THE PROBLEM OF DISCLOSURE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89T00142R000700860001-8
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 26
• Document Creation Date: December 22, 2016
• Document Release Date: October 9, 2012
• Sequence Number: 1
• Content Type: MISC

STAT
Declassified in Part -Sanitized Copy Approved for Release 2012/10/09 :CIA-RDP89T00142R000700860001-8
Declassified in Part -Sanitized Copy Approved for Release 2012/10/09 :CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - SE ONLY
THE PROBLEM OF DISCLOSURE
The Protection of Sources and Methods
The classification system applies to the executive branch
as a whole, but the protection of "sources and methods" applies
33
to CIA in a very special, almost unique way. It overlaps
with classification, but has an independent life; it is another
means of protecting foreign intelligence information. Its
statutory basis is Section 102(d)(3) of the National'Security
Act of 1947: "And provided further, that the Director of
Central Intelligence shall be responsible for protecting
intelligence sources and methods from unauthorized disclosure;
..." Referring back to this latter provision, Section 6 of
the CIA Act of 1949 exempts the Agency from the provisions of
any other law which requires "the publication or disclosure
of the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency..."
Note that it is the Director personally who is charged with
the responsibility of protecting sources and methods and that
there is no explicit grant of powers to be exercised in
carrying out this responsibility. Nor is there a definition
of the scope of "sources and methods." E.O. 11652 refers
twice to "sources and methods": E2 excludes information
"disclosing intelligence sources and methods" and Section 9
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
branch
' applies
laps
another
Its
curity
of
g
losure;
6 of
ins of
pure
authorizes supplementary protection for intelligence sources and
methods. The criteria for Top Secret and Secret mention respec-
tively "sensitive intelligence operations" and "intelligence
operations."
The origin of the "sources and methods" concept is some-
what nebulous. The earliest known references occur in military
planning papers dealing with the establishment of a "central
intelligence service." General William J. Donovan had sub-
mitted to the President in November 1944 recommendations for
a post-war intelligence service and the President had instructed
the Joint Chiefs of Staff to study them and to prepare a draft
Executive order for his signature. In a memorandum, dated
18 January 1945, the Joint Strategic Survey Committee, com-
menting on a proposed draft recommended: "With a view to
emphasizing the importance of protecting certain methods and
sources of obtaining information the following should be
added to paragraph 6 of the draft directive: 'In the inter-
pretation of this paragraph, the National Intelligence
Authority and the Central Intelligence Agency will be
responsible for fully protecting intelligence sources and
methods which, due to their nature, have a direct and highly
34
important bearing on military operations."'
This wording was incorporated into the draft Executive
order that the Joint Chiefs of Staff sent to the President
ADMINISTRATIVE - INTERNAL USE ONLY
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
circa 18 September 1945. The pertinent portion of paragraph 7
of the draft reads: "As approved by the National Intelligence
Authority, the operations of the departmental intelligence
agencies shall be open to inspection by the Central Intelligence
Agency in connection with its planning function. In the inter-
pretation of this paragraph, the National Intelligence Authority
and the Central Intelligence Agency will be responsible for
fully protecting intelligence sources and methods which, due
to their nature, have a direct and highly important bearing
35
on military operations." There is circumstantial evidence
that this sources-and-methods formulation may have originated,
at least indirectly, with the Navy, in particular with the
Director of Naval Communications who expressed concern that
the availability of military communications intelligence to
the Central Intelligence Agency would be detrimental to
military operations and therefore recommended inclusion in
the draft directive of language permitting each department
or agency to withhold such information if it felt that dis-
closure "will be inimical to the functions of such department
~~36
or agency. The sources-and-methods obligation was apparently
the result of a compromise with those in the military demanding
discretionary authority to withhold sensitive information from
CIA. In any event, it is fairly clear that the wording was
designed to ensure that CIA adequately protected military
secrets.
44
ADMINISTRATIVE - INTERNAL USE ONLY
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
ence
er-
rity
tly
"Sources and methods" were not mentioned in the CIA
sections of the draft bill sent to Congress by President
Truman in 1947. The White House felt that the CIA section
should be kept as short as possible to avoid controversy and
not jeopardize the main thrust of 'the bill which involved
the unification of the armed services. Congress felt other-
wise. The Central Intelligence Group accordingly submitted
to Congress its recommendations (originally sent to the White
House) containing the sources-and-methods language. As
incorporated in the 1947 Act, the latter is in the form of
a proviso, one of three provisos restricting the powers of
CIA. The other two provisos respectively deny to the Agency
police powers and, by authorizing departmental intelligence,
a monopoly in the intelligence field. Although the explicit
reference to military secrets found in the old NSSC version
is dropped, the contextual implication of the obligation to
protect sources and methods is almost that of a 37ndition of
access to the intelligence of other departments.
However this may be, CIA legal thinking on the sources-
and-methods obligation has seen in it a significant grant
of implicit authority to the Director that goes beyond the
mere protection of classified information. "The Congress
use of the term 'sources and methods,"' writes the Assistant
General Counsel, "indicates its recognition of the existence
45
ADMINISTRATIVE - INTERNAL USE ONLY
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
i
ADMINISTRATIVE - INTERNAL USE ONLY
of a special kind of data encompassing a great deal more than 38
what is usually termed 'classified intelligence information."'
And the CIA General Counsel in a letter to Senator Muskie, dated
13 August 1974, in connection with the Senate hearings on clas-
sification, declared: "...it is conceivable that certain intel-
ligence sources and methods information would require protection
under 403(d)(3) of Title 50 [United States Code designation of
Section 102(d)(3)] even though it would not also warrant clas-
sification under the Executive order. Information protected
under that subsection, whether or not classified, is not
subject to the mandatory disclosure provisions of the Freedom
of Information Act since that Act does not apply to matters
39
that are specifically exempt from disclosure by statute."
