then dealt specifically with the
CIA claim of privilege, and his treatment is best set forth in the judge's own
words as follows:
The all risk defendants have unleashed manpower, suited to the sums
at stake, in massive works of factual and legal research. Lavish dis-
covery has been had of State Department, FAA, and FBI documents
to learn about the PFLP, the Middle East struggles generally, and the
disputed hijacking. Several inches of secret and otherwise classified
State Department papers have been made a peculiar sort of secret annex
to the record, with counsel and the court (dubitante) submitting to
"clearance" procedures for access. All risk counsel also demanded,
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however, secret Central Intelligence Agency (CIA) documents, and
this agency, after some procedural rituals, interposed the "secrets of
state" privilege. Ultimate determination of the issue thus posed was
postponed until after trial. The all risk defendants at this point make
the heady claim that if all else fails, they should have judgment for this
reason against the "United States."
There is a threshold question of some magnitude whether the
problem should be considered as one of discovery against the Govern-
ment as a party. The all risk defendants have, strictly speaking, no claim
against the United States, which has sold insurance to the plaintiff.
The Government's "proprietary" role as insurer does not comfortably
or conveniently lead to the conclusion that all its agencies, however
separate, must be treated as fractions of this single "party" for discovery`
purposes. It might well be held that the applicable standards for dis-
closure are those of the Freedom of Information Act and that the all
risk argument is ended by the duly imposed "secret' classification under
the ruling in Environmental Protection Agency v. Mink, 410 U.S. 73
(1973).
But even viewing The Government as a monolith, and applying
inter pastes rules of discovery, the risk argument fails because:
(1) the claim of privilege appears to have been justified in the
circumstances, at least when measured against
(2) the trivial showing of alleged need for disclosure.
The CIA Director explained the refusal to disclose, even for in
camera inspection, on the ground that:
"The revelation of the identity of these sources to the Court or to the parties
to this litigation could result not only, in their-'loss to the Central Intelligence
Agency for the future but also in serious physicaldanger_:to-'a.number-.of
them who are risking their lives and careers=toassist us"
The circumstances apparent to the court from the entirety of this case
render this a realistic and convincing concern. The setting reeks of
violence and danger. The loss of American and other lives through
terror is a vivid part of our evidence. But there should be no need
to linger over this. With characteristic responsibility, all risk counsel
reported during the trial that one of their witnesses had probably lied
in cross-examination, and that the explanation appeared to be potential
physical dangers to him had he done otherwise. The matter was left
at that. It seems appropriate to pay similar heed to the representation
of the CIA without yielding an iota of the court's responsibility and
power to judge for itself the grounds of a claim of privilege.
This conclusion is reached easily in this case because the asserted
needs for disclosure are shadowy and speculative at best. It is said
that CIA documents might indicate (by hearsay, of course) payments
by Arab governments to the PFLP. But the all risk defendants had the
PLA Commanding General on the stand for days and did not even ask
about this. Moreover, other evidence. adduced by the all risk defendants
showed there were no such payments, .or none of consequence:. It is
argued that CIA hearsay might disclose PFLP intent and "aims and
Iljj
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operations during 1970." But surely our record, including reams of
State Department hearsay, to say nothing of PFLP's non-reticent func-
tioning, is ample on that. It is argued that the all risk defendants tried
unsuccessfully to procure a witness from the PFLP, and that the CIA
files would be or show "other sources of alternative evidence." But
this persists in overlooking the hearsay rule and is otherwise a matter
of unlikely conjecture.
In short, we have here, with the perspective of a huge record,
a "formal claim of privilege set against a dubious showing of necessity."
United States v. Reynolds, 345 U.S. 1, 11 (1953). The "formal claim"
was made in a setting of substantial assurance that legitimate concerns
for security and human life were at stake. Against that were extensive
alternative sources, including broad disclosures by government agencies.
The court is led upon the record as a whole to the firm judgment that
the "intelligence" sought would not have enhanced significantly the
factual knowledge needed for this lawsuit.
It is concluded, under the principles of United States v. Reynolds,
that. there was no- occasion for insisting upon in camera inspection of
the "documents and that .there is no basis either-. .for- the extraordi
judgment the all risk insurers'seek or for any other "sanctions."
It was, of course, gratifying to have the Agency claim of privilege upheld.
However, there was still one point of concern left open by this opinion. There
have been several degrees of privilege running back through legal history.
