EXECUTIVE CLASSIFICATION OF INFORMATION-SECURITY CLASSIFICATION PROBLEMS INVOLVING EXEMPTION (B)(1) OF THE FREEDOM OF INFORMATION ACT (5 U.S.C. 552) THIRD REPORT BY THE COMMITTEE ON GOVERNMENT OPERATIONS

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700230001-8
• Release Decision: RIFPUB
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• Document Creation Date: December 12, 2016
• Document Release Date: December 20, 2001
• Sequence Number: 1
• Publication Date: May 22, 1973
• Content Type: REPORT

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93d Congress, 1st Session - - - - - House Report No. 93-221
EXECUTIVE CLASSIFICATION OF
INFORMATION-SECURITY CLASSIFICATION
PROBLEMS INVOLVING EXEMPTION (b) (1)
OF THE FREEDOM OF INFORMATION
ACT (5 U.S.C. 552)
THIRD REPORT
BY THE
COMMITTEE ON GOVERNMENT
OPERATIONS
1Jk l), o 09
UU1
MAY 22, 1973.-Committed to the Committee of the Whole House
on the State of the Union and ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
95-6790 WASHINGTON : 1973
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JACK BROOKS, Texas
L. H. FOUNTAIN, North Carolina
ROBERT E. JONES, A'abams
JOHN E. MOSS, Califorrda
DANTE B. FASCELL, Florida
HENRY S. REUSS, Wisconsin
TORBERT H
MACDO:ALD
Massachusetts
.
,
WILLIAM S. MOORHEAD, Pennsylvania
WM. J. RANDALL, Missouri
BENJAMIN S. ROSENTHAL, New York
JIM W RIGHT, Texas
FERNAND J. ST GERMAIN, Rhode Island
JOHN C. CULVER, Iowa
FLOYD V. HICKS, Washington
DON FUQUA, Florida
JOHN CONYERS, JR., Michigan
BILL ALEXANDER, Arkansas
BELLA S. ABZUG, New York
HAROLD D. DONOHUE, Massachusetts
JAMES V. STANTON, Ohio
LEO J. RYAN, California
FRANK HO RTON, New York
JOHN N. ERLENBORN, Illinois
JOHN W. W YDLE R, New York
CLARENCE J. BROWN, Ohio
GUY VANDER JAGT, Michigan
GILBERT GUDE, Maryland
PAUL N. McCLOSKEY, JR., California
JOHN H. BUCHANAN, JR., Alabama
SAM STEIGER, Arizona
GARRY BROWN, Michigan
CHARLES THONE, Nebraska
RICHARD W. MALLA RY, Vermont
STANFORD E. PARRIS, Virginia
RALPH S. REGULA, Ohio
ANDREW J. HINSHAW, California
ALAN STEELMAN, Texas
JOEL PRITCHARD, Washington
ROBERT P. HANRAIIAN, Illinois
HERBERT ROBACE, Staff Director
ELMER W. HENDERSON, General Counsel
MILES Q. ROMNEY, Counsel-Administrator
J. P. CARLSON, Minority Counsel
W:`LLIAM H. COPENHAVER, Minority Professional Staff
FOREIGN OPERAT:(ONS AND GOVERNMENT INFORMATION SUBCOMMITTEE
WILLIAM B. MOO RHEAD, Pennsylvania, Chairman
JOHN if. MOSS, California JOHN N. ERLENBORN, Illinois
TORBERT H. MACDONALD, Massachusetts PAUL N. McCLOSKEY, JR., California
JIM WRIGHT, Texas GILBERT GUDE, Maryland
BILL ALEXANDER, A:rkansas CHARLES THONE, Nebraska
BELLA S. ABZUG, New York RALPH S. REGULA, Ohio
JAMES V. STANTON, Ohio
CHET HOLIFIELD, California FRANK HORTON, New York
WILLIAM G. PHILLIPS, Staff DireGAr
NORMAN G. CORNISH, Deputy Staff Director
HAROLD F. WmTTrxcxooe, Professional Staff Member
L. JAMES KRONFELD, Counsel
MARTHA M. DOTY, Clerk
ALMEDA J. HARLEY, Secretary
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HOUSE OF REPRESENTATIVES,
Washington, D.C., May ,22, 1973.
Hon. CARL ALBERT,
Speaker of the House of Representatives,
Washington, D.C.
DEAR MR. SPEAKER: By direction of the Committee on Government
Operations, I submit herewith the committee's third report to the
93d Congress. The committee's report is based on a study made by
its Foreign Operations and Government Information Subcommittee.
CHET HOLIFIELD, Chairman.
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CONTENTS
Page
Preface----------------------------------------------------------- 1
I. Introduction------------------------------------------------ 3
II. Historical background---------------------------------------- 4.
First security classification Executive order------------------ 6'
Office of War Information classification system -------------- 7
Executive Order 10104 issued by President Truman---------- 8
Executive Order 10290 issued by President Truman---------- 9-
Executive Order 10501 issued by President Eisenhower-------- 9
Legal authority for Executive Order 10501__________________ 11
Automatic downgrading and declassification amendments ----- 12
Summary------------------------------------------- --- 13
III. Previous studies of security classification system ----------------- 15
The Coolidge Committee__________________________________ -15
The Wright Commission_______________________ _________ 17
House Government Information Subcommittee studies------- 21
Earlier recommendations to improve the security classification
system ------------------------------------------------ 23
W. Security classification and the Freedom of Information Act -------- 28
Exemption (b) (1) cases and the courts---------------------- 29
Review of classification system ordered by President Nixon --- 31
V. Dimensions of the classification problem _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 32
Volume of classified material______________________________ 34
Authority to classify ------------------------------------- 38
Overclassification under Executive Order 10501 -------------- 40
Costs of the security classification system------------------- 49
VI. Executive Order 11652 issued by President Nixon----------------- 52
Questions of timing of the new order_______________________ 52
Major features of Executive Order 11652____________________ 56
Conflicting interpretations of key sections of new order------- 58
Statement in the preamble of Executive Order 11652--------- 59
National defense versus national security------------------- 61
Number of persons authorized to classify____________________ 66
_ _ _ _ _ _ _ _ _ _ _ _ _
No specific penalties for overclassification --------------------
Identity of classifiers and accelerated declassification--------- 69
Extending the secrecy barrier______________________________ 70
Need for adequate oversight by Congress___________________ 71
Use of access, distribution, or control markings -------------- 75
Mandatory review of exempted material____________________ 78
Lag in implementation of new order___________________ - 80
Are domestic activities related to security classification system?_ 83
VII. The classification system-historical research problemq------------ 88
Foreign relations series ----------------------------------- 92
VIII. Security classification system-Executive order versus statute----- 94
The Atomic Energy Commission's statutory classification
system------------------------------------------------ 96
IX. Conclusions-------------------------------------------------- 100
X. Recommendation____________________________________________ 104
APPENDIX
Executive Orders Nos. 11652 and 11714______________________________ 105
(V)
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93D CONGRESS HOUSE OF REPRESENTATIVES I REPORT
1st Session } No. 93-221
EXECUTIVE CLASSIFICATION OF INFORMATION-SECURITY CLAS-
SIFICATION PROBLEMS INVOLVING EXEMPTION (b)(1) OF THE
FREEDOM OF INFORMATION ACT (5 U.S.C. 552)
MAY 22, 1973.-Committed to the Committee of the Whole House on the State
of the Union, and ordered to be printed
Mr. HOLIFIELD, from the Committee on Government Operations,
submitted the following
THIRD REPORT
BASED ON A STUDY BY TFIE FOREIGN OPERATIONS AND GOVERNMENT
INFORMATION SUBCOMMITTEE
On May 22, 1973, the Committee on Government Operations ap-
proved and adopted a report entitled "Executive Classification of
Information-Security Classification Problems Involving Exemption
(b)(1) of the Freedom of Information Act (5 U.S.C. 552)." The
chairman was directed to transmit a copy to the Speaker of the House.
PREFACE
This report is based on 13 days of hearings by the Foreign Operations
and Government Information Subcommittee in the 92d Congress
during June and July 1971, and May 1972.1 It also incorporates the
results of staff and General Accounting Office investigations and
studies of the subject areas of the classification system as it has oper-
ated under Executive Order 10501 of November 9, 1953, and Executive
Order 11652 of March 8, 1972. Finally, it provides a historical perspec-
tive on the classification system by summarizing major findings,
recommendations, and other studies undertaken by the former Special
Subcommittee on Government Information of this committee during
the period 1955-62.
1 Hearings, Foreign Operations and Government Information Subcommittee, "U.S. Government Infor-
mal.lon Policies and Practices-The Pentagon Papers," pts. 1, 2, 3, June 23, 24, 25, 28, 29, 30, and July 7, 1971;
"U.S. Government Information Policies and Practices-Security Classification Problems Involving Sub-
section (b)(1) of the Freedom of Information Act," pt. 7, May 1, 2, 3, 5, 8, and 11, 1972.
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It should be noted that this report does not include matters related
to the issue of "executive privilege," nor any of the events which have
transpired during the first 4 months of 1973 regarding efforts of the
Nixon administration to expand that claim. This subject will be dealt
with in a subsequent report of this committee.,
Nor does this report deal with proposals advanced by the Justice
Department in March 1973, contained in legislation to revise the
Criminal Code-title 18-that would impose more stringent criminal
penalties on the disclosure of information which bears classification
markings.
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1. INTRODUCTION
From the earliest days of our Republic the President in carrying
out the provisions of article II, section 2 of the Constitution as the
Commander in Chief, has limited the dissemination of information
affecting our defense and foreign policy interests. Moreover, the
1789 "housekeeping" statute until amended by Congress in 1958,
was utilized to withhold information from the public on a wide range
.of government actions-including and extending beyond information
that might be related to our defense and foreign policy interests.2
However, the constitutional prerogative of "secrecy" is limited to
"each House" of Congress as it applies to the "Journal of its Pro-
ceedings?" Nowhere in the Constitution or any of its amendments
is there any express basis for "secrecy" as applied to activities of
the executive or judicial branches of government.
The first instance of the use of article II, section 5 authority to
effect secrecy was in 1790 when President Washington presented to
the Senate for its approval a secret article to be inserted into a treaty
with the Creek Indians.' Controversy arose in Congress over secret
reports made in connection with General St. Clair's campaign in 1791
against the Indians on our northwest frontier and with the secret
negotiations between Chief Justice John Jay and Lord Grenville that
produced Jay's Treaty with Great Britain. One authority on the
history of classification markings has traced such labels as "Secret,"
"Confidential," or "Private" on communications from military,
naval, or other public officials back almost continuously for more than
a century.5
Thus, the historical review of the confidential treatment of certain
defense and foreign policy records and documents shows that, to some
degree, secrecy in military and diplomatic affairs has always been
practiced by the executive branch, although a formal classification
system to protect such types of information did not develop until
more recent times.
9 Public Law 85-619, revising revised statutes 161. This is now codified as 5 U.S.C. 301. See H. Rept.
1401, 85th Cong., 2d sees., and hearings by Special Subcommittee on Government Information on H.R
2767 for examples. See also 1955 hearings by this same subcommittee and H. Rept. 2947, 84th Cong., 2d sess.,
for additional background.
S Art. 1 sec. 5, clause 5.
d U.S. congress, Senate Executive Journal, vol. I, p. 55 (Aug. 4, 1790).
' National Archives, ' origin of Defense-Information Markings in the Army and Former War Depart-
ment," prepared by Dallas Irvine, Dec. 23, 1964 (revised 1972). Most other historical examples cited below
are all taken from this study.
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Ill. HISTORICAL BACKGROUND
The origins of the present security classification system can be
traced just prior to the World War I period. On February 16, 1912,
a general order was issued by the War Department that established
a system for protecting information relating to submarine mine proj-
ects, land defense plans, maps and charts showing locations of defense
elements and the character of the armament, and data on the number
of guns and supply ammunition. The order, however, prescribed no
particular security markings.0
More than 5 years later, after the United. States had entered the
war, the General Headquarters of the American Expeditionary Forces
published General Orders No. 64 on November 21, 1917, establishing
the classifications of "Confidential," "Secret," and "For Official
Circulation Only." 7 Limitations on reproduction and distribution were
also provided. The system was patterned after British and French
procedures.
Soon thereafter, the War Department issued more precise defini-
tions of "Secret," "Confidential," and "For Official Use Only" in its
"Changes in Compilation of Orders No. 6" on December 14, 1917.8
Citations were also made in~ the order to punishment for failure to
protect such information under provisions of the Articles of War or
under section 1, title 1 of the Espionage Act, which had become law
on June 15, 1917. Irvine notes in his study: 11
* * * We may surmise that invocation of the Espionage
Act of 1917 was considered advisable because so many
officers of the war-time army were drawn from civilian
life and therefore would not have the instincts of professionals.
There is no indication that there was any realization at
this time that difficulties could arise in enforcing the Es-
pionage Act if official information relating to the national
defense was not marked as such, insofar as it was intended
to be protected from unauthorized dissemination. * * *
The Navy Department issued General Order No. 370 on
February 20, 191.8, establishing and describing three "classes of
correspondence and information"-"Secret," "Confidential," and
"Nonconfidential." 10
Several years after the end of World War 1, the security classifica-
tion system was formally continued by Army Regulation 330-5,
published on January 22, 1921. The three levels of classification
markings were described as follows: 11
' Ibid. pp: 9-10. See also Fp 1-16 for a summary of the historical development of the security protection
of vital defense information during this period.
7 Ibid., p. 24; for a valuable background discussion of government censorship in World Wars I and II, see
section of the Report of the Commission on Government Security (Wright Commission), issued in 1957,
pp. 152-154; see also pp. 19-20 of this report.
B Ibid., pp. 26-28.
1Ibid., p. 81.
10 Ibid., p. 43; see also annex T of the same study.
11 National Archives study, op. cit., pp. 33-34.
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A document will be marked "Secret" only when the
information it contains is of great importance and when the
safeguarding of that information from actual or potential
enemies is of prime necessity.
* * * * *
A document will be marked "Confidential" when it is of
less importance and of less secret a nature than one requiring
the mark of "Secret" but which must, nevertheless, be
guarded from hostile or indiscrete persons.
* *. * *
A document will be marked "For official use only" when
it contains information which is not to be communicated
to the public or to the press but which may be communicated
to any persons known to be in the service of the United
States whose duty it concerns, or to persons of undoubted
loyalty and discretion who are cooperating with Government
work.
A noteworthy fact is that these regulations failed to relate to pro-
visions of the Espionage Act of 1917 or to limit their application to
defense information.
A subsequent revision of the regulation in 1935 added the term
"Restricted," to be used when a document contained information
regarding research work on the "design, test, production, or use of a
unit of military equipment or a component thereof which was to be
kept secret." Documents on projects with "restricted" status were
to be marked as follows : 12
Restricted; Notice-This- document contains informa-
tion affecting the national defense of the United States
within the meaning of the Espionage Act (U.S.C. 50:31,
32). The transmission of this document or the revelation
of its contents in any manner to any unauthorized person
is prohibited.
A February 11, 1936, revision of Army Regulations 330-5 dropped
the marking "For Official Use Only" and redefined "Secret," "Con-
fidential," and "Restricted" to bring them more into line with sim-
ilar Navy regulations. The definition of "Secret" was as follows: 13
A document will be classified and marked "Secret" only
when the information it contains is of such nature that its
disclosure might endanger the national security, or cause
serious injury to the interests or prestige of the Nation, an
individual, or any government activity, or be of great advan-
tage to a foreign nation.
I' Ibid. pp. 38-39, change in Army Regulation 330-5; also incorporated in Change No. 8 in Army Reg-
ulations No. 850-25, Feb. 12, 1935. This was apparently the first action that linked the 1917 Espionage Act
to the security classification system; see ibid., pp. 42-44 for a discussion of this point.
'5 Ibid., pp. 38-39.
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"Confidential" was defined thus :
A document will be classified and marked "Confidential"
when the information it contains is of such a nature that
its disclosure, although not endangering the national secu-
rity, might be prejudicial to the interests or prestige of the
Nation,, an individual, or any government activity, or be of
advantage to a foreign nation.
"Restricted" documents were given the following definition:
A document will be classified and marked "Restricted"'
when the information it contains is for official use only or
of such a nature that its disclosure should be limited for
reasons of administrative privacy, or should be denied the
general public.
Archivist historian Irvine observed: 14
In clearly extending the applicability of protective mark-
ings to "nondefense" information the 1936 revision of Army
Regulations 330-5 contrasted with earlier versions of the
same regulations, which had evaded facing up to this ques-
tion of applicability. On what basis the regulations were now
given their extended applicability is not made plain. The
effect was to apply the menace of prosecution under the
Espionage Act to the protection of whatever defense of
"nondefense" information War Department officials might
want to protect.
Army Regulations 330-5 were superseded and consolidated with
amendments by Army Regulations 380-5 on June 10, 1939, entitled
"Safeguarding Military Information." They were subsequently
revised and reissued on June 18, 1941.15
First ' Security Classification Executive Order
The first use of an Executive order in the security classification
field took place in 1940, when President Roosevelt issued an order
entitled "Defining Certain Vital Military and Naval Installations
and Equipment." 16 As authority, he cited the act of January 12,
1938 (Public Law 418, 75th Cong., 52 Stat. 3), which stated:
Whenever, in the interests of national defense, the Presi-
dent defines certain vital military and naval installations or
equipment as requiring protection against the general dis-
semination of information thereto, it shall be unlawful to
make any photograph, sketch, picture, drawing, map, or
graphical representation of such vital military and naval in-.
stallation or equipment without first obtaining permission of
the commanding officer. * * *
Violation of the law was subject to criminal action, a $1,000 fine
and/or imprisonment of up to 1 year.17
14 Ibid. p. 41.
if Ibid., p. 37.
lE Executive Order No. 8381; Federal Register, Mar. 26, 1940, vol. 5, p. 1145 of seq.
It Now codified as part of t' 1e Espionage Act as 18 U.6. C. 795(a).
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In defining the installations or equipment requiring protection, the
President listed as a criterion the classification as "Secret," "Confi-
dential," or "Restricted" under the direction of either the Secretary of
War or the Secretary of the Navy. In addition to military or naval in-
stallations, weapons, and equipment. so classified or marked, included
in the definition were-.'8
All official military or naval books, pamphlets, doc-
uments, reports, maps, charts, plans, designs, models,
drawings, photographs, contracts, or specifications, which
are now marked under the authority or at the direction
of the Secretary of War or the Secretary of the Navy as
"secret," "confidential," or "restricted," and all such arti-
cles or equipment which may hereafter be so marked with the
approval or at the direction of the President.
In his study of Executive Order 8381 and Public Law 418, Irvine
makes these comments on the legislative history of the act, contained
in the House debates on S. 1485:19
Congress, in passing the act of January 12, 1938, can
hardly -have expected that it would be interpreted to be
applicable to documentary materials as "equipment." * * *
The provisions of the Executive order were probably a
substitute for equivalent express provisions of law that
Congress could not be expected to enact. Mention may
be made in this connection of the refusal of Congress, long
after the attack on Pearl Harbor, to pass the proposed
War Security Act submitted to Congress by Attorney
General Francis Biddle on October 17, 1942 (H.R. 1205,
78th Cong., 1st secs.).
Office of War Information Classification System
A Government-wide regulation dealing with security classification
was issued in September 1942, by the Office of War Information
under authority vested by Executive Orders 9103 and 9182.20 This
regulation, a forerunner of subsequent classification Executive orders,
provided definitions of classified information-"Secret," "Confi-
dential," and "Restricted"-and designated authority to classify.
It also contained provisions warning against overclassification and
provided instructions for the identification of classified information,
for its proper dissemination, and proper handling.
The definitions of the three categories were : -
Secret Information is information the disclosure of which
might endanger national security, or cause serious injury to
the Nation or any governmental activity thereof.
Confidential Information is information the disclosure of
which although not endangering the national security would
impair the effectiveness of governmental activity in the
prosecution of the war.
Is Ibid., par. 3, pp. 1147-1148.
1 Ibid., pp. 48-49; see also Congressional Record, vol. 83 pt. 1, Jan. 5, 1938, pp. 70-72.
20 Office of War Information Regulation No. 4, issued b~ept. 28, 1942; amended, Nov. 13, 1942. A copy of
the regulation is in the files of the Foreign Operations and Government Information Subcommittee.
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8
Restricted Information is information the disclosure of
which should be limited for reasons of administrative privacy,
or is information not classified as confidential because the
benefits to be gained by a lower classification, such as per-
mitting wider dissemination where necessary to effect the
expeditious accomplishment of a particular project, outweigh
the value of the additional security obtainable from the
higher classification.
Supplement No. 1 to OWI Regulation No. 4, issued on May 19,
1943, created the Security Advisory Board (SAB), consisting of
Army and Navy officers who were charged with responsibilities as
"an advisory and coordinating board in all matters relating to carrying
out the provisions of OWI Regulation No. 4." 21
After the end of World War II, the SAB continued to function as
a part of the Stale-War-Navy Coordinating Committee-later the
State-Army-Navy-Air Force Coordinating Committee. On March 21,
1947, provisions of Executive Order 9835 directed the SAB to draft
rules for the handling and transmission of documents and information
that should not be disclosed to the public. A preliminary draft was
completed by the SAB but were not issued before the SAB and its
parent coordinating committee went out of existence.22
After enactment of the National Security Act in 1947, which created
the National Security Council (NSC), the NSC was given responsi-
bility to consider and study security matters, which involve many
executive departments and agencies, and to make recommendations
to the President in this vital area. The Interdepartmental Committee
on Internal Security (ICIS) was subsequently created and the activity
of this committee was, according to the Wright Commission report,
responsible for issuance of Executive Order 10290 in 1951.23
Executive Order 10104 Issued by President Truman
The 1940 Executive Order 8381 was superseded 10 years later by
President Truman's Executive Order 10104, "Definitions of Vital
Military and Naval Installations and Equipment." 21 The new order
continued authorization for the same three classification markings as
in the previous order and formalized the designation "Top Secret,"
which had been added to military regulations during the latter part
of World War I to coincide with classification levels of our allies. The
order gave the Secretary of Defense and the Secretaries of the Army,
Navy, and Air Force the authority to classify or direct to be classified
the types of information described in the order.
It is important to emphasize that through the historical period of
the use of classification markings described thus far until 1950, such
formal directives, regulations, or Executive orders applied to the
protection of military secrets, rarely extending into either those
affecting nonmilitary agencies or those involving foreign policy or
n A copy is in the files of the Foreign Operations and Government Information. Subcommittee. A later
SAB coordinating committee included representation from the State Department.
2211earings, Subcommittee on Reorganization, Senate Government Operations Committee, 84th Cong.,
1st secs. on S.T. Res. 21, to establish a Commission on Government Security; testimony of Assistant Attorney
General William F. Tompkins, p. 30.
2.1 Report of the Commission on Government Security, supra, p. 155.
24 Federal Register, vol. 15, p. 397, et seq., Feb. 1, 1950.
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diplomatic relations. One exception is in the area of communications
secrecy, governed by section 798 of the Espionage Act. This law,
which protects cryptographic systems, communications intelligence
information, and similar matters, applies, of course, to both military
and nonmilitary Federal agencies such as the State Department.
Aside from more restrictive war-time regulations, nonmilitary agencies
had, until 1958, relied generally on the 1789 "housekeeping" statute
mentioned earlier as the basis for withholding vast amounts of infor-
mation from public disclosure.25
Executive Order 10290 Issued by President Truman
On September 24, 1951, President Truman issued a new Executive
order formalizing and extending the security classification system
within nonmilitary agencies as well as the Defense Establishment. The
order, entitled "Prescribing Regulations Establishing Minimum
Standards for the Classification, Transmission, and Handlin , by
Departments and Agencies of the Executive Branch, of Official
Information Which Requires Safeguarding in the Interest of the
Security of the United States." 25 It permitted any executive depart-
ment or agency to classify information on a uniform basis and defined
"classified security information" to mean "official information the
safeguarding of which is necessary in the interest of national security,
and which is classified for such purposes by appropriate classifying
authority." 21
The order was strongly criticized by, some segments of the press
for its vagueness and potential abuses it made possible and also by
a number of Members of Congress. A bill (S. 2190) was introduced on
September 28, 1951, to "prohibit unreasonable suppression of infor-
mation by, the Executive Branch of the Government," which, in
effect, would have repealed the Executive order.211 No action was taken
on the measure.
Executive Order 10501 Issued by President Eisenhower
When President Eisenhower took office in January 1953, he took
notice of the widespread criticism of Executive Order 10290 and
requested Attorney General Brownell for advice concerning its recision
or revision. On June 15, 1953, the Attorney General recommended
recision of the Executive order and the issuance of a new order which
would "protect every requirement of national safety and, at the same
time, honor the basic tenents.of freedom of information. 1129
25 For a discussion of the use of this statute by executive agencies, see H. Rept. 1461,
t 85th Cong, 2d seas., Mar. 6, 1958, accompanying H.R. 2767, legislation which was sub-
sequently enacted as Public Law 85-619.
29 Executive Order No. 10290, Federal Register, Sept. 27, 1951, vol. 16. p. 9795 et seq.
7+ Ibid., ppt. II, ?par. 4 .p. ?9797.
29 See H. Rept. 245'6, 87th Cong., 2d sess. "Safeguarding Official Information in the
Interests of the Defense of the United States (The Status of Executive Order 10501),"
issued by this committee on Sept. 21, 1962 for background on the controversy over Execu-
tive Order 1029'0; particularly see pp. 27-s for text of staff memorandum No. 82-1-$0 of
Senate Committee on Expenditures in the Executive Departments, dated Nov. 29, 1951, on
the constitutional and legal aspects of S. 2190. See also Carol M. Barker and Matthew H.
Fox, Classified Files : The Yellowing Pages, A Report on Scholar's Access to Government
Documents ; New York : The Twentieth Century Fund, 1972, pp. 12-13.
ao Report of the Commission on Government Security, supra, p. 155.
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That fall, President Eisenhower replaced the controversial Truman
order with Executive Order No. 10501, "Safeguarding Official Infor-
mation in the Interests of the Defense of the United States." 30 This
order, issued on November 5, 1953, became effective on December 15,
1953; it was amended several times in the succeeding years, but for
almost 20 years served as the basis for the security classification
system until it was superseded in March 1972.
Executive Order No. 10501 reduced the number of agencies author-
ized to classify such information, eliminated the "restricted" category,
and redefined the usage of the three classification markings authorized:
SECTION 1. Classification Categories: Official information
which requires protection in the interests of national defense
shall be limited to three categories of classification which
in descending order of importance shall carry one of the
following designations: Top Secret, Secret, or Confidential.
No other designation shall be used to classify defense
information, including military information, as requiring
protection in the interests of national defense, except as ex-
pressly provided by statute. These categories are defined as
follows :
(a) Top Secret: Except as may be expressly provided by
statute, the use of the classification Top Secret shall be
authorized, by appropriate authority, only for defense
information or material which requires the highest degree of
protection. The Top Secret classification shall be applied
only to that information or material the defense aspect of
which is paramount, and the unauthorized disclosure of
which could result in exceptionally grave damage to the
Nation such as leading to a definite break in diplomatic
relations affecting the defense of the United States, an armed
attack against the United States or its allies, a war, or the
compromise of military or defense plans, or intelligence
operations, or scientific or technological developments vital
to the national defense.
(b) Secret: Except as may be expressly provided. by statute,
the use of the classification Secret shall be authorized, by
appropriate authority, only for defense information or ma-
terial the unauthorized disclosure of which could result in
serious damage to the Nation, such as by jeopardizing the
international relations of the United States, endangering
the effectiveness of a program or policy of vital importance
to the national defense, or compromising important military
or defense plans, scientific or technological developments
important to national defense, or information revealing
important intelligence operations.
(c) Confidential: Except as may be expressly provided by
statute, the use of the classification Confidential shall be
authorized, by appropriate authority, only for defense infor-
mation or material the unauthorized disclosure of which
could be prejudicial to the defense interests of the Nation.
80 Federal Register, Nov. 9, 1953, vol. 18, p. 7049 et seq.; it was amended by Executive Order No. 10816,
May 8, 1959, 24 F.R. 3777; Exe,utive Order No. 10901, Jan. 11, 1961' 26 F.R. 217; Executive Order No. 10964,
Sept. 20. 1961, 26 F.R. 8932; 13xecutive Order No. 10985, Jan. 15, 1962, 27 F.R. 439; Executive Order No.
11097, Mar. 6, 1963, 28 F.R. 2225; Executive Order No. 11382, Nov. 28, 1967, 32 F.R. 16247. See also H. Rept.
2456.
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Elimination of the "Restricted" category, applied to training
manuals and great volumes of documents having limited sensitivity,
resulted in, the removal of much information previously included
within the classification system. The review of massive amounts of
such "Restricted" data also resulted in the elevation of some docu-
ments to the "Confidential" level.
Legal Authority for Executive Order 10501
Executive Order 10501 contained only a general, statement of its
legal, authority in the preface:
Now, therefore, by virture of the authority vested in
me by the Constitution and statutes, and as President
of the United States, and deeming such action necessary
in the best interests of the national security, it is hereby
ordered as follows *
The President, like his predecessor, was apparently relying primarily
on implied constitutional powers of his office and statutes claimed to
afford a basis on which to justify the issuance of the Executive order.
No specific statutory authority for it was cited. A 1960 study by the
American Law Division, Legislative Reference Service, Library of
Congress, for this committee's Special Subcommittee on Government
Information on the statutory basis supporting the issuance of Execu-
tive Order 10501 stated: 31
* * - * it would seem that if there had been a specific statu-
tory basis for the order, the President would have specifically
relied upon it in issuing the order. Further, an extensive
search fails to reveal any statute which specifically au-
thorized the President to issue such an order. From the
foregoing it must be assumed that the President issued
Executive Order 10501 under an implied constitutional
power. (See Constitution, art. II, sec. 1, vesting executive
power in the President; art. II, sec. 2, providing that the
President shall be Commander in Chief of the Armed
Forces; and art. II, sec. 3, requiring him to take care that
the laws be faithfully executed.) The extent of the Presi-
dent's constitutional power to control the disclosure by
persons in the executive branch of the Government and to
withhold information from the Congress and the public
has long been in controversy and has never been fully
settled.
In addition to the broad constitutional authority for the Executive
order mentioned earlier, a statement of express legal authority for
its issuance was contained in the 1957 Report of the Commission on
Government Security (the Wright Commission). It -lists. as implied
statutory authority (1) the 1789 "house-keeping" statute (subse-
quently curtailed in this respect by the 1958 amendment); (2) sections
of the Espionage Act, such as 18 U.S.C. 795(a) and 18 U.S.C. 798:; (3}
sections of the Internal Security Act of 1950, such as 4(b) and 4(c)
(50 U.S.C. 781); and finally, (4) most strongly on authority contained
in the National Security Act of 1947, which created the National
Security Council (NSC) (50 U.S.C. 401).32
31 H. Rept. 2456, 87th C'ong. supra, pp. 36--37.
82 Report of the Commission on bovernment 93curity, supra, p. 158-159.
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In 1970, the Senate Foreign Relations Committee's Subcommittee
on U.S. Security Agreements and Commitments Abroad conducted
extensive hearings which again raised the question of President
Eisenhower's authority to issue Executive Order 10501 in 1953. The
legal adviser of the State Department, Mr. John R. Stevenson, with
the approval of the Justice Department, referred the committee to
the above statement contained in the 1957 Report of the Commission
on Government Security for the legal basis.33
The 1970 State Department memorandum by Mr. Stevenson also
cited as legal authority for Executive Order 10501 provisions of (1) the
Atomic Energy Act of 1954 (a revision of the Atomic Energy Act of
1946), section 142, which recognizes defense information and intel-
ligence information as part of the definition it gives to "Restricted
Data," affecting nuclear weapons and material; (2) provisions of the
Foreign Assistance Act of 1961, as amended, such as section 634(b)
and 634(c); (3) provisions of the Arms Control and Disarmament
Act of 1961, as amended, such as section 45(a) and 45(b); and finally
(4) the Freedom of Information Act, exemption 552(b) (1), which per-
mits the withholding of matters "specifically required by Executive
order to be kept secret in the interest of national defense or foreign
policy." 34
Automatic Downgrading and Declassification Amendments
Amendments over the years to Executive Order 10501 dealt with
relatively minor technical matters, such as the adding of new agencies
to those already possessing classification authority or the deletion of
agencies from the list.ii6 The most significant amendment was contained
in Executive Order 10964, issued by President Kennedy on September
20, 1961, which set up an automatic declassification and downgrading
system. It established four groups of categories of information to be
subject to such "automatic changes" : a6
(a) Automatic Changes: In order to insure uniform proce-
dures for automatic changes, heads of departments and
agencies having authority for original classification of
information or material, as set forth in section 2, shall
categorize such classified information or material into the
following groups:
(1) Group 1: Information or material originated by foreign
governments or international organizations and over which
the United States Government has no jurisdiction, informa-
tion or material provided for by statutes such as the Atomic
Energy Act, and information or material requiring special
handling, such as intelligence and cryptography. This
information and material is excluded from automatic down-
grading or declassification.
