RECOMMENDATIONS ON THE LEAK PROBLEM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP94B00280R001200030020-1
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 22
• Document Creation Date: December 22, 2016
• Document Release Date: March 23, 2009
• Sequence Number: 20
• Publication Date: May 31, 1983
• Content Type: MEMO

ashington. D.C. 20505
24.May 1983
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IntqligJnWcom.inuntt;
NOTE FOR: DC
VIA:
ns on the Leak Probl
The attached memorandum presents our ideas
and some recommendations on the leak problem. It
is the product of two things: (1) three separate
meetings with senior staff personnel, and (2) the
carefully considered thoughts over a long period
of. time of the Security Committee. I think it is
pretty comprehensive, and some of the ideas have a
lot of merit. Unfortunately, the memorandum is
also rather long and not well suited for a quick
review. My purpose in-sending it along as is--and
encouraging you to take the time to go through
it--is to give you a timely. input as you consider
remedial action.
We are going to continue to pursue the subject
and-will advise.you-of any additional thoughts.
And, of course, we are ready to respond to any
requirements that you"may have for us to develop
policies and procedures for the Community.
Attachment
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Director
Intelligence Community Staff
Washington, D.C. 205D5 ICS-0802-83
MEMORANDUM FOR: Director of Central.Intelligence
VIA: Deputy Director of Central Intelligence
FROM:
Director, Intelligence Community Staff
SUBJECT: Unauthorized Disclosures of Classified Information (U)
1. Beni or memoers o7 the i me i i i gence ..ummun i L.y ai.a r i nave inez to
consider responses to your call for proposals to-Counter the unauthorized
disclosures of classified intelligence which are increasing in number and
severity. The recommendations of the group are in five basic categories --
education, legislation, investigations, media interface and information
control.. This memorandum discusses proposals in each of these categories.
2. .du.catioo - There appears to be a lack of appreciation of the
rn~guences of t e unauthorized revelation of classified intelligence
information, both to the national security and to the individual making the
disclosure. Each recipient of Sensitive Compartmented Information (SCI) is
indoctrinated on the potential damage to the national security of such
revelations, as wel.l as the -penalties prescribed in Title -18, Sections 793
through 798. Nevertheless, incidents continue which indicate that these
elements of risk are not being taken seriously. Recipients of classified
intelligence must be convinced that its.unlawful, revelation is reprehensible,
and that individuals who take it upon themselves to decide when the system may
be ignored place the national security and themselves in Jeopardy.
3. In wartime, the population recognizes the need to keep military
secrets. The concept that "loose lips sink?hips" 'is well accepted. We need
a campaign, beginning with the President, to convince all concerned that
classified information must be protected if we are to avoid national
disaster. A vigorous Presidential charge to the Cabinet and the Executive
Office of the President, relayed through channels to all levels, is an
essential element of this campaign.
4. Awareness of the importance of security to intelligence must be
extended to the Congress. The whole-hearted cooperation'of both-legislators
indispensable. Not only is Legislative rant support
needed to safeguard the material provided to the Congress, but also to put
teeth into the anti-leak effort.
CL BY SIGNER
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5. To make this effort credible, documents must be classified properly
and concern about disclosures should be limited to those affecting national
security.
6. A one-time effort to sensitize the government and the public to the
disastrous consequences of illegal disclosures, even one kicked off by the
President, has a limited half-life. There must be a planned follow-up. In
addition to the obvious reindoctrination efforts, consideration should be
given to an ongoing program of damage-oriented "lessons learned" presenta-
tions. These are envisioned as timely, specific, succinct and technically
competent videotape shows detailing the nature of the unauthorized disclosure
and the specific losses suffered as-a, result. They would be shown to
audiences cleared for the compromised information as a means of reinforcing
the need for strong security.
7. Because of the general derision with which the media regard
government efforts to stop leaks and because the generic term "leak" is
associated with disclosures that are politically'Embarrassing, It may be
advisable to avoid that term and speak only of "unauthorized disclosures of
classified information."
8. Le,gisl.ati.on - The existing espionage laws were drafted to orotect
U.S. secrets from foreign agents. They_did not contemplate the hemorrhaging
of classified data that has followed the media explosion. The divulgence of
classified information to the Russians by way of Jack Anderson's column, for
example, is a relatively new phenomenon. Even though the intentions of the
leaker may be to nobly inform the public of facts he thinks. should be known,
the results are the-same as directly transmitting the information to the KGB.