From these citations two thoughts emerge: that sources-
and-methods information is not synonymous with classified
intelligence information, and that it may even embrace infor-
mation not classifiable in terms of the Executive order. It
follows that sources-and-methods information has a specific
character distinguishable from substantive intelligence
information. One might define it as embracing:
a) information or material revealing or tending to
reveal the identity and association wovernmental
any person, group, organization, or g that ro-
whether witting or unwitting, P
entity,
vides foreign intelligence information or inte -
ligence-related services, as well as the iden-
tificiation and connection with CIA of any
intelligence-producing device; and
ADMINISTRATIVE - INTERNAL USE ONLY
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
b) information or material revealing or tending
to reveal the means, techniques, and procedures
by which foreign intelligence is collected,
processed, and analyzed, including those used
to support and protect foreign intelligence
activities, to the extent that these means,
techniques, and procedures are subject to
countermeasures, or revelatory of intelli-
gence intentions and capabilities. It must
be broad enough to include all forms of clan-
destine activity, as well as scientific and
technical intelligence. And, of course, it
must include sources-and-methods information
furnished by foreign governments. Unlike
much other sensitive information, it is dif-
ficult to prescribe in advance the life span
of sources-and-methods information.40
The question naturally occurs, How have the sources-and-
methods provisions fared in the courts? In the United States
v. Jarvinen, a 1952 case, the United States District Court
for the Western District, State of Washington, rejected the
argument that two CIA employees, acting on instructions from
the DCI under Section 102(d)(3), could refuse to testify in
ie , dated
~n clas-
in intel-
rotection
lion of
t clas-
~cted
:ers
39
irces -
~d
nfor-
court concerning an informant of the CIA office in
They were sentenced to two weeks in jail, but later received
a Presidential pardon. Because of the defective fact situa-
tion and the danger of creating an unfavorable precedent, the
Agency decided not to appeal the decision of the district
41
court .
On the other hand, in Heine v. Raus, an action filed in
1964, there was a clear vindication of the Director's role in
the protection of sources and methods. Confirming the decision
47
ADMINISTRATIVE - INTERNAL USE ONLY
STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
--
of the Maryland District Court, the Fourth Circuit Court of
Appeals said, "action here to protect the integrity of sources
of foreign intelligence was explicitly directed by Congress."
Sources and methods figured also in the Marchetti case.
Although the Supreme Court had refused the government an
injunction in the "Pentagon Papers" case, the U.S. District
Court for the Eastern District of Virginia in Alexandria issued
an injunction on 18 April 1972 enjoining Victor Marchetti from
public disclosure of any intelligence information, particularly
that relating to intelligence sources and methods, and requiring
him to submit his manuscript to the CIA for review before
releasing it "to any person or corporation." The Fourth
Circuit Court of Appeals restricted the injunction to "clas-
sified information" acquired by Marchetti during his employment
by CIA.
In its final position on the Marchetti manuscript the
Agency insisted on 168 deletions. The district court upheld
only 26 of them, but, on appeal, the Fourth Circuit Court
sustained the remaining 142 deletions and remanded the case
to the district court "for such further proceedings as might
be necessary." In his opinion of 7 February 1975 the chief
judge of the Fourth Circuit Court, Judge Haynsworth, took
note of the DCI's statutory responsibility to protect sources
and methods, but based his decision on the classified nature
of the information.
ADMINISTRATIVE - INTERNAL USE ONLY
What
however,
defined ~
instance
agreemen
Sin
in whicl'
methods
basis, i
informa
testimo
examina
sources
U.S. Di
declare
decidec
intere:
ment a
effect
be gre
the de
is eme
status
prote~
of FO
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
i case.
an
strict
~ia issued
tti from
ticularly
requiring
ore
~h
'clas-
~ployment
the
pheld
rt
:ase
light
Fief
k
urces
ture
What was particularly noteworthy about the Marchetti case,
wever, was the willingness of the courts, under certain narrowly
defined circumstances, to accept "prior restraint"--in this
instance, because of the contractual nature of t43 secrecy
agreement signed by Marchetti as a CIA employee.
Since December 1975 there have been at least seven cases
in which U.S. district courts have recognized the sources-and-
iethods provisions of the 1947 and 1949 Acts as a statutory
basis, under exemption (b)(3) of the FOIA, for withholding
information. Moreover, in most cases the courts have accepted
testimony and affidavits rather than insisting on in camera
examination of documents. Reaffirming the legal force of the
sources-and-methods provisions, Judge William P. Gray of the
U.S. District Court for the Central District of California
declared in Stanle D Backrack v CIA, William Coles, a case
decided on 13 May 1976: "While there is a strong public
interest in the public disclosure of the functions of govern-
ment agencies, there is also a strong public interest in the
effective functioning of an intelligence service, which could
be greatly impaired by irresponsible disclosure." Through
the decisions of these district courts a series of precedents
is emerging which have already greatly enhanced the legal
stature of sources and methods as an independent means of
protecting intelligence informati44--at least in the context
of FOIA requests for information.