Recent discussion has tended to differ between a claim of government privilege,
which has to do with confidential communications within the government, . and
a claim of sovereign immunity which is based on security considerations per-
taining to the national interest. The difference is that in the government privilege
the courts take it upon themselves to review the information _to see if it is
relevant and necessary to the case, but there- is a body of law which indicates
that the claim of sovereign immunity is not reviewable by the courts. It is this
latter interpretation which we had placed on our claim. However, it will be
noted judge Frankel took a differing view as he says:
It seems appropriate to pay similar heed to the representation of
the CIA without yielding an iota of the court's responsibility and
power to judge for itself the grounds of a claim of privilege.
Whether he meant actually court review of the material involved or whether
he had in mind some further demonstration of the need to protect the information
is not quite clear. In this case, of course, the outcome was completely satisfactory.
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A review of legal precedents for
protecting sensitive informa-
tion from disclosure iry the
courts and Congress, with par-
ticular reference to Central In-
telligence privileges.
EXECUTIVE PRIVILEGE IN THE FIELD'
OF INTELLIGENCE
Lawrence R. Houston
Recent agitation in congressional and newspaper circles
against "secrecy in government" has focused attention on in-
formation security measures in the Executive Branch. The
courts, too, have declared in recent months that information
used by the government in preparing criminal prosecutions
and even some administrative proceedings must be divulged,
at least in part, as "one of the fundamentals of fair play." 1 In
this atmosphere, the intelligence officer may reflect on the risk
he runs of being caught between the upper and nether mill-
stones of congressional or court demands on the one hand and
the intelligence organization's requirement for secrecy on the
other.
Actually, the problem of demands for the disclosure of infor
matiori which the government considers confidential is not 'a
new one, as can be seen from the history of the Executive
Branch's struggles to withhold information from the courts and
Congress. The Executive has based itself in these struggles on
the doctrine of the separation of powers among the three
branches of government, which holds that no one of the
branches shall encroach upon the others.
The Separation of Powers
Demands for the disclosure of information held by the Execu-
tive have been made by the courts and by the Congress since
the early days of the republic. On the other hand, the very
First Congress recognized, more than a year prior to the ratifi-
Communist Party v Subversive Activities Control Board; U.S. Court
of Appeals, District of Columbia Circuit, decided 9 January 1958.
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cation of the Bill of Rights, that some of the information held
by the Executive ought not to be divulged. An act passed on
1 July 1790 concerning "the means of intercourse between the
United States and foreign nations" provided for the settlement
of certain expenditures which in the judgment of the President
should not be made public.2 During his first term of office
President Washington, anxious to maintain close relations with
Congress, on several occasions passed information to the Con-
gress with the warning that it not be publicized.- In a special
message dated 12 January 1790, for example, he wrote:
I conceive that an unreserved but a confidential communica-
tion of all the papers relative to the recent negotiations with
some of the Southern Tribes of Indians is indispensibly requisite
for the information of Congress. I am persuaded that they
will effectually prevent either transcripts or publications of all
such circumstances as might be injurious to the public inter-
ests.3
Two years later, in March 1792, a House resolution empow-
ered a committee "to call for such persons, papers, and records
as may be necessary to assist their inquiries" into Executive
Branch actions with respect to a military expedition under
Major General St. Clair. The president did not question the
authority of the House, but wished to be careful in the matter
because of the precedent it might set. He discussed the prob-
lem with his cabinet, and they came to the conclusion:
First, that the House was an inquest and therefore might
institute inquiries. Second, that it might call. for papers gen-
erally. Third, that the Executive ought to communicate such
papers as the public good would permit and ought to refuse
those the disclosure of which would injure the public: Conse-
quently were to exercise a discretion. Fourth, that neither the
committee nor the House had a right to call on the Head of
a Department, who and whose papers were under the Presi-
dent alone; but that the committee should instruct their chair-
man to move the House to address the President'
By 1794 President Washington, then in his second term,
began to show less liberality in divulging information to Con-
gress, for on 26 February of that year he sent a message to the
Senate stating that "after an examination of [certain corre-
'Richardson, Messages and Papers of the Presidents, 2283.
5 1 id. 63.
'Writings of Thomas Jefferson, 303-305.