33 U.9. Congress, Senate Comm;'.ttee on Foreign Relations, Subcommittee on U.S. Security Agreements
and Commitments Abroad, 91st Cong., hearings, vol. II, p 209&-2011; sea slso committee print, Senate
Foreign Relations Committee, "Security Classification as a Problem in the Congressional Role in Foreign
Policy," prepared by the Foreign Affairs Division, Legislative Reference Service, Library of Congress,
Dec. 1971, pp. 5-13.
a+ Senate Foreign Relations Committee, committee print, December 1971, supra., pn. 10-13.
as Ibid., see pp. 11-12 for chronology of amendments and brief description of each.
80 Federal Register, Sept. 20 1961 vol. 26, p. 8932, et seq. The quoted portion is taken
from see. 4(a) of Executive Order 10fi01, as amended.
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13
(2) Group 2: Extremely sensitive information or material
which the head of the agency or' his designees exempt, on
an individual basis, from automatic downgrading and
declassification.
(3) Group. 3: Information or material which warrants
some. degree of classification for an indefinite period. Such
information or material shall become automatically down-
graded at 12-year intervals until the lowest classification is
reached, but shall not become automatically declassified.
(4) Group 4: Information or material which does not
qualify for, or is not assigned to,. one of the first three groups.
Such information or material shall become automatically
downgraded at three-year intervals until the lowest classi-
fication is reached, and shall be automatically declassified
twelve years after date of issuance.
The 1961 amendment also required that, "to the fullest extent
practicable" classification authorities "indicate on the information or
material at the time of original classification if it can be downgraded
or declassified at an earlier date, or if it can be downgraded or declassi-
fied after a specific event, or upon the removal of classified attach-
ments or enclosures." Authorization to so mark existing classified
information for automatic downgrading and declassification was also
provided in the order, although it was not required that they do so.
Summary
The security pendulum thus swung from one extreme to the other
during the period of slightly over a decade-from pre-World War II
through the immediate post-World War II "Cold War" and through
the Korean war years. Efforts to impose a stringent security classifi-
cation system by President Truman in the early "Cold War" years
contrasted sharply with what has been described as "the rather
cavalier attitude prevailing before World War II when secrecy restric-
tions in the State Department and the Military Establishment were by
and large erratic and lax." 31
Among events that may have affected this trend that followed the
stringent war-time security measures of World War II were the
aggressive post-war policies pursued by the Soviet Union-their
takeover of Eastern European governments; the Berlin Blockade;
their development of atomic and hydrogen weapons; and Communist
attempts to win political control of Western European countries such
as Italy and France. Such actions, in turn, resulted in U.S. responses-
the Marshall plan of economic and military assistance to friendly
threatened nations; the establishment of the National Security Council
(NSC) and the Central Intelligence Agency (CIA) ; and the creation
of the North Atlantic Treaty Organization (NATO) and other similar
global defense alliances.
At the same time vast. changes were taking place in Asia-the rise of
Communist forces in China, the ensuing civil war and expulsion of the
nationalist government from the mainland; the outbreak of hostilities
in Southeast Asia between Communist and non-Communist forces and
European colonial empires; and. the festering struggle between Com-
munist and non-Communist governments that erupted in the Korean
war.
ST Classified files, op. cit., pp. 11-12.
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In the United States there was an increasing preoccupation with
alleged domestic subversion, highlighted by "spy trials," the enact-
ment of the Internal Security Act of 1950 over President Truman's
veto, and culminating in the widespread "loyalty-security" alarm
associated with the late Senator Joseph R. McCarthy's extreme
accusations, against the State and Defense Departments and. other
sensitive Government agencies.
The trend toward more restrictive policies by executive agencies in
their disclosure of information falling into the defense and foreign
policy areas during the late 1940's and early 1950's was perhaps a
reflection of the vast changes taking place in connection with the.
growing U.S. role as global leader of the free world. .
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-III. PREVIOUS STUDIES OF SECURITY CLASSIFICATION
SYSTEM
In July 1956, the Special Government Information Subcgminittee
of the House Government Operations Committee began a series of
hearings on information problems in the Department of Defense
(DOD). The subcommittee, established in June 1955, was headed by
Representative John E. Moss of California. These hearings were.part
.of a review of the availability of information from Federal executive
agencies.
The Coolidge Committee
A month after the hearings began, then Secretary of Defense Charles
E. Wilson, named a 5-member Committee on Classified Information
and appointed as its chairman, Mr. Charles A. Coolidge, a promiiieti'.t
Boston lawyer and former Assistant Secretary of Defense. The Com-
mittee was thereafter known as the Coolidge Committee ?H
In his August 13, 1956, letter establishing the Committee, Wilson
described to Coolidge its broad purpose:
As you are aware, I am seriously concerned over the'
unauthorized disclosure of classified military information.
I am, therefore, forming a committee to study the problem
and suggest methods and procedures to eliminate this threat
to the national security.
The broad mandate given to the Coolidge Committee included "a
-review of present laws, Executive orders, Department of Defense
regulations and directives pertaining to the classification of informa-
tion and the safeguarding of classified information, to evaluate the
adequacy and effectiveness of such documents." 39 Also to be examined
were "organizations procedures" in such areas as fixing the respon
sibility for unauthorized disclosure of classified information, the
adequacy of measures to protect against such unauthorized disclosure,
and the adequacy of existing laws and other internal regulations in
the field of security classification.
The Pentagon "leaks" of classified information appearing in the
press earlier that year revealed sharp disagreements among the
military services over their respective roles and missions in the atomic-
missile era which triggered the creation of the Coolidge Committee.
as For full background on the DOD information policy investigation by the subcommittee,
see hearings, "Availability of Information From Federal Departments and Agencies" 17
parts, 84th and 85th Cong. (1936-1957) ; see also H. Rept. 2947 (84th Cong.),. H. kept.
1619, H. Rept. 1884 and H. Rept. 2578 (85th Cong.). ; a full report on the work of the
Coolidge Committee is contained in H. Re t. 1884, June 16, 1958, pp. 20-37. Other mem-
bers of the Committee were four senior retired military officers : Adm. William M. Fechtler,
U.S.N. (retired), Gen. John E. Hull, U.S.A. ((retlred)) Gen. Gerald C. Thomas, U.S.M.C.
(retired), and Lt. Gen. Idwal H. Edwards, U.S.A.F. (retired).
88 Hearings, op. cit., pt. 8, p. 2010. _
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The "final straw" was apparently a story in the July 12, 1956, New
York Times which stated that the Joint Chiefs of Staff were studying
a proposal to reduce the Nation's Armed Forces by 800,000 men by
the year 1960.40
The instructions to the Coolidge Committee made no mention of
studying overclassification or arbitrary withholding of information
from the public and from Congress. In a September 25, 1956, letter
to Secretary Wilson, Chairman Moss of the Special Government
Information Subcommittee expressed the hope that the Coolidge
Committee would also review the withholding aspects of the problem;
as had been revealed in the earlier subcommittee hearings. He was
assured in an October 9, 1956, response from Assistant Secretary of
Defense Ross that since the two subjects are related "it is probable
that the report of the Coolidge Committee will make recommendations
bearing on our public information policies as well as our procedures
for preventing the unauthorized disclosure of classified military
information." 41
After a 3-month study, the Coolidge Committee concluded, in its
report of November 8, 1956:42
* * * The two major shortcomings in the operation of the
classification system are overclassification and deliberate
unauthorized disclosures. We further conclude that little, if
any, progress can be made without a successful attack on
these major shortcomings.
The report said that it had found "a tendency on the part of Pentagon
officials to `play it safe' and overclassify; an abuse of security A o
classify administrative matters; attempts to classify the unclassi-
fiable; confusion from basing security on shifting foreign policy; and
a failure to declassify material which no longer requires a secrecy
label."
The Coolidge Committee informed Secretary, Wilson that unneces-
sary and improper secrecy had reached such "serious proportions"
that it was undermining confidence in the entire security system and
leading to the very "leaks" that Secretary Wilson sought to prevent.
The report, stated :
For all these reasons overclassification has reached serious
proportions. The result is not only that the system fails to
supply to the public information which its proper operation
would supply, but the system has become so overloaded
that proper protection of information which should be pro-
tected has suffered. The press regards the stamp of classifica-
tion with feelings which vary from indifference to active
contempt. Within the Department of Defense itself the mass
of classified papers has inevitably resulted in a casual attitude
toward classified information, at least on the part of many.
In its recommendations, the Coolidge Committee made a number of
suggestions for plugging "leaks" of classified information, although
some were characterized by the Government Information Subcom-
mittee as being "repressive and restrictive." 43 In addition, the Coolidge
ao H. Rept. 1884, 85th Cong., pp. 2?--21; p. 27.
a Ibid., p. 22.
u Ibid., pp. 23-24; pp. 97-99.
+' Ibid., pp. 24-81; also pp. 10-14, pp. 60=68, pp. 97-125; Mr. Coolidge testified on the report of his committee
on Mar. 11 and 12, 1957; see hearings, op. cit., pt. 8, p. 2011 et seq.
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group made some constructive recommendations for eliminating un-
necessary secrecy. Among these were recommendations for a "declas-
sification director;" a halt to secrecy changes based on temporary
shifts in foreign policy; an explanation to the press when information is
refused because It is classified; a determined attack on overclassifica-
tion; a halt to attempts to classify the unclassifiable; a prohibition on
the use of secrecy classification for administrative matters; and im-
proved procedures for releasing information about differences of opin-
ion between the services.
Secretary Wilson issued a new DOD directive covering the pro-
cedures for classification of security information under Executive
Order 10501. His July 8, 1957, action replaced a dozen previous
directives and memorandums and consolidated classification instruc-
tions into a single new document-DOD Directive 5200.1-entitled
"Safeguarding Official Information in the Interests of the Defense of
the United States." 44 It incorporated a number of the specific recom-
mendations made by the Coolidge Committee.
Despite concern over the problem of overclassification, the Coolidge
Committee made no recommendation for penalties or disciplinary
action in cases of misuse or abuse of classification.45 The new DOD
directive did mention disciplinary action for overclassification, but
there is no evidence of its ever having been used.
Vice Adm. John N. Hoskins was appointed as Director of Declassifi-
cation Policy and subsequently testified before the Government
Information Subcommittee on November 18, 1957: 46
* * * when you overclassify, you weaken the whole
security system. * * * Throughout the 180 years of our
Government, however, I have never known a man to be
court-martialed for overclassifying a paper, and that is the
reason, I am afraid, we are in the mess we are in today. * * *
The Wright Commission
Paralleling the work of the Coolidge Committee was that of another
group with Government-wide scope, the Commission on Government
Security, established in 1955 by Public Law 304, 84th Congress. The
Commission became known as the Wright Commission, named for its
chairman, Mr. Loyd Wright, a Los Angeles attorney and former
president of the American Bar Association. The 12-member Com-
mission was composed of six Republicans and six Democrats; four
members were appointed by the President, four by the Speaker of the
House, and four by the President of the Senate.
Its mandate was set forth in section 6 of the law:
44 Ibid., pp. 107-116; see also hearings, supra., pt. 13, pp 3239-3271 for the text of DOD Secretary Wilson's
memorandum implementing recommendations of Coolidge Committee; see hearings, "U.S. Government
Information Policies and Practices-The Pentagon Papers," pt. 2, Foreign Operations and Government
Information Subcommittee, June 28 and 29, 1971, pp. 558-597 for amended version of DOD Directive 5200.1
(July 10, 1968).
66 H. Rept. 1884, 85th Cong., 2d sess., "Availability of Information From Federal Departments and
Agencies," pp. 105-106; p. 109.
66 Hearings, "Availability of Information From Federal Departments and Agencies", op. cit., pt. 13, p. 3055.
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SEC. 6. The Commission [on Government Security] shall
study and investigate the entire Government Security Pro-
gram, including the various statutes, Presidential orders, and
administrative regulations and directives under which the
Government seeks to protect the national security, national
defense secrets, and public and private defense installations,.
against loss or injury arising from espionage, disloyalty, sub-
versive activity, sabotage, or unauthorized disclosures,
together with the actual manner in which such statutes,
Presidential orders, administrative regulations, and direc-
.tives have been and are being administered and imple-
mented; with a view to determining whether existing require-
ments, practices, and procedures are in accordance with the
policies set forth in the first section of this joint resolution,
and to recommending such changes as it may determine are
necessary or desirable. The Commission shall also consider
and submit reports and recommendations on the adequacy
or deficiencies of existing statutes, Presidential orders,
administrative regulations, and directives, and the adminis-
tration of such statutes, orders, regulations, and directives,
from the standpoints of internal consistency of the overall
security program and effective protection and maintenance
of the national security.
The Commission organized in December 1955, and was sworn in on
January 9, 1956. It employed a supervisory staff, which soon began
the task of gathering and analyzing relevant material obtained from
executive departments, agencies, and other sources. The Commission
held no public hearings, made no statements describing its activities,
but conducted extensive interviews with persons throughout the
country, both in and out of the Federal Government, who had knowl-
edge and experience in the field. Much additional information was
obtained from congressional hearings, studies, and reports.47
The Wright Commission issued its 807-page report on June 23, 1957.
It covered a dozen related subject areas and made numerous findings
and recommendations in such fields as: (1) the Federal civilian loyalty
program; (2) military personnel program; (3) document classification
program; (4) atomic energy program; (5) industrial security program;
(6) port security, program; (7) internal organizations program; (8)
passport security program; (9) civil air transport security program;
(10) Immigration and nationality program; (11) criminal statutes;
(12) special studies; and finally, the Commission's proposed legislation
and Executive orders.48
Of particular relevance to the subject of this report is the section
of the Wright Commission's report on document classification.49 The
Commission said That it made detailed inquiries of 15 executive
departments and agencies concerned with this problem and that it
had also studied hearings and other studies of the House Government
Information Subcommittee. In its report, the Commission. also traced
47 Report of the Commission on Government Security, op. cit., foreword, pp. xili-xvl.
48 Ibid., see pp. xvii-xxiiifor summary of recommendations.
44 Ibid., pp. 151-184.
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the history of document classification, which it called "a form of
combined censorship and information restriction" : ao
The advent of World War I brought the first organized
approach to document classification as a means of general
restriction on public access to information. Censorship poli-
cies for control of published information commenced on
March 24, 1917, with the promulgation of regulations by
the State, War, and Navy Departments. Newspapers were
asked to adhere voluntarily. One of the regulations requested
that "no information, reports, or rumors, attributing a policy
to the government in any international situation, not author-
ized by the President or a member of the Cabinet, be pub-
lished without first consulting the Department of State." 6'
On April 13, 1917, by Executive Order 2594, President
Wilson created the Committee on Public Information,
named George Creel as chairman, and World War I censor-
ship formally got under way. Creel thought that censorship
as practiced at that time was unworkable. He described the
whole effort as of a piece with "the hysterical shush-shushing
that warned against unguarded speech, just as though every
citizen possessed some important military secret." He said,
at the end of the War, that "virtually ever thing we asked
the press not to print was seen or known by thousands."
Creel believed the answer to be "secrecy at the source"
through.action by the military departments without depend-
ing upon press judgment.
According to the Wright Commission report, "a much more effi-
cient and effective system of information control" was employed
during World War II, that "profited by the mistakes of World War I."
In describing the World War II system the report said : 5a
It separated propaganda and censorship and, in effect,
supported by voluntary agreement the withholding of in-
formation which the Armed Forces thought dangerous to
disclose. It was, in reality, a system for making effective the
theory of censorship at the sources of information that
Creel had talked about at the end of World War I.
The first formal effort to withhold information in World
War II came on December 31, 1940, when Secretary of
Navy Frank Knox asked radio, news, and picture editors
to avoid any mention of: (1) Actual or intended move-
ments of vessels or aircraft of the United States Navy,
units of naval enlistment personnel or divisions of mobilized
reserves, or troop movements of the United States Marine
Corps; (2) New United States Navy ships or aircraft; (3)
United States Navy construction projects ashore.
11 Ibid., p. 153.
n Ibid., quoting James Russell Wiggins, Freedom or Secrecy, Oxford University Press: New York, 1956,
P " I95-96
bid., pp. 153-154.
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During 1941 as America stepped up defense production
and planning, information control tightened up. In Septem-
ber, the War and Navy Departments disclosed they were
making plans for censorship of all outgoing communica-
tions. When the United States declared war, on December
8,. J. Edgar Hoover was made temporary coordinator of all
news and communications censorship. The President at
this time appealed to press and radio to refrain from the
publication of unconfirmed reports. Various Federal agencies
took steps to curtail their information. The Weather Bureau,
for example, began to restrict its reports.
When the first code of wartime practices for newspapers,
magazines, and other periodicals was issued on January 15,
1942, wartime censorship was formally launched. The
code was revised each 6 months thereafter. It described
categories of ,aews that were not to be published without
appropriate authority, listing in 17 different clauses the
information that required authorization before publication.
The significant words in the operation of this wartime
information code were "appropriate authority." The Office
of Censorship . did not undertake to suppress information
that "appropriate authority" officially gave out. The Office
of Censorship was terminated by Executive Order 9631,
effective November 15, 1945.
The Office of War Information .(OWI) was established within the
Office for Emergency Management by Executive Order 9182 of
June 13, 1942. The OWI consolidated into one agency all foreign and
domestic war information functions of the Government. Its purpose
was to , "provide an intelligent understanding of the status and prog-
ress of the war effort policies, activities and aims of the Govern-
ment." as The OWI regulation relating its activities to the classifica-
tion system is discussed at pages 7-8 of this report.
The Wright Commission also reviewed the operation of Executive
Order 10501, issued. a few years earlier by President Eisenhower. It
found that some 1.5 million employees of Federal departments and
agencies had the authority to classify documents as of January 1,
1957.b4 The Wright Commission recommended that the "Confidential"
category of information under Executive Order 10501 be eliminated,
criticizing the overuse of this label and its restriction upon the free
exchange of information in the scientific and technological areas which
retards progress necessary to our national security. It estimated that
59 percent of all Defense Department classified information was "Con-
fidential," while 76 percent of classified information in the State and
Commerce Departments was similarly marked. It also recommended
that the numbers of persons in each agency authorized to classify
documents under Executive Order 10501 be reduced. It also recom-
mended
that document classification training programs be instituted.
Another recommendation urged the creation of a statutory Central
Security Office having "review and advisory functions with respect to
the Federal document classification program and to make recom-
mendations for its improvement as needed."
u Ibid., p. 154.
H Ibid., p. 177.
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21
The most controversial portion of the Wright Commission recom-
mendations was its proposal urging Congress to "enact legislation
making it a crime for any person willfully to disclose without proper
authorization, for any purpose whatever, information classified
`secret' or `top secret,' knowing, or having reasonable grounds to
believe, such information to have been so_ classified." 55 The recom-
mended bill would impose a $10,000 fine and jail term of up to 5
years for those convicted of violating its provisions. The Commission
made it clear that its proposal was aimed at persons outside of govern-
ment, such as newsmen. The recommendation was soundly criticized
in articles and editorials from such papers as the New York Times,
Baltimore Sun, Chicago Daily Sun-Times, Boston Traveler, Cleveland
Plain Dealer, Detroit Free Press, Washington Post and Times Herald,
and Editor and Publisher. One article by James Reston of the New
York Times pointed out that it would have even resulted.in the
prosecution of the reporter, Paul Anderson of the St. Louis Post-
Dispatch, who uncovered and published "secret" documents in the
"Teapot Dome" scandal during the 1920's.
Subsequent correspondence between Subcommittee Chairman Moss
and Commission Chairman Wright sought to obtain specific examples
of instances where the Commission could document the "purloining"
of classified documents by the press. However, Chairman Wright
provided no specific names and in subsequent testimony before the
subcommittee by Pentagon officials denied knowledge about any
specific instances of the purloining of classified documents."
House Government Information Subcommittee Studies
In its 2-year study of security classification. policies that spanned the
Coolidge and Wright groups, the House Government Information
Subcommittee concentrated heavily on the Department of Defense.
The conclusions and recommendations made, in turn, through reports
of the full Government Operations Committee are particularly
important to recall because they pinpointed major problem areas
which- existed over 15 years ago. They also proposed a number of
specific recommendations to correct many of these problems (see pp.
23-27 of this report) -recommendations that were largely ignored by
both Republican and Democratic administrations. Had such recom-
mendations been properly implemented by top Pentagon officials, it
is possible that the security classification "mess" referred to by
President Nixon almost 14 years after the issuance of the first of
these committee reports could have long since been corrected. Many
of the committee's conclusions could have been written today,
instead of in 1958. For example, in discussing the handling of informa-
tion by the Military Establishment, the committee concluded: 51
Never before in our democratic form of government has
the need for candor been so great. The Nation can no longer
afford the danger of withholding information merely because
the facts fail to fit a predetermined "policy." Withholding
as H. Rept. 1884, op. cit., pp. 14-19; pp. 31-39.
0 Ibid., see also hearings op. cit., pt. 13, pp. 3304-3305 (text- of proposed bill) and pp. 3305-332D for cor.
respondence and material related to this controversy
57 H. Re t. 1884 (85th Cong., 2d sess.), "Availability of Information From Federal Departments and
Agencies (Department of Defense)," June 18, 1958, p. 152.
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for any reason other than true military security inevitably
results in the loss of public confidence-or a greater tragedy.
Unfortunately, in no other part of our Government has it
been so easy to substitute secrecy for candor and to equate
suppression with security.
* * * In a conflict between the right to know and the need
to protect true military secrets from a potential enemy, there
can be no valid argument against secrecy. The right to know
has suffered, however, in the confusion over the demarcation
between secrecy for true security reasons and secrecy for
"policy" reasons. The proper imposition of secrecy in some
situations is a matter of judgment. Although an official faces
disciplinary action for the failure to classify information
which should be secret, no instance has been found of an
official being disciplined for classifying material which should
have been made public. The tendency to "play it safe" and
use the secrecy stamp, has, therefore, been virtually in-
evitable.
Abuse of the security classifications under Executive
Order 10501 h as been only one part of fhe unnecessary
secrecy in violation of the right to know. Equally important-
although entirely distinct-have been restrictions on infor-
mation about the day-to-day operations of government,
ineligible by any stretch of the imagination for secrecy labels
on grounds of military security.
After discussing the charges by Chairman Loyd Wright of the
Commission on Government Security about the alleged "purloining"
of classified documents by newsmen, the committee concluded : 5e
Mr. Wright's indictment of the press is symptomatic of
self-styled security experts who point an accusing finger at
newsmen for stories which often are based on properly
cleared or otherwise publicly available information. The
trail which Mr. Wright seeks to blaze in the wilderness of
excessive secrecy leads inevitably to censorship unparalleled
in this country, even in time of war.
No member of the press should be immune from responsi-
bilitb if sound evidence can be produced to prove that he
has in fact deliberately "purloined" and knowingly breached
proper classified military secrets. But the press must not
be made the whipping boy for weaknesses in the security
system caused by overzealous censors who misuse that
system to hide controversy and embarrassment.
The committee also concluded: ss
Capricious censorship by the Office of the Assistant
Secretary of Defense (Public Affairs) has been a major
factor in undermining the Military Establishment's security
system. As long as arbitrary restrictions for reasons of
"policy" are intermingled without distinction with restrictions
for true security, it is impossible to expect military and
civilian personnel, the press, the public or the Congress
to have respect for the security labels authorized under
Executive Order 10501.
m Ibid., pp. 154-155.
I, Ibid., pp. 155-158.
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* * * Despite some improvements, the Defense Depart-
ment's security classification still is geared to a policy under.
which an official faces stern punishment for failure to use
a secrecy stamp but faces no such punishment for abusing
the privilege of secrecy, even to hide controversy, error,
or dishonesty.
Earlier Recommendations to Improve the Security
Classification System
The committee made a number of important recommendations
in that report to strengthen the functioning of the security classifica-
tion system. Among these recommendations were the following: 60
1. The President should make effective the ' classification
appeals procedure under section 16 of Executive Order
10501 and provide for a realistic, independent appraisal
of complaints against overclassification and unjustified
withholding of information.
2. The President should make mandatory the marking of
each classified document with the future date or event
after which it will be reviewed or automatically downgraded
or declassified.
3. The Secretary of Defense should set a reasonable date
for the declassification of the huge backlog of classified
information, with a minimum of exceptions.
4. The Secretary of Defense should direct that disciplinary
action be taken in cases of overclassification.
5. The Secretary of Defense should completely divorce
from the Office of Security Review the function of censorship
for policy reasons and should require that all changes made
or suggested in speeches, articles and other informational
material be in writing and state clearly whether the changes
are for security or policy reasons.
6. The Secretary of Defense should establish more ade-
quate procedures for airing differences of opinion among
responsible leaders. of the military services before a final
policy decision is made. .
7. The Congress should reaffirm and strengthen provisions
in the National Security Act giving positive assurance to
the Secretaries and the military leaders of the services that
they will not be penalized in any way if, on their own initia-
tive, they inform the Congress of differences of . opinion
after a policy decision has been made.
As part of its continuing oversight of the operation of the security
classification system, the Government Information Subcommittee
also pointed out that the provision of Executive Order 10501 ordering
that "wherever practicable classified documents bear a date or event
for subsequent declassification is being almost totally ignored." 61
w Ibid., p. 161.
6L H. kept. 2947 (84th Cong., 2d sess.), p. 89.
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Mr. Charles A. Coolidge, Chairman of the Coolidge Committee,
testified that 6 billion documents were classified during World War II
and that the rate of classification had increased since then.82 A clear
lack of progress in providing for systematic declassification procedures
by the Defense Department was noted by the Committee. Vice Ad-
miral Hoskins, Director of the new Office of Declassification Policy,.
told the subcommittee in November 1957, that a new automatic
declassification directive would "soon" be issued by DOD. But this
committee noted in H. Rept. 1884 (85th Cong., 2d sess.) on June 16,.
1958, that the new directive still had not been issued. Prodding efforts
by the subcommittee continued during the summer of 1958.83
Finally, on October 3, 1958, the Department of Defense announced
the signing of the new declassification directive, DOD Directive
5200.9, dated September 27, 1958. The Department's press release
announcing the new directive stated : 84
* * * It establishes a new method by which millions of
military documents, originated prior to January 1, 1946, and
classified top secret, secret, and confidential will now be
downgraded or declassified. The new directive which becomes,
effective 60 days after signature, automatically cancels,.
except within a few limited categories, the security classifica-
tions on millions of documents which no longer need protec-
tion in the national interest. In addition, the directive will
downgrade to secret all top secret documents which are ex-
empted from declassification. * * *
Unfortunately, this optimistic 'view of downgrading and declassifi_.
cation progress was not borne out by subsequent events. A report
prepared by the Office of Declassification Policy and submitted to
the subcommittee on April 15, 1959, outlined a number of, positive
administrative actions designed to implement the new directive .65
The Department of Defense estimated that there were 325,000 cubic
feet of classified Defense documents which originated prior to 1946.66
Additional efforts were made by the subcommittee to reduce the
number of executive agencies authorized to exercise classification
authority under Executive Order 10501. Studies on the use of classi-
fication authority by a list of agencies surveyed by the subcommittee
were made available to the White House and on March 9, 1960, Presi-
dent Eisenhower signed a memorandum having the effect of prohibiting
some 33 Federal agencies from classifying information under the Exec-
utive. order 87 President Eisenhower later issued Executive Order
m Hearings, "Availability of Information From Federal Departments and Agencies," pt. 8, p. 2025 Mar.
11, 1957. It should be noted that there are significant differences in asscsstng problems and costs of Aeclas-
sifying the huge backlog of documents and those of dealing with declassification and downgrading of current
classified material as Hart of an ongoing system.
63 H. Rept. 2578, 85t? Cong,, 2d sess., Availability of Information From Federal Departments and Agen-
cies, Progress of Study-February 1957-July 1958," Aug. 13, 1958, pp. 58-00.
u H. Rept. 1137 (86th Con g., 1st secs.), "Availability of Information From Federal Departments and
Agencies," (Progress of Study, August 1958-July 1959), Sept. 3, 1959, pp. 81-82; see pp. 87-91 for text of direc-
tive.
66 Ibid., pp. 93-97. An organizational chart of the Hoskins Office appears at p. 98.
as Ibid., p. 81. A cubic foot of documents consists of about 2,000 sheets of paper and weighs about 30 Pounds.
While some progress in cuttin into the backlog of World War II documents was made as a result of these
policies, it is clear that the objectives of the Hoskins Office fell far short of realization. Fourteen years later
President Nixon, in his statement upon issuance of Executive Order 11652, estimated that there were still
160 million pages of World Wsr It classified documents.
67 H. Rept. 2084 (86th Cong. 2d seas.), "Availability of Information From Federal Departments and
Agencies,' (Tbe First Five S ears and Progress of Study, August 1959-July 1960), July 2, 1960, pp. 164-176.
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10901 on January 9, 1961, prohibiting 30 additional agencies from
classifying military information, thus limiting classification authority
to 45 specifically named departments and agencies.88
Still another major improvement in the classification system, ad-
vocated by the committee over these years, was the issuance of DOD
Directive 5200.10, issued on June 29, 1960. It was also originated by
the Hoskins Office. The new directive was originally scheduled to take
effect on December 27, 1960, but its effective date was postponed
until May 1, 1961.89 It applied to documents originated on or after
January 1, 1946, and established two "time ladders" for automatically
downgrading or declassifying documents after specific time levels have
elapsed. Nonexempted material would be downgraded at 3-year inter-
vals from top secret to secret to confidential, and automatically
declassified after a total of 12 years' existence in a classified status.
Exempted material, such as war plans, intelligence documents, and
similar information, would be downgraded from top secret to secret to
t confidential at 12-year intervals, but would not be automatically
declassified. The automatic downgrading and declassification pro-
visions of DOD Directive 5200.10 were subsequently incorporated into
Executive Order 10964, issued by President Kennedy on September 20,
1961.70
Executive Order 10964 also added a new section 19 to Executive
Order 10501 directing department heads to "take prompt and strin
gent administrative action" against Government personnel who know- -
ingly and improperly release classified information. Where-appropriate,
it directed that such cases be referred to the Justice Department for
possible prosecution under applicable criminal statutes.71
In its September 22, 1961, report the committee urged President
Kennedy to implement previous recommendations to help solve over-
classification and other information problems. They were contained
in a letter dated February 23, 1961, from Subcommittee Chairman
Moss to the President.72 Among the major recommendations was a
proposal to make effective the classification appeals procedure avail-
able under section 16 of Executive Order 10501, so as to provide for
a realistic independent appraisal of complaints against overclassifica-
tion and unjustified withholding of information. While the President
did designate Mr. Lee C. White, Assistant Special Counsel to the
President, as the designated person to receive complaints under
section 16, there is no indication that the procedure was utilixed.13
Subcommittee Chairman Moss also apprised incoming Defense
Secretary Robert S. McNamara of previous recommendations in the
security classification and public. information problem areas in letters
dated February 7, March 7, and June 6, 1961.?4 Among the major
ea H. Rept. 818 (87th Cong., 1st sees.), "Availability of Information From Federal Departments and Agen-
oies," (Progress of Study, July-December 1960), July 28, 1961, pp. 139-154; the text of Executive Order 10001
is at pp. 140-142.
69 Ibid., pp. 17-39; the text of DOD Directive 5200.10 is at pp. 18-24.
m H. Rept. 2456, "Safeguarding Official Information in the Interests of the Defense of the United States
(The Status of Executive Order 10501), (87th Cong. 2d sees.), Sept. 21, 1962, p. 3.
n Ibid., p. 5.
