OFFICIAL RELEASE OF CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP93B01194R000900090002-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 14, 2016
• Document Release Date: February 19, 2003
• Sequence Number: 2
• Publication Date: April 25, 1980
• Content Type: MF

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OGC 80-03544
25 April 1980
STATINTL
STATINTL
REFERENCE: Memorandum, dated 27 November 1979, from
C/CRD to C/ISS & GC, Subj. Decision Requested
on Point of Executive Disclosure Related to
to Pentagon Papers
1. By referenced n-emarandum, the Chief, Classification
Review Division, has requested advice from -this Office on
whether there is any merit to the position that the release
of the Pentagon Payers by the Defense Department may not
constitute an authorized "executive disclosure" as to CIA's
information if CIA has not concurred in the release. Since
you, on behalf of C/CRD, and I have discussed this question
on numerous occasions, this memorandum merely summarizes the
opinions I have already expressed to you.
2, As you are aware, classified information may be
declassified by the classifiers, a successor, or a supervisory
official of either. See Executive Order 12065, Section 3-102.
Moreover, the "third-agency .rule" requires each agency that
has received classified information from another agency to
obtain the consent of such agency before disseminating the
information to any third agency. This requirement, a carryover
from the predecessor Order of Executive Order 12065_, i.e.,
Executive Order 11652, establishes the principle under which
executive agencies operate when attempting to declassify
informatiana coordination is essential. While the Order
authorizes lower echelon employees also to exercise declas-
sification authority, I am aware of no provision that would
permit one agency of the government unilaterally to declassify
and release information classified by another government
agency. This principle is further evidenced in regulations
implementing Executive Order 12065, including ISOO Directive
Na. 1 with respect to coordinating the review of information
during mandatory review requests.
O ice o enera Counsel
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3. Nevertheless, this Executive branch principle that
only the classifying agency, or agency otherwise having
classification jurisda.ction, may declassify information
fairly may be said to be effective only so long as it is
actually followed, since a release of classified information
by any agency may be said to "effectively" declassify that
information by placing it in the public domain. While
administrative sanctions may be appropriate if an agency
fails to observe the coordination requirements, the situation
alters if are individual's First Amendment rights are at
stake. Thus, there is no single answer to your question.
4. When information becomes available to the public,
it becomes difficult to maintain that a republication of
that information will cause additional damage to the national
security. That is not to say that such an argument can
never be made, particularly if the executive has not yet
confirmed the initial disclosure; however, the more extensive
the dissemination, the greater the difficulty in subsequently
maintaining that that or similar information will cause
damage if released. Moreover, as to particular documents
that are released by an exeutive agency, it will be extremely
difficult, if not impossible, to explain how a republication
would cause additional damage to the national security.
~. You have asked for a general analysis of the legal
effects of an agency's releasing the information of another
agency without the latter agency's consent. Although I have
indicated to you the specific requirements of Executive
Order 12065, valid as operating procedure to be followed by
all Executive branch agencies, clearly a flat rule and
inflexible adherence to the "letter" of the Order will not
be valid for all purposes. With respect to a release in the
FOIA context, the Agency will be required to reach a decision
on the merits of the case itself, with primary attention
devoted to determining the identifiable damage to the national
security that could be expected to result from the contemplated
disclosure. It .is conceivable that there could be evidence
of damage so great that deletions of offending language
would still be appropriate. I suggest, however, that the
burden of proof will invariably be a difficult one in such
cases.
6. Moreover, Agency officials reviewing manuscripts
submitted for prepublication review cannot assert the con-
tinued classification of documents already in the public
domain, because there exist constitutional requirements
evidenced by case law with respect to freedom of speech and
prior restraints (See the Knopf ease). To argue that U.S.
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documents placed by one agency in the public domain were not
"officially" released and, therefore, that information
derived therefrom is subject to sanitization because of a
violation of the third-agency rule would fly in the face of
.reality, be inconsistent with such precedent, and, therefore,
would stand no chance of success in this context. Please do STATINTL
not hesitate to contact me ~ if you have any questions
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 STATI N
rove
or e
ase
-
ROUTING AND RECORD SHEET
FROM:
EXTENSION
No. ISS 79-095/1
C ie assl ication Review Division
--- - -
211, Key
DATE 27 November 1979
TO: (Officer designation, room number, and
ildin
s
b
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
g
u
INITIALS
to whom. Draw a line across column after each comment.)