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spondence] I directed copies and translations to be made except
in those particulars which, in my judgment, for public consid-
eration, ought not be communicated." 5 Two years later, on 30
March 1796, he transmitted to the House his famous refusal to
divulge certain information requested by the House in connec-
tion with the Jay Treaty. In this treaty, many people be-
lieved, the young republic did not get enough concessions from
the British, and the Federalists who supported it had become
the target of popular resentment. Washington replied as fol-
lows to a House resolution:
I trust that no part of my conduct has ever indicated a dis-
position to withhold any information which the Constitution
has enjoined upon the President as a duty to give, or which
could be required of him by either House of Congress as a
right . . . The matter of foreign negotiations requires cau-
tion, and their success must often depend on secrecy; and
even when brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may have
been proposed or contemplated would be extremely !impolitic.
Pointing out that he had been a member of the general con-
vention and therefore "knew the principles on which the Con-
stitution was formed," Washington concluded that since "it is
essential to the due administration of the government that the
boundaries fixed by the Constitution between the different De-
partments should be preserved, a just regard to the Constitu-
tion and to the duty of my office under all circumstances of
this case forbids the compliance with your request."
Thus during Washington's administration the doctrine of
the separation of "powe"rs came -to- provide the asis for execu
tive privilege in withholding information. This doctrine, not
specifically enunciated in the Constitution, emerged from de-
cisions taken on specific political situations which arose during
the first years of the republic, as the same men who wrote the
Constitution interpreted it in such ways as they thought pro-
moted its intended ends. In this way it was established that
the Executive Branch of the Government has within its control
certain types of executive documents which the Legislature
cannot dislodge no matter how great the demand. The Execu-
tive Branch can be asked for documents, but should exercise
1 Richardson, op. cit. supra, note 2, 144. Italics supplied.
1 id. 186.
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discretion as to whether their release would serve a public good
or be contrary to the public interest.
The Judiciary also recognized, as early as 1803, the independ-
ence of the Executive Branch and its ability to control its own
affairs. Chief Justice Marshall wrote: "The province of the
court is, solely, to decide on the rights of individuals, not to
inquire how the Executive, or executive officers, perform duties
in which they have a discretion. Questions in this nature
political, or which are, by the Constitution and laws, submitted
to the Executive, can never be made in this court." 'r
It is notable that this executive privilege was applied in the
congressional cases cited above to the President's responsibility
for foreign affairs. Under the Continental Congress, the De-
partment of Foreign Affairs had been almost completely subject
to congressional direction. Every member of the Congress was
entitled to see all records of the Department, including secret
matters. But after the Constitution was written, and pur-
suant to its grand design based on the separation of powers,
Congress in 1789 subordinated the Department of Foreign
Affairs to the Executive Branch and provided that its Secretary
should have custody and charge of all records and papers in the
Department. In 1816 the Senate Foreign Relations Committee
declared that the "President is the Constitutional representa-
tive of the United States with regard to. foreign matters" and
that the nature of transactions with.foreign nations "requires
caution and success frequently depends on secrecy and dis-
patch."
Precedent in Intelligence Cases
Intelligence activities, intimately linked with foreign policy,
played their part in the evolution of the Executive Branch's
position on disclosure of information. In 1801 Congress in-
terested itself in the expenditures of various Executive Depart-
ments and instituted an inquiry "as to the unauthorized dis-
bursement of public funds." In reply to charges that the War
Department expended funds for secret service not authorized
by law, Oliver Wolcott (Comptroller of the United States
1791-1795; Secretary of the Treasury 1795-1800) gave a clear
exposition of the accounting requirements of intelligence which
is applicable today:
Marburg v Madison, 1 Cranch 137 (1803).
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I never doubted for one instant that such expenditures were
lawful, and that the principle should now be questioned has
excited a degree of astonishment in my mind at least equal to
the "surprise" of the Committee.
Is it then seriously asserted that in the War and Navy De-
partments - establishments which from their nature presup-
pose an actual or probable state of war, which are designed to
protect our country against enemies-that the precise object
of every expenditure must be published? Upon what principle
are our Generals and Commanders to be deprived of powers
which are sanctioned by universal usage and expressly rec-
ognized as lawful by all writers of the Law of Nations? If one
of our Naval Commanders now in the Mediterranean should
expend a few hundred dollars for intelligence respecting the
force of his enemy or the measures meditated by him, ought
the present Administration to disallow the charge, or publish
the source from which the intelligence was derived? Is it not
equivalent to a publication to leave in a public office of ac-
counts a document explaining all circumstances relating to a
payment? Ought the truth be concealed by allowing fictitious
accounts? Could a more effectual mode of preventing abuses
be devised than to establish it as a rule that all confidential
expenditures should be ascertained to the satisfaction of the
Chief Magistrate of our country, that his express sanction
should be obtained, and that the amount of all such expendi-
tures should be referred to a distinct account. in the Public
Records? ?