ADMINISTRATIVE - INTERNAL USE ONLY
~ Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89TOO142ROOO7OO86OOO1-8
The Agency's experience with the Marchetti case revealed
certain weaknesses from a judicial review aspect in generalized
appeals to Section 102(d)(3) as a means of preventing the dis-
closure of sources-and-methods information. To give greater
legal solidity to future use of this Section, the Office of
the General Counsel has drawn up a catalogue of sources and
methods, hopefully broad enough and specific enough to prove
convincingly in case of litigation that a disputed piece of
information falls clearly in a category previously designated
45
by the Director pursuant to his statutory authority. Com-
plementary to this is the draft DCID (1/19) entitled "Non-
disclosure Agreements for Intelligence Sources or Methods
Information." Paragraph 1 sets forth the policy: "All
members of the Executive Branch and its contractors given
access to information containing sources or methods of intel-
ligence shall, as a condition of obtaining access, sign an
agreement that they will not disclose that information to
persons not authorized to receive it." The agreement is to
make specific reference to Section 102(d)(3), and each pro-
tected document is to bear the marking: "Warning Notice:
Sensitive Intelligence Sources and Methods Involved." When
finally implemented, these two steps should go a long way
toward filling loopholes that judicial challenges might
otherwise have found. The shortcoming of both these steps,
ADMINISTRATIVE - INTERNAL USE ONLY
however , i s t
11 catalogue E
sources- and-r
jargonized a~
"A
such, i
Extreme
holding
as a cu
dition
into a
the exp
is unea
withhol
It is a
disclosures
the "Pentagc
in 1974; AgE
publication
on Intellige
Beside:
at any part:
disgruntled
sharp cleav
the Congres
their credi
referred to
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89TOO142ROOO7OO86OOO1-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
bwever, is the absence of a definition of sources and methods.
lcatalogue excludes what it fails to include. Undefined,
sources-and-methods information runs the risk of becoming as
jargonized and abused a concept as that of "national security."
Statutory and Constitutional Barriers to Disclosure
"American culture is a populistic culture. As
such, it seeks publicity as a good in itself.
Extremely suspicious of anything which smacks of
holding back, it appreciates publicity, not merely
as a curb on the arrogance of rulers, but as a con-
dition in which the members of society are brought
into a maximum of contact with each other. Favoring
the exposure of practically every aspect of life, it
is uneasy in the presence of those who appear to be
withholding something."46
It is against this ethos that the torrent of unauthorized
disclosures in the seventies must be viewed. These included
the "Pentagon Papers" in 1971; the Marchetti and Marks expose
in 1974; Agee's damaging book in 1975; and the Village Voice
publication of the Secret report of the House Select Committee
on Intelligence in 1976.
Besides the American penchant for publicity, disclosure
ttany particular time may be triggered by such factors as a
disgruntled or disaffected member of the executive branch,
sharp cleavages in the body politic, a confrontation between
the Congress and the President, and secrets that have lost
47
their credibility. The "Pentagon Papers," which has been
referred to perversely as "citizen disclosure," belongs to
ADMINISTRATIVE - INTERNAL USE ONLY
- Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
the species designed to change government policy. As such,
it has a number of precedents in our early history, although
certainly not in scale or impact. In 1795 Senator Mason of
Virginia, feeling that the people had a right to know the
terms of a treaty that Washington had laid before the Senate
in secret session, sent a copy to the Philadelphia Aurora;
Senator Tappan of Ohio did the same thing in 1844 with a
treaty calling for the annexation of Texas which President
Tyler had presented to the Senate in secret session, sending
the text to the New York Evening Post; and in 1848 the New
York Herald Tribune published the Treaty of Guadaloupe Hidalgo
ending the Mexican war, while the Senate was debating it in
48
executive session. The other three cases of recent dis-
closure illustrate the tension between publicity and secrecy
at its tautest point, that is, as it relates to covert intel-
ligence activities. In three of the four cases an essential
ingredient was a disgruntled or disaffected employee or former
employee of the executive branch.
It is striking that the compromises of classified infor-
mation in the seventies have been overwhelmingly due to public
disclosure rather than espionage. The legal defenses of secrecy
like the Maginot Line, have been so singlemindedly directed
against espionage that they have been repeatedly outflanked
by public disclosure. The First Amendment to the Constitution,
in severely restricting the use of "prior restraint" against
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
the
In v
and
inte
1 aw:
prii
Exec
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
As such,
although
r Mason of
now the
the Senate
Aurora;
with a
resident
i , s ending
the New
>upe Hidal
.ng i t in
ant dis-
~d secrecy
essential
e or forn
ied infor-
e to public
es of sec
directed
tflanked
~nstituti
' against
the press, has also been, it is true, conducive to disclosure.
In view of this situation, how much protection then do statutory
and other judicially enforceable principles provide for foreign
intelligence information?
Before there was a classification system or espionage
laws, the executive branch protected secrets by virtue of the
principle of "executive privilege." The authority for issuing
Executive orders on classification derived from the exercise
49
of this privilege. E.O. 11652 refers only indirectly to
the Espionage Statutes. The doctrine of executive privilege
is an unwritten, implicit power that is usually derived from
Article 1, Section 2 of the Constitution--the separation-of-
powers provision--and, as it relates to national security,
from the powers of the President as Commander in Chief and
as the principal representative of the State in the conduct
of foreign affairs. In the New York Times Company v. the
United States, in 1971, even while refusing to support the
government's position on the "Pentagon Papers," Justice Potter
Stewart gave a ringing affirmation of executive privilege:
"It is clear to me that it is the constitutional duty of the
executive--as a matter of sovereign prerogative and not as a
natter of law as the courts know law--through the promulgation
and enforcement of executive regulations, to protect the con-
fidentiality necessary to carry out its responsibilities in
the fields of international relations and national defense."
ADMINISTRATIVE - INTERNAL USE ONLY
~ Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
But the extravagant claims of executive privilege in
connection with the Watergate experience and their rejection
by the Congress and the courts have made incontrovertibly
clear that the executive has no absolute power to withhold
information for national security, or any other reasons, being
subject in the exercise of executive privilege to legislative
and judicial checks and balances. Executive privilege still
remains a valid doctrine, but the courts are more likely to
support the Executive in withholding valid state secrets than
in preventing their publication once they have escaped from
S1
executive control. This is certainly borne out by recent
disclosure history.
One statutory barrier to disclosure--the sources-and-
methods provisions of the 1947 and 1949 Acts--has been dis-
cussed in the preceding section. Exemption (b)(1) of the
Freedom of Information Act gives statutory sanction to the
protection of information properly classified in accordance
with an Executive order.