RECEIVED
FORWARDED
1? Chief, ISS
~~~
5B- 2830 , Has .
9
1 to 3
2.
I am unaware of any specific
provision governing this issue.
My inclination is to accept the
3. C/CRD
~/
DDO interpretation, but I will
211, Key
~~/'3
~~/I
wait to make a decision until
~1
OGC has treated the matte
a.
~
~NT
may be necessary to take
matter to the IRC.
s.
Att: ISS 79-095
~?
cc: IMS/DDO
GC
8.
9.
10.
11.
12
13.
1 d.
15.
,.L.f=
A
d F
l
20 3
FORM 61 O USE PRE410U5
I-79 EDITIONS
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27 November 1979
MEMORANDUM FOR: Chief, Information Services Staff
General Counsel
STATINTL ATTENTION:
STATINTL FROM:
Chief, Classification Review Division
SUBJECT: Decision Requested on Point of Executive Disclosure
Related to Pentagon Papers
1. The DO is considering taking a very narrow view of what consti-
tutes executive disclosure in the case of the study entitled "United
States - Vietnam Relations, 1945-1967" which was printed for the House
Committee on Armed Services in 1971 in its declassified form. This study,
commonly known as "The Pentagon Papers," had been reviewed and declassified STATINTL
by the Department of Defense which apparently did not formally coordinate
with CIA. This version included classified and other ~rotectable CIA STATINTL
information. After some research into the matter,
Special Assistant to C/IMS, is convinced that the Agency never inten e
to make executive disclosure of its material at the time. Mr.
concludes, therefore, that release of that version of "The Pentagon Papers"
does not constitute authorized executive disclosure as far as the Agency
STATINTL is concerned. A copy of Mr. ~~ memorandum on this matter is attached
as Attachment A.
2. CRD, on the other hand, has considered the publication of this
version of the "Pentagon Papers" as constituting executive disclosure and
information which is, therefore, in the public domain. In early 1979 CRD
reviewed this version of the "Pentagon Papers" and listed all information
relating to CTA so classification reviewers would know what information
had been released. A copy of that paper is attached as Attachment B.
3. Addressee views are requested as to whether the DO position is
the official Agency position.
STATINTL
Attachments: A and B
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?~;
MEMt~1EAx~tDUM FOR: Chief, Inforrnation Management Staff
STATINTL FRaM:
Special Assistant to C/IRIS
SUB?;TECT: "The Pentagon Papers?` as Executive Disclosure
1. As you are aware, I have been faced with assertions
by external official historians that references in what are
popularly known as '?The Pentagon Pagers" constitute official '
disclosures which compel this Agency to release related
classified documents under the mandatory or systematic review
provisions of Executive Order 12055. My posit.a.on has been
that, while the study called "United States--Vietnam Relations,
1945-1967" which was printed. for the House Committee on Armed
Services in 1971 is in its declassified version a form of
executive disclosure, it is not authorized executive disclasur.e
as far as the Agency is concerned. Cansequent.ly, I have con-
tinued. to deny Agency information which was improperly released.
at the time that the Department of Defense made its admin.-_eclly
hasty classification review.
2. You will recall that we have had several off-the-cuff
expressions from OGC attorneys concerning the point which has
been raised. It :?ias clear that none of those attorneys with
whom I personally have spoken has had accasic~n i.o resear_clz t.l7c~
subject. They have tended toward the 1~:ss protective: view that
executive disclosure is executive disclosure no matter 4rhat=
Executive Eranch department or agency made iii. ].n zn information
managernent field as complex as that of the Intelligence Community,
T do not think that this contention is appropriate.