The statute referred to in the debates was-an-Act of Con-
gress passed on 9 February 1793 which gave the President au-
thority, if the public interest required, to account for money
drawn from the Treasury for the purpose of "intercourse with
foreign nations" simply by his own certification or that of the
Secretary of State. Actually, this statute reaffirmed the similar
legislation of 1790 providing for the settlement of certain ex-
penditures which, in the judgment of the President, ought not
be made public." The substance of these Acts was revived and
continued in later legislation, and President Polk utilized it in
1846 in refusing to accede to a House resolution requesting an
accounting of Daniel Webster's expenses as Secretary of State
in the previous administration.
"Control of Federal Expenditures, A Documentary History 1775-1894,
Institute for Government Record of the Brookings Institution, pp.
329-330. Punctuation modernized.
Richardson, supra, note 2.
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In 1842 Webster had negotiated an agreement with the Brit-
ish representative, Lord Ashburton, on the long-disputed
boundary of Maine. To make the treaty more palatable to
the public and enhance its chances of ratification in the Senate,
Webster had spent money out of "secret service funds" to carry
on favorable propaganda in the religious press of Maine. Sena-
tor Benton termed this practice a "shame and an injury . . . a
solemn bamboozlement." . A Congressional investigation fol-
lowed, during the course of which the request was levied upon
President Polk.
President Polk based his refusal to comply on the statutes
which gave the President discretionary authority to withhold
details on how money was spent. He supported his predeces-
sor's determination that the expenditure should not be made
public, asserting that if not "a matter of strict duty, it would
certainly be a safe general rule that this should not be done."
In his message to Congress he acknowledged the "strong and
correct public feeling throughout the country against secrecy of
any kind in the administration of the Government" but argued
that "emergencies may arise in which it becomes absolutely
necessary for the public safety or public good to make expendi-
tures the very object of which would be defeated by publicity."
He pointed out as an example that in time of war or impending
danger it may be necessary to "employ individuals for the pur-
pose of obtaining information or rendering other important
services who could never be prevailed upon to act if they had
the least apprehension that their names or their agency would
in any contingency be divulged." 10
The non-disclosure of information relating to intelligence
was tested rather vigorously in several instances during the
Civil War, and these tests established a strong precedent in
favor of the inviolability of intelligence activities. Brigadier
General G. M. Dodge, who conducted a number of intelligence
activities in the West with considerable results, became the ob-
ject of relentless criticism for his financing methods. He
refused obdurately to break the confidence of his agents by
revealing names and amounts paid, and when he was denied
the funds necessary for these activities, he had to raise the
money for his agents by confiscating cotton crops in the South
"5 Richardson, op. cit. supra, note 2, 2281.
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and selling them at public auction. Three years after the end
of the War, when War Department auditors discovered that
General Dodge had paid spies for Grant's and Sherman's
armies, they peremptorily ordered him to make an accounting
of the exact sums. Receipts and vouchers signed by spies who
lived in the South were obviously difficult to obtain, and fur-
thermore the names of the agents, for their own security?could
not be disclosed. - As a result, when the War Department closed
Dodge's secret service accounts 21 years after the war, they
were apparently still without a receipt for every dollar spent."
A leading legal decision governing the privilege of the Ex-
ecutive Branch to withhold intelligence also had its genesis in
the Civil War. In July 1861 William A. Loyd entered into a
contract with President Lincoln under which he proceeded
"within the rebel lines and remained during the entire war."
He collected intelligence information all during the war and.
transmitted it directly to the President. At the end of the war
he was reimbursed his expenses, but did not get any of the
$200-per-month salary for which the contract called. After
Loyd's death a suit was brought by his administrator against
the Government to collect the salary Lincoln had contracted
to pay him.
The case was finally decided by the Supreme Court in 1816,
and the claim was denied. Mr Justice Field set forth in his
opinion a position on secrecy in intelligence matters which is
still being followed today. He wrote that Loyd was engaged
in secret service, "the information sought was to be obtained
clandestinely," and "the employment and the service were to
be equally concealed." The Government and the employee
"must have understood that the lips of the other were to be
forever sealed respecting the relation of either to the matter."