Ta H. Rapt. 1257, "Availability of information From Federal Depart ments and Agencies" (Progress of
8tudy, January-August, 1961), (87th Cong., 1st sass.), Sept. 22, 1961, pp. 153-154. A memorandum listing
information problems uncovered by the subcommittee is at pp. 155-165.
as H. Rapt. 2456, op cit., pp. 7 9. White testified before the subcommittee concerning his White House
responsibilities during the 1971 hearings. Hearings, op. cit., pt. 1, pp. 1511.
r+ H. Rapt. 1257, op. cit., pp. 49-59. -
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recommendations called to Secretary McNamara's attention was one
urging that "The Secretary of Defense should direct, that disciplinary
action be taken in cases of overclassification," which had been made
in H. Rept. 1884 in 1958. On May 31, 1961, Secretary McNamara
issued DOD Directive 5230-13, setting forth four basic principles of
public information policy at the Defense Department, among which
was the following."
Secondly, it is essential to avoid disclosure of information
that can be of material assistance to our potential enemies,
and thereby weaken our defense position. It is equally im-
portant to avoid overclassification, and therefore, I suggest
that we follow this principle: When in doubt, underclassify.
In no event should overclassification be used to avoid public
discussion of controversial matters.* * *
Unfortunately, this "underclassification" principle and the warning
against overclassification was not implemented by the imposition of
penalties against overclassification, as had been recommended by the
committee.
The committee renewed its recommendations in these two major
areas involving the more effective operation of the security classifica-
tion system in its 1962 report on the status of Executive Order 10501:7"
But two of the most important security problems which the
committee has discussed over the years still remain to be
solved. There are strict penalties for failure to protect a docu-
ment which may have an effect upon the Nation's security,
but there are no penalties for those secrecy minded Govern-
ment officials who abuse the classification system by with-
holding, in the name of security, all sorts of administrative
documents. A security system which carries no penalties for
using secrecy stamps to hide errors in judgment, waste, in-
efficiency, or worse, is perversion of true security. The praise-
worthy slogan. of Defense Secretary McNamara-``when in
doubt, underclassify"-has little effect when there is ab-
solutely no penalty to prevent secrecy from being used to in-
sure individual job security rather than national military
security.
The committee strongly urges, therefore, that the
Defense Departmentestablish administrative penal-
ties for misuse of the security system, for until the
generaliz>;Aions about the public's right to know are
backed up by specific rules and regulations-until
set penalties are established for abuse of the classifi-
cation syystem -fine promises and friendly phrases
cannot dispel thefear that information which has no
effect on the Nation's security is being hidden by
secrecy stamps.
The other problem, which seems to be no nearer solution
today than when it was first posed by the committee (H.
Rept. 1884, 85th Cong., p. 161), is the lack of an effective
7' Ibid., p. 57.
76 H. Rept. 2456, op. cit., p. 13.
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procedure for appeals against abuse of the information classi-
fication system. President Kennedy assigned the appeals job
to his Assistant Special Counsel, but the incidental assign-
ment to a busy assistant of responsibility for the appeals
procedure along with his many other duties does not fill the
need for an effective system to handle public appeals against
secrecy abuses.
The committee strongly urges, therefore, that the
appeals section of Executive Order 10501 be ade-
quately implemented in an effective manner, for
until a responsible individual in the White House is
charged with the primary duty of receiving and
acting upon complaints against abuse of the classifi-
cation system-until a fully operating appeals sys-
tem is set up and widely publicized-the most im-
portantl safety valve in the information security
system is completely useless.
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IV. SECURITY CLASSIFICATION AND THE FREEDOM OF
INFORMATION ACT
Statutory recognition of the authority of the executive branch to
withhold certain classified information from the public was contained
in exemption (1) of the Freedom of Information Act:77
(b) This section does not apply to matters that are-
(1) specifically required by Executive order to be kept
secret in the interest of national defense or foreign
policy; * ,. *
The legislative history of the act (S. 1160-H.R. 5012) is sketchy with
respect to this exemption. Language in the House report relates the
provision in exemption (b) (1) to abuses in the withholding of informa-
tion "in the public interest" under the Administrative Procedure
Act : 78
* * * The language (of the exemption) both limits the
present vague phrase "in the public interest" and gives the
area of necessary secrecy a more precise definition. The per-
mission to withhold Government records "in the public in-
terest" is undefinable. In fact, the Department of Justice left
it up to each agency to determine what would be withheld
under the blanket term "public interest." No Government
employee at any level believes that the "public interest"
would be served by disclosure of his failures or wrongdoings,
but citizens both in and out of Government can agree to re-
strictions on categories of information which the President
has determined must be kept secret to protect the national
defense or to advance foreign policy, such as matters classified
pursuant to Executive Order 10501.
The 1967 Attorney General's memorandum, providing guidelines
to executive departments and agencies in the implementation of the
Freedom of Information Act stated:79
To the extent- that agencies determine that matters within
their responsibility must be kept secret in the interest of the
national defense or foreign policy, and are not required to be
withheld by Executive order or other authority, they should
seek appropriate exemption by Executive order, to come
within the language of subsection (e) (1). The reference in
the House report to Executive Order 10501 indicates that
no great degree of specificity is contemplated in identifying
matters subject to this exemption. However, in the interest of
providing for the public as much information as possible, an
77 Sec. 552(b) (1) of title 5, United States Code.
78 H. Rept. 1497 (89th Cong., 2d seas.), "Clarifying and Protecting the Right of the Public to Information,,"
May 9, 1966, pp. 9-10.
78 Attorney general's memorandum on the "Public information Section of the Administrative. Procedure
Act " U.S. Department of Justice, June 1967, p. 80.
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Executive order prepared for the signature of the President
in this area should define as precisely as is feasible the cate-
gories of matters to be exempted.
Exemption (b) (1) Cases and the Courts
As has been noted in an earlier report on the administration of the
FOI Act, the courts have been "generally reluctant to order the dis-
closure of Government information falling within exemption (b) (1)
of the act-information `specifically required by Executive order to
be kept secret in the interest of the national defense or foreign' pol-
icy.' " 80 Relatively few requests for records involving such informa
tion have been made during the 5-year.period of executive decisions
under the act surveyed by the Foreign Operations and Government
Information Subcommittee and at least three such cases have been
decided in the courts.81
The first instance in which exemption (b) (1) was subject to court
review was the 1967 case of Epstein v. Resor.B2 Prof. Julius Epstein,
an historian at Stanford University's Hoover Institution on Revo-
lution,War and Peace, requested a.file from the Arm under the FOI
Act described as "Forcible Repatriation of Displaced Soviet Citizens-
Operation Keelhaul," which was classified as top secret since 1948
under a joint agreement between the United States and British
Governments. The file contains both American and British documents
dealing with the forced repatriation of anti-Communist Russian
prisoners of war in the post-World War II period.
When the Army refused to declassify the documents and make
them available to Epstein, he sued. Secretary of the Army Resor
under the FOI Act to en oin him from withholding the "Operation
Keelhaul" file. Epstein asked the court to examine the file of docu-
ments in camera to determine whether or not they were properly
classified under. Executive Order 10501 and if the denial _ under
exemption (b) (1) of the FOI Act was valid.
Both the U.S. District Court and the Ninth Circuit Court of Appeals
refused to examine. the documents, upholding the Government's
motion for summary judgment. A petition for certiorari to the U.S.,
Supreme Court was denied. The Court of Appeals stated that "the
question of what is desirable in the interest of national defense and
foreign policy is not the sort of question that courts are designed to
deal with."
Another case seeking judicial review under exemption (b)(1) in
1971 involved the right of access under the FOI Act to certain portions
of the "Pentagon Papers." 83 Congressmen John E. Moss and Ogden R.
Reid filed suit as individual- citizens to enjoin Defense Secretary 80
Freedo n Hear! gs,9 Ul S. Governmenstra t Iion on Policesoand PrraacttiicesAAdministrattIon 1972 nd p. of
the Freedom of Information Act" (92d Cong., 2d sess.), pt. 4, pp. 1842-1343; p. 1347; pp. 1358-1859; pp.1362-
1863; ppt. 6 pp 2258-2259.
of Epsieln v. Resor, 290 F. Supp. 214 (N.D. Cal. 1969), aif'd 421 F. 2d 930 (9th Cir. 1970, cert. den. 898 U.S.
905 (1970)). Professor Epstein testified before the Foreign Operations and Government Information Subcom-
mittee on June 28, 1971, on the details of this case; see hearings, supra., pt. 2, pp. 285308. A subset uent
witness, Mr. William R. Macomber, Jr., Depputy Under Secretary of State for Administration testified that
the "O ration Keelhaul" file had not been declassified andmade available by the U.S. Government because
it wag F. point property of our Government and the British Government and that their Government would
not concur in its release; see hearings, supra., pt. 8, p. 924, see also hearings, pt. 2, p. 2f
or teat of White
House letter confirming this fact.
IKoss/Reid/Fisher v. Zaird (D.C: D.C. 1971) Civil Action No. 1254 71; see hearings, supra., pt. 4, p. 1363.
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Laird from withholding classified portions of the "Pentagon Papers"
and asked the U.S. District Court for the District of Columbia to
examine the documents in camera. The Court, refused and granted
summary judgment for the Government.
In still another case, Representative Patsy Mink and 32 other
Members of Congress requested in July 1971, documents pertaining
to environmental reports of the Environmental Protection Agency
and other Federal agencies on the planned underground nuclear test
explosion on Amchitka Island, Alaska.84 The U.S. District Court for
the District of Columbia refused to compel disclosure of the docu-
ments, citing exemption (b) (1) and also (b) (5)-interagency memo-
randa.8i
On appeal, the U.S. Court of Appeals reversed the District Court
decision, remanding the case with instructions that, the disputed
documents be examined in camera to determine if any of the docu-
ments' components which were not classified for national defense
purposes, or were not exempt as inter- or intra-agency memorandums,
could be separated out and released.86
This decision was appealed by the Government, and the Supreme
Court reversed, the decision of the Court of Appeals. It decided that a
claim of exemption under (b) (1) of the Freedom of Information Act
was satisfied by af13 davit of the Government that the documents
were properly classified under the applicable Executive order and
involved "highly sensitive matter * * * vital to our national defense
and foreign policy." The court held that Congress has given to the
Executive the power to determine if any information should be so
classified and characterized, and that Congress did not intend to
subject the soundness of executive security classifications to judicial
review at the insistence of any objecting citizens. Because the Govern-
ment had met its burden, through the above-mentioned affidavit,
the fact of the classifications and the documents' characterizations
never having been disputed by the respondents (Mink et al.), the
duty of the District Court under section 552(a)(3) was therefore
at an end. The court specifically negated the proposition that the
exemption authorizes or permits in camera inspection of a contested
document bearing a single classification so that the court might sepa-
rate the secret from the supposedly nonsecret components and order
disclosure of the 1attar.
The Supreme Court also upheld the Government's claim of exemp-
tion for three unclassified documents under exemption (b) (5) of the
Freedom of Information Act (inter- or intra-agency memorandums).
The Government should have, the court declared, an opportunity to
support an exemption claim through expert testimony or other forms
of evidence short of in camera inspection showing that the documents
sought are of the sort clearly beyond the range of material that would
be available to a private party in litigation with the Government
agency. In camera inspection of all documents, is not, according to
the court, "a necessary or inevitable tool in every case." But if the
agency fails to meet its burden in claiming the (b) (5) exemption with-
out in camera inspection, the court may order such inspection.87
8 Mink v. EPA, 410 U.S._(1973). Hearings, "U.S. Government Information Polioies and Practices-Ad-
ministration and Operation of the Freedom of Information Act" (92d Cong?, 2d ses;.), pt. 4, pp. 1362-1363.
Background on the case may be found in testimony by Congresswoman Mink, hearings, pt. 9, pp. 3092-3101.
91 ibid.
88 464 F. 2.
n 410 U.S._(1973). The opinion contains considerable discussion of the character of material in such Inter-
or antra-agency memorandums which could be regarded as exempt from disclosure render (b) (5).
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Review of Classification System Ordered by President Nixon
After the eruption of the controversy over the publication of parts
of the "Pentagon Papers" by the New York Times, Washington Post,
and other newspapers, it was revealed that President Nixon had, on
January 15, 1971, directed that "a review be made of security classi-
fication procedures now in effect." He established an "interagency
committee to study the existing system, to make recommendations
with respect to its operation and to propose steps that might be taken
to provide speedier declassification." He later directed that "the
scope of the review be expanded to cover all aspects of information
security." 88
Chairman of the interagency committee was William H. Rehnquist,
then Assistant Attorney General, Office of Legal Counsel. The com-
mittee also had representatives of the National Security Council the
Central Intelligence Agency the Atomic Energy Co mission, and the
Departments of State and Iiefense.S9 When Rehnquist was appointed
to the Supreme Court in late 1971, the coordination responsibilities
of the committee were assumed by Mr. David Young, Special Assist-
ant to the National Security Council.
In related actions, the White House on June 30, 1971, issued an
"administratively confidential" memorandum to all Federal agencies
signed by Brig. Gen. Alexander M. Haig, Jr., Deputy Assistant
to the President for National Security Affairs, ordering each agency
to submit lists of the Government employees, outside consultants,
and private contractors who hold clearances for access to top secret
and secret information.90
Several days later, President Nixon then asked Congress to approve
a $636,000 supplemental appropriation for the General Services
Administration to assist the National Archives in the declassification
of World War II records, which he estimated to total "nearly 160
million pages of classified documents." 91 -
The interagency (Rehnquist) committee met sporadically during
the summer and fall of 1971 and recommendations formulated by
the committee were incorporated into a draft revision of Executive
Order 10501. The draft was circulated for comment in January 1972
by the National Security Council to key departments and agencies
most concerned with the security classification system.92 But a re-
quest b Subcommittee Chairman Moorhead to White House Counsel
John W. Dean III, for a copy of the draft for informal study and
comment was denied.
The revised version of the NSC draft was issued by President Nixon
on March 8, 1972, as Executive Order 11652, "Classification and
Declassification of National Security Information and Material." 93
The new order, which superseded Executive Order 10501, had an
effective date of June 1, 1972. A detailed discussion of Executive
Order 11652 is in chapter VI, pages 52-87, and the text is contained in
the appendix of this report.
ae Statement by the President, The White House, Office of the Press Secretary, Mar. 8,1972, p. 2, hearings,
supra, pt. 3, p. 998.
IIearings, supra, pt. 3, p. 780.
99 Ibid., pt. 3, pp. 997-1000.
91 H. Doe. 92-151; Congressional Record, Aug. 3, 1971, p. H7826.
97 Hearings, supra, pt. 7, p6 2677; see also ibid., p. 2848.
9837 F. R. 5200 (Mar. 10, 172); the text of Executive Order 11652 and a section-by-section comparison of
the new order with Executive Order 10501 is in pt. 7 of the hearings, pp. 2851-2883.
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V. DIMENSIONS OF THE CLASSIFICATION PROBLEM
The broad scope of the increasingly difficult problem in dealing
with the many facets of the security classification system came into
sharper focus durin the summer of 1971. The publication of the
Pentagon Papers , and the subsequent attempts by the administration
to invoke prior restraint against the printing of additional articles
in the press based on these controversial top secret documents made
millions of Americans more aware of the operation of the classification
system. The 6 to 3 Supreme Court decision against the Government
in the New York Times and Washington Post cases 94 and the deposi-
tions presented in those cases by both Government and outside
classification experts revealed operational details of the system.
Expert witnesses who testified at hearings by the House Foreign
Operations and Government Information Subcommittee during the
controversy uncovered other salient details as well as focusing atten-
tion on the growing Constitutional crisis affecting the right of Congress
to obtain information from the executive branch.
Later leaks of Government documents during the India-Pakistan
conflict in December 1971, the leak of a National Security Council
memorandum early in 1972, revealing administration policy conflicts
on Vietnam war strategy, and the continuing public attention on the
Ellsberg-Russo trial in connection with the Pentagon Papers have
all contributed to a broader understanding of the dimensions of the
security classification problem.
The dimensions of the public policy and constitutional issues
involved in the security classification problem were stated by President
Nixon in his statement when he issued Executive Order 11652 on
March 8, 1972: 98
The many abuses of the security system. can no longer be
tolerated. Fundamental to our way of life is the belief that
when information which properly belongs to the public is
systematically withheld by those in power, the people soon
become ignorant of their own affairs, distrustful of those who
manage them, and-eventually-incapable of determining
their own destinies.
Yet since the early days of the Republic, Americans have
also recognized that the Federal Government is obliged to
protect certain information which might otherwise jeopardize '-
the security of the country. That need has become particu-
larly acute in, recent years as the United States has assumed
a powerful position in world affairs, and as world peace has
come to depend in large part on how that position is safe-
guarded. We are also moving into an era of delicate negotia-
tions in which it will be especially important that govern-
ments be able to communicate in confidence.
w 403 U.S. 713; see hearings, supra, pt. 8, pp. 9781994 for text of decision.
N Hearings, supra, pt. 7: see :?p. 2308-2328 for the complete text of the President's statement, the text of
Executive Order 11&52, and the text of the May 17, 1972, directive implementing the order.
(32)
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Clearly, the two principles of an informed public and of
confidentiality within the Government are irreconcilable in
their purest forms, and a balance must be struck between
them.
Hearings were held by the House Foreign Operations and Govern-
ment Information Subcommittee in May 1972 on security classifica-
tion problems involving section 552(b) (1) of the Freedom of Informa-
tion Act. They supplemented the subcommittee's June 1971 hearings
on the "Pentagon Papers" and their relationship to the security
classification system.9?
When the subcommittee subsequently resumed its hearings on
various aspects of the security classification system as part of its
overall review of the operation of the Freedom of Information Act,
Chairman Moorhead described the dimension of the problem in his
May 1, 1972 opening statement: 97
There are 55,000 arms pumping up and down in Govern-
ment offices stamping "confidential" on stacks of Govern-
ment documents; more than 18,000 Government employees
are wielding "secret" stamps, and a censorship elite of
nearly 3,000 bureaucrats have authority to stamp "top
secret" on public records.
These are not wild estimates. These numbers were pro-
vided by the Government agencies, themselves. But even
this huge number of Government censors is just the top of
the secrecy iceberg.
These Government officials are the ones who have been
granted authority, under a Presidential order, to put "top
secret," "secret," and "confidential" on Government records
which are to be hidden from the public in the interests of
national defense. It seems to me that this sort of national
defense effort creates little more than a Maginot line made
of paper-and it is even more dangerous than France's con-
crete and steel Maginot line which gave that country false
confidence in its safety just before it was overrun by the
German Army in World War II. * * *
In an article on "The Public's Right To Know," published in the
January-February 1972, issue of Case & Comment, Representative
Horton likewise pointed out that, "on balance, more emphasis is
given in Executive Order 10501 to protection of classified material
than to declassification of information that is no longer sensitive." He
added: 98
This has resulted in much overelassification of information
and a tremendous backlog, numbering in the millions of docu-
ments, of material which, while properly kept secret initially,
should have been declassified years ago.
Many of the witnesses testifying at both the 1971 and 1972 hear-
ings-from Government as well as outside experts-presented exam-
ples of specific abuses of the classification system as well as broad-
gage criticism of its overall operational shortcomings. Many of
these specific cases are described in other sections of this report.
Po Hearings, supra, pts. 1, 2, and 3.
97 Hearings, supra, pt. 7, pp. 2283-2284.
ee Hangs, supra, pt. 4, pp. 1032-1033.
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But perhaps the most telling case against the security classification
system as it operated under Executive Order 10501 for almost 20
years was made by President Nixon himself in this further quotation
from his statement upon issuing Executive Order 11652:99
Unfortunately, the system of classification which has
evolved in the United States has failed to meet the standards
of an open and democratic society, allowing too many papers
to be classified for too long a time. The controls which have
been imposed on classification authority have proved un-
workable, and classification has frequently served to conceal
bureaucratic mistakes or to prevent embarrassment to
officials and administrations. * * *
Volume of Classified Material
The precise volume of classified documents that has accumulated
in Government files was the subject of considerable inquiry during
the subcommittee's hearings because of its important relationship
to the overall scope of the classification problem. Various estimates
were provided by governmental and outside witnesses.
Mr. William G. Florence, a retired Air Force security classification
expert, with 43 years' Federal service, estimated that the Department
of Defense had "at least 20 million classified documents, including
reproduced copies." 100
Later in the 1971 hearins, Mr. David O. Cooke, Principal Deputy
Assistant Secretary (Administration), Department of Defense, was
questioned by Congressman Horton on the 20 million figure : 101
Mr. HORTON. Mr. Cooke, I wanted to ask you, have you
had an opportunity to read the statement of Mr. William
Florence who testified before this committee last week?
Mr. COOKE. Yes, I have read it once, sir.
Mr. HORTON. In his statement on page 5 he makes this
statement :
* * * the practice (overclassification) has become
so widespread that the defense classification sys-
tem is literally clogged with material bearing
classification markings. I would guess that there
are at least 20 million classified documents, includ-
ing reproduced copies. I sincerely believe that less
than one-half of 1 percent of the different documents
which bear currently assigned classification mark-
ings actually contain information qualifying even
for the lowest defense classification under xecutive
Order 10501. In other words, the disclosure of
information in at least 9932 percent of those
classified documents could not be prejudicial to
the defense interests of the United States.
Mr. HORTON. How do you react to that statement?
Mr. CooKE. Mr. Horton I am not a-Mr. Florence
spent a long and distinguished career with the military in
the Department of the Air Force, and I am not aware of the
?Hearings, supra, pt. 7, p. 2309.
100 Hearings, supra, pt. 1, p. 97.
in Hearings, supra, pt. 2, p. Bub.
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factual basis or data which he used to express this purely
personal judgment. We do not have any available figures
on a defensewide basis. Classified documentation is used or
is stored in active files and in DOD record-holding areas
around the world. No reports are required at this time of
the number of classified documents maintained by every
DOD activity.
The closest we can come to it, sir, is biennial record
reports indicating DOD holdings in total, classified and
unclassified, of approximately 6 million. cubic feet in active
files. It was the estimate of one military department several
years ago that 17 percent of the documents in their files
were classified. If that figure is a valid estimate across the
board, and we do not know whether it is, but assuming it is,
I would say of our active record holdings, approximately
17 percent represent classified documents of all levels of
classification. But I do not know the basis upon which the
witness who appeared before you last week expressed that
judgment. We have no data that we have been able to
uncover which would support his assertion.
Mr. HORTON. Based on your knowledge of classified docu-
ments, from your position, how many would you estimate are
classified?
Mr. COOKE. Based upon the collective judgment here, I
would think, including reproduced copies, there could be
more than 20 million classified documents. -There is just no
basis for reaching a judgment which could offer you any
degree of reliable validity as to the precise number of docu-
ments.
Mr. HORTON. If you use the figure of 20 million, you would
say there would be more than that?
Mr. CooKE. I would say there could quite possibly be more
than 20 million classified documents, but I do not know. It
could be less. As I said, the only approach we have to it was
not by documents but by percentage of cubic feet of records
and, that- was an estimated figure from one military depart-
ment several years ago.
Mr. REM. What departments does that estimate you just
made include?
Mr. COOKE. I believe the estimate of 17 percent was an esti-
mate of the Department of Air Force.
The Defense Department supplied additional information on the
magnitude of top secret documents : '0E
Centralized records are not maintained in the Department
of Defense on the number of top secret documents which
are declassified, or on the subject matter contained in such
documents. The following general items of information, how-
ever, may be of interest:
1. In 1965, all elements of the Office of the Secretary of
Defense reviewed all top secret documents in current files
with a view to the elimination of the maximum possible
number. There was an overall reduction of about 33 percent.
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The eliminated documents comprised 7,200 nonrecord docu-
ments destroyed, 1,700 retired to record centers, 49 down-
graded, and nine declassified. In 1966, other elements of the
Department of Defense made a similar review. Eight major
elements reported. Of a starting total of over 1 million, 344,-
300 nonrecord documents were destroyed, 11,350 were
retired to record centers, 9,000 were downgraded, and 710
were declassified, a reduction total of over 33 percent.
2. One major military command supplied the following
figures derived from the annual classified document review of
current file holdings. The figures are in linear feet. One linear
foot represents 2,000 pages. A document may be one page
or a thousand pages. A linear foot represents an average of
32 documents.
Top secret documerts
1967
1968
1969
Destroyed (linear feet) ----------- ____________________
590
2,093
2,207
Downgraded (linear feet) s______________-------------
- 8
31
54
Declassified (linear feet)_____________________________
1
0
210
Retired (linear feet) ---------------------------------
0
0
0
Remaining (linear feet) ------------------------------
3,547
2,622
2,286
A conceptual idea of the volume of documents involved in the
Defense Department's estimate of 6 million cubic feet was discussed
during the hearings by Congressman Reid: 103
We have some expert mathematicians here on the com-
mittee, and they have taken your figures at face value, 6
million cubic feet of active files, and based on your possible
estimate of 17 percent of these being classified are most
favorable.
The staff says that is about one-sixth or a million cubic
feet, and it equals 18 stacks of documents 555 feet high, each
as high as the Washington Monument.
The volume of classified documents in the State Department was
discussed by two Department witnesses, who gave widely varying
estimates. Deputy Assistant Secretary of State William D. Blair
gave one figure in a colloquy with Congressman Moss: 104
Mr. Moss. Then this massive material, and you indicate
in your statement that there are about 150 million docu-
ments in State. Mr. Blair
Mr. BLAIR. Yes, sir.
Mr. Moss. One hundred fifty million previously classified.
Mr. BLAIR. These are not all classified. This is classified
and unclassified. But perhaps roughly one-quarter of them
are classified.
Mr. Moss. Thirty-five million documents classified under
10501 or prior to 10501?
Mr. BLAIR. Well, not prior to 1945, Congressman Moss,
because we have retired to the National Archives-that
may not be quite completed, but we are in the process of
retiring to the National Archives and opening up our files
behind 1946. That is, through 1945. * *
109 Hearings, supra, pt. 2, p. 685.
sa Ibid., pp. 2471-2472.
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But testimony from Mr. William B. Macomber, Jr., Deputy Under
Secretary of State for Administration, presented to the subcommittee
in July 1971, gave a much lower estimate: 106
Mr. REID. How many documents are classified in the
Department now; do you have any idea?
Mr. MACOMBER. Well, yes, I can give you a rough idea. We
have accumulated in our central files about 400,000 docu-
ments a year, of which about 200,000 are classified. So you
can assume that we are accumulating classified documents
at least at a 200,000-a-year rate.
I looked historically to see, the other day, and the last
20 years we have accumulated at a rate, averaged about 100,-
000 classified documents a year over a. 20-year period.
Mr. REID. So we are talking of 2 million, roughly?
Mr. MACOMBER. Yes, about 2 million, although the
annual accumulation is greater now.
The most definitive estimates of the vast amount of classified
documents in existence were presented by Dr. James B. Rhoads,
Archivist of the United States. 6s
In the last generation we have grown a great deal.. We
have become the National Archives and Records Service.
We conduct an ongoing records management program work-
ing with agency officials and their files. We operate 15 Federal
Records Centers and six Presidential Libraries, in addition
to the National Archives itself. We have in our custody
approximately 30 billion pages of Federal records, some-
thing more than 40 percent of the total volume of the Gov-
ernment's records. But while both our activities and our
holdings have expanded, our goals remain the same: to
serve the rest of the Government by caring for its non-
current records and to serve the public in general by making
available the documents of enduring value. * * *
Perhaps, Mr. Chairman, a few statistics will demonstrate
the dimension of this problem. We estimate that for the
period 1939 through 1945 the National Archives and the
several relevant Presidential Libraries possess approxi-
mately 172 million pages of classified material, including a
small amount of material of permanent value in our Federal
Records Centers. For the period 1946-1950 we estimate
our classified holdings at approximately 150 million pages,
and for the period 1950-1954 we estimate an additional 148
million pages. These estimates indicate that for the period
from the beginning of the Second World War through the
end of the Korean War we possess some 470 million pages
of classified documents.
President Nixon, in his statement upon issuing Executive Order
11652, used similar figures in estimating the volume of classified
documents for the World War II period through 1954: 107
108 Hearings, Supra, pt. 3, pp. 905-908.
108 Hearings, supra, pt. 7, pp. 2804-2605.
107 Hearings, supra, pt. 7, p. 2309.
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Once locked away in Government files, these papers
have accumulated in enormous quantities and have become
hidden from public exposure for years, for decades-even for
generations. It is estimated that the National Archives
now has 160 million pages of classified documents from
World War II and over 300 million pages of classified docu-
ments for the years 1946 through 1954.
Of course, relatively few classified documents originated later
than 1954 have made their way into the National Archives, so that
the almost half billion pages represents but a fractional part of the
total volume of classified material presently in existence. It is virtually
impossible for Government officials to make even a rough estimate of
the total magnitude of even the original copies of such documents.
And the problem is compounded when unknown numbers of repro-
duced copies are added to the total.
Authority To Classify
The volume of classified documents is directly related to the number
of Government agencies and individuals within such agencies who are
authorized to apply classification stamps. As rioted earlier, Executive
Order 10290, issued by President Truman in 1951, extended classifica-
tion authority to all Federal departments and agencies. Agency
regulations implementing the order extended uniform original classi-
fication authority to their employees. The proliferation of classifica-
tion authority and the growth of the volume of classified material
were taken into account by President Eisenhower when he superseded
the Truman order in 1953 with Executive Order 10501. He denied
original classification authority to 28 agencies and limited the author-
ity in 17 others, including a number of Cabinet departments. Amend-
ments to this order in subsequent years removed the authority to
classify from several other agencies, as had been recommended by
this committee.108
Under Executive Order 10501, as amended, 47 executive depart-
ments, agencies, boards, commissions, and offices eventually had
authority to classify documents as top secret, secret, or confidential,
including 10 units connected with the White House office. In 34 of
these, where security 'classification was essentially linked to matters
pertaining to the national defense, such authority could be delegated
bye the departmental or agency head. The authority was limited to
the head of the other 13 departments and agencies which were not
so closely related to the national defense.109
The Foreign Operations and Government Information Subcom-
mittee's August 1971 questionnaire to executive departments and
agencies solicited statistical data on the operation of the Freedom of
Information Act. It also requested data on the numbers of employees
authorized to classify under Executive Order 10501. The results of
this study and a supplemental series of inquiries in January 1972
to 12 selected agencies having primary responsibility in the defense
106 Report of the Commissicn on Government Security, op. cit., pp. 160-161. See also p. 18 of this report.
'?9 Analysis of listing in sect.on 2 of Executive Order 10501.
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and foreign policy areas show that about 55,000 Government officials
were authorized to classify documents or other material as.top secret,
secret, or confidential-110
The 55,000 total figure included 2,849 persons authorized to classify
top secret, secret, and confidential and 18,029 persons authorized to
classify secret and confidential. The remainder had confidential
classifcation authority only. All of these figures refer to original
classification authority."' The Department of Defense, including the
Army, Navy, and Air Force, authorized 29,837 persons to classify
under Executive Order 10501-783 top secret and 7,677 secret. The
State Department, including the Agency for International Develop-
ment, authorized 5,964 persons to classify-929 top secret and 2,155
secret. The Atomic Energy Commission authorized 6,173 persons to
classify under the Executive order-310 top secret and 6,173 secret
and confidential. None of these statistics, however, takes into account
the extent of "derivative classification," the clerical reassignment or
transfer of an existing classification of information contained in a
document when portions of such classified documents are used in
another document, report, or memorandum.
During the hearings, witness Florence provided the subcommittee
insights into the extent to which "derivative classification" is a
proliferating factor: 112
* * * (DOD Instruction 5210.47) delegates something
called derivative classification authorit to any individual
who can sign a document or who is in charge of doing some-
thing.
Such individual may assign a classification to the informa-
tion involved if he believes it to be so much as closely related
to some other information that bears a classification. This is
called derivative classification authority.
In the past several years I have not heard one person in
the Defense Department say that he had no authority to
classify information. The restrictions in Executive Order
10501 on delegating authority to classify have virtually no
effect. * * *
* * * The derivative classification practice is the serious
problem in the Government today. Under this concept of
derivative authority to classify, anyone can assign classifica-
tions, sir. Anyone. I used the statement, I believe, "hundreds
of thousands" in my comments. * * *
110 See analysis of questionnaire results by Congressional Research Service, Library of Congress, in appen-
dix of hearings, supra, pt. 7, pp. 2929-2937. This figure does not include officials of the Central Intelligence
Agency who are authorized to classify.
111 "Original Classification" is defined in Department of Defense Instruction No. 5210.47 (Dec. 31, 1964)
as follows:
Original Classification is involved when-
a. An item of information is developed which intrinsically requires classification and such classi-
flcation cannot reasonably be derived from a previous classification still in force involving in sub-
stance the same or closely related information or
b. An accumulation or aggregation of items of information, regardless of the classification (or lack
of classification) of the individual items, collectively requires a separate and distinct classification
determination.