.9. Attached is a copy of the proposed bill to prohibit certain
unauthorized disclosures of classified information. Formulated on the basis
of the Willard Report, it is an excellent vehicle for closing the.loophole
that allows individuals to ignore classifications and make their own decisions
about what'must or must not be kept secret. Passage of such a bill would make
it clear that both the legislative and executive branches are serious about
preserving our ability to keep our national security secrets. It would then
remain for the judiciary to show the same resolve.
10. The chances of passing the vnauth6ri Zed' discl osures bill are,
directly related. to the Congress's percepti6n of how responsibly the Executive
Branch uses its classification powers. As noted above, the effort to educate
government employees (and the-public, to the extent possible) on the need for
effective secrecy must also include the Congress and legislative staff ?
personnel. The means of reaching this objective are ,the same for both
branches of government -- graphic demonstrations tjt unauthorized disclosures
are costly in terms of money, national defense, intelligence capabilities, and
sometimes, human lives.
11. Legislation also is needed to make the unauthorized possession of
classified material a. crime. It is illogical for the U.S. Government to be
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unable to bring charges against, or at least sue to recover classified
material from, Jack Anderson, who makes a mockery of classification, or from
Aviation. Reek _ant Space _Technato.gy
it th e U.S. would a e action against an ordinary citizen, it should
act wit the same vigor against journalists who damage the national security.
The Attorney General and the General Counsels of the Intelligence Community
should begin a crash program to draft a legislative proposal and to review the
possibilities of action even without'a new law.
12. -Whether or not the effort to pass new legislation is successful, it
is vital that Congress be included in any awareness-raising program. A
.secondary objective would be to raise the security standards of the congres-_
sional staffs. Many staffers have access to more sensitive information than
some CIA or NSA personnel, who are polygra?phed as well as backgroundedr and-
are subject to periodic reprocessing. Congressional staffers are not steeped
in the discipline of security as are the intelligence professionals, and would
almost certainly benefit from a greater appreciation for the-need for secrecy.
13. Finally, the problem of reinforcing the..responsibilities of formerly
cleared recipients of classified information to continue to maintain secrecy
requires attention. A periodic reminder by mail might be considered, but
except for CIA and NSA, it could be difficult to identify those who should-
receive them. In the future, the archival file of the Community-wide,-
Computer-assisted Compartmented Control (4C) System, which will.-contain the
identities of individuals formerly approved for access to SCI, should assist
with-this problem. Meanwhile, the message needs to be spread that our "old
boys" can do a lot of harm by talking too much. Cleared persons .still -
employed in government must be reminded frequently and forcefully that those-
who have retired, or. taken jobs in the industrial sector, may not legally =
receive classified information unless they are specifically cleared for it.
14. Investigations - The investigation df.,unauthorized
rarely proven successful over the years.. The broad issemina ion:require of
intelligence reporting, the lack of an effectual investigative program
-throughout the government, an apparent tolerant attitude toward those who make
illicit disclosures, and the absence of a legislative basis for action have
de for a highly frustratin situation.' NSDD-84 offers hope for greater
success in the future, but there is muc to-be done.
15. Although leak investigations are searches for needles in haystacks,
occasionally good investigative work will produce results. Unfortunately,
unauthorized disclosures to the media are consensual acts between'two parties,
neither of whom is likely to admit participation, and one of whom enjoys a
special degree of privilege under the First Amendment. Legislation will help,
but there can't be a trial until a defendant is identified. The abysmal track
record of leak investigations to date dictates that the Federal Bureau of_
,Investigation is the only agency with any chance of success. Fragmented.
single-agency efforts simply do not work. Nor does the proposal to form
interagency units to -investigate unauthorized disclosures offer any reasonable
hope for improvement.
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16. Even the FBI will require some help -- the full cooperation of other
agencies, the legislation discussed earlier,_and_guidelines that permit the
use of as full a range of investigative tools as .possible. The Attorney
General and a Director of the FBI sou be instructed y the President to
provide the most permissive guidelines possible, consistent with the protec-
tion of civil liberties, for FBI investigations ofiunauthorized disclosures of
classified information. In addition, appropriate manpower allocations to the
FBI should be made to ensure a vigorous effort to solve unauthorized disclo-
sures. Without this, the Bureau cannot be expected to neglect other important
investigations to undertake tasks that offer a low probability of success and
almost certain criticism in the press.
17. Because of the nature of unauthorized disclosures, the likelihood of
developing conclusive evidence is low. In fact, the investigative tool most
likely to succeed is the polygraph, if conventional investigation can narrow
the number of suspects sufficiently to employ it. If a suspect confesses as a
result of polygraph interview the case is solved. If, however, in the face of
clear-cut polygraphic evidence of deception he continues to deny culpability,
the problem of acceptability of polygraph evidence arises.