Were the conditions of such secret contracts to be divulged,
embarrassment and compromise of the Government in its pub-
lic duties and consequent injury to the public would result, or
furthermore the person or the character of the agent might be
injured or endangered. The secrecy which such contracts im-
pose "is implied in all secret employments of the Government
in time of war, or upon matters affecting foreign relations,"
and precludes any action for their enforcement. "The pub-
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licity produced by an action would itself be a breach of a con-
tract of that kind and thus defeat a recovery." 12
The pattern of executive privilege as applied to withholding
information on intelligence activities was determined by the
resolution of these situations which occurred from the first
years of the Republic through the Civil War. Decisions in
later cases utilized the precedents which had here been estab-
lished. In 1948 the Supreme Court, deciding a case concern-
ing an application for an overseas air route, reaffirmed that
"the President, both as Commander-in-Chief and as the na-
tion's organ for foreign affairs, has available intelligence serv-
ices whose reports are not and ought not be published to the
world," and defined its own position on cases involving secret
information:
It would be intolerable that courts, without the relevant in-
formation, should review and perhaps nullify actions of the
Executive taken on information properly held secret. Nor can
courts sit in camera in order to be taken into executive confi-
dences ... The very nature of executive decisions as to for-
eign policy is political, not judiciail'
Intelligence information is recognized by the three branches
of Government as of special importance because of its connec-
tion with foreign affairs and military security.
Authorities for CIA Information Controls
As an Executive agency CIA partakes of the privileges
accorded generally to the Executive Branch with respect to
withholding information, privileges ultimately dependent on
the separation of powers doctrine. In addition, Congress has
specifically recognized the secrecy essential in the operation of
Central Intelligence by providing in the National Security Act
of 1947 that the Director "shall be responsible for protecting
intelligence sources and methods from unauthorized dis-
closure." In the Central Intelligence Act of 1949, noting again
this responsibility of the Director, Congress exempted the
Agency from any law which requires the disclosure of the
organization, functions, names, official titles, salaries, or num-
"Totten Adm'r v United States; 92 US 105 (1876).
Chicago and Southern Airlines, Inc. v Waterman Steamship Cor-
poration; 33 US 103 (1948).
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bers of personnel employed. Other statutes exempt the Agency
from requirements to file certain information reports.
Pursuant to the Director's task of safeguarding intelligence
information, Agency regulations governing the release of infor-
mation serve notice upon employees that unauthorized dis-
closure is a criminal and an administrative offense. A crim-
inal prosecution for unauthorized disclosure can be instituted
against an employee under several statutes, including the Espi-
onage Laws, or administrative sanctions including discharge
can be applied against him.
Central Intelligence is also subject to the provision of Execu-
tive Order 10501 that "classified defense information shall not
be disseminated outside the Executive Branch except under
conditions and through channels authorized by the head of the
disseminating department or agency." This provision, al-
though it has never been tested in the courts, gives the Director
added support in controlling the release of information to the
courts and Congress as well as to the public. He can and will
upon request release information of no security significance to
the courts or Congress; he can exercise discretion in the release
of information produced by and concerning the CIA; but there
are limitations on his authority over information originating
in other departments, joint interagency documents, and per-
sonnel security information. If the decision whether to com-
ply with a demand for information cannot be made at the
Director's level, it is referred to the National Security CounciL
CIA's position vis a-vis the courts and Congress is unique
beside that of other agencies, because of the recognized.secrecy
and sensitivity and the connection with foreign affairs pos-
sessed by the information with which the Agency deals. This
position has been tested on several occasions.