See hearings, supra, pt. 1, p. 125.
112 Hearings, supra, pt. 1, p. 98 and p. 104.
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40
One of the most salutary results of the new Executive Order 11652
thus far observed is the reduction in both the number of agencies and
the number of persons now authorized to exercise original classification
authority. An August 3, 1972, statement from the White House Press
Secretary's office, cited an oral report to the President by Ambassador
John Eisenhower, Chairman of the Interagency Classification Review
Committee, created by the new Executive order. The report indicates
that the number of departments and agencies authorized to originally
classify had been reduced to 25, excluding White House office agencies
and that the number of persons having authority to originally classify
information had beenreduced by 63 percent--from 43,586 to 16,238.113
He indicated that top secret original classification authority had
been reduced by 53 percent-from 2,275 to 1,076; secret by 39 per-
cent-from 14,311; to 8,671; and confidential by 76 percent-from
26,995 to 6,491. These figures do not include the Central Intelligence
Agency, which, according to the report made an overall reduction of
26 percent and a reduction in top secret of 84 percent. The April 1973
ICRC progress report, however, states that the number of top secret
classifiers was reduced from 3,634 to 1,056 and that CIA top secret
classifiers was reduced by 81 percent.
There has been virtually unanimous agreement-from the President
on down-that serious abuses of overclassification had marked the
operation of the security classification system under Executive Order
10501.
Defense Secretary Laird, speaking at the April 20, 1970, Associated
Press luncheon in :New York, said: "Let me emphasize my convictions
that the American people have a right to know even more than has
been available in the past about matters which affect their safety and
security. There has been too much classification in this country." 114
Former United Nations Ambassador and Supreme Court Justice
Arthur Goldberg told the subcommittee: 115
Anyone who has ever served our Government has strug-
gled with the problem of classifying documents to protect na-
tional security and delicate diplomatic confidences. I would
be less than candid if I did not say that our present classifi-
cation system. does not deal adequately with this problem
despite the significant advances made under the leadership
ita The text of the stateme:at and accompanying chart may be found. in the hearings, pt. 7, pp. 2825-2827.
Note the discrepancy between this figure and the total number of persons authorized to classify under
Executive Order 10501, as reported the previous year by the agencies themselves _n response to the subcom-
mittee's questionnaire; that total was 55.000. An April 17, 1973, progress report of the Interagency Classifica-
tion Review Committee used the figures 48,814 to 17,883.
Ambassador Eisenhower was appointed as Chairman of the newly established Interagency Classification
Review Committee, authorized in sec. 7 of Executive Order 11652, on May 17, 1;72. Other members of the
Committee are the General Counsels of the State Department (John R. Stevenson), the Defense Depart-
ment (J. Fred Buzhardt), the CIA (Lawrence R. Houston), the Justice Department (Ralph E. Erickson),
and representatives of the Atomic Energy Commission (John V. Vinciguerra), and the National Security
Council staff (David R. Young), who served as the Committee's Executive Director. Ambassador Eisen-
hower resigned as Chairman in April 1973; Executive Director Young of the NEC staff likewise departed
that same month. By Executive Order 11714, issued by President Nixon on April 24, 1973, the Archivist of
the United States was added to the Committee. Dr. James B. Rhoads, who cure ently holds that position,
was named as Acting Chairman of the Committee. The text of this Executive order is in the appendix of
this report.
us Hearings, supra, pt. 3, p. 975.
'I' Hearings, supra, pt. 1, p. 12.
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of, this committee and Congress in the Freedom of Informa-
tion Act of 1966. I have read and prepared countless thou-
sands of classified documents. In my experience, 75 percent
of these documents should never have been classified in the
first place; another 15 percent quickly outlived the need for
secrecy; and only about 10 percent genuinely required re-
stricted access over any significant period of time.
Moreover, whatever precautions are taken, leaks occur in
a government of fallible men.
In short, the classified label in our experience has never
been 100 percent respected.
William B. Macomber, Jr., Deputy Under Secretary of State for
Administration, candidly stated : "We all know, I think, that there is a
tendency in the executive branch to overclassify." 116
Mr. Ralph E. Erickson then Assistant Attorney General, Office of
Legal Counsel testified: 113
There is nearly universal agreement among those familiar
with the operation of Executive Order 10501 that the existing
system of classification has failed to strike the right balance
between the public's need to know and the necessity to main-
tain certain information in confidence. The President put it
well when he announced the issuance of the new order:
Unfortunately, the system of classification which
has evolved in the United States has failed to. meet
the standards of an open and democratic society,
allowing too many papers to be classified for too
long a time. The controls which have been imposed
on classification authority have proved unworkable,
and classification has frequently served to conceal
bureaucratic mistakes or to prevent embarassment
to officials and administrations.
Material classified under Executive Order 10501 and under
preceding authorities has accumulated in vast quantities in
Government files and storehouses. Only with the commit-
ment of extensive Government resources can this mountain
of classified material be reviewed or declassified within a
reasonable period of time. Perhaps the chief deficiency of
Executive Order 10501 was the failure of that order to pro-
vide an effective administrative system. Without an effective
administrative system, its well-intended provisions turned
out to be empty exhortations for the most part.-
Classification expert William G. Florence, a retired Air Force
security classification official with some 43 years of Federal service,
testified: 118
I sincerely believe that less than one-half of 1 percent of
the different documents which bear currently assigned classifi-
cation markings actually contain information qualifying even
for the lowest defense classification under Executive Order
M Hearings, supra, pt. 3, p. 902.
tt, Hearings, supra, pt. 7, p. 2678.
its Hearings, supra, pt. 1, p. 97.
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10501. In other words, the disclosure of information in at
least 991/ percent of those classified documents could not be
prejudicial to the defense interests of the Nation.
In subsequent testimony, during the May 1972, hearings, Mr.
Florence asserted that "the administrative security classification
system currently in Executive Order 10501 is the source of most of the
secrecy evils in the executive branch." He blamed loose implementation
at the outset, and incredibly inept administration of the policy in
recent years, (that) have invited and promoted widespread use of the
three security classifications, "Top Secret," "Secret," and "Confiden-
tial." 119
He went on to point out:
The. contagion of the classification philosophy long ago
reached the point where the security system in Executive
Order 10501 represents the greatest hoax of this century.
Officials occupying even the highest positions in our Govern-
ment have been conditioned to promote the belief that the
words "top secret," "secret," and "confidential" on a paper
automatically give it a substantive value of extraordinary -
importance, and beyond the ken of most people.
Columnist Jack Anderson testified: 110
Not only does the executive branch sweep its bungles and
blunders, its miscalculations and embarrassments under the
secrecy labels, but our entire foreign policy and defense pos-
ture remains secret except for what the executive branch
thinks is in its own interest to make available to the
public. * * *
It isn't just hush-hush Government activity that is
classified. Newspaper clipping, public speeches and a wide
variety of other public information have wound up with
secrecy labels. When the Government went to court in its
desperate bid to stop publication of the Pentagon papers by
the Washington Post, the information cited as most sacro-
sanct repeatedly was shown by the Post to have already
appeared in -print. Ultimately, the Government itself
acknowledged that there was "massive overclassification"
of public papers.
Does this mean there should be no Government secrets?
Of course not. Our weapons technology, intelligence sources,
and diplomatic contacts must be kept confidential. But the
executive branch has used the classification system to censor
the facts, to manage the news, to control the flow of infor-
mation to the people.
Mr. William D. Blair, Jr., Deputy Assistant Secretary of State for
Public Affairs, testified on the causes of the weaknesses of the security
classification system established by Executive Order 1.0501: 121
As you know, Executive Order 11652 was the result of a
year-long stud17 of our system of handling national security
information a study set in motion by President Nixon in
119 Hearings, supra, pt. 7, p. 2531.
120 Hearings, supra, pt. 7, pp. 2437-2438.
In Ibid., pp. 2463-2464.
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January 1971, with a view to reform of that system. In these
opening remarks I would like to summarize very briefly the
principal conclusions which we, in the Department of State,
drew from that year-long study-conclusions which I
believe were broadly shared by our colleagues in the other
agencies concerned-and which the new Executive order
now reflects.
The first of these basic conclusions was simply this, that
our existing system of classification and declassification,
governed by Executive Order 10501, was not working as
it should. Too much information, probably far -too much,
was being classified to begin with, and too much of that was
being overclassified. In addition, the automatic declassifi-
cation provision of Executive Order, 10501 was virtually
inoperative, since the language of the exceptions to it--
particularly the definition of group 3-was so broad as to
allow almost any classified document to be excluded from
automatic declassification, and this privilege was being
widely used or abused. * * *
He listed the following specific causes for the failure:
1. The system established under Executive Order 10501
was too complicated. The establishment of four groups for
classification purposes, superimposed on three categories of
classifications, required a list of definitions and rules which
was hard to teach, hard to learn, and hard to remember. As
a result, the terms of the order were widely misunderstood
and even ignored.
2. This system as implemented gave too much authority
to classify, and to exclude from automatic declassification,
to too many people.. This tended to insure a maximum flow
of classified paper into the files, and a minimum return flow
of automatically declassified paper out of the files.
3. The sheer volume of national security information,
multiplying rapidly in the post-World War II period with
the enormous expansion of our defense and foreign policy
interests and programs has become so great that it simply
overwhelms any declassification effort which is not largely
and effectively automatic. * * *
4. Executive Order 10501 failed to provide an effective
means of monitoring its implementation. And the handling
of national security information, like any other large and
complex undertaking, clearly requires leadership and man-
agement on a continuing basis if it is to be made to work.
These in my opinion were the essential conclusions to
emerge from the interagency study which the President
launched. I might add one more: the obvious fact that the
conditions here suggested were contributing to a growing
lack of respect, in and out of Government, for the classi-
fication system, with resulting damage both to the public's
right to be informed and to its right to effective protection
of its security interests.
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The implications of security classification abuses were clearly stated
by David Wise, coauthor of "The Invisible Government," a critical
study of the U.S. intelligence community:122
Mr. Chairman, I believe that the central fact about the
American political system today is that large numbers of
people no longer believe the Government or the President,
and I am speaking of any President. They no longer believe
the Government because they have come to understand that
the Government does not always tell the truth; that indeed it
very often tells just the opposite.
This erosion of confidence between the people and the
Government' is perhaps the single most important political
development in America in the past decade. * * *
President Nixon has recognized Government credibility as
a continuing problem, and it is certainly not a problem asso-
ciated only with the one administration or one political party.
The American ]people have not been told the truth. If the
people aren't told the truth, if they are misled, then I don't
believe we can continue for very long to have a properly
functioning democratic system. I think that there is obviously
a very close relationship between public mistrust of Govern-
ment, and of Government information, and the question of
secrecy and document classification. I think that is very clear
from the Pentagon study of the Vietnam war which led to the
historic constitutional confrontation between the Federal
Government, the New York Times and several other news-
papers in recent days. Those materials make it clear that it is
very simple for Government officials, by using the security
classification system, to keep from public view policies, pro-
grams, plans, decisions and actions that are just the opposite
of what the public is being told. In other words, we now have
a system of institutionalized lying. Fortunately, no one has
yet invented a rubberstamp or security classification that can
keep the truth from eventually becoming known. But all too
often, it does not become known quickly enough to inform
the voters.
A similar theme was expressed by Senator Mike Gravel of Alaska
in his testimony:'
I think the cocoon of secrecy that we have woven over the
years, particularly since the Second World War, is what has
permitted us to go into Vietnam, permitted us to waste not
only our blood, our young people, but also to waste our eco-
nomic fiber. To what degree I don't think we will ever know.
I think only history can judge that.
I personally feel that our democracy is under assault,
assault in a very unique way and in a very evolutionary way,
and unless we can turn the tide we will lose the system of
government we presently enjoy. And the single item that will
172 Hearings, supra, pt. 2, pp. 329-330.
In Hearings, supra, pt. 7, p. 26118.
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45
be responsible for this loss of government, this great experi-
ment at self-government here in the United States, will be
secrecy itself and nothing more, nothing more complex than
that, because secrecy is anathema to democracy. It is that
fundamental.
You can't ask people to go vote-and in our society the
person who votes is supposed to be the final word-when
secrecy prevails. It is a government of the people, by the
people, for the people, so they have to give the final word.
Quite obviously they can't vote intelligently or exercise their
franchise with any efficiency if they don't know what they
are voting about, and that depends upon the amount of
knowledge they have.
Now, if that knowledge is spoon fed to them so they will
arrive at preconceived conclusions, then obviously you
develop a type of government that becomes first an autoc-
racy and from there a dictatorship.
Congressman Otis Pike of New York, a member of the House
Armed Services Committee testified: 124
The record of the Department of Defense in this area is
uniformly on the side of secrecy. They. have, in the past,
been completely successful in getting Congress to approve
weapons systems for which neither Congress nor the Ameri-
can public is told the ultimate cost, so why should they
change.
Far beyond classifying for purposes of national defense,
they classify to change their testimony, to avoid embarrass-
ment, and I expect most frequently through sheer stupidity
and because no one ever' tells them not to.
We have all seen page after page after page of testimony
.stamped "secret," and then seen the Department of Defense
release the same testimony with no change whatsoever. We
have seen the biographies of generals and admirals stamped
"secret." * * *
In conclusion, it is my own judgment that 90 percent of
what is classified should not be. Physically, there should be
just as many people employed by the Pentagon declassifying
material as there are classifying it. Their attitude has always
been, "If in doubt-mark it secret." In a free society our
attitude should always be, "If in doubt-tell the people the
truth."
Historian Lloyd C. Gardner of Rutgers University observed:
One can trace the growth of official secrets, both in volume
and length of classification, with America's rise to "a power-
ful position in world affairs." As interest multiplied, so did
secrecy. There is something uncomfortable in a democracy
about that fact alone, something that bears close watching."'
121 Ibid., pp. 2428-2424; an example illustrating unnecessary classification by the Navy of a 1969 letter to
'Congressman Pike, classified "Secret," by then Navy Secretary Chafee came out during the hearings.
The letter, involving CTF 98 Op-Order 301-88 connected with the North Korean capture of the U.S. vessel
Pueblo, had been included in the prepared text of Mr. Pike's May 1972 statement to the subcommittee.
Subcommittee efforts to have it declassified by the Navy immediately prior to the hearings failed, but it
,was subsequently reviewed and declassified by Secretary Chafes during the course of Mr. Pike's testimony
before the subcommittee; see hearings, pt. 7, pp. 2423-2425; 243a-2435.
120 Ibid., pp. 2656-2857.
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He went on to point out :
Nations, like individuals, depend in part upon memory
in order to be able to function rationally in the present.
Historians are to a degree responsible for what stands
out in a nation's memory; they supply experience longer
than one generation's lifespan, and broader than that
of any group of individuals.
As one approaches the present, the historian's most
valuable asset, perspective,. is diminished chronologically,
and in a secret r-conscious nation, by the lack of available
evidence as The Nation's memory is thus weakest for the years of
the recent past, a serious defect, unless one is prepared to
concede that the public should reach its conclusions on the
basis of little or no information, or that the policymaker
is the only one who needs the memory.
Other witnesses were more specific in their discussion of abuses in
the security classification system, providing detailed information
on cases of overclassification or needless classification that illustrates
many of the basic shortcomings of Executive Order 10501.
Classification expert William G. Florence gave a number of examples
in his testimony: 121
Some time ago, one of the service Chiefs of Staff wrote
a note to the other Chiefs of Staff stating briefly that too
many papers were being circulated with the top secret
classification. He suggested that use of the classification
should be reduced. Believe it or not, Mr. Chairman, that
note itself was marked "top secret."
The Air Force Electronics Systems Division at Hanscom
Field, Mass., adopted the following statement for use on
selected documents : "Although the material in this publi-
cation is unclassified, it is assigned an overall classification
of confidential." We attempted some extra orientation in
the Air Force regarding the definition of "confidential"
at that time. I would not say our immediate success lasted
very long. I still see practices of this sort.
Not so very long ago, someone in the Navy Department
placed the "secret" marking on some newspaper items of
particular interest to the Navy. Subsequently, that action
caused some embarrassment to the Department of Defense.
As a result, a special directive had to be published to tell
people not to classify newspapers. I see recently that practice
within the Department of Defense is continuing anyway, the
best I can tell from reading the newspapers today about
the disclosures in the New York Times, the Washington
Post, and the Boston Globe.
A great many individuals in the Department of Defense,
including highly placed officials, classify or strongly support
the imposition of defense classifications on privately owned
information, including privately generated applications for
patents, regardless of the fact that Executive Order 10501
IN Hearings, supra, pt. 1, pp. 99?-100; other cases cited by Mr. Florence are found at pp. 98-108.
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is clearly limited to official Government information. This
really spreads classification beyond any possible control.
And we can be certain that the tremendous costs which stem
from this type of unnecessary classification, as well as all
other unnecessary classifications, are charged to all of us
as taxpayers.
Mr. Forrest M. Mims III, a former security officer at the Air Force
Weapons Laboratory, Kirtland Air Force Base, N. Mex., also cited
what he considered to be abuses of classification authority and pro-
cedures : 127
Some examples of overclassification I observed at the Air
Force Weapons Laboratory include the following:
1. In 1967, the Department of Defense classified, a proj-
ect to develop a personnel sensing system based on a principle
of nature familiar to any school boy. Both the project and
the principle were classified Top Secret (Special Access Re-
quired). The project was downgraded to a more reasonable
classification level in 1970.
2. The Air Force classified as Secret (Special Access Re-
quired) a certain laser weaponry program because revelation
of the weapon's target would result in revulsion and disap-
proval on the part of the general public. The project, though
compromised on several occasions as a result of unclassified
supporting experiments and studies, is still classified as
Secret. An identical Army program, since discontinued as
being impractical, was classified only Confidential.
3. An Air Force scientist invoked the classification system
to prevent a research project from being transferred to an Air
Force research laboratory with the assigned task of perform-
ing identical work but without the required security access.
The classification system was invoked even though nearly all
aspects of the project were treated as unclassified at the
scientist's own laboratory.
While these examples of overclassification may seem in-
consequential, they seriously impede the efficiency and
communication necessary for high quality research.
Overclassification is by no means limited to Air Force
research laboratories. I witnessed many examples of the prac-
tice elsewhere. For example :
1. In 1966, a brief lesson block on the history of the Bol-
shevik revolution taught at the Armed Forces Air Intelligence
Training Center was classified Secret.
2. In 1967, a large selection of photographs showing atroci-
ties wrought by communist troops against Vietnamese
civilians was classified Confidential.
3. Also in 1967, aerial reconnaissance photographs taken
by Air Force planes which revealed bombing of civilian
structures in North Viet-Nam were classified Secret.
Congressman Michael J. Harrington of Massachusetts, a member
of the House Armed Services Committee, said in his statement to the
subcommittee : 12s
137 Hearings, supra, pt. 3, p. 967.
11 Hearings, supra, pt. 1, p. 227.
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But the military, by its constant penchant foi secrecy,
erodes whatever public confidence it may ever hope to have.
The military has been sharply criticized lately, but instead
of offering candid explanations for its policies, it hides behind
the cloak of "Top Secret." I asked Secretary of the Navy
Chafee why dumping at sea or the problems of race relations
in the service were stamped "Confidential." While he agreed
that the Navy should make every effort to bring dialog before
the public, he explained that parts of the document were
classified so all of it was classified.
Still other examples were provided by Mr. William G. Florence in
his May 1972, testimony: 129
This subcommittee has an abundance of examples of
unnecessary classification assignments showing that classifi-
cation markings on a document usually are clearly unwar-
ranted. I will describe only one at this time to emphasize
how utterly ludicrous 'the classification system is in practice.
Compilations of unclassified information are still being
classified frequently by individuals who seem to believe that
multiplicity or complexity itself should be protected. The
Department of Defense affidavit given the court last summer
in the Washington Post case involving the Vietnam study
included the following: "It is sometimes necessary to classify
a document in which no single,piece or part is itself classified."
This falsification of policy in Executive Order 10501 has led
to unnecessary classification of millions of documents of the
Department of Defense. * * *
Another example of the classification of unclassified
information is- a document prepared by the Massachusetts
Institute of Technology for the Air Force Space and Missile
Systems Office. with the title, "Assembly Manual--Gyro
Float." It was issued in February 1971 with the classification
of confidential, which was the responsibility of the Air Force.
Here is a copy of the document with the marking "confi-
dential" on the cover. This document, with its confidential
classification marking, contains the following statement:
Each section of this volume is in itself unclassified.
to protect the compilation of information contained
in the complete volume, the complete volume is
confidential.
Also in the foreword of the document is the following
statement, which is required by Executive Order 10501 on
all classified documents held by contractors and others
outside the executive branch:
This document contains information affecting the
national defense of the United States within the
meaning of the Espionage Laws, title 18, United
States Code, sections 793 and 794, the transmission
or revelation of which in any manner to an un-
authorized person is prohibited by law,
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. This nonsensical practice of the Department of Defense
not only is outrageously expensive in terms of wasted money
but it is atrocious in its application to individuals who
happen to become involved in an allegation of mishandling
the unclassified information. I have seen people in responsible
'positions blindly take punitive action against employees in
the Government and in industry for handling such unclassi-
fied information as being unclassified.
One opinion showing the widespread extent of abuse in the security
classification system was presented by Gene R. LaRocque, rear
admiral (retired), U.S. Navy, a much-decorated veteran of 31 years of
naval service. He testified :130
In the military the best way to prevent disclosure of in-
formation is to classify it. Classification is made for a variety
of reasons. First, to prevent it from falling into the hands of a
potential enemy; this is legitimate but accounts for only a
small portion of the material classified. Other reasons for
classifying material are: to keep it from the other military
services, from civilians in their own service, from civilians in
the Defense Department, from the State Department, and
of course, from the Congress. Sometimes, information is classi-
fied to withhold it for later release to maximize the effect on
the public or the Congress.
Frequently, information is classified so that only portions
of it can be released selectively to the press to influence the
public or the Congress. These time released capsules have a
lasting effect. * * *
Admiral La Rocque also stated:
Regrettably, far too much material is classified, much of it
just because it is easier to classify than not. You cannot get
into trouble by overclassifying, only by failing to classify.
And, it is easier to maintain secure files if all material is classi-
fied. In that way, only one set of files need be maintained.
Classification is also very simple; all one needs is a type-
writer or A. Secret stamp. In most offices, the secretaries or the
yeomen establish the classification. And since most typed
matter is not signed, no one ever knows who classified
the material or for what reason. There is no central record of
what was classified by whom, when, or for what purpose.
Costs of the Security Classification System
Considerable attention was focused during the hearings on the cost
to the American taxpayers in the operation of the security classification
system.
Retired Air Force security classification expert William G. Florence
testified that: 131
There is a massive wastage of money and manpower
involved in protecting this mountainous volume of material
with unwarranted classification markings. Last year, I esti-
mated that about $50 million was being spent on protective
110 Hearings, supra, pt. 7, pp. 2009-2910.
lu Hearings, supra, pt. 7, p. 2532.
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measures for classified documents which were unnecessarily
classified. After further observation and inquiry, and in-
cluding expenditures for the useless clearances granted
people for access to classified material, it is my calculation
that the annual wastage for safeguarding documents and
equipment wita counterfeit classification markings is over
$100 million.
In response to the subcommittee's request for cost data, the Defense
Department subsequently furnished a statement for the record which
provided some representative costs for various components of the
system. However, the Department said that:
There are no available data on the total costs which could
be attributed to security classification or to the protection
and handling of classified documents and material. 112
Among the types of "representative costs" noted by DOD, was
data showing the use of 175 man-months to review 240,000 World,
War II classified documents representing over 1,800,000 pages and
the declassification of over 100,000 of them at an average cost of 66
cents per document, In the handling, protecting, and transmission of
classified documents, DOD estimates that it presently costs $2.57 for
handling a top secret document in transit. They also estimate that it
presently costs 36 cents per top secret document in conducting the
required annual inventories of such documents within DOD.
In an effort to obtain more precise estimates of security classification
costs, Subcommittee Chairman Moorhead requested the assistance of
the General Accounting Office in a June 29, 1971, letter to Comptroller
General Staats. Subsequent meetings of the subcommittee and GAO
staffs developed reasonable guidelines of the types of information to
be included in the GAO study, which was completed and delivered
to the subcommitte on February 16, 1972, and printed in the
hearing record (B-173474).'33
The study focused on all aspects of security classification costs,
including management and policy, classification and declassification,
training, transmitting, safeguarding, administering, and enforcing.
security policies, counterintelligence activities related to document
security, and the costs of personnel investigations. Four Federal
agencies having major security classification responsibilities were in-
cluded in the study-the Departments of State and Defense, the
Atomic Energy Commission, and the National Aeronautics and Space
Administration. Total estimated expenditures during fiscal 1970 for
State, DOD, and NASA, and during fiscal 1971 for AEC were $60.2
million.134
The $60.2 million estimate is only a fraction of the total expenditures
within these four departments and agencies, however, because security
costs associated with the performance on Government classified
contracts are not identified separately. In his response to GAO, DOD
Assistant Secretary Robert C. Moot stated: 115
135 Hearings, pt. 2, pp. 690-691; all figures used here are contained in this referenced statement provided
by the Defense Department.
133 Hearings, supra, pt. 7 pp. 2286--2293.
IY Ibid., p. 2287. An additior..al $66.1 million indirectly related to the classification system was spent for
personnel security investigatior8.
's' Hearings, supra, pt. 7, p. 2290.
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G. Security Costs Included in the Price of Government Contracts
1. Estimated fiscal year 1970 cost: Not available.
2. Comment: The security costs associated with the per-
formance on Government classified contracts are embodied
in "overhead" and are not separately identified. The identifi-
cation of such costs could be obtained on a sampling basis
with the voluntary participation of industry. Time and
resources do not permit this kind of a survey. However, based
on a limited survey of 10 contractors handling 30 contracts,
one component reported that of a total of $54,200,000 of
R.D.T. & E. funds obligated by that component in fiscal year
1970, it estimates that $380,200 or 0.7 percent of contract
price was attributed to security costs. In these cases, security
cost on a percent of contract price ranged from 0.2 to 2.2
percent: however, security cost for only two of the 10 indus-
trial firms exceeded 1 percent.
While this sample cannot be totally relied upon for accurate security
cost figures, it is noted that DOD's total research development test
and evaluation obligations for fiscal 1970 were some $7 billion out of
a $36 billion in total contract awards by DOD that year. If the same
0.7 percent estimate used above were applied to the total R.D.T. & E.
spending, as much as $49 million might be added to DOD security
classification costs.
Other security classification-related costs are also left out of the
$60.2 million figure. State Department data on classification manage-
ment and associated classification and declassification activities are
"not substantial," according to Richard W. Murray, Deputy Assistant
Secretary for Budget and Finance. The Defense Department gave
no figure for administration and enforcement of security policies,
procedures, and regulations; neither did AEC or NASA.136 Thus, each
of the four agencies could not even provide estimates to GAO in at
least two or more of the categories of estimates requested.
It should also be noted that these cost estimates provided in the
GAO study are based on experience under Executive Order 10501,
not the new Executive Order 11652 that was issued in March 1972.
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VI. EXECUTIVE ORDER 11652 ISSUED BY
PRESIDENT NIXON
As noted earlier., President Nixon issued Executive Order 11652
,on March 8, 1972, the end-product of more than a year of study and
drafting by the interagency committee which operated under the
guidance of the National Security Council. The new order, entitled
"Classification and Declassification of National Security Information
and Material," was accompanied by a statement that detailed the
abuses and shortcomings in the security classification system docu-
mented over the years by hearings and reports of this committee.137
The preamble of the Executive order directly links the authority
for its issuance to the Freedom of Information Act: I's
The interest.; of the United States and its citizens are best
!ffierved by making information regarding the affairs of Gov-
ernment readily available to the public. This concept of an
informed citizenry is reflected in the Freedom of Information
Act and in the current public information policies of the
executive branch. * * *
This official information or material, referred to as classi-
fied information or material in this order, is expressly
exempted from public disclosure by Section 552(b)(1) of
Title 5, United States Code. Wrongful disclosure of such
information or material is recognized in the Federal Criminal
Code as providing a basis for prosecution.
Executive Order 11652 had an effective date-of June 1, 1972, but
the implementing guideline directive for regulations was not issued
until May 171 1972, and initial regulations were not published until
August 3, 1972-over 2 months after the effective date.139
Questions of Timing of the New Order
On January 24, 11972, the committee issued a press release announc-
in plans for a series of hearings on the administration of the Freedom
of Information Act to begin in early March, to include, among various
related subject areas, an investigation of the Government's security
classification systera.140 The announcement came during the final
review stages by the National Security Council and executive agencies
of the draft revision of Executive Order 10501 described earlier at
page 31 of this report. _
127 See p. 105 in appendix of this report for text of the order.
128 Hearings, supra, pt. 7, p. 2312.
12937 F. R. 15624 et seq. (Aug. 3, 1972), for texts of regulations of the Atomic Energy Commission, the
Central Intelligence Agency, the General Services Administration, and the Departments of State, Defense,
and Justice.
140 Hearings, pt. 4, pp. 10214022.
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A two-part article by Mr. Sanford Ungar of the Washington Post
appeared on February 11 and 12, 1972, which described in detail the
provisions of the draft security classification Executive order.141 The
article stated that a copy of the draft had come into the possession of
the Post. Efforts were made that same day by the subcommittee
staff to obtain a copy from the Office of Legal Counsel, Department
of Justice, for informal review and comment. The request was denied
by an official at the Justice Department, who asserted that the docu-
ment was "only a working draft," although the Post story had stated
that its transmittal letter had called it "the final draft." A subsequent
request by Subcommittee Chairman Moorhead to White House
Counsel John W. Dean III, for a copy of the draft for such purposes
was also denied a few days later.
Several weeks later, in remarks on the House floor, Subcommittee
Chairman Moorhead recounted efforts to obtain a copy of the draft
order and cited the subcommittee's long experience in the security
classification field and the legislative alternative being worked on
by the staff to replace Executive Order 10501. He also mentioned
"rumors that had been circulating" about the planned issuance of a
new Executive order to preempt congressional action in this area.
Subcommittee Chairman Moorhead also cautioned against hasty
action because of what seemed to be serious inadequacies and defects
in the draft, as described in the Ungar articles.142 The new Executive
Order 11652 was issued a week later on March 8. Its issuance was
promptly deplored as premature by Mr. Moorhead in remarks on the
House floor. 43
The subcommittee staff was directed to make an intensive study
and analysis of the new order, comparing its provisions on a section-
by-section basis with Executive Order 10501. The analysis was com-
pleted the following week and the full text was placed in the Congres-
sional Record on March 21, 1972.144 While praising the President's
statement that accompanied the new order, describing the dimensions
of the security classification problem, Mr. Moorhead listed in his
remarks in the Record a number of its major defects as revealed in
the subcommittee staff analysis. Witnesses from the executive branch
who testified during the May 1972 subcommittee hearings were
requested to comment on these specific defects so that any misinterpre-
tations of the precise meaning of the language of these sections of
the new Executive order could be clarified on the record.
The major points in dispute are discussed later in this chapter.
Not only had the executive branch refused the subcommittee's
request for an opportunity to informally review and comment on the
proposed draft of the new Executive order, but it also refused to permit
testimony by Mr. David Young, a special assistant to the National
Security Council, who had assumed major responsibility for coordi-
141 Hearings, pt. 7, pp. 2303-2306 contain the text of the two Washington Post articles by Mr. Ungar; his
description of various provisions of the draft are quite accurate when compared to the actual text of the new
order issued the following month.
142 Congressional Record (Mar. 1, 1972), p 111637, hearings, pt. 7, pp. 2844-2845. See hearings, pt. 7, pp.
2803-2306 for text of Ungar articles in Washington Post; see also pp. 2527-2528 for description of sequence
of events.