.18. While prosecution on the basis of polygraph charts is extremely
unlikely to succeed, the government could revoke the individual's clearances
or access.approvals on that basis. This would effectively neutralize future
disclosures by that individual, but could result in a lawsuit to regain the
approvals. The Justice Department and Intelligence Community legal counsels
should be tasked to research the grounds.upon which such a suit could be
defended and the likelihood of success.
19. Action based primarily upon polygraph results is certain to bring
strong media criticism. Ihe palyarph process is little understood and the
press has fostered this misunderstanding by pressing the theme that the
instrument itse is unreliable. Consideration should be given to. preparing
an educational program to be used first with senior officials of the Executive
Branch and with legislators. It should demonstrate that the effectiveness of
the process doesn't depend totally upon the machine, but is a technique to aid
a- skilled interrogator. If a convincing.-effort can be mounted, it could be
brought to the public and even to the news media.: If the Intelligence
Community can't provide objective, rational.- evidence, that .the pntygr_apb
process is reliable, the entire effort to'comba't unauthorized disclosures may
be inn serious trouble.
20. P_ress_Interf.ace - NSDD-84 mandates policies to govern contacts ...
between media re resentatives and agency personnels leaving implementation-to
the individual agencies. The effort to eradicate ur}af thorized disclosures
would be assisted greatly by the adoption of.uniforft rules. for all agencies.
21.. The discussion of government information, especially sensitive
Intelligence, by agovernment employee is not a 'private, 'ersonal matter.
There seems no reason why the government cannot require the reporting of all
contacts with the news'.media, during or outside of duty hours, in which
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government business is discussed. Failure to follow such a rule could be
made subject to administrative sanctions of varying severity. Data on such
contacts could be computerized, by names of government employees, names of
media representatives, subjects of discussions and dates of contacts, pro-
viding a means of determining a great deal of information that could take
inordinate amounts of investigative effort. It wouldn't tell who made
unauthorized disclosures, but it would provide a means of determining who
might have had the means and the opportunity, and possibly even the motive
to have done so.
22. It would be ideal, from the standpoint of security, to abolish back-
grounders. Recognizing that this isn't going to happen, there should be firm
control of background briefings to the?press. There must be clear-cut guide-
lines on who may authorize and present backgrounders. Every such briefing
should be attended by a security or public affairs officer wha_knaws_xhat.is
sensittY.e about the topic bein discusse an is capable-of offering guidance
to to the briefer_ A record should be kept of briefings by names of participants
? and authorizing officials, dates and topics, preferably in a computerized
.mode. Presenters of background briefings should be required to prepare
summaries of what was presented. These should be cross-referenced to the
automated index of background briefings. The documentation of this informa-
tion and its retrievability will not only serve as an invaluable investigative
resource, but its existence will promote .prudence in the presentation of
backgroun'ders and in other dealings with the press.
23. Even if all these- proposals- were adopted, there would be individuals
who would continue to divulge classified information to the press. But they
would find themselves. operating at considerably greater risk. Simple failure
to comply with the reporting requirements would be cause for administrative
sanctions, and it would become easier to detect such failures by having a
reliable record of compliance. It is likely that associations between
government personnel and media representatives are known to at least some
associates of both, and the possibility of being reported by a concerned
colleague would be enhanced by the revised rules. An effective education
program about leaks should have the salutary effect of highlighting to their
.associates those who may deal with the media. without-observing the reporting
requirements. If those who comply are sufficiently convinced of the need for
regulation of press contacts, they may. bie:inclined' to blow- the whistle." It
would then be necessary for the government to demonstrate the seriousness of
its intent by taking administrative action against the nonreporting
individuals, regardless of their positions.
24. The matter of "authorized" or."official" leaks needs close atten-
tion. If the appropriate official determines it isAn the national interest
to release for publication information that was classified until that point,
there should be a means of recording that fact. Such a record would
appropriately be kept somewhere in the Executive Office of the President.
This record could provide a' means of avoiding the expenditure of resources
to investigate such disclosures as "leaks."
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25. Finally, the revolving door practice of appointing national media
personalities as top level government press officers should be carefully
reexamined. Such appointments must face the incumbents with conflicts of
interest and severely ambivalent feelings, both during and after their federal
service. It may be unrealistic to expect them to deny their colleagues
information which they feel is unjustifiably classified and to expect them
to forget, and never use, information they received officially.