A particularly operative statute is the Atomic Energy
Act of 1954, which offers this definition of Restricted
Data: "all data concerning (1) design, manufacture, or
utilization of atomic weapons; (2) the production of special
nuclear material; or (3) the use of special nuclear material
in the production of energy, but shall not include data
declassi
pursuant
security
our atte
marks it
under E.
within t
is auton
the Enei
Handbook
of the c
Section
Commis s:
Data th;
defense
25X1 Se~
Defense
Data re
weapons
protect
mented
Data,"
agreeme
classic
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
other countries if the Commission and the Director of Central
Intelligence jointly determine that the information is neces-
sary for the intelligence process and can be adequately pro-
tected as national security information. This flexibility,
coupled with ERDA's strict compliance with the declassifica-
tion provisions of the Act, has contributed greatly to its
53
success as a security program.
Next to Restricted Data, cryptographic information has
probably been the category of classified information most
successfully protected by statute. It is protected under
the Espionage Statutes, which are codified in Sections 792-
799 of Title 18 of the United States Code. Section 798 deals
with cryptographic information. It criminalizes the publica-
tion or transmission to an unauthorized person of classified
information "(1) concerning the nature, preparation, or use
of any code, cipher, or cryptographic system of the United
States or any foreign government; or ...(4) obtained by the
processes of communications intelligence from the communica-
tions of any foreign government, knowing the same to have
been obtained by such processes..." It goes on to define
"communications intelligence" as "all procedures and methods
used in the interception of communications and the obtaining
of information from such communications by other than the
intended recipients." Section 798 specifically bans
publicat'
and omit:
the othe
methods"
laps to
of the 1
Sec
of speci
informal
reason 1
in-.---
forei n
the gui
Subsect
ment an
person
defense
sectior
of war;
the enf
inform;
This i
"publi
It is
munica
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
ADMINISTRATIVE - INTERNAL USE ONLY
:ed
the
zica-
ve
ne
thods
fining
publication of cryptologic information in unequivocal terms
and omits the "intent" criteria of culpability which weaken
the other sections. As it relates to the "procedures and
methods" of communications intelligence, this statute over-
laps to some extent with the sources-and-methods provision
of the 1947 Act.
Section 793 of the Espionage Statutes penalizes a series
of specified actions undertaken "for the purpose of obtaining
information respecting the national defense with intent or
reason to believe that the information is to be used to the
injury of the United States, or to the advantage of any
foreign nation." The underlining, which we have added, is
the guilt criterion common to this section and Section 794.
Subsection (a) of Section 794 punishes with death or imprison-
ment anyone who delivers, or attempts to deliver, to a foreign
person or government, information relating to the national
defense with the intent formulation underlined above. Sub-
section (b) imposes the same penalties on anyone who, in time
of war, "with intent that the same shall be communicated to
the enemy, collects, records, publishes, or communicates..."
information on troop movements, defense dispositions, etc.
This is the only place in the Espionage Statutes where the
"publishing" of defense information is specifically mentioned.
It is limited in its application to time of war and to com-
munications intended for the enemy. "If this intent requirement
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
is read to mean conscious purpose--a construction suggested by
the absence of the "reason to believe" standard used in the
culpability formulation of 794(a)--then prosecution of normal
publication under Section 794 (b) is a virtual impossibility.
?54
Returning to Section 793 of the Espionage Statutes, there
is no definition of "intent," "reason to believe," "damage"
or "advantage" in the guilt criterion. Although 793 is adequate
to convict a person guilty of espionage, its applica}~ilitSSto
a person who publishes defense information is less clear.
Professor Benno C. Schmidt, Jr., an authority on the Espionage
Statutes, sums up his stud, of them as follows:
In my reading of the Espionage Statutes, publication
of defense information not animated by a purpose to
communicate to a foreign country is not prohibited,
except for the narrow range of cryptographic infor-
mation covered by Sections 952 and 798. This reading
admittedly makes heavy use of legislative history in
construing the culpability provisions of subsections
794(b), 793(a) and 793(b). My conclusion rests also
on the belief--perhaps speculation would be a better
word--that courts will refuse to apply Sections 793(d)
and (e) to acts preparatory to publication, either by
finding some very narrow reading that conforms the
provision to the pattern of the other Espionage
Statutes, or--preferably as it seems to me--by
striking the provisions from ~itle 18 on grounds
of vagueness and overbreadth. 5a
It is noteworthy that the United States did not invoke the
Espionage Statutes against the New York Times in connection
with the publication of the "Pentagon Papers."
In addition to the defects described above, the Espionage
Statutes have two other major weaknesses when viewed in terms
ADMINISTRATIVE - INTERNAL USE ONLY
of the
the so
of "de
enougl'
or muc
Unitec
'i
Conte:
fiden
relat
might
"inte
was t
of a
secu:
cour
thes
wrot
tion
tryi
infc
invc
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
by
:quate
to
5
ADMINISTRATIVE - INTERNAL USE ONLY
of the protection of intelligence information, and in particular,
the sources-and-methods information of CIA. First, the meaning
of "defense information" contained therein is probably not broad
enough to embrace the whole of sources-and-methods information
or much of foreign relations information. In Gorin v. the
United States, the Court declared: "In short, the phrase
'information connected with National Defense' as used in the
context of the Espionage Act, means broadly, secret or con-
fidential information which has its primary significance in
relation to the possible armed conflicts in which the nation
56
might be engaged." Second, proving in a court of law
"intent or reason to believe" that the information in question
was to be used to the "injury of the United States, or advantage
of a foreign nation" will often be more costly in terms of
security than the violation to be punished. Referring to
court decisions that the government must present proof of
these points to a jury, the CIA Assistant General Counsel
wrote: "These rulings have left the government in the posi-
tion of having to reveal in court the very information it is
trying to keep secret, or else not prosecute those who steal
information and use it to the injury of the nation. To
invoke the law's protection of the secret, the secret must
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
is generally recognized, and we endorse it; the physical
safety of persons may be at stake, or political repercus-
sions of some operations, if exposed, would be unacceptable.