117 Congressional Record (Mar. 8, 1972), p. 111892; hearings, pt. 7, p. 2848-2849. -
144 Congressional Record (Mar. 21, 1972), p. E3774; text also in hearings, pt. 7, pp. 2849-2883.
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nating work on the final draft of the Executive order by the inter--
agency committee when its chairman, Assistant Attorney General
Rehnquist, was appointed to the Supreme Court. A subsequent re-
quest for the opportunity to review the draft directive implementing
the new Executive order was also refused. Subcommittee Chairman
Moorhead described the sequence of events in his opening statement
at the May 2, 1972, hearing in which the subcommittee received testi-
mony from State and Defense Department officials on the new Execu-
tive order : 145
We had also invited here today Mr. David Young, special
assistant to the National Security Council, who is considered
by some to be the major architect of the new Executive Order
11652. At the conclusion of my statement, I will insert into
the record the letter which I wrote to Mr. Young on April 24,
inviting him to testify. Citing the Flanigan precedent in-
volving the ITT investigation, I had offered, in behalf
of subcommittee, the agreement not to pose questions
that "might tend to impinge on your personal discussions
with the President in this area (of the Executive order)."
Unfortunately, Mr. Young is not here today. This morning
I received a letter from Mr. John Wesley Dean III, a counsel
to the President, asserting so-called Executive privilege.
Mr. Young's office was also requested to supply to this
subcommittee a copy of the guideline directive for im-
plementation of the Executive Order 11652, which he has pre-
pared for the executive departments and agencies affected
by the new Executive order.
This mornin, in a telephone conversation, Mr. Young
declined at this' time to submit this implementation order
to the subcommittee. I told Mr. Young that I thought
this was unfortunate, that there should be greater cooperation
between the executive branch and the legislative branch and
that I thought that our studies and our hearings had given
this subcommittee a degree of expertise that would help in
the drawing up of an effective implementation order. I also
suggested that if we had been permitted to participate in the
drafting of this directive we would be in a position where
we could not be too critical, unless we told them ahead of
time that we had certain points of reservation.
Unfortunately, this degree of cooperation which we have
offered has not been accepted by the White House, and this
is particularly regrettable because the matters we are dis-
cussing here are of the highest importance to this subcom-
mittee and to the Congress as a.whole.
In his opening statement at the May 3, 1972, hearing, Subcom-
mittee Chairman Moorhead deplored the lack of specific rebuttal
by executive branch witnesses to allegations of defects and loopholes
in the new Executive order made in the subcommittee's analysis
and also raised the questiofi of timing of the June 1. effective date
of the new order: 141
144 Hearings, pt. 7, pp. 2451-2452; text of correspondence with Mr. Young and White House Counsel John W.
Dean III is on pp. 2452-2453; Later in the May 2 hearing, Chairman Moorhead placed in the hearing record
the text of s. White House press conference in which Mr. Young answered some of the types of questions posed
by news reporters that would have been put to him by subcommittee members; see ibid., pp. 2505-2515.
146 bid., p. 2528.
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* * * another serious problem was also raised at the
hearings yesterday. The subcommittee learned from Mr. J.
Fred Buzhardt, General Counsel of the Defense Department,
and from Mr. William D. Blair, Assistant Secretary of State,
that the National Security Council has not yet issued its
guideline directive to departments and agencies affected by
the new Executive order. This is despite the fact that the
new order is to take effect on June 1, less than 28 days from
now. No departmental or agency directives or regulations
can be written until such guidelines are received. Even after
they are drafted, they must be reviewed, cleared, printed,
promulgated, and physically delivered to U.S. military and
diplomatic stations in the far-off corners of the globe. More-
over, since the new order differs greatly from the old in
some respects, extensive familiarization and training of
personnel will be required to make it fully effective in safe-
guarding the legitimate security interests of our national
defense and foreign policy.
In order to assure the opportunity for an orderly review of the
adequacy of Executive Order 11652 in safeguarding our essential
national secrets and to provide time for its proper implementation,
Mr. Moorhead urged the indefinite suspension of its effective date: 147 .
I am, therefore, calling on the President of the United
States to indefinitely suspend the effective date of the new
Executive order: Its inherent defects and the lack of time
to fully implement it make it imperative that he act promptly
to prevent further chaotic conditions that could adversely
affect our national defense and foreign policy.
While the existing Executive Order 10501, governing the
security classification system is far less than perfect, it has
been in effect since 1953. The hasty, ill-conceived replace-
ment classification system provided for in the new Executive
order is not the answer. The delay in. the effective date of
any new system would be a rational approach and in the
national interest.
No response to the request for suspension of the new Executive
order's effective date. was forthcoming from the White House. The
National Security Council's guideline directive for implementation
of Executive Order 11652 was not published until May 19, 1972,14$
and the first departmental and agency regulations were not promul-
gated until August 3, 1972-more than 2 months after the effective
date of the new Executive order.149
In its haste to undercut congressional investigation of the security
classification system by the issuance of a faulty Executive order
without allowing adequate time for the preparation, review, dis-
semination, and training under new implementing regulations, the
Nixon administration may have seriously impaired the effective
functioning of the entire classification system. The question of legality
147 Ibid., this action was also called for by Chairman Moorhead in a speech on the House floor on May 3,
1972, Congressional Record, p H4096; for text see hearings, pt. 7, pp. 2889-2890.
148 37 F.R. 10053; for text of directive, see hearings, pt. 7, ppp. 2319-2328.
149 37 F.R. 15624; for text of regulations of the tate, uefeense, and ndneustlo Services Administration, Atomic
Energ Commission, the Central Intelligence Agency, and the beariny gs, pt. 7, p. 2329.
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of classification markings applied in some cases under the old Execu-
tive Order 10501 during the hiatus between June 1, 1972, and August 3,
1972, is discussed later in this chapter.156
Major Features of Executive Order 11652
In his March 8, 1972, statement accompanying the new Executive
order, President Nixon outlined its "most significant features" as
follows :151
The rules for classifying documents are more restrictive.
The number of departments and people who can originally
classify information has been substantially reduced.
Timetables ranging from 6 to 10 years have been set for
the automatic declassification of documents. Exceptions will
be allowed only for such information as falls within four
specifically defined categories.
Any document exempted from automatic declassification
will be subject to mandatory review after a 10-year period.
Thus, for the first time, a private citizen is given a clear right
to have national security information reviewed on the basis
of specified criteria to determine if continued classification is
warranted so long as the document can be adequately
identified and obtained by the Government with a reason-
able amount of effort.
If information is still classified 30 years after on ination,
it will then be automatically declassified unless the head
of the originating department determines in writing that its
continued protection is still necessary and he sets a time for
declassification.
Sanctions may be imposed upon those who abuse the
system.
And a continuing monitoring process will be set up under
the National Security Council and an interagency classifica-
tion review committee, whose chairman is to be appointed by
the President.
A White House "Fact Sheet on Executive Order 11652," issued on
August 3, 1972, lists "the three basic objectives of the new Executive
order as: (1) To reduce the amount of material classified by the
Government; (2) to provide for speedier declassification under auto-
matic schedules; and (3) to insure implementation of the order
through the establishment of an Interagency Classification Review
Committee." 152
Key executive branch witnesses also commented on the scope and
objectives of the new Executive Order 11652 in their testimony.
Defense Department General Counsel J. Fred Buzhardt said: 153
Executive Order 11652 represents a significant milestone in
the efforts of the executive branch to provide a rational
balance between the public's right to know about the affairs
Is See p. 80 of this report. Initial regulations were issued on Aug. 3, 1972.
tai Hearings, pt. 7, p. 2310; for texts of President Nixon's statement, and the text of Executive Order 11652
see Ibid., pp. 2308-2319.
15 Progress report on implementation of new order contained in press release, Office of the White House
Press Secretary, Aug. 3 1972; for text, see hearings, pt. 7, pp. 2826-2827.
iu Ibid., p. 2454; see also a chart presented by Mr. Buzhardt comparing major features of the old and new
Executive orders, pp. 2461-2162.
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of Government, and the equally compelling need to protect
certain information against unauthorized disclosure. The De-
partment of Defense is working with an enthusiastic commit-
went to implement the new policies in order to correct defi-
ciencies in the existing system and to confine classification
to that information which truly requires protection in the
interest of national security, and to continue that classifica-
tion only for the minimum time absolutely required. In short,
the Department of Defense is dedicated in dealing with
known problems in the classification system forthwith and
to overcoming any potential roadblock to speedy progress.
Mr. William D. Blair, Jr., Deputy Assistant Secretary of State for
Public Affairs and a member of the committee that drafted the new
Executive order, outlined in his testimony the major causes of the
failure of Executive Order 10501. He indicated ways in which the new
order was intended to meet "each of the serious weaknesses" of the
old order: 114
First, the elimination of the complicated and ineffective
group system has somewhat simplified the new order, in
comparison with its predecessor. While a list of exemptions
from automatic declassification remains, it is specific in nature
and more restricted in scope.
Second, the authority to classify, and the authority to
exempt from automatic declassification, have been sharply
restricted in terms both of numbers and agencies and numbers
of individual officers.
Third, the effect of these changes, and of other changes in
the new order, will be to provide for the first time a declassi-
fication system which is genuinely automatic. While the need
for individual review of specific documents in specific cases
will always remain, the principle is here established that all
material will be declassified when the calendar reaches the
declassification date typed or stamped on the face of each
document: and for the great bulk of material, this will occur in
accordance with a standard and shortened declassification
schedule which ranges from 6 to 10 years according to classi-
fication categories.
Fourth, Executive Order 11652 establishes a practical
framework for monitoring the implementation of the new
system on a continuing basis, under the broad supervision of
a high-level interagency classification review committee, act-
ing for the National Security Council, and of a senior-level
group in, each department.
Mr. Ralph E. Erickson, then Assistant Attorney General, Office of
Legal Counsel, described the "chief deficiency" of Executive Order
10501 as follows:156
Material classified under Executive Order 10501 and
under preceding authorities has accumulated in vast quanti-
ties in Government files and storehouses. Only with the com-
mitment of extensive Government resources can this moun-
tain of classified material be reviewed or declassified within a
164 Ibid., pp. 2484-2465.
1a Ibid., p. 2676.
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reasonable period of time. Perhaps the chief deficiency of
Executive Order 10501 was the failure of that order to pro-
vide an effective administrative system. Without an effective
administrative system, its well-intended provisions turned
out to be empty exhortations for the most part.
He then went on to comment on Executive Order 11562:
Since the issuance of the new order there has been extensive
comment and testimony on whether the new order will in fact
limit the volume of classified material and bring about a
significant increase in the amount of information available to
the public. While only time will tell whether the new ap-
proaches embodied in Executive Order 1.1652 will succeed
where the old approaches failed, we are sanguine. The new
order reflects the judgment of experienced persons in the secu-
rity field with a lively appreciation of the bureaucratic prob-
lems and pressures that resulted in the shortcomings of the
old system. Clearly no system, no matter how well devised,
will bring about significant changes unless the people
operating anct supervising it are committed to its goals. We
believe that the rules and machinery set up by the new order
provide an excellent framework within which the executive
branch can work toward itsgoal of cutting back sharply on
the quantity and duration of security classification.
The Archivist of the United States, Dr. James B. Rhoads, discussed
the portions of the new Executive order that would particularly affect
the operations of the National Archives in their declassification
efforts. He also stated : 188
* * * We in the National Archives are particularly sensitive
to the problems involved with classified documents. From
our point of view Executive Order 11652 is a decided improve-
ment over the earlier Executive order. It attempts to strike
a new and better balance between the Government's need
for confidentiality and the people's right to know-a
balance in favor of greater access.
Conflicting Interpretations of Key Sections of New Order
A number of major problem areas representing conflicting inter-
pretations of key provisions of Executive Order 11652 were discussed
during the hearings. Many of these areas of contention were outlined
in the subcommittee staff analysis of Executive Order 11652 and the
section-by-section analysis of the old and new Executive orders men-
tioned earlier. The 11 alleged defects were that it: i57
(1) Totally misconstrues the basic meaning of the Freedom of
Information Act (5 U.S.C. 552) ;
(2) Confuses the sanctions of the Criminal Code that apply to
the wrongful disclosure of classified information.;
(3) Confuses the legal meaning of the terms "national defense"
and "national security" and the terms "foreign policy" and
"foreign relations" while failing to provide an adequate defini-
tion for any of the terms;
eae Ibid., p. 2608.
eel Ibid., p. 2850:
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(4) Increases (not reduces) the limitation on the number of
persons who can wield classification stamps and restricts public
access to lists of persons having such authority;
(5) Provides no specific penalties for overclassification or mis-
classification of information or material;
(6) Permits executive departments to hide the identity of
classifiers of specific documents;
(7) Contains no requirement to depart from the general de-
classification rules, even when classified information no longer
requires protection;
(8) Permits full details of major defense or foreign policy errors
of an administration to be cloaked for a minimum of three 4-year
Presidential terms, but,loopholes could extend this secrecy for
30 years or longer;
(9) Provides no public accountability to Congress for the ac-
tions of the newly created Interagency Classification Review
Committee;
(10) Legitimizes and broadens authority for the use of special
categories of "classification" governing access and distribution of
classified information and material beyond the three specified
categories-top secret, secret, and confidential; and
(11) Creates a "special privilege" for former Presidential ap-
pointees for access to certain papers that could serve as the basis
for their private profit through the sale of articles, books,
memoirs to publishing houses.
A number of these major defects in the new Executive order are
discussed in the following portion of this chapter.
Statement in the Preamble of Executive Order 11652
The first series of criticisms in the subcommittee staff analysis was
directed at certain statements contained in the preamble of the new
Executive order. The first of these involved references to the Freedom
of Information Act. The third paragraph of the preamble reads: 158
This official information or material, referred ' to as classi-
fied information or materials in this order is expressly ex-
empted from public disclosure by section 552(b)(1) of
Title 5, United States Code. Wrongful disclosure of such
information or material is recognized in the Federal Crimi-
nal Code as providing a basis for prosecution.
The use of the term "expressly exempted" implies that all exemp-
tions under the Freedom of Information Act are mandatory upon
executive agencies in responding to a request for information under
the act. In reality, the use of such exemptions are permissive only.
Thus information subject to exemption (b)(1) could be declassified
and made public upon request.
A subsequent colloquy during the hearings between then Assistant
Attorney General Erickson and the subcommittee staff director
dealt with the term "expressly exempt" and the language of the
preamble referring to the Freedom of Information Act. Mr. Erickson
readily admitted that "the exemptions (under the Freedom of In-
formation Act) are permissive in the sense that there is nothing in the
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act that would prohibit an executive agency or department from
disclosing records coming within them." He defined the term "ex-
pressly exempt" as having the option to disclose it.1s9
The reference to the Federal Criminal Code in the last sentence of
paragraph three of the preamble was also the subject of contention.
Prosecutive action for an alleged "wrongful disclosure" of classified
information or material described in Executive Order 11652 would be
proper only if it met the test of the types of information specifically
referred to in the criminal code, not necessarily that specified in the
Executive order, and if the purpose or conditions of the alleged "wrong-
ful disclosure" met the additional tests as contained in the code and
court decisions based on those sections. There is no basis in law for
an Executive order, in effect, to threaten Members of Congress,
newsmen, or anyone else for what the order refers to as a "wrongful
disclosure."
This point was discussed in a colloquy between Subcommittee
Chairman Moorhead. and Mr. Erickson during his March 10, 1972,
testimony on the administration of the Freedom of Information Act: 110
Mr. MOORHEAD. Under the Executive order, the duty of
interpretation is assigned to the Justice Department, is it
not?
Mr. ERICKSON. Yes, it is. The Attorney General has that
responsibility under section 7C, I believe it is.
Mr. MOORHEAD. I notice in the Executive order, in the
third paragraph, it refers to exemptions under section
552(b)(1) of title 5, which is the Freedom of Information
Act, and it says "wrongful disclosure of such information
or material is recognized in the Federal Criminal Code as
providing a basis for prosecution."
What is the meaning of the word "wrongful" there?
Mr. ERICKsoN. Wrongful in that context, to me, would
mean disclosure of a classified document to one who is not
entitled to receive it.
Mr. MOORHEAD. Therefore, you would say that disclosure
of such information would not require intent to harm the
United States?
Mr. ERICKsor. I would refer you to the particular statutes
involved, and I was just giving you my broad interpretation
of what wrongful would mean. I would have to relate that
to the criminal statutes involved, both in title 18, and there
is a statute in title 50 also which would cover this situation.
I am sure that is the reference.
Mr. MOORHEAD. So that "wrongful" in this context would
be wrongful as defined in the criminal statutes, not as de-
fined in the Executive order, is that correct?
Mr. ERICKSON. That would be my understanding.
Mr. MOORHEAD. Because an Executive order cannot
create a criminal. offense, is that not correct?
Mr. ERICIKSON. Yes, sir.
1b? Ibid., pp. 2702-2703.
190 Hearings, pt. 4, p. 1185.
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Mr. MOORHEAD. So that this Executive order just as the
previous 10501 does not in and of itself create a law, a viola-
Lion of which is a criminal offense?
Mr. ERICKSON. That is correct.
Mr. MOORHEAD. I think that that is important, because'
as you said before, the exemptions under the Freedom of
Information Act are not directives, but are merely permis-
sive. Therefore, if we construe this paragraph to make these
disclosures of exempt items a violation, we are really mis-
construing what you so ably testified were options rather'
than directions. This uncertainty which is created', that,is,
that mere disclosure of classified information, without, the
required intent under the criminal laws, is not in annul' of
itself a criminal violation.
The same point was also discussed later in the hearings. Deputy
Assistant Attorney General Kevin Maroney, head of the Internal
Security Division, had used similar terminology in a speech at the
annual convention of the American Society of Newspaper Editors on
April 19, 1972. His remarks were construed by some to give the ap-
pearance of threatening newsmen with criminal prosecution if they
should publish information bearing a classification marking.181 Mr.
Maroney appeared at the subcommittee hearing to discuss the. alle-
fation and denied that he had meant to threaten those in attendance.
He also conceded, however, that the reference in Executive Order
11652 to the criminal code could not broaden the scope of the statute.112
Mr. Erickson also made it clear that this language of the Executive
order was not intended "to establish any criminal .sanction.
National Defense Versus National Security
Another major provision of Executive Order 11652 examined in
the hearings was the change in terms in section 1, "Security Classifi-
cation Categories" from that of the old Executive order. Executive
Order 10501 used the term "interests of national defense" when applied
to the protection of "official information." Executive Order 11652
uses the term "interest of the national defense or foreign relations of
the United States (hereinafter collectively termed `national security')"
when applied to the protection of "official information." Repeated
efforts'were made during the hearings to clarify the. reason for the
change in terminology in the new order. No real explanation was
.
provided by administration witnesses who testified.'
The term "national security" had been used in Executive Order
10290, but had been replaced by "national defense" when President
Eisenhower issued Executive Order 10501 in 1953. It also raised the
issue of conflict with the language in the Freedom of Information Act
(section 552(b)(1)), which permits the exemption of` information
"specifically required by Executive order to be kept secret in the
interest of the national defense or foreign policy." 184
lm Ibid., see pp. 2694 et seq. for discussion and colloquy with Mr. Maroney on the subject oihis speech;
the text is on pp. 2711-2714.
III Ibid., p. 2695.
153 Ibid., p. 7704.
153 Ibid., pp. 2852-2653. .
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In addition to putting the language of the new Executive order at
variance with the language of the Freedom of Information Act on
which it relies for application of the exemption, the semantic and
legal differences between the terms "national defense" and "national
security" and the terms "foreign policy" and "foreign relations"
weaken the entire foundation of Executive Order 11652, while failing
to correct a basic defect in Executive Order 10501--namely, its lack
of a definition for the term "national defense." For example, "rela-
tions" is a much broader word than "policy" because it includes all
operational matters, no matter how insignificant.
The following colloquies involving Subcommittee Chairman Moor-
head, Congressman Moss, Mr. Buzhardt (Defense), and Mr. Blair
(State) illustrate efforts made during the hearings to obtain an expla-
nation of the rationale behind the change in language in Executive
Order 11652: 165
Mr. MOORHEAD. Mr. Buzhardt, one of the things that
perturbs me about the new Executive order is its inconsistent
language. While it does cite the Freedom of Information Act
which does have the exemption (b) (1) that act uses the
terms "national defense or foreign policy." However, the
Executive order, although citing the act does, not use that
language which has been relied upon by the courts, which
has been construed by the Attorney General, and which
has been in use for now almost 5 years. It uses a different
term, "national security," and then instead of using the
words "foreign policy," it uses the words "foreign relations."
At one point in your testimony, I think page 4, you said
the category is broader. It seems to me that it would have
been logical to use the statutory language which has been
defined and not use another term which is broader, as your
own testimony indicates, than the statutory language of the
act.
Mr. BUZHARDT. Let me say first that the term "national
defense," as used in Executive Order 10501, has been
generally construed by the courts and certainly interpreted
by both the executive, well, certainly the executive branch,
to include foreign relations matters. Now there is a possible
slight distinction between foreign policy on the one hand and
foreign relations on the other.
We believe that foreign relations is a more precise term,
and I will defer to Mr. Blair on this.
Mr. MOORHEAD. You go back to Executive Order 10501.
I was referring to the Freedom of Information Act. If there
is a difference In meaning and if foreign relations are broader,
then under the law passed by the Congress and signed by the
President you can't expand that by using broader language.
Mr. BLAIR. May I comment on that, Mr. Chairman?
Mr. MOORHEAD. Yes.
Mr. BLAIR. First, I would say that I think we tend to
regard the distinction between the word "policy" in this
context and the word "relations" as being rather minor, but
of the two words we would regard relations as being more
14 Ibid., pp. 2468-2471.
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concrete. A question would arise in some cases if the word
for this purpose were policy, in a case like this, where a
telegram comes in from the field and the reason that it is
being classified by the originating Ambassador or his staff
is that it reflects, let's say invidiously on the head of state
of a foreign government, and that, we feel, would damage
our negotiations with that government now in progress if it
were prematurely published. Well, is that a policy matter?
That would be a question in some minds, an ambiguity; but
we felt if you use the word "relations" it makes it quite clear
that the President is instructing us or giving us authority
to use our discretion to classify in such *a case. Whether that,
is foreign policy or not I am not sure.
* *
Mr. Moss. First of all, I think we should have the record
very clearly reflect that no authority is given the Executive
to classify under the Freedom of Information Act, nor is
any authority implied, but there is a recognition of an
exemption for those items specifically, and the term "speci-
fically" was used advisedly-specifically ordered to be
protected by an Executive order.
So there is no expansion of whatever claim of Executive
power the President might make based on our statutes. We.
had not intended and I think we were very cautious in not
expanding by implication or otherwise any claimed authority
of the President. We used the term, "defense and foreign.
policy" very carefully. We did not intend to cover foreign
relations. It was proposed but we did not use that term at
all because we felt that the foreign relations might be far
broader than foreign policy. We do have a foreign policy
that is set forth with some degree of clarity, varying from
time to time by the Executive, and it is the text of that
policy which concerned the committee in drafting the
language.
Foreign relations go far beyond the policies which we might
lay out, isn't that true?
Mr. BLAIR. I don't think in practice, Mr. Moss, that we
have so interpreted it, but as I say, there has been the feeling
that some ambiguity could arise under the other phrase.
Mr. Moss. You would not say that in drawing a definition
for foreign policy and for foreign relations you would come
up with the same definition, would you?
Mr. BLAIR. I would be hard put to come up with a very
precise definition for either.
Mr. Moss. Couldn't you have foreign relations that oc-
curred on a day-to-day basis that completely contravened
the foreign policy of the United States?
Mr. BLAIR. I can only say that in practice we have under-
stood both to be rather broad terms, Congressman Moss.
Mr. Moss. We used not foreign relations, we used foreign
policy. We had the option of including foreign relations and
we also had the option of dealing with national security. We
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also rejected that as being far more comprehensive than we
intended it to be in the act. National defense, rather specific;
foreign policy, rather specific. We did not intend either for-
eign relations nor national security.
But in view of the fact you have moved to national
security, can either of you gentlemen give me a definition of
"national security"? And while you are at it, can you deal
with a hypothesis of -any instance where you could not
reasonably, let's say, be expected to cause danger to national
security?
It is very easy to construct a reasonable case of possible
danger if a person would accept all of the elements of a
hypothesis affecting that, isn't it?
Mr. BUZHARDT. Mr. Chairman, I think the test of reason-
ableness in this case is one that was imposed which did not
exist under 10501. There it was any potential. The word
used is "could."
Mr. Moss. 10501 used "might gravely impair or"---
Mr. BuzHA:RDT. Yes, that is a degree of danger.
Mr. Moss. Yes.
Mr. BuzHHA:RDT. But the condition was established by the
word "could." That is the word that was replaced by
"reasonably expected to."
Mr. Moss. A test of reasonableness means that a reason-
able man could be persuaded, and I say that taking the case
of national security, such an ill-defined phrase, that no one
can give you a, definition. You can't. I invite you to do it on
the record if you can. In 16 years of chairing the committee
prior to Mr. Moorhead I could never find anyone who could
give me a definition. But if you can I would be most interested
in hearing it. * * *
Written responses were supplied for the hearing record by both the
State and Defense Departments on this subject in an effort to further
clarify the issue. The State Department response to the subcom-
mittee's written question was as follows: "I
Question 1. The new Executive order states that foreign rela-
tions information which is classified is expressly exempted from
public disclosure by the Freedom of Information Act. In my'view
(Chairman Moorhead), that is not correct. Only. foreign policy
information which is classified is exempted from public dis-
closure but even that exemption is permissive and not
mandatory. Foreign relations covers the waterfront. Foreign
policy is much more specific-it deals only with policy and not
the complete spectrum of all activities and operations. Foreign
policy is a definite course of action adopted and pursued.
Foreign relations is anything connected or associated with
.foreign policy. The new Executive order cited the Freedom of
Information Act as one of its statutory authorities. But in
actuality the Freedom of Information Act only recognizes the
existence of a previous Executive order. It in no way authorizes
such an order..Vor does the new order in any way change the
meaning of the Freedom of Information Act. Do you have any
comment on this overall observation?
10 Ibid., p. 2516.
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Answer. We recognize fully that no Executive order can
change the meaning or intent of legislation. We believe the
intent of Executive Order 10501, the Freedom of Information
Act, and Executive Order 11652 in this context is identical
in each case: to recognize and meet the need for temporary
confidentiality for some information developed in the course
of our diplomacy, the premature release of which would be
likely to damage, in the words of the act, our "national
defense or foreign policy" interests. The fact that the drafters
of these various documents did not choose identical language
has no bearing on the effect of the act; and we expect and
intend that implementation of the new order shall limit,
rather than expand, the amount, degree, and duration of
future classification in comparison with previous practice, as
the President in issuing the order has explicitly directed.
The answer for the record supplied by Mr. Buzhardt of the Defense
187
apartment in response to Congressman Moss' request was:
As used in Executive Order 11652, the term "national
security" is explicitly used in a collective. sense to encompass
"national defense" and "foreign relations." (See sec. 1.) In
my personal opinion, "national security," as used in this
context, is synonymous with the generally understood defini-
tion of "national defense" as used in Executive Order 10501.
In this context, "national security" is a generic concept of
broad connotations referring to the Military Establishment
and the related activities of national preparedness including
those diplomatic and international political activities which
are related to the discussion, avoidance or peaceful resolution
of potential or existing international differences which could
otherwise generate a military threat to the United States or
its mutual security arrangements.
The term, although not specifically defined by statute,
appears more than 164 times in the United States Code, 1964
edition, supplement V, based upon the research report
produced by the LITE computer system, a copy of which is
attached. The frequency of its use in Federal legislation
suggests that it is a well understood term, and one readily
accepted by the Congress. For example, Public Law 92-68,
enacted August 6, 1971 (42 U.S.C. 2476) provides for annual
reports to Congress on aeronautics and space activities, but
excludes classified information, subsection (c) provides, "No
information which has been classified for reasons of national
security shall be included in any report made under this
section, unless such information has been declassified by, or
pursuant to authorization given by, the President."
(Emphasis added.)
It is significant that although Executive Order 10501 used
the term "national defense," the Congress chose to use the
words "national security" in describing classified information.
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Later in the hearings, Assistant Attorney General Erickson was also
asked to comment on this same issue : 168
Mr. MOORHEAD. Mr. Erickson, we have been endeavoring
in this series of hearings to find out what was behind the
change in the terminology from the old Executive order to
the new Executive order, particularly the words "national
security," which described as "national defense or foreign
relations of the United States." Exemption (b)(1) of the
Freedom of I:aformation Act refers to "matters under Exec-
utive order required to be kept. secret in the interest of
national defense or foreign policy." It seems to us that the
words "national security" are broader than "national
defense." What you may have done is inadvertently taken
yourself out from under the exemption language in section
(b) (1) of the act.
Can you explain the rationale behind the change to
"national security" from "national defense and foreign
policy"?
Mr. ERICKSON. Mr. Chairman, I was not personally in-
volved in the: development of this definition. I do know,
however, that the insertion of the definition for national
security was placed there principally for the purposes of
clarification, in the sense that the use of the term national
defense in Executive Order 10501 has rather consistently
been interpreted within the executive branch to include
matters of foreign relations. It was not the intent, in establish-
ing the definition of national security, to expand the scope
of the material covered by Executive Order 11652.
It was also pointed out in a colloquy with Mr. Erickson that the
report of the National Commission on the Reform of the Federal
Criminal Laws, also called the Brown Commission, recommending
revisions in the Federal Criminal Code had suggested the use of the
term "national security information" in references to the Espionage
Act, contained in title 18 of the United States Code. The witnesses
were asked if the reason why the term "national security" was sub-
stituted for "national defense" in section 1 of Executive Order 11652
might not be that the administration wished to conform the language
of the Executive order to this language contained in the Brown
Commission's recommendations. Mr. Erickson stated "that aspect
has not been considered by the department yet, to my knowledge,
and certainly is not the basis for national security `as it appears in
the Executive orde'c." 16
It would thus appear that the question of terminology discussed
above has not been resolved, although the detailed discussion of the
question during the hearings helped focus attention on the broad
dimension of the problem.
Number of Persons Authorized To Classify
Another of the major questions discussed during the hearings was
the wording of section 2 of Executive Order 11652---"Authority to
Classify"-concerning the potential "trickle-down" spreading of
lee Ibid. p. 2888.
160 Ibid., pp. 2704-2705.
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classification authority without limitation of the numbers of persons
authorized to wield classification stamps, despite a requirement of the
order that delegation of authority must be in writing."o
Executive branch witnesses assured the subcommittee during the
hearings that the numbers of persons authorized to classify "Top
Secret," "Secret," and "Confidential" under the new order would be
vastly reduced in their own departments and from an overall stand-
point. As has been noted earlier at page 40 of this report, Ambassador
John Eisenhower, Chairman of the Interagency Classification Review
Committee indicated in an August 3, 1972, release that the overall
reduction of persons authorized to classify under Executive Order
11652 has been some 63 percent in major departments.
The committee is gratified with this apparent downward trend, but
reiterates that a reduction in the numbers of persons authorized to
classify does not, in itself, resolve the problem of excessive classifica-
tion and the continued proliferation of the volume of documents
classified. Moreover, the committee has not itself confirmed the accu-
racy of these figures.
No Specific' Penalties for Overclassification
Another defect examined during the hearings was the failure to
include specific sanctions in Executive Order 11652 against unnecessary
classification or overclassification."' Both the old and new orders
warn against such actions, but it has been painfully clear to this
committee that such has not done much good in the past.
As noted earlier in this report, this committee has for many years
strongly condemned overclassification of documents under Executive
Order 10501 and its implementing directives and regulations and
recommended full enforcement, including disciplinary action, of
provisions of the order prohibiting such overclassification.12
But, despite these efforts there has been little real movement by
the executive branch toward this objective. Former Defense Secretary
McNamara's 1961 admonition "* * * When in doubt, underclassify,
did little, if anything, to curb excessive classification in that depart-
ment, even though Defense Department witnesses acknowledged
during the 1971 hearings that the McNamara directive was still in
effect.173
As part of the. subcommittee's January 1972 questionnaire to
selected executive departments and agencies having major responsi-
bilities for security classification matters, statistical data was solicited
concerning formal investigations between July 1, 1967, and June 30,
1971, into possible violations of regulations governing the protection
of information classified under Executive Order 10501. Detailed ques-
tions dealt with investigations concerning improper physical protec-
tion of information, with failure to designate a high enough security
'7? Ibid., pp. 2854-2856.
171 Ibid, p. 2858.
372 See p. 23 of this report.
17' Hearings, pt. 2, p. 683.
