UNAUTHORIZED DISCLOSURES OF CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP94B00280R001200030023-8
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 13
• Document Creation Date: December 22, 2016
• Document Release Date: March 23, 2009
• Sequence Number: 23
• Publication Date: May 24, 1983
• Content Type: MEMO

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Director
Intelligence Community Staff
Washington, D.C. 20505
MEMORANDUM FOR: Director of Central.Intelligence
ICS-0802-83
9 4 MAY 1983
VIA: Deputy Director of Central Intelligence
.Director, Intelligence Community Staff
1. Senior members of the Intelligence Community Staff have met 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. Educat_i_on - There appears to be a lack of appreciation of the
consequences of the 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 well 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 ships" 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
and staff members is indispensable. Not only is Legislative Branch support
needed to safeguard the material provided to the Congress, but also to put
teeth into the anti-leak effort.
CL BY SIGNER
DECL OADR
ccrRcr
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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 "a-nauthorized disclosures of
classified information."
8. Legislation - The existing espionage laws were drafted to protect
U.S. secrets from To-reign 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 unauthorized disclosures bill are
directly related to the Congress's perception 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 that 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 .and_ .Space _ T.ec hnnlo
the U.S. would take action against an ordinary citizen, it should
act with 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 polygraphed as well as backgrounded, 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 of unauthorized disclosures has
rarely proven successful over the years. The broad dissemination required 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
made for a highly frustrating situation. NSDD-84 offers hope for greater
success in the future, but there is much 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 the Director of the FBI should be instructed by the President to
provide the most permissive guidelines possible, consistent with the protec-
tion of civil liberties, for FBI investigations of unauthorized 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. The palys3.r_aph_prncess is little understood and the
press has fostered this misunderstanding y pressing the theme that the
instrument itself 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 pn1ygr_apb'
;.irocess is reliable, the entire effort to combat unauthorized disclosures may
be in n serious trouble.
20. Press-Interface - NSDD-84 'mandates policies to govern contacts
between media representatives and agency personnel, leaving implementation to
the individual agencies. The effort to eradicate unauthorized disclosures
would be assisted greatly by the adoption of uniform rules for all agencies.
21. The discussion of government information, especially sensitive
intelligence, by a government employee is not a private, personal 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 woul'd,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_.hat_is
sensitive about the topic being discussed and is capable o offering guidance
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 17e 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
backgrounders 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 be 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 is in 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. Infarmati-on ..Gontr-al - 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 information control would include detailed
comparison of practices with policies; the reeducation of all personnel in
information security, and a motivational program to enhance awareness of the
consequences of improper handling of sensitive intelligence. Better
information control is needed, but it must come from motivated people. More
regulations are not the answer.
29. Summ.a_ry - Unauthorized public disclosures of classified information
in the news media 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, repor Eing 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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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
1 - D/ICS w/att
1 - C/SECOM w/att
1 - C/UDIS w/att
1 - ICS Registry w/att
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 STAT
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In the course of Administration development of the Fiscal
Year 1984 Intelligence Authorization Bill, the Intelligence
Community 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 from the DCI, the Secretary
of Defense and the Attorney General.
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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:
"5 791.; Unauthorized Disclosures
(a) 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 classified 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 $10,000, or imprisoned
not.more than three years, or both.'
(b), 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
than three years, or both.
(c) As used in this section--
(i) the term "classified 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;
(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 House of Representatives or resolution of
the Senate which governs handling of
classified information by the respective
House of Congress.
(d) 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 following-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 a $10,000 fine, or both, for such willful
unauthorized disclosure of classified information.
Subsection (b) of ? 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 material 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 D.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 ? 791 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. ?
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