Because this is an area in which human judgment cannot fore-
see all contingencies, there has been a strongly conservative
attitude in matters of operational security. A distinguishing
feature is the compartmentation of operations to reduce the
number of knowledgeable persons who can commit some com-
promising error. Critics of the system feel it is overdone,
with the operators defending it on grounds of professional
caution." p. 11.
33. The Rockefeller Commission Report notes: "In
connection with the statutory responsibility of the Director
of Central Intelligence for the protection of intelligence
sources and methods from unauthorized disclosure, the
National Security Council has directed that each agency or
department be responsible for the protection of its own
sources and methods, and that the Director call upon these
other bodies as appropriate to investigate any unauthorized
disclosures and report to him. The Director has, in turn,
delegated these responsibilities to the Security Committee
of the United States Intelligence Board [now the National
Foreign Intelligence Board]..." Re ort to the Commission
on CIA Activities within the Unite States. Was ington:
Govt. Print. 0 ice, June 1975, p. 56. T e precise extent
to which the DCI's statutory responsibility extends to
other members of the Intelligence Community is unclear.
34. JSSC memorandum, dated 18 September 1945,
entitled "Proposed Establishment of a Central Intelligence
Service. Report of the Joint Strategic Survey Committee."
It references Joint Chiefs of Staff (JCS) memorandum 1181
(Donovan's recommendations). The National Intelligence
Authority was the predecessor of the National Security
Council.
35. JCS 1181/5 (amended). "Establishment of a
Central Intelligence Service Upon Liquidation of O.S.S.
Directive Regarding the Coordination of Intelligence
Activities." For text see Appendix R, Donovan and the
CIA: A Histor of the Establishment of the Central
me igence Agency, y CIA, 197s~SECRET).
36. Memorandum from Director of Naval Communications
to Chief of Naval Operations, dated 8 January 1975. Subject:
Establishment of a National Intelligence Service-Necessity
for Safeguarding the Security of Military Intelligence in
Connection Therewith.
STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
CONFIDENTIAL
37. This seems borne out by these words in the Central
Intelligence Group (CIG) draft for the CIA section of the
1947 Act: "Be responsible far fully protecting sources and
methods used in the collection of Foreign intelligence infor-
mation received by the Agency..." And also in the draft for
a separate CIA Act of 10 March 1947: "Be responsible for
taking measures to protect sources and methods used in the
collection and dissemination of foreign intelligence infor-
mation received by the Agency..." The Rockefeller Commission
Report, op. cit., p. 53, expresses a similar view: "This
language [sources and methods] was originally inserted in
the early drafts of the Act in response to the expressed
concern of some military officials that a civilian agency
might not properly respect the need for secrecy. Congress
was also aware of the concern that the United States espionage
laws were ineffective in preventing unauthorized disclosure of
classified information."
38, "The Protection of Intelligence
Data." Studies in Intelligence. Vol. 11, No. 2, p. 72.
39. Letter from John S. Warner to Senator Muskie,
Senate Hearings on Government Secrecy, op. cit., p. 115.
40. This definition draws on some of the concepts
contained in the OGC catalog of sources and methods and
the Agency-sponsored bill dealing with sources and methods.
See footnotes 42 and 66. "Foreign intelligence information"
itself would, of course, also require definition. The
Rockefeller Commission Report observes that "'foreign intel-
ligence' is a term with no settled meaning. It is used but
not defined in National Security Council Intelligence
Directives. Its scope is unclear where information has
both foreign and domestic aspects." Op. cit., p. 59. It
adds its belief that "...congressional concern is properly
accommodated by construing 'foreign intelligence' as infor-
mation concerning the capabilities, intentions, and activities
of foreign nations, individuals or entities, wherever the
information can be found. It does not include information
on domestic activities of United States citizens unless there
is reason to suspect they are engaged in espionage or similar
illegal activities on behalf o? foreign powers." Ibid., p. 59.
41. For a short account of this case, see: Guide to
CIA Statutes and Law, p. 16. Also Lawrence R. Houston.
"U.S. v. Jarvinen. Studies in Intelligence. Vol. 15,
No. 1.
43.
previous
an inj unc
mation wi
(1) the c
course of
agency o~
and (2)
made by 1
With rest
secrecy
employme~
First Am
summary
see' Vict
Cult of
In*
an25X1rc
to revie
44.
relatior
its prey
opinion
that the
is, the
statuto:
no occa:
it exis
visions
pursuan
to in t
1 Decem
documen
William
a snot snot o
records
in whit
himself
1976, Y
by DOD;
4 June
the soi
the cap
Anthun;
1 June
inform;
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
CONFIDENTIAL
ral 42. Guide tc CIA Statutes and Law, pp. 16-18.
nd 43. On this point Judge Haynsworth reiterated his
for previous holding "that the First Amendment is no bar against
an injunction forbidding the disclosure of classifiable infor-
mation within the guidelines of the Executive Orders when
e (1) the classified information was acquired, during the
r- course of his employment, by an employee of a United States
sion agency or department in which such information is handled
and (2) its disclosure would violate a solemn agreement
made by the employee at the commencement of his employment.
With respect to such information, by his execution of the
secrecy agreement and his entry into the confidential
s employment relationship, he effectively relinquished his
~nage First Amendment rights." Opinion, p. 15. For a brief
re of summary of the Marchetti case prior to the final appeal
see?Victor Marchetti and John D. Marks. The CIA and the
Cult of Intelli ence. New York: Alfred nop .
lce ~ Intro uction y Melvin L. Wulf, legal director of ACLU
ere
lar
. 59.
and Marchetti's defense lawyer. The Supreme Court refused
to review the Marchetti case.