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designation, and with the assignment of too high a security designa-
tion. Other information requested concerned criminal charges filed as
a result of these investigations, administrative hearings held, and
administrative penalties assessed.l7Q
The analysis o. responses to the questionnaire showed that during
this 4-year period, those agencies carried out 2,433 investigations
of violations of regulations governing the classification of information
under Executive Order 10501. They assessed administrative penalties,
ranging from reprimands to loss of pay, against 2,504 individuals in-
volved in the investigations. But only two of the investigations in-
volved cases of overclassification and not a single administrative
penalty was imposed against overclassification.l75
This failure to apply sanctions against overclassification-one of
the most obvious shortcomings of Executive Order 10501 and one of
the basic reasons for its replacement by the new order--was a reluc-
tance to implement the intent of section 3 of Executive Order 10501,
which clearly specifies that "Unnecessary classification and over-
classification shall be scrupulously avoided." 176
Executive Order 11652 used virtually identical language in section
4 to warn against such practices-"Both unnecessary classification
and overclassification shall be avoided." The new order does add two
additional sentences to reinforce the prohibition which, hopefully,
will be taken more seriously by Government classification officials
who wield the secrecy stamps in executive agencies: 17
Classification shall be solely on the basis of national security
considerations. In no case shall information be classified in
order to conceal inefficiency or administrative error, to pre-
vent embarrassment to a person or Department, to restrain
competition or independent initiative, or to prevent for any
other reason the release of information which does not require
protection in the interest of national security.
Section 13(A) of the new order also contains another salutary
provision :
Any officer or employee of the United States who unneces-
sarily classifies. or overclassifies information or material shall
be notified that his actions are in violation of the terms of this
order or a directive of the President issued through the National
Security Council. Repeated abuse' of classification process
shall be grounds for an administrative reprimand. In any case
where the Departmental committee or the Interagency Classi-
fication Review Committee finds that unnecessary classifica-
tion or over classification has occurred, it shall make a
report to the head of the Department concerned in order
that corrective steps may be taken.
It is obvious that only by the full and vigorous enforcement of the
necessary implementing regulations by all executive agencies exercis-
ing classification authority under Executive Order 11652 can there be
174 See hearings, pt. 2, p. 2981 for text of questionnaire; also pp. 2928-2937 for memorandum from Congres-
sional Research Service, Library of Congress analyzing the responses from executive agencies; a summary
table may be found at pp. 2935-2937; the texts of agency responses are at pp. 2723--2820.
75 Hearings, pt. 7, table at pp. 2935-2937.
vn Ibid, p. 2858.
irr Ibid.
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effective administration of the security classification system to pre-
vent the unnecessary classification and overclassification that under-
mined the effectiveness of the old order.
It is significant to note that of the implementing regulations issued
thus far, only the State and Justice Departments contain positive
language in their administrative penalty sections that specifically
mentions "overclassification" within the application of the sanctions.
The Defense Department language on administrative actions merely
applies such penalties to those officers or employees guilty of "repeated
abuse, repeated failure, neglect, or disregard of established require-
ments with respect to safeguarding classified information or material
* *," as provided in section 13(A) of the Executive order. But
there is no specific mandate against "overclassification" in the DOD
implementation directive, the one executive department where the
bulk of the overclassification abuses under Executive Order 10501 had
occurred. 178
Identity of Classifiers and Accelerated Declassification
Two other shortcomings in Executive Order 11652 dealt with Section
4(B)-"Identification of Classifying Authority"-and Section 5-"De-
classification and Downgrading." 179
The committee has noted in past studies of the security classification
system that the failure to require that classified documents be iden-
tified with the name of the official exercising classification judgment
authority was a basic weakness in Executive Order 10501. The
language of section 4(B) of Executive Order 11652 is a step forward in
that it provides that "material classified under this order shall. indicate
on its face the identity of the highest authority authorizing the classi-
fication." This language is somewhat diluted, however, by the begin-
ning phrase of the section which qualifies this requirement by stating:
"Unless the Department involved shall have provided some other
method of identifying the individual at the highest level that authorized
classification in each case. * * *" Thus, a "code" system of identifica-
tion is permitted.
Subsequent staff analysis of implementing directives and regulations
indicate that, generally, they require that the classifier be clearly
identified on the face of the document. The Justice Department
regulations do permit "code" identification of classifiers in cases where
the identification by name "might disclose sensitive intelligence infor-
mation." 190
Additional concern was expressed over language of section 5 of the
new order, dealing with declassification and downgrading procedures.
It was based on the failure to include language contained in section 4
of Executive Order 10501, which provided for the downgrading or
declassification of classified information when it "no longer requires
its present level of protection in the defense interest." The new order
contains no requirement to depart from the rules of the general
declassification schedule.
178 37 F.R. 15644 (state-Sec. 9.64, title 22, CFR); 37 F.R. 15646 (Justice-sec. 17.7, title 29, CFR); 37 F. R.
15679 (Defense-sec. 159.1400, pt. 159 to DOD Directive 5299.1, "DOD Information Security Program").
M Ibid., pp. 2859-2880.
16087 P.R. 15848 (sec. 17.21, title 28, CFR).
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The committee notes that the National Security Council directive,
issued on May 19, 1972, does indeed correct this earlier omission in
the language of Executive Order 11652. The first sentence of the
section of the directive dealing with downgrading and declassification
reads :181
Classified information and material shall be declassified
as soon as there are no longer any grounds for continued
classification within the classification category definitions
set forth in Section 1 of the Order. * * *
The new Defense Department Directive (pt. 159 to DOD Direc-
tive 5200.1), also contains a clear statement of such policy: I'll
* * * When classified information is determined in the
interests of national security to require a different level of
protection than that presently assigned, or no longer to
require any such protection, it shall be regraded or declassi-
fied."
Extending the Secrecy Barrier
Another major concern over the shortcomings of Executive Order
11652 involved the 10-year general declassification schedule provided
for in section 5 of the order."" Under Executive Order 10501, certain
nonexempt categories of classified information were downgraded at
3-year intervals from the 12-year starting point. Executive Order
11652 provides that "Top Secret" information becomes "Secret" at
the end of the second full calendar year following the year in which it
was originated. It then becomes "Confidential" at the end of the
fourth full calendar year following the year in which it was originated
and is declassified (unless it falls into one of the four exempt categories)
at the end of the tenth full calendar year following the year in which
it was originated.
Section 5(B) of ]Executive Order 11652 describes the four categories
of information that may be exempted from the general declassification
schedule :184
(1) Classified information or material furnished by foreign
governments or international organizations and held by the
United States on the understanding that it be kept in confi-
dence.
(2) Classified information or material specifically covered
by statute, or pertaining to cryptography, or disclosing
intelligence sources or methods.
(3) Classified information or material disclosing a system,
plan, installation, project or specific foreign relations matter
the continuing protection of which is essential to the national
security.
(4) Classified information or material the disclosure of
which would place a person in immediate jeopardy.
The positive results of the reduction of the declassification schedn1v
from 12 years under the old order to 10 years under Executive Order
11652 may, however, be more illusory than real. The classification
181 37 F.R. 10054; see text in hearings, pt. 7, p. 2320.
181 37 F.R. 15658 (sec. 159.103-1); see also hearings, pt. 7, p. 2361.
1!8 Hearings, pt. 7, pp. 2860-;862.
Is# Ibid., pp. 2861-2862.
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category downgrading of section 5(B) provides that such action be
taken "at the end" of the various applicable calendar years "following
the year in which it was originated." For example, a document
classified top secret early in 1973 would not be downgraded to secret
until Decembr 31, 1975-or almost 3 years later, not the 2-year
period indicated at first glance. This same document would not be
downgraded to confidential until December 31, 1977, and, assuming
it was not a matter falling into the exemption categories of section
5(B), it would not be declassified until December 31, 1983. This
is a period of 10 years-plus another period of up to 12 months,
depending upon how early in the applicable classification year the
document was originally classified.
The potential for political abuse of the provisions of section 5 of
the new order is also of major concern to the committee. The con-
tinued classification of vital information concerning key national
defense and foreign policy issues for a period of 10-plus years under
the general downgrading and declassification schedule means that
anyy President could complete his two constitutional 4-year terms in
office without having to account to the electorate for major policy
blunders in these areas that might have taken place. Moreover, it
would be possible for his Vice President or other nominee of his
political party to succeed him without the public knowing full details
of these defense or foreign policy errors committed by the adminis-
tration and hidden away under the classification stamp.
The potential abuse of this section of the new order is compounded
by the language of section 5(B), providing broad exemptions to the
general downgrading and declassification schedule. For example, the
language of exemption (3) dealing with classified information dealing
with a "specific foreign relations matter" means that major policy
errors of potential embarrassment to an administration in power
could be withheld from the American public for periods far in excess
of the 10-plus-year period-up to 30 years or longer under provisions
of section 5(E).
These serious and politically sensitive issues, raised during the hear-
in~s, remain matters of continuing concern to the committee. They
raise questions of potential abuses, regardless of which political party
may occupy the White House.
Need for Adequate Oversight by Congress
The lack of cooperation by Executive Office personnel with the
subcommittee regarding the draft of the new Executive order and
their refusal to testify on technical details of the order prompted
efforts by Members during the hearings to determine from other
executive branch witnesses the degree of oversight which this com-
mittee and other committees of the Congress will be able to exercise
over the operation of the classification system under Executive
Order 11652.
Part of this concern stems from the fact that section 7 of Executive
Order 11652-"Implementation and Review Responsibilities"-
provides that "The National Security Council shall monitor the
implementation of this order." It also provides for the establishment
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of an Interagency Classification Review Committee (ICRC) to
assist the NSC in this regard, composed of representatives of the
Departments of State, Defense, and Justice, the Atomic Energy
Commission, the Central Intelligence Agency, the National Security
Council staff, and a chairman designated by the President.185
While sections 16, 17, and 18 of Executive Order 10501 provided
for broad review and implementation responsibilities under the NSC`,
within each department, and by a White House staff designee, the
lack of vigorous enforcement and implementation was a root cause of
the breakdown in the security classification system under the old
order. The newly created ICRC is an effort to help remedy this
crucial weakness in the system. In his statement accompanying the
..new order, President Nixon said: isa
Of critical importance to the effectiveness of my Executive
order will be the new administrative machinery designed to
ensure that its provisions are not allowed to become mere
meaningless exhortations. The National Security Council will
monitor compliance with the Executive order. In addition,
the order creates a small Interagency Classification Review
Committee with extensive powers to oversee agency imple-
mentation of the new system, and to take action on com-
plaints both from within and from outside the Government
on the administration of the order.
Nothing is said about the accountability of either these two groups
to committees of Congress. But the record of immunity of the national
security staff to congressional oversight raises questions about the
possible use of "executive privilege" to afford sanctuary to officials
Involved in key administrative supervisory roles under the new order.
Several efforts were made during the hearings and in subsequent
written questions to executive branch witnesses to establish the degree
to which the activities of the ICRC would be sub)ject to congressional
oversight. The following exchanges with Defense Department General
Counsel Buzhardt and with then Assistant Attorney General Erickson
illustrate the problem:
Mr. MOORHEAD. Mr. Buzhardt, you discussed the role
of the Interagency Classification Review Committee. I
gather that this would be under the National Security
Council?
Mr. BUZHAIIDT. Yes, Mr. Chairman.
Mr. MOORH]EAD. What I want to know is how can the
Congress of the United States exercise its oversight responsi-
bility over the actions of the Classification Review. Board.
How can we? Who can we have testify? Will there be some-
one designated to represent that committee before the
committees of Congress?
Mr. BUZHARAT. Mr. Chairman, I don't know what the
National Security Council directive will say or will not say
on this point but I will say that if the departments have
representation on it, we in the departments will be subject
to your oversight and your pressure for hearings and this
sort of thing.18'
Ibid., pp. 2876-2877. See alto footnote 113, p. 40 of this report.
Ibid., p. 2312.
I0 Ibid., pp. 2475-2476.
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Mr. MOORHEAD. Let me ask you this, Mr. Erickson-if
this subcommittee, in its oversight over the Freedom of
Information Act or some other appropriate committee of
the Congress, wanted to check up on the administration of
the new Executive order, who would we ask to come before
us as a witness to explain what has been done, who from the
National Security Council?
Mr. ERICKSON. I would expect that those who assist you
in your oversight function would be representatives from
the various departments, particularly those involved with
or participating on the Interagency Review Committee.
I would not expect that it would be anyone in particular
from the National Security Council.
Mr. MOORHEAD. Will there be a chairman of the Inter-
agency Committee?
Mr. ERICKSON. Yes; there will be a chairman.
Mr. MOORHEAD. And from what agency will he come?
Mr. ERICKSON. I do not know. A chairman, as I believe
you know, has not been selected.
Mr. MOORHEAD. But will he be available to committees
of the Congress so that we can monitor and assist the
Interagency Committee?
Mr. ERICKSON. Until I know who the chairman is I
can't realistically answer that question.
Mr. MOORHEAD. Are you suggesting that if he comes from
the National Security Council he would not be available for
congressional inquiry?
Mr. ERICKSON. I think that is a question that would have
to be answered on a case-by-case basis. I could not state
categorically at this time whether he would or would not be
available.
Mr. MOORHEAD. I think for the good of the nations that
an arrangement should be made so that the Congress can
have a way to determine whether or not the excellent state-
ment of the President saying that we are going to have a more
"open government" is really being carried out. I think this is
important to restore confidence in government. Whatever in-
put you can give to that principle would be of great service.'88
Several written questions were also directed to the State, Defense,
and Justice Departments in an effort to obtain a clearcut answer to
the basic question of congressional oversight. The questions and
responses from the State Department were as follows: 189
Question 4. What role will Congress play in monitoring the
new Executive order? Is the interagency review committee you
described in your statement answerable to Congress? If not, why
isn't it? It claims statutory authority, from Congress.
Answer. Congress should be able to monitor the implemen-
tation of the new Executive order more effectively than in the
case of the old order, in view of the concentration of respon-
sibility for the diverse functions involved in a single principal
yea Ibid., pp. 2885-2686.
Leo Ibid., pp. 2516-2517.
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officer of each agency concerned. In our judgment, the Inter-
agency Classification Review Committee, like other com-
mittees of the National Security Council, will not be answer-
able to Congress in a legal sense, but the departments and
agencies represented on it, and their representatives, of
course will continue to respond to congressional oversight.
Question 9. National Security Council policies, practices,
and procedures are exempt from disclosure to the Congress or the
public under existing Presidential directive. Byy placing the
overview of Executive Order 11652 under the NSC, will not this
shield such supervisory functions from congressional and
public scrutiny?
Answer. See reply to question 4. More broadly, while we
cannot speak for the committee, which will be holding its
first meeting shortly, we would anticipate that the committee
like its member agencies will be sensitive to congressional
and public interest in its performance and will do its best to
see that both are kept well informed.
Responses from the Defense and Justice Departments were equally
vague and disconcerting:
Question 9. Afr. Buzhardt, you discuss the role of the Inter-
agency Classification Review Committee on page 10 of your
statement. Of course, as written, it is under the National Se-
curity Council. How is Congress going to be able to effectively
exercise its oversight responsibility in such a situation when we
can't even get the draftsman of the order to come before us to
help explain its provisions and rationale? Will the chairman be
designated to be the spokesman for the committee in testimony
before congressional committees? If not, who will testify?
Answer. I am confident that the executive branch will find
a means of providing the necessary information needed in
the performance of its oversight responsibilities.
Question 19. National Security Council policies, practices,
and procedures are exempt from disclosure to the Congress or
the public under existing Presidential directive. By placing the
overview o Executive Order 1165?2 under the NSC, will not
this shield such supervisory functions from congressional and
public scrutiny?
Answer. I do not believe it appropriate for me to speak
for the National Security Counc 9?
F * * *
The Justice Department responded as follows:
Question 7. Since the present Administration prohibits the
disclosure of all information generated by or under the direction
of the National Security Council on the basis of "executive
privilege," will not Congress and the public be unable to find
out whether the .NSC is carrying out its responsibilities under
Executive Order 11652 regarding the administration of the Order
and implementation and review under it?
Answer 7. As you . know, the decision whether to invoke
Executive privilege with respect to information requested by
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Congress is made only by the President. the decisions
whether to invoke it are made on a case-by-case basis; after
a specific request has been made. We are not in a position to
predict what the President's decision will be in regard to fu-
ture requests.'"
While individual departmental or agency members of the ICRC
may be willing to testify before committees, the question remains
unanswered as to whether or not the Chairman or other spokesmen
for the ICRC as an entity will be permitted by the President to
appear at. oversight hearings. This is a matter of deep concern to
the committee and its implications should also be obvious to all
Members of Congress.
Use of Access, Distribution, or Control Markings
The hearings also probed into another area of concern over the
language of section 9 of Executive Order 11652-"Special Depart-
mental Arrangements"-that governs the use of special access, dis-
tribution or control markings on classified information.
One of the difficult problems related to the effective operation of the
security classification system has been the widespread use of dozens
of special access, distribution, or control labels, stamps, or markings on
both classified and unclassified documents. Such control markings
were not specifically authorized in Executive Order 10501, but have
been utilized for many years by many executive agencies having
classification authority and dozens of other agencies. who do not
possess such authority.192 The use of such stamps has, in effect, been
legitimized in section 9 of the new Executive Order 11652.
Among agencies having classification authority under Executive
Order 10501, those that utilized such control labels averaged 5 per
agency. The Defense Department listed some 13 labels, such as
"SIOP," "SPECAT," "NOFORN," and "Proprietary.""' Authority
to use such labels or markings is often vague; some agencies cite no
authority, while others rely on instructions contained in manuals,
handbooks, directives, or administrative regulations. A few agencies
cite statutory authority such as the Atomic Energy Commission, the
Defense Department, and the Arms Control and Disarmament
Agency. In all, more than 60 such control markings or labels were
identified as a result of the subcommittee's questionnaire to ex-
ecutive agencies.
The Treasury Department, in' its response to the questionnaire,
indicated that they did not use any such labels. Yet in subsequent testi-
mony, the Internal Revenue Service admitted that they applied such
labels as "For Official Use Only," "Limited Official Use," and "For
National Office Official Use Only." 194
The rationale behind the use of such markings was discussed in
several colloquies during the hearings with State and Defense De-
partment officials : 195
tot Ibid., pp. 2823-2824.
t99 See hearings, pt. 7, pp. 2929-2934 for analysis of responses to an August 1971 subcommittee questionnaire
to executive agencies, prepared by the Congressional Research Service, Library of Congress; see also pp-
2723-2920 for text of agency responses to the subcommittee questionnaire.
IDS Ibid., pp. 2495-2496; pp. 2726-2729; also hearings, pt. 2, pp. 685-669.
194 Ibid., pp. 2931-2932 and hearings, pt. 6, p. 1990; pp. 2027-2030.
195 Hearings, pt. 7, pp. 2477-2479; also pp. 2493-2499.
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. Mr. MOORHEAD. Mr. Blair, in responding to the subcom-
mittee's questionnaire the Department listed several author-
ized "channel captions". How do these authorized channel
captions control information? What authority is there for the
use and do they really in effect serve as classification devices?
Mr. BLAIR. Well, they are not classification devices, Mr.
Chairman, they are internal government distribution con-
trols which attempt to enforce the need-to-know principle.
That is to say that just because I am authorized to receive
a top secret document it doesn't mean that I should thereby
see every top secret document. I should only see those which
relate to those things which I am responsible for. So that a
given top secret document coming in from the field may be,
not always, but may be marked with one of these controls
that you mentioned, one of these captions which indicates
which people within the Department of State or, perhaps
within the family of agencies are entitled to receive informa-
tion on that particular subject.
So far as availability of the document to the public is con-
cerned, it has no bearing whatsoever. The classification, of.
course, would govern.
Mr. Blair, Deputy Assistant Secretary of State for Public Affairs,
further stated:
Mr. BLAIR. * * * We are narrowing them down from the
standpoint of distribution of documents within the Govern-
ment to those people who have responsibility for the subject
matter concerned. But if a question came in under the Free-
dom of Information Act or from the Congress or other
representative of the public for that given document, the fact
that it is marked, let's say, NODIS, is not relevant. What is
relevant to the making available of that document to the
public is whether or not it was properly classified under the
Executive order and whether or not the Freedom of Infor-
mation Act, for example, once we have reviewed the docu-
ment, still pertains, whether we feel that the need for the
classification still pertains and whether, in fact, we are au-
thorized under the act to hold it. * * *
During this same colloquy, the Defense Department's General
Counsel, Mr. J. Fred Buzhardt, commented: Sea
Mr. BUZHARDT. * * * We are talking about two entirely
different things. If we start with classified documents; those
documents are not to be revealed to unauthorized persons.
With respect to classified information, there are two
requirements for access, one of which is that the individual
must have clearance, that means that there has been a prior
determination that the individual is trustworthy. The second
requirement is that he has a need to know in his official
capacity to use the information. Once the determination is
made that information must. be protected, one of the devices
used to protect it is not to disseminate it beyond those who
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have some official reason or a business reason to use the
information. Obviously the more narrow the distribution,
the easier it is to protect the information from unauthorized
disclosure.
As a consequence, access limitations are imposed, some-
times by marking on the document, sometimes because the
man doesn't show it to his subordinates, for instance, he
makes a judgment they do not need to see it. * * *
The question was raised as to the effect of the legitimization of
the more than 60 access or control stamps or labels and whether or
not such proliferation of internal, agency stamps would not make it
more difficult. to afford maximum security protection to truly impor-
tant classified documents. Mr. Buzhardt was asked his opinion on
this question concerning section 9 of the new Executive order and
whether or not it runs counter to one of the major objectives of the
order-to reduce the volume of classified material. He replied: 197
Mr. BUZHARDT. No, it is not. In the first place, you have a
determination as to whether the material is to be classified.
Once the decision is made that the information should be
classified, then the limitation of access has to do with the
protection of that which is classified. We also have the
responsibility to control the dissemination. That is what these
access limitations are for, to control dissemination, to confine
access to the people who have a need to know to work with
the information. It is a protection device. We must use pro-
tective devices of some sort. We lock them in safes, you
prevent people who don't need to see them from seeing
them. But the original decision is whether it should be
classified. * * *
Mr. Blair added:.
Mr. BLAIR. * * * The. purpose of classification is to de-
termine what information is or is not available to the public
outside of the government. These labels that you are re-
ferring to have nothing to do with that. They have absolutely
no value for determining what information or what document
may be given to a member of the public. They are simply a
mailing device, if you like, a means by which a superior deter-
mines which of his subordinates he wishes to deal with this
particular matter and be aware of this particular informa-
tion. * * *
The National Security Council's directive implementing Executive
Order 11652, issued several weeks later, provides extensive guidelines
on marking and access requirements. In its brief reference to section 9
of the order, the NSC directive states :19s
F. Restraint on Special Access Requirements.-The
establishment of special rules limiting access to, distribution
and protection of classified information and material under
section 9 of the order requires that specific prior approval of
the head of a department or his designee.
tar Ibid., p. 2497.
190 Ibid., pp. 2322-2325.
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Special access regulations issued by departments in August 1972 to
implement section 9 requirements and those of the NSC directive fol-
low the general "need to know" criteria.'"
Thus, while there is a clear rationale for the use of such access or
control markings, the basic problem is the effect of the proliferation of
their use on the effective operation of the classification system. This
problem, fully explored with executive branch witnesses during the
hearings, is one that this committee believes should be carefully
monitored by the Interagency Classification Review Committee and
by departmental heads to assure that it does not interfere with the
overall effectiveness and integrity of the classification system.
Mandatory Review of Exempted Material
The final major area of criticism directed at Executive Order 11652
that was discussed during the hearings involved the "Mandatory
Review of Exempted Material" after the 10: year classification period,
as provided for in section 5(C). This provision and that contained in
section 5(E), providing for the declassification of all classified informa-
tion or material 30 years or older, have been highlighted as significant
forward steps in the now order.200
Section 5(C) applies to the four categories of exempt information
described earlier at page 70 of this report, and represents the most
sensitive categories of information, the disclosure of which would be
the subject of public interest. Examples might be documents relating
to the abortive Bay of Pigs expedition in 1961, the Cuban missile
crisis in 1962, and the Gulf of Tonkin incident in 1964. Of course,
some information within each of these categories-such as that dealing
with intelligence sources or that might place a person in jeopardy-
would still be withheld under the exemption, even though many other
documents related to such operations could be disclosed.
Executive Order 11652 provides for a "classification review by the
originating department at any time after the expiration of ten years
from the date of origin." 201 Three conditions are imposed-"(1) A
department or member of the public requests a review; (2) The re-
quest describes the record with sufficient particularity to enable the
Department to identify it; and (3) The record can be obtained with
only a reasonable amount of effort." If the reviewing authority de-
termines that the information or material no longer qualifies for exemp-
tion, it shall be declassified. If the reverse is the case, the information
shall be so marked!., and unless impossible under the criteria, a date
for automatic declassification is to be set.
One of the obvious problems that the requester for the mandatory
review of certain classified information over 10 years old will encounter
is that of identification of the information "with sufficient particularity
to enable the Department to identify it." Another limiting provision
of the Executive older is the requirement that it can be obtained with
only a "reasonable amount of effort" on the part of the Department.
The Department is, of course, the sole judge of the way in which these
requirements are interpreted.
I" See 37 F.R. 15831 (State--Sec. 9.20, title 22 CFR); 37 F.R. 15652.(Justice-See. 17.59 and 17.03, title 28,
CFR); 37 F.R. 15678 (Defense-Sec. 159.1200, pt. 159 to DOD Directive 5200.1, "DOD Information Security
Program").
"Ibid., p. 28 pp. 288262.2804.
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The extent to which information subject to section 5(C) disclosure
is actually made available to the public is one of the major criteria
for judging the overall progress the new Executive order is making
to carry out its announced principles to advance the public's right
to know. The committee will carefully observe how such requests
for mandatory review are handled and the types and volume of such
information eventually made available to the public.
Historians and scholars have a special interest in the provisions
of section 5(E) of Executive Order 11652 that provide for. the auto-
matic declassification of classified information 30 years or older.
Such categories of records are to be reviewed for declassification by
the Archivist of the United States. However, the head of the depart-
ment originating the classification of any such information may
determine in writing that it requires continued protection beyond
the 30-year period 202
This "savings" provision may actually dilute the purpose of the
section and mean that such information may thus be continued in
its classified status for "an undetermined number of years."
Written questions submitted to DOD General Counsel Buzhardt
were directed to other aspects of the "mandatory review" section of
the new Executive order. Another question dealt with its relationship
with the Freedom of Information Act. His responses to these two
questions were : 203
Question 3. At the bottom of page 2 of your statement, you dis-
cuss "mandatory review" procedures. 1 think the term is totally
misleading because of the criteria applied to it. How could a
citizen meet the criteria under Section 5(C) of the Executive or-
der? How could he "describe the record with sufficient par-
ticularity to enable the Department to identify it?" Even of he
could, what would prevent the Department from refusing to re-
view its classification because only they would say what was "a
reasonable amount of effort."
Answer: The phrase "mandatory review" is valid. My
testimony reflects two explicit requirements of the Executive
order. Mandatory review must result when these two re-
quirements are met. Although these two requirements pro-
vide for some flexibility, they will be interpreted and applied
within the Department of Defense with due regard to the
overall intent of the Executive order to expedite declassifi-
cation and make more information more readily available to
the public. Department of Defense monitoring and enforce-
ment activities will assure integrity of the operation.
* * * *
Question 7. On page 9 of your statement you again discuss
that misleading term "mandatory review," permissible after 10
years. Isn't it true, that, if a request were made for an identifi-
able document under the Freedom of Information Act, such a re-
view would necessarily be made at any time after its classifi-
cation date?
202 Ibid., pp. 2803-2804.
208 Ibid., p. 2520.
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Answer: The Freedom of Information Act does not ex-
pressly provide for a mandatory classification/declassification
review of classified information. The Executive order, how-
ever, provides that after 10 years, the review of requested
classified information is mandatory. The practice of the De-
partment of Defense under the Freedom of Information
Act, however, is that if a requested document is found to
be one which is classified, the document will be reviewed for
possible declassification before a decision is made on the re-
quest. While the Freedom of Information Act permits re-
quests to be submitted at any time, it is reasonable to expect
that the nearer in point of time to a classification determina-
tion that a request is made under the Freedom of Informa-
tion Act, the more likely it is that the classification would
be confirmed upon review.
Dr. James B. Rhoads, Archivist of the United States, described
how, in his judgment, section 5(C) of the new order would affect his
operations : 204
A second provision of the Executive order, which is also
new, and which we believe will have far-reaching conse-
quences is that in section 5(C) which provides for the
"mandatory review of exempted material." Under the
present system either researchers or we can request agencies
to conduct a review of classified documents. But there is no
way in which either of us can really compel such a review.
The new Executive -order will permit this to. be done with
regard to all records more than 10 years old. Those documents
in our holdings which we, ourselves, acting under agency
guidelines cannot declassify, can be sent to the agencies, who
must act upon them and who must act with reasonable speed.
We believe that this provision will lead to the opening of sig-
nificant quantities even of fairly recent classified material.
Regulations were subsequently issued to carry out the role of the
National Archives and Records Service in the handling of requests
for mandatory review of classified information over 10 years old. A
procedure has been established to obtain a determination within
30 calendar days on such requests .205
As in other specific examples of variation of opinion as to the effect
or meaning of certain sections of Executive Order 11652 discussed
above, the real impact of these provisions must await evaluation. The
committee intends to continue its oversight into the operation of the
"mandatory review" and "30-year automatic declassification" features
along with the other major areas of contention connected with the
new order.
Lag in Implementation of New Order
As was noted earlier at pages 55-56 of this report, there was a hiatus
extending from June 1, 1972, until August 3, 1972-a period of some
64 days-between the effective date of Executive Order 11652 and
the promulgation of regulations and directives by the six departments
2" Ibid., p. 2600.
20 Ibid., pp. 2394-2395.
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and agencies most significantly affected by the new order. There was
no "savings clause" in Executive Order 11652 to extend the provisions
of the old order until such time as the NSC guideline directive and
departmental and agency regulations had been issued, distributed, and
taken full effect.
During the hearings, efforts were made to assess the progress being
made some 2 months after issuance of the new order. As mentioned
earlier, Subcommittee Chairman Moorhead had expressed concern
that there would be sufficient time for proper implementation and
had urged the President to suspend the effective date of the new
order.208 Executive branch witnesses were questioned on this point: 207
Mr. MOORHEAD. Mr. Buzhardt, you say that the Defense
Department's implementation of the Executive order is
dependent upon the National Security Council directive.
Have you received that directive?
Mr. BUZHARDT. No, we have not, Mr. Chairman.
Mr. MOORHEAD. The implementation of the Executive
order is dependent on a National Security Council directive
which you haven't received and yet the Executive order is
to take effect in less than 30 days.
Mr. BU7HABDT. Yes, sir, Mr. Chairman, that is correct.
Let me say that we haven't just sat back and waited. We
have tried to anticipate, and we have done a lot of research
and work identifying where people are that classify. We have
reviewed the physical storage requirements. We have done a
number of things so that we can have the information at
hand hopefully to get our own regulations out promptly when
the National Security Council directive is issued. But, of
course, we cannot finalize anything until we do. We hope it
comes out very shortly.
Mr. MOORHEAD. What is the status, as you understand it,
of the directive?
Mr. BU7HARDT. I understand that is it being worked on,
Mr. Chairman. I haven't been personally involved in it.
Mr. MOORHEAD. Will there be time after you get the di-
rective, even though you have done some anticipatory work,
to get the implementation regulations out to the field, to
carry on the training program to explain to the subordinates
how they are to operate under this new Executive order?
Mr. BuzHARDT. I think we will be able to get the regula-
tions out, Mr. Chairman. I do not think obviously we will
be able to conduct a training program before June 1. It will
have to follow. And it will be undoubtedly a gradual process
to make this thing effective. It is not going to be possible, we
are moving as fast as possible, but I don't think it will be
likely that we get 100-percent implementation right off the
bat.
Another colloquy took place on this subject between Congressman
Moss and. the State and Defense Department witnesses: 208
tae See pp 53-55 of this report.
207 Hearings, pt. 7, p. 2480.
Zoe Ibid., p. 2484. The State and Defense Departments regulations were actually issued on Aug. 3, 1972.
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Mr. Moss. Over in State, Mr. Blair, who has been assigned
the responsibility of implementing?
Mr. BLAI:R. Sir, the prime responsibility in the stage in
which we are now in, that is, for preparing the Department's
regulations under the Executive order has been assigned to
the head of the Office of Security, our Deputy Assistant
Secretary for Security. Of course, I mentioned in my state-
ment that we have a more broadly supervisory body in this
area, newly established last year-the Council for Classifica-
tion Policy; and the Council will be monitoring it in a policy
sense.
