NSSM 229

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91M00696R000300040007-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 19, 2016
• Document Release Date: October 5, 2004
• Sequence Number: 7
• Publication Date: September 24, 1975
• Content Type: MF

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24 September 1975
MEMORANDUM FOR:
SUBJECT
: NSSM 229
Following are specific suggestions on DDT-desired revisions in
Executive Order 11652 and the 17 May 1972 NSC Directive:
E.O. 11652
25X1
Section 4 (A)
Delete "on its face." The National Intelligence Daily, the Congressional
Checklist, the Presidential Brief are not marked on the face. And
neither the President nor members of the six committees have objected.
Section 5 (B) (2)
Modify to read as follows: Classified information or material specifically
covered by statute, pertaining to crytography or disclosing intelligence
sources, methods, or processes for the collection of foreign information.
Section 5 (B) (3)
Replace with the following: Classified information or material disclosing
a system, plan, installation or project the continuing protection of
which is essential to the national security or that might reasonably be
expected to damage foreign relations.
Section 5 (B) (4)
Needs definition. Most DDI classifiers define as jeopardy to a foreign
person's life, career or property. Most DDI classifiers have no occasion
to consider a definition applicable to U.S. nationals. Term "immediate"
should be dropped. Foreign governments change too rapidly in both
policy and personnel for juridical application of the "immediate" in the
exemption.
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SUBJECT: NSSM 229
Section 5 (C)
Insert after (C) a statement as follows: The provisions of the foregoing
paragraphs relating to downgrading and declassification of classified
information shall not apply to intelligence information concerning
foreign individuals. Such information shall be protected by classifica-
tion for the life of the individual or automatically downgraded at the
expiration of 50 years. (Note: This would replace exemption 4 and
would provide to foreigners some of the benefits intended by the Privacy
Act.)
NSC Directive
Section I, B
.Requires that the identity of the classifier of the source document be
carried forward through subsequent generations of the document by users
of the source document. This is neither done nor doable and should be
deleted. That is, delete "together with the identity of the classifier."
Section II, E
It should be noted that it is not very often very practicable to mofidy
the original addressees of a document about its subsequently being
downgraded but the words in that order are not objectionable. However,
there should be a requirement in this paragraph that the downgrader must
keep a record of things downgraded and that the downgrader must, at
minimum, inform the originating unit and the unit of-record (if different
from the originating unit) of the fact of the downgrading.
25X1
Director, Central Reference Service
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24 September 1975
EXISTING AND PROPOSED CRIMINAL STATUTES
PROTECTING SENSITIVE INFORMATION
A. 5 USC 793
(1) Section (a) prohibits obtaining information with respect to national
defense with the intent or belief that the information is to be used to the
injury of the U.S. or to the advantage of any foreign nation.
(2) Section (b) prohibits copying, making or obtaining any sketch,
photo, etc. with same intent.
(3) Section (d) prohibits delivery of defense information to an unauthorized
individual by someone in lawful possession, access, or control, if the
possessor has reason to believe the information could be used to the injury
of the U.S. or to the advantage of any foreign nation.
(4) Section (e) prohibits delivery of defense information by an individual
in unauthorized possession, with the same knowledge and intent as noted in
para (3).
B. 5 USC 794
(1) Section (a) prohibits a person from delivering or transmitting
information relating to national defense, with the intent or reason to believe
that it is to be used to the injury of the U.S. or to the advantage of a foreign
government.
(2) Section (b) relates to the communication of defense information
during a time of war.
II. S. 1 (proposed revision of Federal Criminal Code)
A. Section 1121 - Espionage
(1) prohibits entering a restricted area to collect information knowing
that it may be communicated to a foreign power
(2) prohibits obtaining such information with same knowledge
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(3) prohibits communicating defense information to foreign power,
if the person knows that the national defense information may be used
to prejudice the safety or interest of the U.S. or to the advantage of a
foreign power.
B. Section 1122 - Disclosing National Defense Information
prohibits the communication of national defense information to an
unauthorized individual by a person knowing that the national defense
information could be used to the prejudice of the safety or interest of
the U.S. or to the advantage of a foreign power.
C. Section 1123 - Mishandling_ National Defense Information
punishes mishandling of national defense information by individuals
in authorized and unauthorized possession of such information. Included
is conduct which causes loss, destruction, or theft or its communication
to a person not authorized.
D. National Defense Information is defined in Section 1128(f) as
'national defense information' includes information, other than
information that has previously been made available to the public pursuant
to authority of Congress or by the lawful act of a public servant, that
relates to:
(1) military capability of the United States or of an associate
nation;
(2) military planning or operations of the United States;
(3) military communications of the United States;
(4) military installations of the United States;
(5) military weaponry, weapons development, or weapons
research of the United States;
(6) intelligence operations, activities, plans, estimates,
analyses, sources, or methods, of the United States;
(7) intelligence with regard to a foreign power; *
(8) communications intelligence information or cryptographic
information;
(9) restricted data as defined in section 11 of the Atomic
Energy Act of 1954, as amended (42 U . S . C . 2014); or
(10) in time of war, any other matter involving the security
of the United States that might be useful to the enemy.