44. Backrack was suing for all information on the
relations of Nicholas de Rochefort (deceased) with CIA and
its predecessor organizations. Paragraph 9 of Judge Gray's
opinion is particularly noteworthy: "Since it is concluded
that the exemptive provisions of S U.S.C. 552(b)(3) [that
is, the sources-and methods provisions under the FOIA
statutory exemption] are applicable herein, the Court has
no occasion to consider whether the sought information, if
it exists, would also be exempt from disclosure by the pro-
visions of U.S.C. 552(b)(1) [information properly classified
pursuant tQ an Executive order]." The other cases referred
to in the text are: Harriet A. Phillippi v. CIA, et. al.,
1 December 1975, a case in w-Fiict-in camera examination of
documents with the plaintiff's lawyer present was denied;
William B. Richardson v. J.T. S ahr et. al., 30 January 1976,
a conso i anon o t ree suits eman ing IA financial
records; Gar A. Weissman v. CIA et. al., 14 April 1976,
in which t e plaints requeste the CIA security file on
himself; Jonathan A. Bennett v. DOD, CIA, et.al., 13 September
1976, requesting information on all missions sent into Cuba
by DOD; and Morton H. Halperin v. tiVilliam E. Colb et. al.,
4 June 1976, a request ox udgetary in ormation (Alt oug
the sources-and methods provisions were cited by the judge,
the case was decided on the basis of exemption (b)(1)); and
Anthony V. Vecchiarello v. Edward Levi, et. al._(CIA),
1 June 1976. The District Court decided that the disputed
information was properly withheld under the FOIA exemptions.
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
45. The sources-anc.-methods catalogue, OGC 76-03333,
dated 12 December 1975, is entitled "Aspects of Intelligence
Sources and Methods of the Central Intelligence Agency That
Require Protection from Unauthorized Disclosure." It is
divided into twelve sections with a total of 126 "aspects."
Approved by the DCI on 12 January 1976, it is to be issued
as an Agency regulation. An OGC staff memorandum explaining
the rationale of the sources-and-methods catagloue notes that
in those instances where the district court decided against
the Agency's deletions from Marchetti's book, it was generally
because the Agency was unable to document prior determinations
concerning the classification of the contested item. The
nondisclosure agreement for sources-and-methods information
will be in addition to the secrecy agreement that employees
now sign for the protection of classified information.
46. Shils, op. cit., p. 41. He adds: "With its
[America's] devotion to publicity on such a scale, it could
scarcely be expected that in its normal state Americans
would have much sympathy with secrecy, particularly govern-
ment secrecy." Ibid., p. 42. And again: "No society has
ever been so extensively exposed to public scrutiny as the
United States in the twentieth century." Ibid., p. 39.
47. Writing of the disclosures of CIA cover and funding
operations in 1967, Knott concludes: "Habits of thinking
within the Agency and the Executive had become outmoded, and
preserved from change by secrecy. Op. cit., p. 64. In
other words, covert operations that had been appropriate
and credible in the fifties had ceased to be so in 1967,
but were not recognized as such until it was too late.
Secrecy often tends to breed insensitivity to change and
public opinion.
48. Cited by Professor Arthur Schlesinger, Jr., Senate
Hearings, op. cit., pp. 40-41.
49. The preamble to E.O. 11652 takes note of the
section of the Freedom of Information Act (552(b)(1) of
Title 5, U.S.C.) exempting properly classified information
from disclosure, but the Executive order does not expressly
derive its authority from that Act.
50. Quoted by Stanley Futterman. "What is the Real
Problem with the Classification System?" Ch. 3 in None of
Your Business, op. cit., p. 102.
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
51
case, N_
then As
the Jus
clear t
materia
only in
absence
Classif
Involvi
B i-- 1 -
ervicE
May 19 ;
5:
tion H~
reprod
op. ci
5
tion,
atomic
Statu
in SF
the W
subst
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
';
at
lly
ons
ing
.n
ly
51. Speaking of the decision in the "Pentagon Papers"
case, New York Times v i1n'ted Stat.s, Ralph E. Erickson,
then Assistant Attorney general, expressed this view: "While
the Justices applied a number of different standards, it seems
clear that injunctive relief against publication of classified
material already in the hands of the press will be granted
only in the most extreme circumstances, at least in the
absence of specific legislation." Hearings on the Proper
Classification and Handling of Government In ormation
Involvin the National Securit and H.R. 9853 a Related
Bill. Special Su committee on Intelligence. ouse Armed
services Committee. 92d Congress. 2d Sess. March and
May 1972. H.A.S.C. No. 92-79, p. 17472.
52. The then Atomic Energy Commission (AEC) Classifica-
tion Handbook and excerpts from the Atomic Energy Act are
reproduced in the Senate Hearings on Government Secrecy,
op. cit., pp. 364-467.
53. The House Committee Report on Executive Classifica-
tion, op. cit., p. 99, makes this interesting comment on the
atomic energy program:
Like other executive agencies the AEC also
functions within the Executive order classifica-
tion system, as well as its own statutory system.
The committee notes, however, the sharp contrast
between the apparent efficient operation of the
AEC classification system and the administrative
failures that have marked the operation of the
Executive order system within the past 20 years.
It is true that the highly technical type
of information that is subject to classification
within AEC's own statutory system and its limited
scope of applicability makes it more manageable.
Moreover, scientific development in the atomic
energy field usually provides more precise
benchmarks for measuring the necessity to con-
tinue classification of AEC information at a
particular level than is generally true in the
fields of foreign policy or defense information.
54. Benno C. Schmidt, Jr. "The American Espionage
Statutes and Publication of Defense Information." Ch. 11
in Secrec and Forei n Polic , op. cit., p. 188. By dropping
the wor "intent" an retaining "reason to believe" and by
substituting for foreign person or power "any person not
`_Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8 -
 Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
~~
Entitled to receive it, subsections (d) and (e) of 793 come
closest to embracing press disclosure of defense information.