26. In amation_.Gontrml - Some people believe there are enough
information control policies, procedures and regulations on the books to bring
the government to a complete halt if they were strictly applied. While this
view may have some merit', it should not serve as an excuse for not trying to
secure our sensitive information. The concept that security is everybody's
business must not be given lip service and then cast aside.
27. Except for the need for developing a strong, national information
control program for the emerging electronic information systems, it is
unlikely that more document control regulations are needed or practicable.
What is needed is for everyone to be educated in-the existing policies and
procedures and to make a renewed effort to comply. While everyone claims to
know the regulations, it is likely that few could pass a comprehensive test on
information security and control.
28. Steps to improve. i nformati on_ control would include detailed
comparison of practices with policies;'the reeducation of all personnel in
information security, an a motivational program to enhance awareness of the
consequences of improper handling of sensitive Intelligence. Better
Information controlis needed, but it must come from motivated people. More
regulations are not the answer.
29. Summary - Unauthorized public disclosures of classified information
in the newsy a are damaging to the national security. Our defense against
them must'come from within, from those who are cleared for access to, and who
have signed agreements to protect, classified information. It is-clear that
some of these people, for reasons of their own, have not kept their word. It
also appears that neither the overall level of concern about this situation
nor the government's capability for remedial.action is up to the job.
30. To encourage wholehearted support of our efforts to protect classi-
fied information, we must convince those who have agreed to keep the secrets.
that they have a moral and legal obligation to keep that convenant. The rules
on SCI are simple and clear. It is inconceivable that-.-anyone who gives such
information to uncleared individuals is unaware of?what he is doing.
Therefore, such persons must be unconvinced of the/seriousness of the security
program.
31. A massive reeducation program for all legitimate recipients of
classified information is the first step in attempting-to achieve the
necessary. change in attitude.,
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32. A policy and resource commitment to the solution of at least the
most flagrant cases of unauthorized disclosure is also needed. This means the
devotion of sufficient FBI assets to investigations and an all-out effort to
obtain passage of unauthorized disclosure laws.
33. A severe tightening of policies concerning relationships of cleared
individuals with media representatives is essential. To be meaningful, this
must include strict guidelines, reporting procedures, information retrieval
capabilities, and impartial administrative penalities for noncompliance.
34. Renewed awareness of information'control-policies and procedures and
their importance to the national security is needed.- If classified documents
can be turned over to-the media or other unauthorized persons without being
noticed, the system isn't working.. It. must be made clear that the system"
really is the people who operate-it.-
35. If you wish elaboration or action on any of the above items,
appropriate elements of the Intelligence Community Staff are prepared to
assist in any way possible.
Attachment:
Draft unauthorized disclosures bill
All paragraphs of the text
are classified SECRET
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SECRET
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SUBJECT: Unauthorized Disclosures of Classified Information
Distribution:
Orig - Addressee w/att
1 - DDCI w/att
1 - ER w/att
1 - D/.OS/CIA w/att
- D/ICS w/att
1 - C/SECOM w/att
1 - C/UDTS w/att
1 - ICS Registry w/att
SECRET
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In the course of Administration development of the Fiscal
Year 1984 Intelligence.;Authorization Bill, the Intelligence
Con comity obtained from the Office of Management and Budget
clearance of provisions which would establish criminal penalties
for certain unauthorized disclosures of classified information.
The provisions were based on the report of the Interagency Group
on Unauthorized Disclosure of. Classified Information chaired by
Deputy Assistant Attorney General (Civil Division) Richard K. Willard
and were coordinated with Deputy Assistant Attorney General (Criminal
Division) Mark Richard, as well as with the Office of the Secretary
of Defense/Legislative Affairs. For. a number of reasons, including the issuance of NSDD 84 just
before the Authorization Bill was. forwarded to the Hill, and in
deference to the intelligence committees' preference for handling
the_Intelligence Authorization in as unobtrusive a manner as possible,
the unauthorized disclosures provision ultimately was'not transmitted
as part of the Authorization Bill. The proposal has now been configured
as a separate bill, and it has been prepared for transmission at an
opportune moment as a tripartite initiative _fromthe DCI, the Secretary
of Defense and the Attorney General.
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A BILL
To protect against injury to the national defense and foreign
relations of the United States by prohibiting certain
unauthorized disclosures of classified information.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
Chapter 37 of title 18, United States Code, is amended by
adding at the beginning thereof the following new section:
751.;. Unauthorized Disclosures
(a
(b
(i) the term "classifies]' information" means
information or. material designated and
clearly marked or' represented, pursuant to
the provisions of a statute or Executive'
order, as requiring protection against
unauthorized disclosure for -reasons of
national security;
than three years, or both.