Mr. Moss. But there has been a specific assignment?
Mr. BLAIR. Yes.
Mr. Moss. In the Department of State. And this is to the
office of the Deputy Assistant Secretary for Security.
Mr. BLAIR. His responsibility at this stage is limited to
drawing up our regulations.
Mr. Moss. To draft the regulations. Now who is that
part ~ ?
Mr. BLAIIt. By name? Marvin Gentile, Deputy Assistant
Secretary for Security.
Mr. Moss.. Now, is there any kind of a timetable available
for completion of drafts, of implementing directives, by the
departments?
Mr. BUZHARDT. No; there is not, Mr. Moss. We can't set a
timetable on completing the drafts until we have the Ex-
ecutive order, I mean the National Security Council direc-
tive.
Mr. Moss. There is a timetable, is there not, implicit in
the Executive order-June 1?
Mr. Bu7IIARDT. Yes, June 1 is to the effective date.
Mr. Moss. That is a timetable, isn't it? But between now
and June 1 you have no timetable? You may come up to
June 1 and what if you have no NSC directive at that point,
do you fall behind?
Mr. BUZHARDT. I anticipate that we will have a National
Security Council directive well before June, Mr. Moss.
Mr. Moss. With the care that the Pentagon puts into plan-
ning, don't you have an alternative plan in case you don't
have the directive?
Mr. BUZHA.RDT. At the moment if it gets down to about 2
weeks, more, Mr. Moss, I assure you we will come up with
one.
Assistant Attorney General Erickson also discussed the imple-
mentation status of the. new order during his testimony: 209
Finally,. I would like to comment generally on the pro-
cedures for the implementation of Executive Order 11652.
As you know., the order contemplates the issuance of imple-
menting directives through the National Security Council.
The initial directive which I expect will be issued shortly will
be a major step forward. While awaiting the issuance of that
directive, affected agencies have been taking steps toward
Ibid., p. 2880.
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establishing their own procedures under the order: after the
directive has been issued they can move forward rapidly in
fulfilling their obligations under section 7 of the order. We
remain hopeful that the administrative and operational
aspects of the new security classification system will be in
order by June 1 of this year.
Some idea of the confusion that existed during the 64-day, hiatus on
matters involving classification can be obtained by an example involv-
ing the State Department which came to the subcommittee's attention.
During this interim period after the effective date of the new order and
the promulgation of departmental regulations, the subcommittee
received classified documents from the Department's Washington
headquarters, which utilized the new classification procedures of
Executive Order 11652. This was approximately 5 weeks prior to the
issuance of the State Department's regulations. About the same time,
the subcommittee also received a document classified by an official of a
U.S. embassy overseas which was still utilizing the old classification
markings and procedures specified in Executive Order 10501.210 Pre-
sumably, other departments and agencies have encountered the same
confusion due to the parallel functioning of two vitally different
security classification systems caused by the lag in issuance and dis-
semination of the new regulations.
While a legal question might be raised as to the status of documents
that were classified-properly or improperly-under either the old or
new Executive order, any effort to deal with the unique nature of
such a situation would not be appropriate here. The administrative
confusion that is latent in the questionable classification status of
perhaps hundreds of thousands of documents during this 64-day
hiatus may take months or years to untangle.
Are Domestic Activities Related to Security Classification
System?
As has been noted earlier in this report (pages 61-66), one of the
most controversial questions raised during the hearings was the reason
for the change in the language of section 1 of Executive Order 11652
involving "national defense and foreign relations of the United
States (hereinafter collectively termed `national security')." 211 The
matter was further pursued with Mr. Buzhardt of the Defense Depart-
ment in relation to the exemption language of the Freedom of Informa-
tion Act (sec. 552(b) (1)) dealing with matters exempt by the act
"in the interest of the national defense or foreign policy:" 212
Mr. MOORHEAD. * * * I would like to get back to this
matter of the new Executive order purporting to change
the law. The new Executive order reads "by virtue of the
authority vested in me, the President,. by the Constitution
and the statutes of the United States," and the only statute
it refers to is 5 U.S.C. 552-the Freedom of Information Act.
210 These classifted documents are contained in a locked security cabinet in the subcommittee office.
2t1 Ibid
212 Ibid., ., pppp. . 24732852--28532474.
.
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That act said all documents shall be available to the public
with certain exceptions-(b) (1) through (9). And the
statutory language of exemption (b) (1) is "national defense
and foreign policy."
If the change to the words "national security and foreign
relations" is -,o have any effect, it is an attempt by Executive
order to change a statute of the United States.
Where does the Constitution of the United States give
the President the authority to change statutes enacted by
the Congress and signed into law by the President of the
United States?
Mr. BUZHARDT. I do not believe there was any intent or
effort in the Executive order to change a statute of the
United States.
Mr. MOORHEAD. Then the law of the land remains that
all Government documents in this area are available to
the public with the nine exemptions, one of which says
"national defense and foreign policy." Is that correct?
Mr. BUZ1P.RDT. That remains the applicable law.
Mr. MOORHEAD. Then if that remains the applicable
law, why was the language changed in the Executive order?
Mr. BUZFP.RDT. Mr. Chairman, the language was changed
in order to be, more precise. Now, let's go back to 10501.
We have seen, and I don't know what the attitude or
intent was when 10501 was issued, but it seems quite appar-
ent that many people found things that affected the security
of the Nation, or thought they did within the term national
defense that made that phrase, if you will, expandable by
construction.
National defense as we would think of it in a lay term
certainly would not include either foreign policy or foreign
relations, but, they were protected under that order. So by
construction, national defense, the definition in 10501, was
interpreted sufficiently broad both in practice and by the
courts, in many cases, to include both foreign relations
and foreign policy.
Now, once you get people into the habit of construing
a term more broadly than you could give it a lay definition,
you are almost inviting them to use an unbridled judgment,
and I am afraid that has happened under 10501, that it
was expanded by construction to the point where it had no
definite boundaries. * * *
Mr. MOORHEAD. * * * I seem to be unable to get across to
an able lawyer-you keep going back to 10501. A statute
signed by the President can affect an Executive order but an
Executive order can't repeal or amend a statute and--
Mr. BUZHARDT. I quite agree.
Mr. MOORHEAD. And the Freedom of Information Act was
enacted after-signed by the President-some 13 years
after ' 10501 was issued. And this was the action of the
Congress and the President, which makes it the highest law
of the land, having much more standing than any Executive
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order or any resolution just adopted by the House and
the Senate and not signed by the President. Yet the Execu-
tive order either through inadvertence, and it has no effect,
or intentionally, and it still has no effect, uses different
language than the statutory language.
. Mr. BUZHARDT. It uses different language, Mr. Chairman.
That does not mean that it is necessarily in conflict with
the language used in the Freedom of Information Act.
Mr. MOORHEAD. If it means the same thing as the words
in the Freedom of Information Act, then my suggestion
would be we should use that language. If you don't like the
language in the Freedom of Information Act, then suggest
the changes to us and then we can clear up the law in this
matter. That is one of the purposes of these hearings, to see
if there are needed amendments to the act. I don't think you
can amend any act by an Executive order. So I would say
that the courts would have to construe this as meaning
exactly the same as the Freedom of Information Act.
Additional efforts were made during the hearings with executive
branch witnesses to find the rationale for the substitution of the
phrase "national security" in section 1 of Executive Order 11652.
In this connection, the question as to whether, or not the security
classification system could be applied to domestic activities was
discussed with witnesses from the Defense and Justice Departments
with mixed results :218
Mr. MOORHEAD. I will tell you, Mr. Buzhardt, one of the
concerns I have is this-does the term "national security"
when used in the Executive order, authorize the classification
of information dealing with domestic intelligence activities
of the military services? I am thinking of the recent Army
surveillance of civil rights activities, campus leaders, and
even Members of Congress.
Mr. BUZHARDT. No; it does not. It is not intended to
expand. to the domestic scene and treat that as asecurity
matter, because it would be hard to know how these things
could jeopardize really the national security, the things you
are talking about.
Now, as., you know, we do not reveal or disclose investiga-
tive files, but, for an entirely different reason, they are not
classified. It is primarily a matter of protecting the individual
because in an investigative file you get unevaluated raw
information, rumor, many things creep in, and it would be
unfair to. disseminate this out., We went through this in the
1950's.
Mr. MOORHEAD. That was under a different exemption of
the
Mr. BUZHARDT. It is not classification, nor is there any
intent to expand the classification subject matter to those
areas, none whatsoever. Speeitically not.
Mr. MOORHEAD., I am glad to have that emphatically
stated on the record.
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Later in the hearings, then Assistant Attorney General Erickson
was also queried on this same matter: 214
Mr. MOORILEAD. Mr. Erickson, I think I would like to get
the record clear on this point:
Can information concerning domestic intelligence surveil-
lance of, let us say, civil rights leaders, antiwar groups,
students, labor leaders, and so forth, be classified under
Executive Order 11652?
Mr. ERICKSON. They can be classified if they relate to
matters that may roper]y be characterized as national de-
fense or foreign relations. If their activities are strictly do-
mestic in character and have no aspect-which would advocate
the overthrow of the Government or otherwise interfere with
the existence of our Government as we know it they would
not be classified.
Mr. MOORE[EAD. So that what we normally think of as
the activities of various civil rights leaders, student groups,
antiwar groups, would not be subject to classification either
under the old Executive order or the new one; is that correct?
Mr. ERICKSON. That is correct; so long as they are strictly
domestic in character and have no purpose of overthrowing
the Government.
Thus, the clear implication of Mr. Erickson's response indicates
that matters affecting domestic activities falling into the broad cate-
gories of "national defense and foreign relations," lumped as "national
security" in the new Executive order may indeed be subject to classi-
fication under the terms of the new order.
Since section 7(c) of Executive Order 11652 imposes upon the Jus-
tice Department the responsibility "to render an interpretation of
this order with respect to any question arising in the course of its
administration," 215 the opinion expressed on this subject by Mr.
Erickson, then Deputy,. Attorney General and the Department's
representative on the I C, would therefore seem to be the viewpoint
that would prevail.
Mr. Buzhardt's statement, seeming to limit the classification appli-
cation in such domestic situations, is not borne out, however, in the
DOD directive implementing Executive Order 11652. Section 159.103
(a) (1)-"Classification-Basic Policy"-reads as follows: 216
n+ Ibid., p. 2693.
215 Ibid:37F , PP? 287s-2879. _
ne . 15658.
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(1) Consistent with the foregoing, the use and application
of security classification shall be limited to only that infor-
mation which is truly essential to national security because
it provides the United States with (i) A military or defense
advantage over any foreign nation or group of nations, or
(ii) a favorable foreign relations posture, or (iii) a defense
posture capable of successfully resisting hostile or destructive
action from within or without, overt or covert; which could be
damaged, minimized, or lost by the unauthorized disclosure
or use of the information. (Italic supplied.)
While there are certainly areas in which certain domestic activities
of our Government in the intelligence and counterintelligence would
require classification under Executive Order 11652, the committee
intends to closely monitor through its oversight authority the possible
areas of abuse of the order in classifying strictly domestic intelligence
collection or surveillance of individuals that are unrelated to "national
security" considerations.
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VII. THE CLASSIFICATION SYSTEM-HISTORICAL
RESEARCH PROBLEMS
The unique problems of scholars and historians seeking access to
classified Government documents and records of events are a highly
specialized part of the total security classification dilemma. Over the
years the subcommittee has received many complaints of govern-
mental abuses and many requests for assistance from researchers who
are endeavoring to cope with the vast and complex maze of security
restrictions in order to obtain access to various departmental or
Archives records for scholarly purposes.
Few would argue with the general premise concerning the overall
need of Government to avoid carrying out its certain sensitive opera-
tions in a "goldfish bowl," particularly in these days of international
tension. Certainly, there can be overwhelming public support for
the following broad policy statement contained in the preamble to
Executive Order 11652: 217
Within the .Federal Government there is some official in-
formation and material which, because it bears directly
on the effectiveness of our national defense and the conduct
of our foreign relations, must be subject to some constraints
for the security of our Nation and the safety of our people
and our allies. To protect against actions hostile to the
United States, of both overt and covert nature, it is essential
that such official information and material be given only
limited dissemination.
Such a statement is even more readily acceptable when it is placed
within the context of the first paragraph of Executive Order 11652:
The interests of the United States and its citizens are best
served by making information regarding the affairs of
Government readily available to the public. This concept
of an informed citizenry is reflected in. the Freedom of
Information Act and in the current public information
policies of the executive branch.
Noted historian Arthur Schlesinger, Jr., pointed out in a recent
article that "the functioning of democracy requires some rough but
rational balance between secrecy and disclosure, between official
control of information and public need for it." 213
During the past several years, the secrecy policies of Government
have become more and more a matter of public attention and concern.
Historians, political scientists, journalists, and others have become
more interested in the study and analysis of contemporary foreign
policy and recent diplomatic history and have protested governmental
restrictions on study and research of official records. A report on
211 Ibid., p. 2312.
21a Hearings, pt. 7, p. 2297.
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scholar's access to Government documents, prepared by the 20th
Century Fund earlier this year, describes the broad scope of the
problem : 219
In essence, the security classification system and other
restrictions on access to records permit government officials
to control the flow of information to the public. The executive
departments, particularly the presidency, can dominate the
headlines with official pronouncements, news releases, press
conferences, and publication of documents. An administration
can even "blow the lid" on its own secrecy, as shown by
President Nixon's recent disclosure of the secret negotiations
with the North Vietnamese, Off-the-record briefings and leaks
to the press permit officials to discuss policy and events-
often without taking responsibility for what they reveal.
Former officials publish memoirs of their. years in office;
government departments issue their own histories of signifi-
cant events; favored scholars and journalists are sometimes
given access to official records that,remain off limits to others.
In each case, officials or former officials exercise discretion
in choosing what to reveal and what to conceal. As a conse-
quence, the public must rely on sources that have some .
vested interest in the information that is given out.
What the public has not received-or has waited decades
for-are accounts of government operations based on first-
hand records and commentaries by detached observers. The
State Department, which has maintained a thirty-year limit
on classification of its files, did not make the official record of
American diplomacy in World War II available to the general
public until January .1972. The documents on most of our
Cold-War diplomacy remain in closed files. The Joint Chiefs
of Staff have only recently opened segments of their World
War II records, and their postwar files are unavailable for any
nonofficial purpose. Few Army records from the post-1945
period are available to unofficial ' researchers even on a
restricted basis. Researchers at the Truman Library in
Independence, Missouri, still cannot use some of the secret
documents on which Mr. Truman based his memoirs, pub-
lished in 1958.
The importance of scholarly research access to historical documents
in our free society cannot be overemphasized. As one witness, Lloyd C.
Gardner, chairman of the history department at Rutgers University,
pointed out:220
Historians and other scholars concerned with the recon-
struction of the past perform, or should perform, an important
service in a democratic society.
Traditionally, historians provide a nation with its memory,
but in an open representative society, they are also obligated
to sustain a dialog with the government and its policymakers.
It is not too much to say that this second aspect of the citizen
scholar's responsibility is an essential part of the definition
of an open society.
219 Carol M. Barker and Matthew H. Fox, "Classified Files: The Yellowing Pages." A report on scholars'
access to Government documents. New York: The Twentieth Century Fund: 1972. pp. 4-5.
no Hearings, pt. 7, p. 2843.
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Without access to Government documents, however, he
cannot function effectively in either capacity. In 1959, as a
graduate student researching a book on New Deal diplo-
macy, I was able, with much difficulty, to see certain files for
the years 1940--41. Thirteen years later the latest date open to
scholars is only 1945, with certain classified documents still
exempted. In those 13 years, scholars have thus lost eight or
nine in terms of access.
Mr. Paul L. Ward, executive secretary of the American Historical.
Association, said :221
Historians and their fellow scholars who have dealt with
official documents are fully aware, at the same time, of the
human and practical realities surrounding the generation and
preservation of records, both official and personal. We recog-
nize the importance for rational decisionmaking and for
responsible administration of both putting on paper com-
munications and proposals and of keeping these pieces of
paper as records for consultation when related problems
thereafter arise. We recognize the threat to these necessary
practices when confidentiality for an appropriate time can-
not be assured. We would argue, indeed, that the confidence of
working admirdstrators in this necessary confidentiality, a
confidence so shaken in recent months by a whole series of
leaks to the press, cannot be reestablished without a better
structure of classification and declassification of documents,
a structure that both protects confidentiality while needed and
also assures public scrutiny in time enough so that govern-
ment mistakes do not snowball into self-perpetuating burdens
upon our country's minds and energies.
Dr. James B. Rhoads, Archivist of the United States, described the
dimensions of the problem that the 38-year-old National Archives
faces in this regard in the following terms: 222
In the last generation we have grown a great deal. We have
become the National Archives and Records Service. We con-
duct an on-going records management program working with
agency officials and their files. We operate 15 Federal Records
Centers and six Presidential libraries, in addition to the Na-
tional Archives itself. We have in our custody approxi-
mately 30 billion pages of Federal records, something more
than 40 percent of the total volume of the Government's
records. But while both our activities and our holdings have
expanded, our goals remain the same: to serve the rest of the
Government by caring for its non-current records and to
serve the public in general by making available the documents
of enduring value.
Because of our double mission-serving both the rest of
Government and the public-we are particularly sensitive to
the problem of restrictions on access to records and other
historical materials. We are well aware of the conviction with-
in Government that a degree of confidentiality is essential
for the national security and for the proper operation of
221 Ibid., pp. 2636-2637.
n' Ibid., pp. 2604-2605.
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Government. We are also aware of the equally widespread
insistence on the part of historians and other researchers that
they receive access to records, for we are most often the first
to receive their requests and. their complaints.
As we have grown in recent years and as agencies. have
retired their more recent, 20th century, records, we have in-
creasingly had to face the problem of handling classified
documents. This is a difficult problem. Indeed, it is one of the
most difficult problems that we in the National Archives
and Records Service face.
Dr. Rhoads went on to describe the relationship between researchers,
the National Archives, and the handling of classified documents:22a
* * * There are now six Presidential libraries. All are open
for research, and all but one, the Herbert Hoover Library,
contain significant quantities of classified material originated
by the White House. In the absence of any explicit. means in
the earlier Executive order for declassification of this material,
this has created a very serious and obvious problem. Section
11 of the new Executive order provides an explicit means for
the declassification of such documents, most of which have
come to rest-and hopefully, will continue to come to rest-
in one of our Presidential libraries. This section provides that
we can now declassify Presidential and White House classified
documents. In doing so, we must observe the guidelines pro-
vided by the new Executive order itself in section 5, consult
with departments having primary subject matter interest
before making a final decision, and observe the terms of the
donor's deed of gift. Section 11, contrary to certain com-
ments, does not add new or extra restrictions. In fact, it liber-
alizes access by providing an explicit, and we believe, effective
means of declassifying the all important Presidential and
White House documents which hitherto have existed in a
kind of classification limbo.
He cited a provision of the new Executive order that he felt would
greatly expedite the declassification process by the Archives:224
I am aware, Mr. Chairman, that the new Executive order
has been described by some as not going far enough. However,
there are a number of new elements in the order which
would materially hasten the process of declassification.
Section 3(E) of the new order provides that:
Classified information or material transferred to
the General Services Administration for accession
into the Archives of the United States shall be down-
graded and declassified by the Archivist of the United
States in accordance with this order, directives of
the President issued through the National Security
Council and pertinent regulations of the depart-
ments.
223 Ibid., p. 2607.
224 Ibid., p. 2606.
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This is new. For the first time the staff of the National
Archives and Records Service will have the authority to
declassify classified documents. In the past, much time and
much paper has been expended in'our obtaining authoriza-
tion from individual agencies to declassify particular records
of those agencies. Now, equipped with nothing more than the
guidelines that will be provided to us by the agencies and the
National Security Council, along with those already spelled
out in the new Executive order itself, we can take the action
of declassification on our own. This will eliminate the time-
consuming delays which so annoy researchers and the paper-
producin memos which annoy both those who must write
them and those who receive them. * * *
Foreign Relations Series
For many years, the major official documentary series, Foreign
Relations of the United States, published by the State Department,
has been an indispensable research tool for researchers, historians,
and other students of international affairs. There is presently a time
lag of some 26 years in the publication of this important series of
documents, papers, communiques, and other diplomatic records.
Materials now being published related to events taking place through
1947.
On the same day that he issued Executive Order 11652, President
Nixon also directed a March 8, 1972, memorandum to the Secretary
of Defense, the Director of Central Intelligence, and the Assistant to
the President for National Security Affairs calling for an acceleration
of the publication of the "Foreign Affairs" series to reduce the time
lag to 20 years by 1975, and thereafter to maintain this 20-year
publication period.22a The State Department had initially requested
funds for three additional historians and received an additional
$112,200 in program funds for fiscal year 1973 for editing, indexing,
printing, and other related functions to carry out the President's
Instructions.221 Such actions have the support of the leading academic
groups involved in the field.
In addition, the Advisory Committee on Foreign Relations of the
United States-made up of scholars representing the American Political
Science Association, the American Society of International Law, and
the American Historical Association-recommended at its Novem-
ber 5, 1971, meeting that the State Department publish collections
of documents relating to the major international crises since 1946
substantially before those events would ' be covered in the regular
chronological "Foreign Relations" series.221
725 See ibid., pp..2650-2651 for text of President Nixon's memorandum.
tae Ibid., p. 2651; the outlines of the Foreign Relations series publications for 1917-1950 and a status report
on their progress is also provided here.
227 Ibid., pp. 2847-2649 for text of Advisory Committee report.
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The Committee feels that such a recommendation would be con-
sistent with the overall objectives of accelerating the public's access
to foreign relations information and would also serve the Nation by
providing more current insights into our foreign policy decisions in
recent history that would be .valuable to current foreign policy judg-
ments of responsible executive branch officials as well as to Congress
and scholars and the public as a whole.
This view was well summarized by comments by Mr. Gardner: 22$
Nations, like individuals, depend in part upon memory
in order to be able to function rationally in the present.
Historians are to a degree responsible for what stands out
in a nation's memory; they supply experience longer than
one generation's lifespan, and broader than that of any
group of individuals.
As one approaches the . present, the historian's most
valuable asset, perspective, is diminished chronologically,
and in a secrecy-conscious nation, by the lack of available
evidence as well.
The Nation's memory is thus weakest for the years of
the recent past, a serious defect, unless one is prepared to
concede that the public should reach its conclusions on the
basis of little or no information,,or that the policymaker is
the only one who needs the memory.
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VIII. SECURITY CLASSIFICATION SYSTEM-EXECUTIVE
ORDER VERSUS STATUTE
One of the major areas of study during the hearings on the operation
of the security classification system and its relationship to the people's
"right to know"--as exemplified in the Freedom of Information Act-
was whether the system can effectively operate under any Executive
order arrangement or whether Congress should, in the exercise of its
constitutional authority, enact a statutory system to govern all
security classification functions.
A great many viewpoints on this question were expressed by the
expert witnesses who testified :
Former Ambassador and Supreme Court Justice Goldberg:
I think as a general principle, I would say that Congress
has the right to prescribe the principles under which material
is classified and declassified. * * * Congress could take away
from the Executive, which is the author of the document,
the right to make the decision about declassification. It could
entrust it to a quasi-judicial group or some agency divorced
from the group which does the classification itself.229
The constitutional prerogative to legislate in the field was also
discussed by Congressman Moss and then Assistant Attorney General
Rehnquist, now a Supreme Court Justice: 230
Mr. Moss. Certainly, if the Congress were to enact a
statute which spelled out a system of classification and speci-
fied that be the only system of classification, that would
dominate, or do away with the classification under Executive
Order 10501, wouldn't it?
Mr. REHNQUIST. Yes; I think Congress could supersede
Executive Order 10501 so long as it didn't infringe on the
constitutional prerogatives of the President.* * *
Retired Air Force security classification expert William G.
Florence:
* * * It is clearly within the responsibility of Congress to
correct the anuses of administrative power now being ex-
ercised under the existing security classification system in
Executive Order 10501, and which can be expected to con-
tinue under Executive Order 11652. * * * The most suitable
legislative action would be the enactment of a law to ac-
complish the purpose of Executive Orders 10501 and 11652,
and at the same time serve the interests of Congress and the
people regarding access to information. Any reasonable leg-
islation that would provide a framework of law instead of
sm Hearings, pt. 5, p. 1450.
m Hearings, pt. 2, p. 381.
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an administrative regulation in which to protect such na-
tional defense information as can and ought to be protected
would be a very worthwhile improvement. * * * 231
Historian Lloyd C. Gardner:
As an alternative to the Executive order system, I would
suggest a law providing for automatic declassification of
documents after 15 years. The real key to attacking this prob-
lem by legislation is, however, to change the present cate-
gories to spell out what may or may not be classified mili-
tarily and politically.
Thus, "top secret" presently covers military secrets such
as weapons systems and strategic battle plans, as well as
political decisions. These are very different problems and
must be handled differently.
But a 30-year rule is plainly incompatible with any serious
definition of responsible citizenry in a democracy. The his-
torian will always write, make judgments, and draw con-
clusions. But these will be less useful to the country until
he has access to Government files.
One can argue, and historians differ, about what rule
should prevail-an 8-year, 10-year, 15-year, or 20-year,
automatic declassification procedure.
An Executive order, no matter how seriously intended,
cannot substitute for congressional legislation. Even with
such legislation, moreover, Congress will have to insure that
something is done to carry out its will, probably through the
creation of a committee or commission composed of rep-
resentatives of the executive and legislative branches, and
including private citizens.
A legislative solution is the only long-range alternative in
keeping with a representative form of government. * * * 232
Dr. Paul Ward, executive secretary of the American Historical
Association, also stated that "our association position would heartily
support" constructive and workable security classification legislation
in the Congress.233
Several Members of Congress who testified also supported the
concept of a statutory security classification system:
Congressman Sam Gibbons:
Congress should enact legislation providing a clear defini-
tion of national security matters which can be classified
and the circumstances under which such classification should
be imposed .211
In response to a question by Congressman Moss as to who should
impose the guidelines for classifying, the Executive or the Congress,
Congressman Bob Eckhardt responded: 235
231 Hearings, pt. 7, pp. 2538-2530; for details of criteria or statute recommended by Mr. Florence, seepF
2530--2540.
232 ibid., p. 2657.
233 Ibid., p. 2640.
224 Hearings, pt. 1, p. 203.
235 Ibid., p. 221.
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Mr. ECKHARDT. Well, of course, Congress always has the
right to do it. But let me say this: I think classification should
be for the purposes of determining whether an executive
officer should respect a confidence and I think in that respect
there is nothing wrong with Congress setting out guidelines
and directing i he executive department to follow them.
Senator Mike Gravel:
One of Congress' most urgent tasks is to replace Executive
Order 11652 with legislation regulating the classification
process. At a minimum, specific language is required to
insure that the classification system is applied only to
information that, if disclosed, would definitely endanger our
national defense posture. * * * 236
It is reasonable to expect differences of opinion, even among those
who support the concept of a statutory security classification system,
as to the precise scope and detail of such legislation.
The Atomic Energy Commission's Statutory Classification
System
Only one Federal agency, the Atomic Energy Commission (AEC),
operates under a separate statutory security classification system. In
an endeavor to determine just how well AEC's system has functioned,
the subcommittee called for testimony from the AEC Director of
Classification, Mr. Charles Marshall."'
Section 142 of the Atomic Energy Act of 1954, as amended (42
U.S.C. 2162), provides for a system that is unique in the executive
branch-a statutory basis for the classification and declassification of
AEC information known as "restricted data." This statutory system
operates within the framework of the old Executive Order 10501 and
the present Order 1.1652 and classification categories of the Executive
order are also applicable to AEC.
Mr. Marshall outlined the broad way in which the Atomic Energy
Act deals with problems involving security classification: "
The Atomic Energy Act also includes a mandate on how
to deal with the basic problem we are discussing today;
namely, the problem of assuring that information important
to the national security is adequately protected while all
other information is fully and freely disseminated. It stipu-
lates that (1) the Commission is to safeguard restricted data
in such a manner as to assure the common defense and
security; and (2) the Commission is to declassify as much of
this information as national security permits so as to facil-
itate the free interchange of ideas and criticism which is
essential to scientific and industrial progress and to public
understanding.
He went on to point out:
The Atomic Energy Commission was established by the
Atomic Energy Act of 1946 and has functioned since then to
sae Hearings, pt. 7, p. 2561.
231 Mr. Marshall's testimony begins on page 2574 of pt. 7 of the hearings.
" Ibid., pp. 2574-2575.
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carry out its mandates. The act, which. underwent a signif-
icant revision in 1954, prescribes specific requirements for
the handling of atomic energy information. Subsection 11.y.
defines restricted data as:
All data concerning (1) design, manufacture or
utilization of atomic weapons; (2) the production of
nuclear material; or (3) the use of special nuclear
material in the production of energy, but shall not
include data declassified or removed from the re-
stricted data category pursuant to section 142.
In effect, this definition classifies atomic energy information
from its inception and it affects not only Government-
generated information but information generated by all
citizens of the United States. This represents a basic differ-
ence between the Atomic Energy Act and the Executive
order which applies only to Government operations. Both,
however, are seriously concerned with accomplishing de-
classification of information as soon as national security
permits. Section 142 of our act in its turn prescribes the
means for removing information from the restricted data
category either by declassification or other means.
Classification Director Marshall explained that AEC's classification
and declassification program, based primarily on the Atomic Energy
Act provisions, utilizes "detailed classification guides which define
that information which warrants classification and that. information
which does not and is therefore unclassified." "These guides are
continuously reviewed and revised as. necessary," he stated, "to
insure that they are consistent with current circumstances." 239 He
also added:
In classifying information there are really two decisions
that need to be made, the first, whether or not the information
should be classified; that is, whether or not it warrants some
protection; the second decision is what level of classification
shall be applied; that is, what level of protection the infor-
mation requires. In the case of restricted data and formerly
restricted data, the Atomic Energy Act makes that first
decision. The second one, including the declassification, is
made by the AEC.
Mr. Marshall stated that "to carry out its classification and declas-
sification program, the AEC keeps abreast of the technical develop-
ments thoughout the world in all of the areas of information in which
the AEC has an interest." AEC's Division of Classification has as
its mission "to insure that only that information which warrants
protection from the point. of view of the national defense and security
will continue to be classified and that all other information will be
declassified and made available for general use." 24?
He continued:
As a result of AEC declassification actions only a very few
programs are now classified in any significant way. These in-
clude the weapons program and the program for the separa-
tion of fissionable isotopes. Most other programs are either
737 Ibid., p. 2575.
240 Ibid., p. 2576.
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completely unclassified or nearly so. For example, informa-
tion concerning production reactors, space propulsion, space
power and controlled thermonuclear reactors is almost com-
pletely unclassified. Programs for basic scientific research,
medical, biological, and agricultural applications, civilian
power reactors and civilian research reactors are all com-
pletely unclassified.
Great emphasis is placed on the declassification of documents,
carried out by "designated responsible reviewers," who are scientists
in various technical fields. They systematically review classified ma-
terial to determine, within current classification guides, whether or
not particular documents still need to be classified.141 As a result, Mr.
Marshall stated, more than 650,000 documents have been declas-
sified under a "special review program" begun in July 1971.
Congressman Chet Holifield, chairman of this committee, a mem-
ber of the Joint Atomic Energy Committee since its creation in 1946,
and several times chairman of the Joint Committee, explained the
background of the AEC classification policies during the hearings: 242
In the early days of the Manhattan project, before and
during World War II, up until ending the war in 1946, and
going on up to 1954, about the sole really major program of
the Atomic Energy Commission was in the field of producing
and improving weapons for our national defense. During
that period there was pretty tight security because weapon
production was the only thing that we were really stressing
at the time.
In 1954, when the complete revision of the act occurred
a new policy was adopted, at the behest of the committee,
because we recognized that this great new source of energy
could have blessings for mankind as well as the threat of
destruction of mankind. So we at that time began to accel-
erate the peacetime applications and in so doing we found
that it was necessary to declassify a great many of the
procedures and a great many of the classified documents
because in most instances they also had peacetime applica-
tions. Wherever it was possible we declassified these docu-
ments which consisted mostly of information of how to use
atomic energy, and use it safely, and how to provide it.
In some instances where there was double meaning to a
piece of information, in other words, it could be used for
either peacetime applications or for the weapon program,
we had to go rather slowly and declassify bit by bit.
But the policy from 1954 of the Joint Committee was
that we wanted to get everything out in the open that we
could, because in the first place it had been produced by
taxpayers' money and if there was peacetime application
we wanted it used to the utmost.