Subsection (d) prescribes penalties for one lawfully in pos-
session of defense information who refuses to deliver it on
demand to an officer or employee of the United States "entitled
to receive it"; subsection (e) covers a person who, being in
unauthorized possession of defense information retains it,
communicates it to another unauthorized person, or refuses to
surrender it to an officer or employee of the United States
entitled to receive it. Prior to 1950 there was only a
section (d) applying to government employees; the addition of
(e) was done as a result of the Whittaker Chambers "pumpkin
papers" case to criminalize retention by non-goverment personnel.
Ibid., p. 188.
55. Ibid., p. 198. The present Espionage Statutes
comprise in the main legislation enacted in 1911, 197, and
1950. The most recent provision, Section 799, deals with
the protection of NASA secrets.
55a. Ibid., p. 201. Section 952 (18 U.S.C. 952) imposes
penalties on a government employee who publishes or makes
unauthorized disclosure of information concerning or trans-
mitted by a foreign diplomatic cede.
56. Quoted in CIA publication entitled "Title 18,
U.S. Code. Sections 792, 793, 794, 795, 796, 797, and
798 with an Interpretation of the Internal Security Act
of 1950." p. 6.
57. Morrison, op. cit., p. 75. Mention should also
be made of another statutory barrier to disclosure, sub-
section (b) of the Internal Security Act of 1950 (50 U.S.C.
783). This subsection makes it a crime "for any officer or
employee of the United States" to communicate to a foreign
agent "any information of a kind which shall have been
classified by the President as affecting the security of
the United States..." Quoted by Ralph E. Erickson in
statement to the House Subcommittee on Intelligence,
H.A.S.C. No. 92-79, op. cit., p. 17471. It apparently
does not apply to former government employees.
58. Guiding Principles for the Intelligence Community,
13 May 1976. NFIB-D-1/49.
59. Knott, op. cit., p. 10.
60. See Senate bills S. 1726 and S. 2451. Texts and
analysis of these and other bills dealing with classification
CONFIDENTIAL
Declassified in Part - Sanitized Copy Approved for Release 2012/10/09: CIA-RDP89T00142R000700860001-8
wil:
comp
Gov
Pri:
sin
wit
tiv
inf
inf
use
sho
app
exe
Dep
Int
Wil
PP?
rej
cla
gig,
of
sui
say
a
red
owi
9 T
OG(
Prc
the
th~
Co
th
it
ti
 Declassified in Part -Sanitized Copy Approved for Release 2012/10/09 :CIA-RDP89T00142R000700860001-8
BEN iY NENS
suw-un s~ow~
~ua~e~~r
suers
A member of the Senate Select
Committee on Intelligence
offers his views in this sensitive
area of public concern
gY Sen. William S. Cohen (R-Maine)
The phreeea " /reedan of the press.. and
"the public's right to know" are taNs-
manic. We rub them dolt' to delirte our
valves, to NR w above dictatarartlps, even
abows tits arrtall trtrvrtp or other democra-
des, pointlrtg wkh pride at tits irtxrteseur-
abia value we pbos upon our ireednrn
of expression. gut ors them Nmite to our
insatiable appetite for inforrrtetlon? Do
rgP~Ple have the right to
Many members d the prose see their
duty in absolute terms. Sktce t,,ovem.
mast adlort is based upon the consent
of the governed. they reason. ooneeM
is ntsaninglesa urtbes it is infion-ted con-
sent. TTterefore. it la argued, infonr~
availabb to ebded ofllcials should ~
disseminated to the pubNC ao $ Can ~-
mins whether the Govsnrrtertt's aglort
is one d wisdom or tdy.
The prob-
lem with this reasoning
is that it insists the Frst Amendment
be painted m bold, primary odors. The
Supreme Court, however. has ooneiatentiy
reminded u8 that then re a grad dad
of gray mixed in with the red, white and
blue of the gill of Rights.
The burden d weighing competing Nt-
terests is also imposed when the public's
right to know nibs up agaktst the Govern-
ment's occasional need to rrtakttain se~
Crecy. Surey, the general pubNc should
know how its ebcted drldals staple to-
gather a budget a siR tax Isgialetion
through the meert d oompetlrq irttereets.
But what 'rf the U.S. ~ an fir
strike against a terrarbt tnirtirtg cartrp
or txtdertakes a dating rescue of Ameri-
can schoddtidren held captive On en
island or a hijacked trrpferte? Are there
larger interests irtvdved in the exercise
of the Pirst Amertdmertt't Can the need
for national secrecy a secxxity outweigh
the rtesd to be ndified't
In such a dilermte, as wtih mart' deN-
Catey balanced cor>sdtutiond issues, the
answer rtes to be: i< depends.
What ti war has not been declared,
but sorrtstiting Isss then peace pnvaMs?
What ti we are about to lautdt that strNas
against tits tertorist cernp? Should the
tebvlaion networks provide Nvs coverage
d the INgM path of our aircraR? As a
gerterd rub. when tactical stxpriss is
imperative for the success d the mission
~ and the safety of the men and worrtert
~ irtvdved, then the eyes and ears of the
public should rentdn srtielded and sealed
from knowledge. Once hoatib forces nave
bean erpaged, the need to be infomted
would justifiably emerge.
gut, the press might ask. "WI'tat if tits
targets d the mission are sateNites d
the Soviet Union? Indeed, whet N Soviet
peraorxtel are kiNed in the protxss4 Don't
the ArrterlCen people have the rigrtt to
know that their offidab may be Condemn-
ing them to en atomic ash heap?..
These are tough questions, but they
prestxna Government offir~aeb are unable
or urtwlNirtg to take such cortdderations
into accaxtt before eotecxAing a plan of
action. Moreover, they presume that
elected officials carrot be trusted to make
tough and wise decisions, only misguided
or poseiby mad ortas.