As used in this section--
Whoever, being an officer or employee of the United
States or a person with authorized access to
classified information, willfully discloses, or
attempts to disclose, any classic ied information to a
person who is not an officer or employee of the United
States and who does not have authorized access to it,
.shall be fined not more than S10,000, or imprisoned
not more than-three years, .or both.
Whoever, being an officer or-employee of the United
States, willfully discloses any classified information
to-an .officer -or.employee- of the United,States with
the intent that such officer or employee disclose the
information, directly or indirectly, to a person who
is not an officer or employee of the. United States and
who does not have authorized access to it, shall be
.fined not more than $10,000, or imprisoned not'more
(ii) the term 'disclose" or "discloses" means to
communicate, furnish, deliver; =transfer,
impart, provide, publish, convey, or
otherwise make available;
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(iii) the term "authorized access" means having
authority, right, or permission to receive
information or material within the scope of
authorized intelligence activities or
pursuant to the provisions of a statute,
Executive order, directive of the head of any
department or agency who is empowered to
classify information, order of any United
States court,?or provisions of any Rule of
.the Souse of Representatives or resolution of
the Senate which governs handling of
classified information by the respective
House of Congress.
(a)
Nothing in this section shall be construed to
establish criminal liability for disclosure of
classified information in accordance with applicable
law to:
(i) any court of the United -States, or judge or
justice thereof; or.
(ii) the Senate or House of Representatives, or
any committee, subcommittee or joint
committee thereof.".
SEC. 2. The table of contents of Chapter 37 of title 18,
United States Code, is amended to include the followine-caption:.
"791.. Unauthorized Disclosures".
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SECTION BY SECTION EXPLANATION
Section 1 of the Bill amends chapter 37 of title 18, United
States Code, to include a section 791 prohibiting certain
unauthorized disclosures of classified information. Section 2
of the Bill makes the corresponding changes in the table of
contents for chapter 37 of title 18.
Proposed section 791 of title 18, United States Code,
provides criminal penalties for willful unauthorized
disclosures of classified information by federal employees and
others who have authorized access to classified information, .
such as government. contractors.' With the narrow exceptions of
unauthorized disclosures of atomic energy Restricted Data,
communications intelligence/cryptography information,. and the,
identities of covert agents, willful unauthorized disclosures
of classified information by those entrusted with it by the
government are not per se offenses under existing federal
criminal statutes. -
Subsection (a) of 'S 791 prohibits willful disclosure or
attempted. disclosure of classified information, by a federal
civilian or military.officer or employee.or other person with
authorized access.to such-information, to=any person who is
neither a'-federal civilian or military officer or employee nor
a person with authorized-access-.to such information. The
subsection provides-criminal penalties of not more than three
years imprisonment-or-4 $10,000 fine; or both-for such willful
unauthorized disclosure of classified information.
Subsection (b) of 5 791 prohibits willful disclosure of
classified information by a federal civilian or military
officer or employee. to another such officer or employee with
the'intent that the latter disclose the information, directly
or indirectly such as through a chain of intermediaries,.to a
person who is neither a federal civilian or military officer or
employee nor a person-with authorized access to the classified
information.- The criminal penalties for such an offense are
identical to those provided for the.. offense defined in
subsection (a). - ;_
Subsection (c) of 5 791 defines key terms employed in
subsections (a). and (b) in defining the offenses of willful ?
unauthorized disclosure. Paragraph (i) defines "classified
information" to consist of information or , erial designated
as requiring protection against unauthorized disclosure for
reasons of national security pursuant to .a statute or Executive
order. Paragraph (ii) defines the term "disclose" or
`discloses" to include all forms of disclosure enumerated-in
the existing provisions of 18 U.S.C.-SS 793-798 and 50 U.S.C.
S 426. Paragraph (iii) defines the term "authorized access" to
include authority or permission to receive information within
the scope of authorized intelligence activities or pursuant to
the routine security clearance processes of the Executive
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branch, orders of the courts of the United States, or rules of
either House of Congress. Authorized intelligence activities
are those conducted pursuant to statute or Executive order,
such as the current Executive order 12333 governing United
States intelligence activities.
Subsection (d) of ? 751 assures that no criminal liability
will attach under subsections (a) or (b) to otherwise lawful
disclosure of classified information to the Congress or the
courts. ?