Intelligence and the Courts
The secrecy of intelligence employment which the Supreme
Court recognized in the Totten case on the Loyd-Lincoln con-
tract over eighty years ago is basically unchanged today. The
difficulties encountered in the courts by a person claiming pay
for secret work allegedly performed for the Government were
illustrated in the Gratton Booth Tucker case in 1954. Tucker
alleged that he had performed services "under conditions of
utmost secrecy, in line of duty, under the supervision of agents
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of the United States Secret Service and of the C.I.D. of the
Armed Services and Department of Justice, FBI and of the
Central Intelligence Agency." He claimed that from 1942 to
1947 he contributed his services voluntarily and "without
thought of compensation in anticriminal and counterespionage
activities in Mexico and behind the lines in Germany," and
that in 1950 he was assigned to Korea. For all this he brought
suit against the United States in the Court of Claims, seeking
payment of $50,000 annually for the years he worked and of
$10,000 as expenses. On the very basis of these allegations,
and without going into the matter any further, the court re-
fused recovery, citing the Totten case as authority.14
Another aspect of the Government's privilege not to disclose
state secrets in open court was decided several years ago by
the Supreme Court in the Reynolds case. This was a suit for
damages brought against the Government by the widows of
three civilian observers who were killed in the crash of a mili-
tary plane on which they were testing secret electronic equip-
ment. The Air Force refused to divulge certain information
which the widows thought necessary to their case, stating that
the matter was privileged against disclosure pursuant to Air
Force regulations prohibiting that reports be made available to
persons "outside the authorized chain of command." The Air-
Force then made a formal claim of privilege, affirming that
"the aircraft in question, together with the personnel on board,
were engaged in a highly secret mission of the Air Force." An
affidavit by the Air Force Judge Advocate General asserted
further that the material could not be furnished "without seri-
ously hampering national security." The Supreme Court
accepted the Air Force argument, saying that "even the most
compelling necessity cannot overcome the claim of privilege if
the court is ultimately satisfied that military secrets are at
stake." And these Air Force statements had been sufficient
to satisfy the court of the military secret involved.'5
The privilege of withholding national security information
from the courts has been subject to some limitation. One case,
U.S. v Jarvinen,18 illustrates that this executive privilege is not
" Gratton Booth Tucker v United States; 127 Ct. Cl. 477 (1954).
United States v Reynolds; 345 US 1 (1952).
United States v Jarvinen; Dist. Ct. Western. District of Washington,
Northern Div. (1952).
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judicially inviolable. Jarvinen was a casual informant in the
United States who gave information in 1952 to CIA and later
to the FBI that.Owen Lattimore had booked passage to the
USSR. He later informed CIA that he had fabricated the whole
story. Soon thereafter Jarvinen was indicted for making false
statements to government agencies. At the trial a CIA em-
ployee called to testify by the Department of Justice prosecutor
was directed by CIA not to answer. The witness' claim of
privilege was not accepted, however, and when he refused the
court's order to answer he was held in contempt and sentenced
to fifteen days in jail. He was pardoned by the President.
The CIA argument had been based on the provision of the
CIA Act of 1949 that the Director "shall be responsible for pro-
tecting intelligence sources and. methods from unauthorized
disclosure" and on Executive Order 10290, then in effect, which
limited dissemination of classified security information. The
court had reservations about the substantive merits of the priv-
ilege, and the widespread publicity emanating from the case
apparently vitiated the claim of need to protect sources and.
methods. It was the further opinion of the court that in a
criminal prosecution the Government must choose either to
present all the pertinent information, regardless of -its sensi-
tivity; or to risk dismissal of--the case- by-not presenting any
sensitive information at all.:
There. have been several instances of indirect Agency par-
ticipation in court cases, usually when employees have been
requested to furnish documents or testify on behalf of the Gov-
ernment or private parties. In recent cases in which other
Government agencies have participated there has been a co-
operation between them and Central Intelligence representa-
tives which was lacking in the Jarvinen case, and little difficulty
has been encountered with respect to the privilege of with-
holding classified information. A good example is the Justice
Department's prosecution of the case against Petersen," an
employee of the National Security Agency who had passed NSA
documents to the Dutch. The Justice Department needed to
present classified information to the court in order to substanti-
ate its case, but the Director of Central Intelligence advised, in
" United States v Petersen (E. D. Va. Criminal No. 3049, January 4,
1955).
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the interest of security, that a particular document not be used.
The Justice Department accepted this recommendation and
succeeded in convicting Petersen on other evidence.
CIA and Congress
CIA's record of cooperation with congressional committees
has on the whole been satisfactory. The Agency certainly
recognizes that Congress has a legitimate interest in some
intelligence information 'and obviously a better claim on it
than say the private citizen who needs it for purposes of litiga-
tion. Although, under the separation of powers doctrine, in-
telligence gathering and production is an executive function
and the responsibility of the Executive Branch, the Congress
does have responsibilities in the foreign affairs field. It is,
moreover, the appropriating authority for Agency funds, and
indiscriminate withholding of information could not only result
in a poorly informed Congress but also jeopardize the good will
the Agency enjoys with it. Within the bounds of security,
therefore, CIA has attempted conscientiously to fulfill requests
from Congress proper to the legislative function. And Con-
gress, for its part, has so far respected CIA's decision to with-
hold information or produce it only in closed session with the
understanding that it is not to be released.