The fact is that while Americans
demand that their Goverrxrtertt ad fton-
estly, we realize that ft cannot do every-
trtktg openly, perticx~lary when R irtvoMes
eensklvs negotiations wltit filter gOVSrrt-
rttertts, the dsvslopntertt of exotic Flew
vveaports systertts or prdedktg the Ameri-
can people against hostNe military and
irtteMigertce adlvltiss.
1Mtertevsr the treedorn of the press
bumps up against national ssctxfty, ws
rtesd ro exantkts the rtehxe of the pubNc
good tftat would be advanced by se-
cxery ar by dbdoetxe. I do not tlnd the
pubAc intwMt being served t7y dodos"
ing, for arttpb:
O The rtantss of our dartdestkte agents
abroad:
^ Our rTtetitods of detecting and dsd-
pherirtg the COnIrrMXliCatiafla d hostile
nations;
^ Plane by Other rtdions to asdat in
the Overthrow d a terrorist bsder;
~ The ntoventertt of ships as a
Newsweek
Time
U.S. News 3 World Report
~.~.~oE 4
prekde eo retaNatory adios against s
hostlb rtagon;
O Tha mast advartr,,ed technology de-
vebpad by our miNWy.
LaM ~ the press revealed that the
Matiortd Saaxlty Cotatcil had dsttgnsd
Uby~ sborgman Mi~nrw Kaddatl~
using ttta ntsdia as its conduit. m my
judgntsrtt, the Press was abeokrtely Iw-
tlfisd in exQosing such a dfsirtforrrtatiort
carttpaign. FrsL the SOVist union b known
ro trttlllc in lbs. Enxtltlktg the SOViats
wiN not help us prevail over them in the
nwketplaca of world apirtion.
Second. when--not if-{hs pubfic dis-
covers that we an apimirtg a web d
Nee (even for a dsdrabls end), they wit
Dome to distrust us when ws tore tellhg
the tMh. Trish is the osmsrtt that holds
the faith d the ArrlsriCan psapb. When
R Cradle or loses its adhesive power,
then vvs are left to float cyrticaNy arrtong
tits dttdxia of demorxacy.
Vliftet if a reporter Floe aogtired atxsss
to information and is about to fib a story
rovsaNrtg an s~draordfrtarNy aertsNivs
covert operation that any a taw rtwrtbars
d Congress are swan dv Can the Gow
errtrttertt atop the presses? Trta artswsr
is maybe. Ths Supreme Cotxt in Uta Pen-
tagon Papers case suggested that than
may be tkrtss when tits Goverrtntant b
bgdy justified in preverttirp tits pubfi-
catfort of certain types of infomtation,
9txit as troop moventartts in Nuts of
war. As a general rtds, howsver;+siy
clear tits C.,overrtrrtsrtt wiN find ntora
relief from Rolaids than it wiM hOrrt ttts
Court.
kt May 19ti3, CBS corrseportdsrtt David
Mattis repotted toad U.S. irttedigence rtad
irrtercepted a series of cables wrtpNt,at-
ing tits kaniart gtaverrtmant in tits borne
irq of the U.S. Erttbassy in eain~t that
kiNsd 17 Arrtsricans. Tate CIA ciairttad
the report "cawed us to loss tits martrtsr
in whidt the inlar~cept was made." Mttrtlrt
bter agreed that, M tits CIA was right.
ha sitarldrt't rtnra done Ilte story.
Last year the Is1s Wrlarrt Casey. titan
dkec~0or d the CtA, publicly dedarsd
Continued
Declassified in Part -Sanitized Copy Approved for Release 2012/10/09 :CIA-RDP89T00142R000700860001-8
 Declassified in Part -Sanitized Copy Approved for Release 2012/10/09 :CIA-RDP89T00142R000700860001-8
he might seek a criminal compl~nt
against NBC News for its story invOMng
certain signals-intelligence capa~l'
KY-the abiNty to intercept Sand fin'
munications-possessed try the U.S.
legal action, however, was not ;~cuted
because NBC's story didn't spell out the
nature of the interception.
Indeed, the prase should be stcepbcal
when called upon by the Government
to exercise restnttirtt. On too many occa-
sions. we have seen the wads "national
security' invoked to avoid ppNtical em-
barreesmertt, partisan ntotitratiorts end
even illegal activities. But that skeptidem
should not be hardened into s rods wall
of unressortableneea.
The press has a duly to the dtizenry to
act responsibly in reporting an natiorte~
security activities. But such responsibility
carxtot be legislated: a moat Dome from
the media themaelvss, and it must be
insisted upon by the Avrtericari people.
In cases where there is doubt twttettter
the national security wiU be hamted by
the disdokxe, the Goverrxrtertt should
be cor?ulted end asked fa its adtrice.
In my judgment, in most uses mews
stories cart be broadest a written in a
merxter that avoids pudication of par-
ticularty sensitive details.
Where such accarrxrtodatiorta emot
bs readied with the C,ovemrrtertt, and
the press is not persuaded that the Gov-
ernment's natiortel-security interest out-
weighs the pubNc's interest in the infor-
mation CortCerrted, then I believe the taoV-
emmertt ought to be so advised by the
press. K the drexxrtstanes ere so egre-
gious that they would fail urxler the Su-
preme Court's feet fa enjoirtirp publi-
cation, the Goverrxrtent would at least
have the opporttxtily to restrain pubNe-
tion and have the rtietter decided by the
courts. With prior consultation, this wand
be an eodrontety rare ocaxrence.
Thero aro no easy solutions to tttess
contpetirp tsnsans in our constitutional
system. Indeed, one thing is dear. other
than death. taxes and rust!-tto~x treMc,
!hers aro few abeoiutea ro bs found in
our lives--0r aN Constltrdiort.
2~ .
Declassified in Part -Sanitized Copy Approved for Release 2012/10/09 :CIA-RDP89T00142R000700860001-8