C
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DIRECTOR OF CENTRAL INTELLIGENCE
Security Committee
SECOM-D-111
18 May 1983
MEMORANDUM FOR: Director, Intelligence Community Staff
FROM:
- SUBJECT:
Chairman
Leaks
1. Attached is a copy of the paper on leaks I sent forward in November
1982. It recommends that the FBI be tasked to investigate particularly
damaging leaks (paragraph 7); discusses the need for legislation to
criminalize the unaut-horized disclosure of classified information by federal
employees (paragraph 13); comments on the efficacy of the use.of the polygraph
(paragraph 12); and--the.reporting of media contacts and regulation of
official leaks"- (paragraph 11.). The creation of a data base on leaks does
not offer short-terir. relief, but could have benefits, over time.
2. The Justice Department ought to take vigorous action to'recover
classified information in the possession of the media as a result of
unauthorized disclosures. Justice also should explore the possibility of
prosecution of illegal publishers of COMINT, the divulgence of which, under.
Section 798 of Title-18, is a crime whether or not the recipient is a foreign
government. -The-risk of making media martyrs militates against attempting to
prosecute publishers of classified data, but the Justice Department ought to
.at least evaluate the implications of moving against those media.elements who
brazenl ublish data the are aware are classified.
3. More indoctrination of government personnel on.-the damaging effects
of leaks is certainly in order, especially for those ot accustomed to
security as a way of life. The videotape produced.; y SECOM as an introducton
to security for newly-appointed government officials heavily emphasizes the
need for caution in dealing with the press. It might be suitable for showing
at your staff meeting. The: Defense Intelligence Agency.also has.a videotape
on leaks which could help with the indoctrination problem.
ORIG CL BY SIGNER
DFCI OADR
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? SECRET ?
4. The discussion of leaks at your Thursday morning meeting should prove
interesting. Perhaps a new approach to the problem will surface. SECOM will
continue to seek ways to deal with unauthorized disclosures, but without sub-
stantial redirection of effort throughout the Community, the existing
.conditions are likely to continue to prevail.
Attachment
SECRET
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DIRECTOR OF CENTRAL INTELLIGENCE
Security Committee
SECOM-D-357
1 November 1982
MEMORANDUM FOR: Director of Central Intelligence
Deputy Director of Central Intelligence
.Director, Intelligence Community Staff
Unauthorized Disclosures of Classified Information
1. Action Requested: DCI support for three recommendations intended to
provide at least modest action toward determinino the sources of unauthorized
disclosures of classified information. A fourth recommendation encourages
continued DCI support of the Wi l l and Report.
2. Background: The problem of leaks--disclosures of classifi.ed
intelligence to the news media-or other unauthorized persons--is the oldest,
most frustrating, and most unmanageable problem facing the DCI Security
Committee'. The SECOM first came together in 1959 to seek a way to?.deal with
leaks. On untold occasions since then, senior officials of the government
have-decriedthe'apparent impossibility of-keeping a secret in Washington.
3. The number of studies of how to stop leaks, or to identify and
penalize leakers, is exceeded:only by the number of leaks that have
occurred. The situation grows-worse because-of the ambivalence about leaks in
the highest levels of government. On one hand, leaks are despicable because
they-.foreclose the options of the policy makers and/or jeopardize the national
security. On the other hand, a well-placed leak can be used to enhance
greatly the image of the leaker; his programs and policies or to seriously
discredit his adversaries or their programs :and policies. The leak is a'two-
edged sword, not easily surrendered, by those who feel the need to influence
public opinion.
4. As Winston Churchill and others have observed, "The Ship of State is
the only vessel that leaks at the top." It is generally believed that most
disclosures of classified data are made by persons who (,)' are knowledgeable,
(b) have trusted contacts in the media, and (c) have mptivation, selfish or
political. Few, if any, minor bureaucrats possess aVV-.1 of these
characteristics. Even if a "leaker" is found, he may have sufficient support
from influential friends to avoid being penalized.
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5. The procedure for investigating leaks of sensitive intelligence
information has been unchanged for at least two decades. First, a
determination is made that sensitive information has been disclosed. The
document from which the compromised information came is then identified and
the authorized dissemination of the document is determined. In the typical
case, the dissemination is found to be well into the hundreds, with recipients
in several departments and agencies, both within and outside the Intelligence
Community. With everyone who saw the hundreds of documents a potential
suspect, and with the inability of agencies to investigate outside their own
organizations, the situation is normally declared hopeless and the
investigation is dropped. -In some cases, a few people will be asked whether
they were the source of the leak. They promptly deny responsibility, and the
matter is closed. If anything has been proven in a quarter of a century of
trying, it is that this procedure does not work.