In the second place, we had a tremendous body of scien-
tists working on this project and the scientists inherently
241 Ibid.
242 Ibid., p. 2578.
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believe in declassification because they believe in the free-
dom and dissemination of knowledge, particularly, scientific
new areas of knowledge. So we had no inherent opposition
from the scientists and the laboratory directors.
This enabled us to go forward in harmony with the com-
mittee's desires and the operation of the different labora-
tories, and we found that, as Mr. Marshall's statement
says here, we could declassify literally thousands and even
hundreds of thousands of pages of otherwise classified
material. Today I would say that there is a very small,
relatively small field of classification.
Subcommittee Chairman Moorhead, in reviewing the AEC's
statutory classification system, observed: z"3
It is important to note that the AEC information program,
as well as its security classification procedures, have seemed
to work exceptionally well. We are aware of the extremely
sensitive types of classified information which fall within
the AEC's jurisdictional responsibility. The operational
experience gained over many years through the AEC
security classification system is of particular interest to
this subcommittee since legislation will soon 'be introduced
and considered here that would replace the Executive
order approach by a statutory security classification system
throughout the executive branch of Government.
We have studied the operation of your system, Mr.
Marshall, and have noted its many advantages.
Like other executive agencies the AEC also functions within the
Executive order classification system, as well as its own statutory sys-
tem. 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 during 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 continue classifi-
cation of AEC information at a particular level than is generally true
in the fields of foreign policy or defense information. This means that
AEC's system of constant .review of its "restricted data" in the light
of changing technology and its ongoing emphasis on downgrading
and declassification of data when it no longer requires protection
makes its statutory system more administratively sound and
workable.
The committee intends to make further studies of the AEC statu-
tory classification model in the hope that it will provide additional
insights into ways in which a statutory classification system may be
developed to apply throughout the executive branch of government.
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For well over a decade the. Government Operations Committee has
conducted in-depth studies and investigations and has held months of
hearings now covering many thousands of printed pages of testimony.
It has issued more than a dozen reports and other publications dealing
with many of the complex aspects of the Nation's security classification
system as it has operated under various Executive orders during the
past five administrations.
Over the years, the committee's findings and conclusions have
documented widespread overclassification, abuses in the use of the
classification stamps, and other serious defects in the operation of the
security classification system. These committee documents have
revealed dangerous shortcomings of a system that has been admin-
istratively loose and uncoordinated, unenforced and perhaps unen-
forceable. It has functioned in a way to deny public access to essential
information. It has spawned a strangling mass of classified documents
that finally weakened and threatened a breakdown of the entire system.
These same committee reports have repeatedly made constructive
recommendations to executive agencies to help correct the adminis-
trative and judgmental deficiencies of the security classification
system. Unfortunately for the integrity of the system and for the
taxpayers who must pay millions of dollars annually to keep the
classification machine running, many of these recommendations have
gone unheeded.
The committee believes that there is an unquestioned need for
--Federal agencies to avoid the release or dissemination to the public of
certain sensitive types of information, the safeguarding of which is
truly vital to protecting the national defense and to maintain necessary
confidentiality of dealings between our country and foreign nations.
The committee also believes, however, that the: Nation is strength-
ened when the American public is informed on matters involving our
international commitments and defense posture to the maximum
extent possible, consistent with our overriding security requirements.
Our fundamental liberties are endangered whenever abuses in the
security system occur. Within these constraints, when information
that should be made available to the people is unnecessarily withheld
by government-for whatever the reason-our representative system
is undermined and our people become less able to judge for themselves
the stewardship of government officials. Information is essential to
knowledge-and knowledge is the basis for political power. Under our
governmental system, maximum access to information must, therefore,
always reside firmly in the hands of the American people.
The efficiency and integrity of a security classification system,
whether established by Executive order or statute, ultimately rests in
large part on proper use of clearly defined gradations of secrecy.
Unnecessary classification of marginal information and overclassi-
fication must be strictly avoided. When the mass of currently used
(uw)
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classified information aggregates many millions of pages-much of
which is overclassified-there no longer can be the degree of respect
or selectivity upon which classification markings depend for their
integrity. To the extent that any classification system does not punish
those of its participating officials who abuse the system, who classify
unnecessarily, or who "play it safe" by overclassifying, it adds im-
measurably to the proliferation of classified documents, gradually
weakening and eventually destroying the integrity and effectiveness
of the entire system. Such abuses undermine the ultimate ability of the
system to adequately safeguard those highly sensitive and vital
secrets upon which the security of our Nation and its people may well
depend.
19 Among the essential elements for the efficient operation of any
security classification system are the procedures established for the
systematic downgrading and rapid declassification of all classified
information when the need for its protection has ceased to exist. Such
circumstances are not so much measurable in time periods as they
are geared to the rapidly moving sequence of events involving scientific
development, defense technology, changing diplomatic situations, and
the like.
Any security classification. system should provide precise definitions
of truly vital categories of information subject to classification and
also have an effective mechanism for strictly limiting classification
authority among Federal departments and agencies involved in
national defense and foreign policy matters, and among the key
policymaking officials. These officials should be identified on documents
they classify; they should be held strictly accountable for their classifi-
cation judgments; and they should be disciplined for abuse of their
-authority. Otherwise, the system will be compromised and the volume
of unnecessarily classified and overclassified information" will over-
whelm those who stamp it.
Finally, an effective security classification system should certainly
have a vigorously enforced mechanism for reviewing and policing its
own operations to assure that the system does not compromise vital
defense or foreign policy secrets, does not abuse the public's right to
know, nor founder in its own bureaucratic excesses. Another safeguard
should be full judicial review of classification decisions. The system
should therefore include a requirement for in camera examination of
classified information by the Federal courts in cases involving dis-
putes over classification markings so as to legally determine whether
or not such information is properly classified.
In the past administration of security classification systems estab-
lished by Executive orders, these and other basic criteria for the
ultimate success of the system have been notably absent, or have not
been properly implemented or enforced.
The committee also notes that while an updating of the Foreign
Relations series-ordered by President Nixon in March 1972-is a
forward step, such action should be further accelerated and additional
resources earmarked for this purpose. Serious consideration should be
given. to the proposal of. the leading academic groups calling for the
State Department to publish in advance of the Foreign Relations series
collections of documents relating to the major international crises
since 1947.
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Executive Order 1.1652, issued on March 8, 1972, has been labeled
the "first major overhaul of our classification system since 1953." The
result of some 14 months of executive consideration by an interagency
committee headed by former Assistant Attorney General William H.
Rehnquist, the new order attempts to deal with some of the serious
defects in the security classification system that became so obvious
in.the operation of Executive Order 10501.
For example, there has been an announced reduction of some 31,000
persons in executive departments and agencies authorized to classify
documents as "Top Secret", "Secret", or "Confidential" under the
new Executive order-a drop of 63 percent. However, the committee
has yet been unable to verify this claim. The number of executive
departments and agencies authorized to classify has been reduced from
37 to 25, exclusive of the Executive Office of the President. An Inter-
agency Classification Review Committee, headed by Ambassador
John Eisenhower, has been created to monitor the administration of
the new order. The order makes an effort to tighten up the security
classification categories, endeavors to promote the speedier down-
grading and declassification of information, and makes a slight reduc-
tion-from 12 to 10 years-in length of the normal declassification
schedule from the "Top Secret" level.
However, as has been pointed out previously in this report at
pages 58-87, serious shortcomings in the new order have already sur-
faced-some inherent in the language of its provisions and some in the
procedural aspects involving its design, promulgation, and in the
issuance of implementing regulations. They may he summarized
briefly as follows:
1. Among the major defects inherent in the language of the new
order are the folloNking provisions, which were discussed previously
on pages 61-80 of this report and include:
(a) the change of basic terminology of the order's applica-
tion-from "national defense or foreign policy" to "national
defense or foreign relations", referred to in the new order as
"national security";
(b) the lack of sufficiently strong penalties for overclassification;
(c) the lack of assurance to guarantee Congress the full
authority to properly exercise its oversight and investigative
responsibilities regarding the operation of the new Executive
order;
(d) the legitimization of dozens of access or control markings
that apply to classified or unclassified data; and
(e) loopholes in the mandatory review provisions affecting the
declassification of exempt classified information.
2. The appropriate committees of the Conress having extensive
experience and expertise in the oversight of the- security classification
system were not given the opportunity by the executive branch to
comment on the design of the new Executive order. The Foreign
Operations and Government Information Subcommittee of this com-
mittee, with more than 17 years of vigorous oversight and constructive
criticism of the present system, was refused the opportunity to in-
formally study and comment upon the draft Executive order.
3. There was an administrative lag between the effective date of
the new order and its implementation by affected executive depart-
ments and agencies. Only six of them had issued regulations some 64
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days after the effective date of the new order. Another three affected
agencies published such regulations in October 1972, while an addi-
tional four came out in November, eight more in December, and the
final four agencies finally published their implementing regulations in
January 1973. This was despite clear warnings by the subcommittee
during the hearings that, since the order was issued prematurely,
there should be a postponement of the effective date to provide for the
orderly transition from the old system to the new.
The new order omitted a "savings clause" that would have pro-
tected against legal questions being raised concerning the status of in-
formation classified after the effective date of the new order, but before,
agency regulations could be written, promulgated, and implemented.
4. Conflicting interpretations were given by executive branch wit-
nesses over the extent to which "domestic surveillance" activities by
Federal agencies involving American citizens are subj ect to classifi-
cation under the new Executive order.
5. Provisions of the new order affecting the access of historians,
researchers, and scholars to classified data of the post-World War II
period fall far short of the policies necessary to permit the Congress
or the public to benefit from historical insights into defense and foreign
policy decisions of this crucial period of U.S. involvement in global
crises.
Finally, the committee concludes that the statutory security classi-
fication system, as operated by the Atomic Energy Commission, with
its clear classification guides, its emphasis on continuing review of
classified information, and its resulting capability to declassify and
make public large amounts of previously classified material each year
contains most of the positive elements of a model security classifica-
tion system. It should receive further study when additional considera-
tion is given to the establishment of a statutory classification system.
A statutory system should be established, perhaps as an amendment
to the Freedom of Information Act, to make it clear that Congress
intends a proper balancing between the safeguarding of information
classified under strict guidelines to protect vital defense and foreign
policy secrets and the right of the American public to know how the
affairs of their government are being conducted. Congress should also
take this necessary action to assure maximum credibility of all citizens
in our governmental institutions and in our elected and appointed
officials.
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The committee therefore strongly recommends that legislation pro-
viding for a statutory security classification system should be con-
sidered and enacted by the Congress. It should apply to all executive
departments and agencies responsible for the classification, protec-
tion, and ultimate declassification of sensitive information vital to our
Nation's defense and foreign policy interests. Such a law should
clearly reaffirm the right of committees of Congress to obtain all
classified information held by the executive branch when, in the
judgment of the committee, such information is relevant to its legis-
lative or investigative jurisdiction. The law should also make certain
that committees of Congress will not be impeded in the full exercise
of their oversight responsibilities over the administration and operation
of the classification system.
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APPENDIX
EXECUTIVE ORDERS Nos. 11652 AND 11714
THE WHITE HOUSE
EXECUTIVE ORDER NO. 11652 March 8,1372.
CLASSIFICATION AND DECLASSIFICATION OF NATIONAL SECURITY INFORMATION
AND MATERIAL
The interests of the United States and its citizens are best served by making
information regarding the affairs of Government readily available to the public.
This concept of an informed citizenry is reflected in the Freedom of Information
Act and in the current public information policies of the executive branch.
Within the Federal Government there is some official information and material
which, because it bears directly on the effectiveness of our national defense and
the conduct of our foreign relations, must be subject to some constraints for the
security of our Nation and the safety of our people and our allies. To protect
against actions hostile to the United States, of both an overt and covert nature,,
it is essential that such official information and material be given only limited
dissemination.
This official information or material, referred to as classified information or
material in this order, is expressly exempted from public disclosure by section
552(b)(1) of title 5, United States Code. Wrongful disclosure of such information
or material is recognized in the Federal Criminal Code as providing a basis for
prosecution.
To insure that such information and material is protected, but only to the ex-
tent and for such period as is necessary, this order identifies the information to
be protected, prescribes classification, downgrading, declassification, and safe-
guarding procedures to be followed, and establishes a monitoring system to
insure its effectiveness.
Now, therefore, by virtue of the authority vested in me by the Constitution
and statutes of the United States, it is hereby ordered:
SECTION 1. SECURITY CLASSIFICATION CATEGORIES
Official information or material which requires protection against unauthorized
disclosure in the interest of the national defense or foreign relations of the United
States (hereinafter collectively termed "national security") shall be classified in
one of three categories, namely, "Top Secret" "Secret, or "Confidential," de-
pending upon the degree of its significance to' national security. No other cate-
gories shall be used to identify official information or material as requiring
protection in the interest of national security, except as otherwise expressly pro-
vided by statute. These classification categories are defined as follows:
(A) "Top Secret."-"Top Secret" refers to that national security information
or material which requires the highest degree of protection. The test for assigning
"Top Secret" classification shall be whether its unauthorized disclosure could
reasonably be expected to cause exceptionally grave damage to the national
security. Examples of "exceptionally grave damage" include armed hostilities
against the United States or its allies; disruption of foreign relations vitally
affecting the national security; the compromise of vital national defense plans
or complex cryptologic and communications intelligence systems; the revelation
of sensitive intelligence operations; and the disclosure of scientific or technologi-
cal developments vital to national security. This classification shall be used with
the utmost restraint.
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(B) "Secret."-"Secret" refers to that national security information or mate-
rial which requires a sE.bstantial degree of protection. The test for assigning
"Secret" classification shall be whether its unauthorized disclosure could rea-
sonably be expected to cause serious damage to the national security. Examples of
"serious damage" include disruption of foreign relations significantly affecting
the national security; significant impairment of a program or poliyc directly
related to the national security; revelation of significant military plans of intel-
ligence operations; and compromise of significant scientific or technological
developments relating to national security. The classification "Secret" Fhall
be sparingly used.
(C) "Confidential."-"-Oonfidential" refers to the national security information
or material which requires protection. The test for assigning "Confidential"
classification shall be whether its unauthorized disclosure could reasonably be ex-
pected to cause damage to the national security.
SECTION 2. AUTHORITY TO CLASSIFY
The authority to originally classify information or material under this order
shall be restricted solely to those offices within the executive branch which are
concerned with matters of national security, and shall be limited to the minimum
number absolutely required for efficient administration. Except as the context
may otherwise indicate, the term "Department" as used in this order shall include
agency or other governn--ental unit.
(A) The authority to originally classify information or material under this
order as "Top Secret" shall he exercised only by such officials as the President
may designate in writing and by:
(1) The heads of the Departments listed below;
(2) Such of their senior principal deputies and assistants as the heads of
such Departments may designate in writing; and
(3) Such heads and senior principal deputies and assistants of major
elements of such Departments, as the heads of such Departments may
designate in writing.
Such offices in the Executive Office of the President-as the President may
designate in writing.
Central Intelligence Agency.
Atomic Energy Commission.
Department of State.
Department of the Treasury.
Department of Defense.
Department of the Army.
Department of the Navy.
Department of the Air Force.
United States Arms Control and Disarmament Agency.
Department of Justice.
National Aeronautics and Space Administration.
Agency for International Development.
(B) The authority to originally classify information or material under this
order as "secret" shall be exercised only by:
(1) Officials who have "top secret" classification authority;
(2) Such subordinates as officials with "top secret" classification author-
ity under (A) (1) and (2) above may designate in writing; and
(3) The heads of the following named departments and such senior prin-
cipal deputies or assistants as they may designate in writing.
Department of Transportation.
Federal Communications Commission.
Export-Import Bank of the United States.
Department of Commerce.
U.S. Civil Service Commission. -
U.S. Information Agency.
General Services Administration.
Department of Health, Education, and Welfare.
Civil Aeronautics Board.
Federal Maritime Commission.
Federal Power Commission.
National Science Foundation.
Overseas Private Investment Corp.
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(C) The authority to originally classify information or material under this
order as "confidential" may be exercised by officials who have "top secret" or
"secret" classification authority and such officials as they may designate in
writing.
(D) Any department not referred to herein and any department or unit estab-
lished hereafter shall not have authority to originally classify information or
material under this order, unless specifically authorized hereafter by an Execu-
tive order.
SECTION 3. AUTHORITY TO DOWNGRADE AND DECLASSIFY
The authority to downgrade and declassify national security information or
material shall be exercised as follows:
(A) Information or material may be downgraded or declassified by the official
authorizing the original classification, by a successor in capacity or by a super-
visory official of either.
(B) Downgrading and declassification authority may also be exercised by an
official specifically authorized under regulations issued by the head of the De-
partment listed in sections 2 (A) or (B) hereof.
(C) In the case of classified information or material officially transferred by
or pursaant to statute or Executive order in conjunction with a transfer of func-
tion and not merely for storage purposes, the receiving Department shall be
deemed to be the originating Department for all purposes .under this order includ-
ing downgrading and decla'ssification..
(D) In the case of classified information or material not officially transferred
within (C) above, but originated in a Department which has since ceased to
exist, each Department in possession shall he deemed to be the originating Depart-
ment for all purposes under this order. Such information or material may be
downgraded and declassified by the Department in possession after consulting
with any other Departments having an interest in the subject matter.
(E) Classified information or material transferred to the General Services
Administration for accession into the Archives of the United States shall be
downgraded and declassified by the Archivist of the United States in accordance
with this order, directives of the President issued through the National Se-
curity Council and pertinent regulations of the Departments.
(F) Classified information or material with special markings, as described
in section 8, shall be downgraded and declassified as required by law and govern-
ing regulations.
SECTION 4. CLASSIFICATION
Each person possessing classifying authority shall be held accountable for the
propriety of the classifications attributed to' him. Both unnecessary classifica-
tion and overclassification shall be avoided. Classification shall be solely on the
basis of national security considerations. In no case shall information be classi-
fied in order to, conceal inefficiency or administrative error, to prevent embarrass-
ment to a person or Department, to restrain competition or independent initia-
tive, or to prevent for any other reason the release of information which does not
require protection in the interest of national security. The following rules shall
apply to classification of information under this order:
(A) Documents in general.-Each classified document shall show on its face
its classification and whether it is subject to or exempt from the general de-
classification schedule. It shall also show the office of origin, the date of prep-
aration and classification and, to the extent practicable, be so marked as to
indicate which portions are classified, at what level, and which portions are not
r classified in order to facilitate excerpting and other use. Material containing
references to classified materials, which references do not reveal classified in-
formation, shall not be classified.
(B) Identification of classifying authority.-Unless the Department involved
shall have provided some other method of identifying the individual at the high-
est level that authorized classification in each case, material classified under
this order shall indicate on its face the identity of the highest authority author-
izing the classification. Where the individual who signs or otherwise authenticates
a document or item has also authorized the classification, no further annotation
as to his identity is required.
(C) Information or material furnisked by a foreign government or international
organization.-Classified information or material furnished to the United States
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by a foreign government or international organization shall either retain its
original classification or be assigned a U.S. classification. In either case, the
classification shall assure a degree of protection equivalent to that required by
the government or international organization which furnished the information
of material.
(D) Classification r~rponsihilities.-A holder of classified information or ma-
terial shall observe and respect the classification assigned by the originator. If
a holder believes that there is unnecessary classification, that the assigned classi-
fication is improper, or that the document is subject to declassification under
this order, he shall so inform the originator who shall thereupon reexamine the
classification.
SECTION 5. DECLASSIFICATION AND DOWNGRADING
Classified information and material, unless declassified earlier by the original
classifying authority, shall be declassified and downgraded in accordance with
the following rules:
(A) General declassification schedule.
(1) "Top secret."-Information or material originally classified "top secret"
shall become automatically downgraded to "secret" at the end of the second full
calendar year following the year in which it was originated, downgraded to
"confidential" at the end of the fourth full calendar year following the year in
which it was originated, and declassified at the end of the tenth full calendar year
following the year in which it was originated.
(2) "Secret."-Information and material originally classified ' secret" shall
become automatically downgraded to "confidential" at the end of the second full
calendar year following the year in which it was originated, and declassified at
the end of the eighth full calendar year following the rear in which it was originated.
(3) "Confidential. "-Information and material originally classified "confiden-
tial" shall become automatically declassified at the end of the sixth full calendar
year following the year in which it was originated.
(B) Exemptions from general declassification schedule.-Certain classified
information or material may warrant some degree of protection for a period
exceeding that provided in the general declassification schedule. An official
authorized to originally classify information or material "top secret" may exempt
from the general declassification schedule any level of classified information or
material originated by him or under his supervision if it falls within one of the
categories described below. In each case such official shall specify in writing on
the material the exemption category being claimed and, unless impossible, a date
or event for automatic declassification. The use of the exemption authority shall
be kept to the absolute minimum consistent with national security requirements
and shall be restricted to the following categories:
(1) Classified information or material furnished by foreign governments or
international organizations and held by the United States on the understanding
that it be kept in confidence.
(2) Classified information or material specifically covered by statute, or per-
taining to cryptography, or disclosing intelligence sources or methods.
(3) Classified information or material disclosing a system, plan, installation,
project or specific foreign relations matter the continuing protection of which is
essential to the national security.
(4) Classified information.or material the disclosure of which would place a
person in immediate jeopardy.
(C) Mandatory review of exempted material.-All classified information and
material originated after the effective date of this order which is exempted under
(B) above from the general declassification schedule shall be subject to a classi-
fication review by the originating department at any time after the expiration
of 10 years from the date of origin provided: (1) A department or member of the
public requests a review; (2) the request describes the record with sufficient par-
ticularity to enable the department to identify it; and (3) the record can be ob-
tained with only a reasonable amount of effort.
Information or material which no longer qualifies for exemption under (B)
above shall be declassified. Information or material continuing to qualify under
(B) shall be so marked and, unless impossible, a date for automatic declassi-
fication shall be set.
(D) Applicability of the general declassification schedule to previously classified
material.-Information or material classified before the effective date of this
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order and which is assigned to group 4 under Executive Order No. 10501, as
amended by Executive Order No. 10964, shall be subject to the general declassi-
fication schedule. All other information or material classified before the effective
date of this order, whether or not assigned to groups 1, 2, or 3 of Executive Order
No. 10501, as amended, shall be excluded from the general declassification sched-
ule. However, at any time after the expiration of 10 years from the date of origin
it shall be subject to a mandatory classification review and disposition under
the same conditions and criteria that apply to classified information and material
created after the effective date of this order as set forth in (B) and (C) above.
(E) Declassification of Classified Information or Material After 30 Years.-
All classified information or material which is 30 years old or more, whether
originating before or after the effective date of this order, shall be declassified
under the following conditions:
(1) All information and material classified after the effective date of this
order shall, whether or not declassification has been requested, become automati-
cally declassified at the end of 30 full calendar years after the date of its original
classification except for such specifically identified information or material
which the head of the originating department personally determines in writing
at that time .to require continued protection because such continued protection
is essential to the national security or disclosure would place a person in imme-
diate jeopardy. In such case, the head of the department shall also specify the
period of continued classification.
(2) All information and material classified before the effective date of this
order and more than 30 years old shall be systematically reviewed for declassi-
fication by the Archivist of the United States by the end of the 30th full calendar
year following the year in which it was originated. In his review, the Archivist
will separate and keep protected only such information or material as is spe-
cifically identified by the head of the department in accordance with (E) (1)
:above. In such case, the head of the department shall also specify the period of
continued classification.
(F) Departments Which Do Not Have Authority for Original Classification.-
The provisions of this section relating to the declassification of national security
information or material shall apply to departments which, under the terms of
this order, do not have current authority to originally classify information or
material, but which formerly had such authority under previous Executive orders.
SECTION 6. POLICY DIRECTIVES ON ACCESS, MARKING, SAFEKEEPING, ACCOUNTA-
BILITY, TRANSMISSION, DISPOSITION, AND DESTRUCTION OF CLASSIFIED INFORMA-
TION AND MATERIAL
The President, acting through the National Security Council, shall issue direc-
tives which shall be binding on all departments to protect classified information
from loss or compromise. Such directives shall conform to the following policies:
(A) No person shall be given access to classified information or material
unless such person has been determined to be trustworthy and unless access to
such information is necessary for the performance of his duties.
. (B) All classified information and material shall be appropriately and con-
spicuously marked to put all persons on clear notice of its classified contents.
(C) Classified information and material shall be used, possessed and stored
t only under conditions which will prevent access by unauthorized persons or
dissemination to unauthorized persons.
(D) All classified information and material disseminated outside the executive
branch under Executive Order No. 10865 or otherwise shall be properly protected.
(E) Appropriate accountability records for classified information shall be
established and maintained and such information and material shall be pro-
tected adequately during all transmissions.
(F) Classified information and material no longer needed in current working
files or for reference or record purposes shall be destroyed or disposed of in ac-
cordance with the records disposal provisions contained in chapter 33 of title
44 of the United States Code and other applicable statutes.
(G) Classified information or material shall be reviewed on a systematic basis
for the purpose of accomplishing downgrading, declassification, transfer, retire-
ment, and destruction at the earliest practicable date.
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110
SECTION 7. IMPLEMENTATION AND REVIEW RESPONSIBILITIES
(A) The National Security Council shall monitor the implementation of this
order. To assist the National Security Council, an Interagency Classification
Review Committee stall be established, composed of representatives of the
Departments of State, Defense, and Justice, the Atomic Energy Commission, the
Central Intelligence Agency, and the National Security Council staff and a
chairman designated by the President. Representatives of other departments in
the executive branch may be invited to meet with the committee on matters of
particular interest to those departments. This committee shall meet regularly
and on a continuing basis shall review and take actions to insure compliance with
this order, and in particular:
(1) The committee shall oversee department actions to insure compliance with
the provisions of this order and implementing directives issued by the President
through the National Security Council.
(2) The committee shall, subject to procedures to be established by it, receive,
consider and take action on suggestions and complaints from persons within or
without the Government with respect to the administration of this order, and in
consultation with the affected department or departments assure that appro-
priate action is taken on such suggestions and complaints.
(3) Upon request of the committee chairman, any department shall furnish
to the committee any particular information or material needed by the com-
mittee in carrying out its functions.
(B) To promote the basic purposes of this order, the head of each depart-
ment originating or handling classified information or material shall :
(1) Prior to the effective date of this order submit to the Interagency Classi-
fication Review Committee for approval a copy of the regulations it proposes to
adopt pursuant to this order.
(2) Designate a senior member of his staff who shall insure effective com-
pliance with and implementation of this order and shall also chair a depart-
mental committee which shall have authority to act on all suggestions and com-
plaints with respect to the department's administration of this order.
(3) Undertake an initial program to familiarize the employees of his depart-
ment with the provisions of this order. He shall also establish and maintain
active training and orientation programs for employees concerned with classified
information or material. Such programs shall include, as a minimum, the briefing
of new employees and periodic reorientation during employment to impress upon
each individual his responsibility for exercising vigilance and care in complying
with the provisions of this order. Additionally, upon termination of employment
or contemplated temporary separation for a 60-day period or more, employees shall
be debriefed and each reminded of the provisions of the criminal code and other
applicable provisions of law relating to penalties for unauthorized disclosure.
(C) The Attorney General, upon request of the head of a department, his
duly designated representative, or the chairman of the above described committee,
shall personally or through authorized representatives of the Department of
Justice render an interpretation of this order with respect to any question arising
in the course of its administration.
SECTION 8. MATERIAL COVERED BY THE ATOMIC ENERGY ACT
Nothing in this order shall supersede any requirements made by or under the
Atomic Energy Act of August 30, 1954, as amended. "Restricted data," and
material designated as "formerly restricted data," shall be handled, protected,
classified, downgraded. and declassified in conformity with the provisions of the
Atomic Energy Act of. 1954, as amended, and the regulations of the Atomic
Energy Commission.
SECTION 9. SPECIAL DEPARTMENTAL ARRANGEMENTS
The originating department or other appropriate authority may impose, in
conformity with the provisions of this order, special requirements with respect
to access, distribution and protection of classified information and material,
including those which presently relate to communications intelligence, intelli-
gence sources and me ;hods and cryptography.
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SECTION 10. EXCEPTIONAL CASES
In an exceptional case when a person or department not authorized to classify
information originates information which is believed to require classification,
such person or department shall protect that information in the manner pre-
scribed by this order. Such persons or department shall transmit the information
forthwith, under appropriate safeguards, to the department having primary
interest in the subject matter with a request that a determination be made as to
classification.
SECTION 11. DECLASSIFICATION OF PRESIDENTIAL PAPERS
The Archivist of the United States shall have authority to review and declassify
information and material which has been classified by a President, his White
House staff or special committee or commission appointed by him and which
the Archivist has in his custody at any archival depository, including a presi-
dential library. Such declassification "shall only be undertaken in accord with:
(i) the terms of the donor's deed of gift, (ii) consultation with the departments
having a primary subject-matter interest, and (iii) the provisions of section 5.
SECTION 12. HISTORICAL RESEARCH AND ACCESS BY
FORMER GOVERNMENT OFFICIALS
The requirement in section 6(A) that access to classified information or material
be granted only as is necessary for the performance of one's duties shall not
apply to persons outside the executive branch who are engaged in historical
research projects or who have previously occupied policymaking positions to
which they were appointed by the President; Provided, however, that in each
ease the head of the originating department shall: (i) determine that access is
clearly consistent with the interests of national security; and (ii) take appro-
priate steps to assure that classified information or material is not published or
otherwise compromised.
Access granted a person by reason of his having previously occupied a policy-
making position shall he limited to those papers which the former official origi-
nated, reviewed, signed or received while in public office.
SECTION 13. ADMINISTRATIVE AND JUDICIAL ACTION
(A) Any officer or employee of the United States who unnecessarily classifies
or overclassifies information or material shall be notified that his actions are in
violation of the terms of this order or of a directive of the President issued through
the National Security Council. Repeated abuse of the classification process shall
be grounds for an administrative reprimand. In any case where the departmental
committee or the Interagency Classification Review Committee finds that unnec-
essary classification or overclassification has occurred, it shall make a report to
the head of the department concerned in order that corrective steps may be taken.
(B) The head of each department is directed to take prompt and stringent
administrative action against any officer or employee of the United States, at
any level of employment, determined to have been responsible for any release or
disclosure of national security information or material in a manner not authorized
by or under this order or a directive of the President issued through the National
Security Council. Where a violation of criminal, statutes may be involved, de-
partments will refer any such case promptly to the Department of Justice.
SECTION 14. REVOCATION OF EXECUTIVE ORDER NO. 10501
Executive Order No. 10501 of November 5, 1953, as amended by Executive
Orders No. 10816 of May 8, 1959, No. 10901 of January 11, 1961 No. 10964 of
September 20, 1961, No. 1098.5 of January 15, 1962, No. 11097 of March 6, 1963, -
and by section 1(a) of No. 11382 of November 28, 1967, are superseded as of the
effective date of this order.
SECTION 15. EFFECTIVE DATE
This order shall become effective on June 1, 1972.
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MARCH 8, 197Z.
ORDER
Pursuant to section 2(A) of the Executive order of March 8, .1972, entitled
Classification and Declassification of National Security Information and Mate-
rial, I hereby d?signate the following offices in the Executive Office of the President
as possessing authority to originally classify information or material "top secret"
as set forth in said order:
The White House Office.
National Security Council.
Office of Management and Budget.
Domestic Council.
Office of Science and Technology.
Office of Emergency Preparedness.
President's Foreign Intelligence Advisory Board.
Council on International Economic Policy.
Council of Economic Advisers.
National Aeronautics and Space Council.
Office of Telecommunications Policy. RICHARD NixoN.
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TITLE 3-THE PRESIDENT
EXECUTIVE ORDER 11714
AMENDING EXECUTIVE ORDER NO. 11652 ON CLASSIFICATION AND
DECLASSIFICATION OF NATIONAL SECURITY INFORMATION AND
MATERIAL
By virtue of the authority vested in m.e by the Constitution and
statutes of the United States, the second sentence of section 7(A) of
Executive Order No. 11652 of March 8, 1972, is amended to read, as
follows:
"To assist the National Security Council, an Interagency Classifica-
tion Review Committee shall be established, composed of a Chairman
designated by the President, the Archivist of the United States, and
representatives of the Departments of State, Defense and Justice, the
Atomic Energy Commission, the Central Intelligence Agency and the
National Security Council Staff."
The White House, RICHARD NIXON.
April 24, 1973.
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