3. To determine whether or not there was documentary
support for ray view, I have made various inquiries. she most
productive has given me an insight into action taken by the
Agency in 171. From a review of that material, which I am
keeping in a file titled "Disclosure Problems: 'The Pentagon
Papers' ," I am convinced that the Agency never inf:c:nded tc~ mal:~~
executive disclosure of its mat~:ria1 at the, time that the
Department of Defense pressed on with publication of a DOD
declassified version of tf7e study which continued to include
classified and other protectable CIA information,
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Q . L)D:~JISS/CRI:~ c.i ~ a study , dated 5 ~~Iay 19 7~3 , which
identifiers CIA material in "'I"he> Pentagan Papers" w}is.ch CRD
was apparently inclined to laolc ~xpan as being in the public
darnain. I da nat dispute t"nat t}ye infa.rraatian sa identified
is in the public darnain; I da cantend~ however, that the
I+,gc~ncy did not knowingly place that infarr.~atian in the public
darnain via "The Pentagan Papers, "' `I`iaere:Eore, unless subsecguent
author%_zed executive disclosure has been made by 'this Agency,
we are i~ot under any obligati.an to release th?~ same ar sir:rilax-
infarra~atian. CRI3 is alrezdy aware of my views, I~ut I shall
send them a copy of t.Y":is memarandrm ante you have canc~::rrred.
STATINTL
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~.~
5 May 1979
A~IORANllUM ~~OR: All Branch Chiefs and Reviewing Officers
STATINTL FItoM
ile , asst ication Review Group
SUB.TECT CIA Personnel (and OSS) , Station Lacati.ons,
and Operations Exposed in the Pentagon Papers
1. Attached are carrnrrents and quotations from the 12 voltunes (about
7,000 pages) of the Pentagon Papers which reveal and compromise CIA (and
sarrle OSS) personnel, station locations, and operations. This version of
the Papers is the official one, the study prepared by the Department of
Defense and printed fox use of the House Committee on Armed Services b}=
the U.S. Government Printing Office. The text is unclassified.
2. 't'his material is to be used as a data base of names, station
locations and operations material in the public domain, in the event we
encaruiter references to the items in future reviews.
STATINTL
Attachment: aOs
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 Approved For?R~lease 2003/04/25 :CIA-RDP93B0119~000900090002-2
United States -Vietnam Relations
1945 - 1967
Kook 4 of 12 (only this page pertinent vi Volt~ne)
during the coming weeks and. mont}is. ~~ I}e his not responded affirma-
tively to this suggestion apparently.becausc his awn thoughts are
not yet in order.
"'The mission has been very busy since my return with all al;en-
cies reviewing their prograr-ts to see that they are aligned with the
recent decisions taken in Washington. USC}M Director Killen has dis-
cussed the 41 point non-military program with Owho has expressed STAT
particular interest in such ;projects as rural electrification, agri-
cultural development, water supply and school construction. The
Actin Chief, Mr. Jor~erisen, is giving priority attention to the
~2 ou~ t~~proj ects w cfi bir. hicCone tabled during our Washington
discussions and will soar have specific proposals for the Mission
Council,"
said the following excerpts from COh1USMACV's Aionthly Evaluations for Aiarch
aitd April 1965:
"March, 1965: Events in March were ericouragirig...RVNAF gounc}
operations were iig;hlighted by renewed operational effort... VC activ-
ity was considerably below the noun of the preceding six months and
indications were that the enemy was engaged in the re-supply and re-
positioning of tuiits possibly in preparation for a new offensive,
probably in the II corps arca...In sturnn~~.ry, March has given rise to
some cautious optimism. The current goverrnnent appears to be taking
control of the situation and, if the present state of I~opular morale
ca.ii he sustained and strengthened, the CUN, with continued U. S. sup-
port, should be able to counter future VC offenses successfully.
"A ril, 1965: Friendly forces retaiaiecl the initiative during
April an-cT a review of events reinforces the feeling of optimism
generated last montli...In sw~mti~ry, current trends are highly encourag-
ing and the GVN may have actuall turned the tide at lo_~_last. How-
ever, there arc some tsc{u:tetirig actors wwTicTi i~te a need to
avoid overconfidence. A test of these trends should be forthcoming
in the next few mo7itlis if the VC launc}Y t.hcir expected counter-offen-
sive and the period may well be one of the most vr-portant of the war."