*emphasis added
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E. Section 1124 - Disclosing Classified Information
punishes disclosure of classified information to an unauthorized
person by an individual in authorized possession or control of such
classified information. Establishes specific defenses and bars to
prosecution.
F. Classified Information is defined in Section 1128 (b) as
'classified information' means any information, regardless of its
origin, that is marked or designated pursuant to the provisions of a
statute or an executive order, or a regulation or rule issued pursuant
thereto, as information requiring a specific degree of protection
against unauthorized disclosure for reasons of national security;
G. Senator Moss has introduced an amendment (Senate Amendment #863)
to delete section 1128f and change "national defense information" in sections
1121, 1122 and 1123 to "classified information."
III. Sources and Methods Legislation
Prohibits the disclosure of information relating to sources and methods
to an unauthorized person by an individual in authorized possession of such
information. Additional language provides for defenses and bars to prosecution.
This proposal closely tracks section 1124 of S. +1. The major difference is
that section 1124 is restricted to classified information.
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 Approved Form Rqhft* UNITED STATES OF AMERICA
nogg w, ~&, - nmggwq
National Archives and Records Service
Washington, DC 20408
September 18, 1975
Honorable William E. Colby
Director, Central Intelligence Agency
Washington, D. C. 20505
Dear Mr. Colby:
Secretary Kissinger sent me a copy of his August 19 memorandum
concerning the proposed review of security classification matters
to be conducted by an ad hoc group to which you have been appointed.
I have taken the opportunity of suggesting certain changes in
Executive Order 11652 in a letter to Secretary Kissinger.
In view of the short time period given the ad hoc group to make its
recommendations, I am enclosing a copy of that letter in order to
facilitate the ad hoc group's consideration of these recommendations.
As I indicated in my letter, there are other more technical revisions
which I believe ought to be considered, and I will be happy to provide
them to the ad hoc group.
Sincerely,
JAMES B. RHOADS
Archivist of the United States
and Acting Chairman,
Interagency Classification Review Committee
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 UNITED STATES OF AMERICA
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National Archives and Records Service
Washington, DC 20408
September 17, 1975
Honorable Henry A. Kissinger
Secretary of State
Washington, D. C. 20520
Dear Mr. Secretary:
Thank you for sending me the copy of your August 19 memorandum
relating to a proposed review of security classification matters.
It has now been nearly three and one -half years since the new
security classification system established by Executive Order 11652
went into effect. Consequently, I agree that a review is certainly
in order.
The system created by Executive Order 11652 marked a significant
improvement over the system it replaced.
The establishment of a 30-year automatic declassification deadline
ended indefinite classification and has spurred the declassification
of millions of documents which had ceased to have any national
security implication: the National Archives and Records Service
has now declassified 155 million pages of World War II.material
and is about to move into the post-war era.
In addition the Executive order has inhibited an increase in the
backlog of classified material through the General Declassification
Schedule, under which most documents classified since 1972
should be opened after ten years.
Through the mandatory declassification review provision, the
Executive order also included an effective method to declassify
documents over ten but not yet thirty years old.
In addition, by granting authority to the Archivist of the United
States to declassify (after appropriate consultation), material in
his custody originated by the White House, or by Presidential
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Commissions, committees, and boards, the Executive order ended
the political dilemma and risk which each administration had faced
in dealing with documents classified by its predecessors.
For the first time a means had been devised to protect an incumbent
President from the criticism of either opening or closing his
predecessor's papers for partisan political reasons, while at the
same time providing for the declassification of the papers of previous
administrations by a government official who was not subject to
charges of making decisions based on partisan political .considerations.
This system has worked well, particularly in the older Presidential
Libraries where the declassification of White House material has
opened new avenues of historical research and has proved a boon to
scholars. -
Finally, and most importantly, the Executive order created the
Interagency Classification Review Committee (ICRC) which for the
first time provided a central means to monitor the government-wide
classification and declassification program. From my personal
experience with the members of the Committee, I can say without
reservation that they are persons of high caliber who are expert and
sound in the decisions they have made concerning the government's
classification system. I do not need to repeat the list of the ICRC's
accomplishments described in the Committee's annual report, a
copy of which you received in May. However, I do draw your
attention to the fact that the significant progress made by the ICRC
has received favorable notice from Congress, the press, and various
government agencies.
Although we have come a long way since 1972, my experience, both
as Archivist of the United States and as Acting Chairman of the ICRC,
indicates the need for further improvements in the system. Needless
to say, I do not purport to speak for the other members of the ICRC.
I think that efforts to make the system work even more effectively
are especially important in view of growing public and media demands
for government information, and most particularly in view of
Congressional attitudes reflected in the 1974 amendments to the
Freedom of Information Act and the numerous bills proposing to
change the classification system introduced in recent sessions.
Any revision of the national security classification system must
have as its objective a continuing balance between the needs for
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protecting sensitive information relating to military and foreign
affairs, the disclosure of which would jeopardize our national
interests, and the ever growing need to be responsive to the demands
of the American people to be fully informed about their national life.