6. It has been suggested that the successful investigation of only a few
cases, resulting in well-publicized and appropriately severe penalties, could
drastically change the attitude of the federal bureaucracy toward leaks. Many
have thought that having the Federal Bureau of Investigation investigate leaks
would be an ideal solution to the problem. This is hampered by the Justice
Department's requirement that the agency requesting the investigation answer a
series.of questions, one of which is whether the leaked information can be
declassified to permit prosecution. This places the complaining organization
in the position of either declassifying the information and insuring its
confirmation and further dissemination, or declining to declassify, insuring
that the FBI will not undertake the investigation. Even under ideal
conditions, the FBI would not have the resources to investigate each leak that
occurs. Therefore, a process for selecting the leaks worthy of investigation
is needed.
7. A leak rarely is aone-agency phenomenon. Typically, information is
gathered by one agency or more, analyzed and turned into finished intelligence
by one or more others, and then disseminated to the entire Intelligence
Community (and sometimes to agencies outside the IC). Any effective leak
investigation must cross agency lines and do so quickly. Delays or failures
resulting from lack of resources, lack of interest, or simple inefficiency in
any agency or department can be fatal to-the investigative effort. Yet it is
the.nature of bureaucracy that no department or agency head will, willingly .
allow investigators from another agency to conduct inquiries on his turf. The
vigor with which internal investigations are pursued may be tempered by fear
of the embarrassment that would result from finding a "l ea ker" withi.n one's
own agency or department, or by the attitude that the problem is really
someone else's. Any solution to the problem requires aninvestigative
organization whose jurisdiction throughout the governor is recognized and
accepted. Only the FBI meets this criterion.
8. The tools available for investigating leaks are inadequate. Not only
are there far too few investigators, whose charters are hopelessly, narrow.' but
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there is no useful data base to aid probers. Funds have been sought without
success to assemble a Community-wide computerized register capable of
electronically sorting leaks by topic, publication, organizations having
access, identity of reporter, dates of publication, etc. The possibility of
constructing a mosaic which could point-toward a leaker would be greatly
enhanced by such a program. Nor is there any capability in the Community for
a long-term analytical study of leaks. Instead, leak investigation is a
reflexive activity, stimulated by the publication of sensitive data, and
resulting each time in the stylized "kabuki dance" response described earlier
in paragraph 5.
9. Perhaps just as debilitating is the inability to use certain
investigative techniques without risking the wrath of the fourth estate.'
Polygraph testing can be done with relative impunity only by CIA and NSA
because their employees are routinely tested. Wiretapping, a perfectly
respectable investigative technique when done with the necessary legal
sanctions, is out of the question politically. Physical surveillance is about
as bad. The net effect is a contest in which the advantages are all on the
side of the leaker, while the investigators must bear disabling handicaps.
10. The real issue is.whether the Government is serious-about leaks.
Willingness to pay the price for stopping them has not existed heretofore.
And a steep price it is,..indeed. It would.mean government officials would
have to give up trying to-manipulate the media. (Maybe the price is not so
high in this regard, as it seems the.media always come out ahead..) It would
also mean that government officials 'would have to endure considerable abuse
from the media, which would try to make a First Amendment issue of any serious
effort to curtail leaks. The original text of NSDD-19 was directly on target,
but the Washington Post reported its issuance before it could be disseminated
fully. Its immediate rescission reflected the serious concern of the
Administration with the-dire consequences of a policy that-inevitably would be
labeled by the media-.an attempt to abridge the First Amendment rights of
Federal employees. It is clear that there is no way to shut down the torrent
of leaks in a manner that will please the media.
11. Among measures which should be considered to try to give the
investigators an even break with the-leakers is a firm policy prohibiting
Executive Branch personnel from giving information to the media without
attribution. They should be required-to insist upon being identified as the
source of the information,-and anyone providing information without
attribution would be in violation of this policy and subject to penalties. As
insurance against appearing to violate this rule, officials should be
encouraged to report all contacts with the media to a designated component of
their own departments or agencies. For those situatigns where a leak is
believed to be in the national interest, a focal poiat.to register and clear
leaks could be established in the Executive Office of the President or the
National Security Council. This would separate the so-called "official leaks"
from the inadvertent or deliberate disclosures committed by individuals on
their own.
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12. It is ironic that one of the most vigorous, and possibly most
successful, leak investigations in recent memory concerned the revelation of
UNCLASSIFIED deliberations of the Defense Resources Board in spring 1982. All
those attending the board meeting were polygraphed, and the culprit apparently
identified. External factors caused his punishment to be commuted. But the
case proved that unauthorized disclosure cases can be solved if resources are
brought to bear and sound investigative tools are used.