[Emphasis added]
In view of the fact that not}iiaig had basically changed in the South,
it seems inconceivable that anyone was really fooled by the dramatic drop
in enemy-i~zitiated activity. Most official observers were hardheaded. and
realistic following the landing of the two Marine I3LT's in Aiarch. COhiUShiACV
certainly was in the long and detailed Conunanders's Estimate of the Situa-
tion which he completed on 2ti Alarc}~ and w}aich will be analyzed at length
later in this paper. In stmunary, General {Vestmarelalid said in , ...
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Uni.t.ed States - Victn~un 12clatioris
1.945"- 1y67 (Study Prepr~recl by the l~-ept. of Defense)
Book 5 of- 12 (only one Page marked)
Printed for the use o F the Ilatbse Committee on rlrnied Services
which had reduced si~;nificalitly its impact and effectiveness. Limitations
tzave been in~~osed an military operations in faur ways, they indicated
a. The attacks on the enemy military targets have bean on such
a prolonged, graduated basis that the enemy has adjusted psycliologic-
a11y, economically, and militarily, e.g., inured themselves to the
difficulties and hardships accompanying the war, dispersed their
logistic support system, and developed alternate transport routes
and a si~;iiificc~rrt air defense system. "
b. Areas of sanctuary, containing important military targets,
have been afforded the enemy.
d. Major iml~or"k:at_ion of supplies into NVN by sea has been per-
mitted.
'I'lie Chiefs indicated that they considered that U.S, objectives in
SIiA could be achieved within this policy frame~~ork providing the level of
assistance the enemy received from his comrrnu~ist allies eras riot signifi-
cantly increased aa~d there was -io diminution of (1. S. efforts .
However, the Chiefs concluded pessimistically that progress would
continue to ba slow so long as present limitations on military operations
continued iii effect and, further, at the present l~a.ce, termination of NViV's
military eC#ort was not expected to occur in the near future.
17ie Joint Chiefs then listed a series of actions which could be taken
in the near future to increase pressures on 1VVN and accelerate progress
tcward the achievement of U.S. objectives (sea table, p. 224) and recom-
rnanded they bc; authorized. to direct these actions.
The Joint Chiefs of Staff recolmize that expansion of US efforts
entails some additional risk. T}ley believe that as a result of this
expansion the likelihood. of avert introduction of Soviet/I31oc/CPR com-
bat forces into the war would be remote. failure to take additional
actiotx to shorten tlic Southeast Asia conflict also entails risks as
new anc} more efficient weapons are provided to NVIV by the Soviet Union
and as USSR/CPR support of the enemy increases. 94/
Inforlruztion indicates that the P~esi.dent reviewed this paper and
states that it ti~~as not what was desired, that it recommended actions which
had previously baen dcnicc} and would not glow be npprovad.
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United. States -Vietnam Relations
1945 - 1967
Book 6 of 12
1 - "and George Carver the CIA" (p, 93)-,
STAT
5 - "ancl the CIA Station Chief, who retained a completely independent
connnwYications channel to Washington" (p. 60)
G - "the CTA gave lip service to the idea, without making any significant
change in their training of the cadre at Vung Tau." (p. 61)
7 - "...and apposed. the suggestion that Special Branch Police -- which
meant on the American side tlxe CIA -- take over the anti-i~7frastruc-
ture effort." (p, 86)
$ - ".,.from George Carver, Helms' Special tlssistaiit for Vietnamese Af-
fairs at the CIA;" (p. 1.03}
STAT
1.0 - "In Saigon, Zorthian, and l-Tart , Directors of .JIJSPAO anti CIA, respec -
tively,..," (p, 125)
United States -Vietnam Relations
1945 - 1967
}3ook 7 of 12 (only this page is pertinent)
The Embassy's Lack of Political Contact
'T'he shifts of political loyalties, coups, rebellions, and major changes
of public figures often caught the L:mbassy by surprise. It has no effec-
tive system, either throw h or covert contacts, for finding out what
was going on? o a few official contacts who told
things the Vietnamese wanted the U.S. to believe; but 2 5X1
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