If summoned by a subpoena to testify before a Congressional
Committee, all CIA employees, including the Director, are re-
quired to appear or be held in contempt of Congress.. There
are few instances, however, in. which an employee has been
subpoenaed to testify involuntarily, and no documents have
ever been released to Congress without the Director's approval.
In most cases it has been as a matter of form or at Agency
request that an employee's testimony has been called for and
a subpoena served. In only two instances situations have
arisen which led to strained relations between the Agency and
congressional committees. When Agency testimony was de-
sired by the Senate Internal Security Committee concerning
the security status of John Paton Davies, CIA successfully re-
quested several delays in the hearings on security grounds.
And in 1954, while the Senate Committee on Government
Operations was considering inquiring as to certain facts relat-
ing to the security status of an Agency employee, counsel for
the Committee and the General Counsel of CIA agreed on the
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legitimate interests of the Agency and the Committee. The
employee was never questioned by the Committee.
No court cases have defined an employee's rights to withhold
from Congress information which has been classified and the
divulgence of which could work harm to this country's intelli-
gence program. Such a case could theoretically arise through
testing a Congressional contempt citation in a habeas corpus
proceeding, but ,it is unlikely that such a test will be made.
The employee could use an order from the Director as a basis
for not testifying, and the Director's judgment has always been
respected by the Congress when he has decided he cannot re-
veal certain information. Because the information which CIA
has is so clearly within the purview of the Executive Branch,
this Agency has a much stronger legal basis for refusal than
other departments have.
If Congress should persist, there would of course have to be
eventual Presidential support for continued refusal to give in-
formation. Such support was tendered, outside 'the intelli-
gence and foreign fields, in 1909 when Theodore Roosevelt with-
stood a Senate resolution calling for certain papers in the
Bureau of Corporations concerned with the absorption by U.S.
Steel of another corporation. Roosevelt informed the Senate
that_he_had_obtained personal possession of the papers it de-
.sired but -that the Senate_could getthem only by impeachment.
"Some of these facts which they [the Senate] want," he de-
clared, "for what purpose I hardly know, were given to the Gov-
ernment under the Seal of Secrecy and cannot be divulged,
and I will see to it that the word of this Government to the
individual is kept sacred." is
Generally, there has been a spirit of cooperation between the
Legislative and Executive Branches. In those cases where a
conflict has occurred, and the Executive has refused to divulge
information requested even in the strongest terms by the Legis-
lature, the decision of the Executive has prevailed. The Con-
stitution has been in existence for over 170 years and under it
34 Presidents and 85 Congresses have forged a strong interpre-
tation of the separation of powers. In the field of foreign
affairs intelligence, the Director of Central Intelligence, acting
"The Letters of Archie Butt, Personal Aide to President Roosevelt;
by Abbott, pp. 305-06.
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under the constitutional powers of the Executive Branch of
Government together with powers granted by statute, can with-
hold such information as he believes is in the best interests of
the United States. If a showdown were to occur, however, the
issue is between the President and Congress as to whether
classified information should be divulged against the wishes of
the Director, who is responsible for the protection of sources
and methods. Historical precedent in similar situations ap-
pears to favor the President.
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 a ' ` J V`'Uh
d'AL
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WASHINGTON, G.C. 20505
Review Staff: 7/3709/1
5 January 1976
Review Staff
25X1
Mr. A. Searle Field
Staff Director
Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515 Attn: Ms. Sheketoff
Dear Mr. Field:
Attached hereto is information on digraphs requested
in your letter of 30 December 1975.
Sincerely,
Attachments:
As Stated
Approved For Rel*
804/11 4' ~pG)AJF bP89
25X
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1. The digraph is not the distinguishing factor, used to denote
particularly sensitive projects. Each digraph can be used for making
cryptonys or code words for both non-sensitive and sensitive activities.
3. Attached is a list of digraphs with an explanation of how they
have been used.
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 too :.a IL 'I I I AL
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List of possible digraphs used from 1970 - 1974 for making cryptonyms
or code words for non-sensitive and sensitive projects or for activities
involving CIA only, or CIA and the Intelligence Community.
25X1
List of possible digraphs used from 1970 - 1974 for making cryptonyms
or code words for non-sensitive and sensitive projects or activities. These
digraphs are restricted and are used exclusively within the confines of CIA.
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