13.- Legislation is needed to criminalize unauthorized disclosures of
classified intelligence by Federal employees'even when a foreign government is
not the recipient, but its enactment-is extremely unlikely. No one has been
successfully prosecuted under the Espionage Statutes for an unauthorized
disclosure,, as distinguished from providing information to a foreign power.
An Executive Branch policy requiring reporting of all media contacts by - .
persons with access to classified information seems remote, given the fate of
the'original NSDD-19. The only adjustment in the leak investigation procedure
that seems practicable is to provide the FBI with the marching orders and the
manpower to investigate the publication of classified information.--The goal
of the investigation need not be prosecution. it could be the enhancement of
the national security by determining how the leak occurred and taking
corrective measures. If the investigation results in the identification of
the Federal employee responsible for the leak, then the possibility of
prosecution or administrative sanctions can be considered. Meanwhile, steps
can be taken to shore up any weaknesses in security policy or practice
uncovered by the investigation. .:
14. The SECOM has-reque-s-ted, most recently in the FY 1984 budget
submission, funding for a Community-wide leak data base and for a study-of the
origins, nature and consequences of leaks. The lack of success of this
initiative may reflect the true attitude of the Community--that leaks are
worth bemoaning but-not-worth the expenditure of funds. It is essential that
we try to quantify and qualify the leak problem. This can be done only by
assembling a body of information upon which to base evaluations of leaks,
including how many times specific information has been published, the most
likely sources, and what has been lost as a result of leaks. It is not my
,purpose to fl og.a dead horse; but I strongly feel that further delay of an
empirical approach to leak -eval'uation and investigation, dooms us to continue
repeating the mistakes of the past.
15. The SECOM, at its recent seminar, voted to try to assemble a task
-force to review a limited area of intelligence activity to determine the
extent of damage resulting from leaks. This effort will be handicapped by the
lack of a data base but will rely upon its narrow focus to'seek appropriate
conclusions. If the effort is successful, it will proe that a data base is
vital to a. broad review of the nature of the leak phenomenon and to any
progress toward a solution. The SECOM also voted unanimously to recommend
that the DCI offer to the Attorney General the services of the Unauthorized
Disclosures Investigations Subcommittee to assist in evaluating and
prioritizing leaks for investigation by the FBI.
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V
16. A word of caution. The FBI is not eagerly seeking this task--it is
thankless, places the organization's public relations at risk, and has no
guarantee of success. It offers, however, the possibility of breaking the
impasse we reached long ago. The Bureau is not likely to accept the job
without additional manpower, and even then acceptance will be reluctant. Nor
does providing funds for the creation of a leak data base assure us of putting
a stop to leaks. But the data base is a tool without which we cannot hope to
understand, let alone solve, the leak 'problem. Unfortunately, some of those
who complain loudest about leaks seem least willing to share their resources
to combat them. It is time for us to put up or shut up.
17. The Willard Report, prepared by a committee headed by the Department
of Justice, contains many useful recommendations to help remedy the
unauthorized disclosure problem. The report is a wide-ranging document,
however, and is still being mulled over by the NSC Staff. This paper
recommends action which can be'undertaken in the near future and which can be
accomplished without legislation or massive funding.
18. Recommendation: That the DCI:
a. Sponsor, in consultation with FBI and
the Attorney General, an initiative calling on the FBI to,
_.i.nvestigate selected leaks whether or not-prosecution is
...expected to ensue, and providing additional manpower to
offset FBI personnel requirements to conduct leak
investigations. Approximately 12 positions should provide a'
respectable.level of effort. The DCI should be prepared to
provide advice on the selection of leaks. for investigation in
order to keep the FBI workload within manageable limits.
b. Reprogram FY 1983 NFIB funds ($250,0D0 and 3
positions),and-plan for similar resources in FY 84 and
beyond, to provide the Security Committee the means to
establish and maintain a computerized, Community-wide, leak
data base for use in analyzing leaks for.patterns or trends.
c. Reprogram FY 1983 NFIP funds ($125,000)" to provide
the Security Committee resources needed to contract an
analytical study of the long-term effects and characteristics
of leaks.
d. Continue vigorous support of the findings. and
recommendations of the Willard Report.
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SUBJECT: Unauthorized Disclosures of Classified Information
APPROVED: Recommendation A
Date
APPROVED: Recommendation B
Director of Central, Intelligence
APPROVED: Recommendation C
Date
erector of Central-Intelligence gate
APPROVED: Recommendation D
Director of Central intelligence
date
Distri buti on:
Orig - Return C/SECOM
l - DCI
l - DDCI
1 - ER
1 - D/ICS
1 - D/OCC/ICS
1 - ICS Registry
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