It is especially important for the review committee to take into account
this public need because a failure to do so would very likely stimulate
a Congressional response and a different kind of solution from what
we in the Executive Branch have endeavored to carry out.
Specifically, I believe that it is desirable and realistic for the
government to move toward reducing the 30 year automatic declassi-
fication time schedule to a 20 year period. This can perhaps be
accomplished by stages over the next few years. The 20 year
declassification goal is not unreasonable for most classified documents.
Our experience thus far suggests that about 90 percent of the 20 year
old records can be readily declassified.
Specific recognition should also be given to an Advance Declassification
Schedule for documents which may be declassified on a date in advance
of the time limits established by the General Declassification Schedule.
Use of this schedule has developed on an ad hoc basis in some
departments. I believe that this schedule should be officially
sanctioned and its use encouraged for documents which require short
term classification protection. In addition, a significant number of
officials believe that the time limits set by the General Declassification
Schedule can be shortened, for example, that "Top Secret" material
may be declassified after a total of eight years, "Secret" ,material
after six years, and "Confidential" material after four years.
The General Declassification Schedule exemption categories would be
more effective if more precise definitions and classification guidance
could be provided to classifiers. For example, exemption category
one of the Order relating to protection of foreign classified documents
Z7 Co
would be more rationally applied if the State Department or other
Department responsible for that type of information were charged
with the responsibility of determining whether the "understanding"
between the foreign government or international organization and
the United States remains in effect. Under the current system
hundreds of thousands of foreign classified documents are being
automatically exempted from declassification though they contain no
information of a sensitive nature today.
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Exemption category two should be changed to clarify that under the
Executive order the only statute recognized as exempting material
from the provisions of the order is the Atomic Energy Act. It should
also place upon the National Security Agency and the Central
Intelligence Agency, respectively, a requirement to define the
meanings of the otherwise vague and general terms "cryptography"
and "intelligence sources and methods. " Such descriptions could be
issued by the ICRC in the form of a general classification guidance
for classifying officers in all agencies. This would promote greater
consistency throughout the government of application of this exemption
category. Exemption category three needs similar clarification.
Additionally,- consideration should be given to automatic downgrading
of exempted material prior to the automatic declassification review
at 30 years (or "at 20 years should the automatic declassification date
be lowered as we have suggested). This would result in a considerable
cost savings to the government and give the classification system
greater credibility.
Section 11 of the Executive order should be expanded to give the
Archivist authority to review and declassify White House material
originated by previous administrations no matter where it may be
located. Currently the incumbent President and his staff have been
removed from direct consideration of releasing material classified
by a former President and his staff only if that material is located
in a Presidential Library or other archival depository under the
Archivist's control. By expanding the Archivist's authority to deal
with all classified White House material of previous administrations,
the current administration can be further protected from charges
of making declassification decisions for political reasons.
Above all, it is essential that any review of the classification system
consider means of strengthening the role of the ICRC. The Committee
has made considerable progress, but it could do more and needs to
do more to enhance the integrity of the government's classification
system. The ICRC should be independent of any other part of the
federal establishment and should report directly to the President.
Policy directives relating to the classification system which are
binding on all Departments should be issued by the President
through the ICRC. This is a necessary requirement to strengthen
the role of the ICRC in implementing the Executive order in all its
parts. The ICRC, representing as it does all of the major agencies
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coping with classification and declassification matters, is in the
best position to weight conflicting positions and to instruct agencies
concerning current security requirements.
Another step that must be taken to enhance the prestige of the ICRC
is to appoint a permanent chairman. Since my appointment as
acting chairman in April 1973, I have repeatedly recommended that
a permanent chairman of recognized stature from outside the federal
government be selected to fill this position. In the past I have
submitted several names of persons who could admirably direct the
ICRC's activities. I would be happy to again submit names of possible
candidates. I feel that appointing a permanent chairman would provide
direct public evidence of the importance the President attaches to the
work of the ICRC.
I have attempted to highlight those areas which I feel need priority
consideration. There are, of course, many other areas which deserve
the committee's attention during its consideration of ways to improve
the classification system. We would be happy to provide the committee
with these other suggested changes.
I also recommend that the committee solicit the views of John S. D.
Eisenhower concerning revision of the Executive order. Because of
his experience as a military officer, as an assistant to President
Eisenhower, as first Chairman of the ICRC, and in view of his
intimate knowledge of Presidential papers through his close association
with the Eisenhower Library, Ambassador Eisenhower- is in a unique
position to give sound, knowledgeable advice on this matter.
Ambassador Eisenhower suggested certain changes in the classification
system at the time Executive Order 10501 was under review and was
partially responsible for the inclusion of Section 11 in Executive
Order 11652. I feel sure that he would be happy to provide the
committee with his views.
In order to expedite the committee's consideration of these proposals,
I have taken the liberty of forwarding copies of this letter to General
Scowcroft and the other members of the ad hoc group.
Sincerely,
JAMES B. RHOADS
Archivist of the United States, and
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