CIVIL LITIGATION INVOLVING VICTOR L. MARCHETTI

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP94B00280R001200140014-6
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 17
• Document Creation Date: December 22, 2016
• Document Release Date: March 23, 2009
• Sequence Number: 14
• Publication Date: April 19, 1972
• Content Type: REPORT

Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
. 19 April 1972
CIVIL LITIGATION Ii\VOLVj\G VICTOR L. MARCHETTI
On 19 April 1972, newspapers printed the first accounts of court action
C'1c.lil., ,t ~ Victor ~. ?. av . *_~arcf ':L:.`'i ~ (: c.n:-..C f E:T:i7.:~'y'-.r 1:1 1 ee "'~ -iS Employee i):il:.ttiii
is to state the Agency's position in this matter. The facts are in ti olic documents
filed with the court, but employees are cautioned not to comment on the merits of
1955 to ., S':.' tvm
Ma. 1etti , Tc eI. 1loyc.. O from October
. Victor c:i was an r~ge:y ,.lt.;:to. i9~~ -
2
ber 1969. He served in a number of different capacitties,_ a.ll of whic" gave
Executie
.1 .i.,
access to sensitiv isf0rLil#LtiOn. His c: t t0 Iast, aa last '.5 was ii'aS as ~..~ ...L
Assistant to Vice Admiral Rufus L. Taylor, then Deputy Director of Central
Intelli ence. In this assignment he had access to especially sensitive. infor:.ation
y
pertaining to all aspects of the Agency's activit_CS.
3. Mr. 1 l ett 1 duty Si :^.. cedtresi . 1 li ?i
arc_i Ln s (. ..iJ on duty 1ollo1J:Ci O_'ZTlal pro L_\', iC_LC_!t~
ti a signing of a Secrecy t~T7 cement. Du i.~ his em~p1ojmnt he si ne'C'i ad,,: tional
Secrecy Agreements pertaining to spec .al C~.tegories of information. Upon
resignation he signed the xegi tar secrecy oath form. These undertakings a
conditions of employment and, therefore, i::tegtal parts of his contract of e lploy-
ment. He undertook never to disclose class?i:ied ilformation, irate llig-eiice,. or
knowledge except in the peril:? dance of i.iS O.t`2iC al duties and when specifically
aut:ilorized in writing in each instance by the Director of Central intelli e:nct; or
his desi -gated representatives.
4. After his resignation in 1969, i~.r . Marchetti wrote a book called
The Rope Dancer, which was published in the iall of .1971. This book i! 2 t at
issue in the present proceeding, as It did not specifically disclose classu_ed
information. Howevver, in corut ction with the publics y' attendant on ; ublication
of t ho, book, Mr. Marchetti had numerous TV and radio interviews. these
interviews were ostensibly to discuss and promote the book, more and rno e t.i ;y
hCy, >t S and its role in GOBr,......'~?..t.
included discussions of t~ ,.;C~~ f ct rs the rG.-. ~-
about which .NIr. M' rcietd `.eras i,crecT ;roily cr.itical. Such Criticism in is
'
not at issue LZ the present \1Ct10:R, except in ?.`::ii:Cti.C'.^.S where it was Si_ppri:a-_d Jy
`11r. Marchetti's discussion of i:? =citicitei.s whic!i were classiZied.., instances
r -._.., c -ter ,y
of this sort, ?,ri;.i.'ic of c:,i,c~.s..,, wc~r-., ,~ not C~=1;,+~..._ctI s .,~.Lf' icr:tly important to
warrant recourse to the courts, but they did evidence an intent to make ever
freer revelations.
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
the case while it is stiil.under court consideration.
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
40 FOR OFFICIAL USE
W& 1, -
of an article written by
Agency ?- e.d a copy
In Marc' 197212h- s n., ...tc r.~ c~ :a /.?
t .t . . t r.... .' .L.
.11 he 11-ad a !I* L -d to a nlltioi'.al 7~=r:~ aCil .v~ ??i:)liC~asv.
Tile article included classified I.IUormaz don which had never ixfore been made
public and which could have been know n to Mr. Nlarcllhei-ti only by reason or ;:is
Agency employment. It Was occompanicd by iihe outline of a book wihich Mr .
Marches i proposed to write as a factual nonfiction criticism of the Agency. The
book outline also proposed to disci ss classified i:,fo oration. On careful analysis,
it became clear that the publil ai i on of this classified informatibn would ha- e
Scriol!s and immediate L-npac or, intelligence sources and methods and inter-
na-tional relations. It was obvious that efforts. had to be made to prevent these
revelations, particularly in ?Ae-vv of the Director's statutory responsibility to
protect intelligence sources and i.i einods from unauthorized disclosure.
call
O. Because crbr.hial prosecution comes Liter the event, it would
to protect the mtorination involved. Courtt action to compal Mr . Marchetti to
inforiala loll,
comply with his co tr dual L1nd _~t 111:. to protect classified
therefore, was deemed more a p propriat'e. The Department of Justice a -reed
and prepared acase stece F'edera. ' court injunction to c .:force - e con-
a...;, a ~ 't of
J;1st .ice
tractu~il undertal-In . For such action to effective., tit'e Depa mea
felt it would be necessary to ob ai:-1 court action before notification to dir.
Marchetti. The Federal flukes o.[ Procedure provide for doiilcr this ~`i roc, gh a
IS c`?7
temporary restraining order., .l h'.e Judge signed all orde7., on 18 April 1972
.
which had be n SIibmi ;ell by t e D::partm.c:..t of Usti e. A sealed ?.Ci )it was
`7:1cu1- Ca~;..a.l~.t-1.:.._ of i:.:ce ....::
also SL1;J:T1.'.tteCl \ d_-scribed to `e na ' damage w icih 1wrcul be done
o l
The ~ * ?^ ..h for 10
by pi.ivl:lc%!tiC~i of ti.-.e maS_L;s:u-1 c....l:.. 'iia, Q. l'e.., ' ~l7 is good
r- . Mr T+.arc.:':.:.} _ tti or, .p:c?il 1972 and the judge set the time"
tel 1C~1 On. atc_or, J
days, was Sl. ?
for a hearing on. t1ae p.relimi~:a f #ijunctio n for 28 April 1972. This gives Mr.,
~/1arcciett.i tune to Q>:ram leal, ~1Ci','i:e and p._~are 1'115 derei.se. Such anearing
g
'
w111-be in open court except for the treatment of the sealed exhibit, which will
.be considered in the privacy oe the jud e's chambers.
7. If a preliminary i3 ?notion and then a permanent injunction are
obtained, they will apply only to the iT.iormation convered by the contract of
?vtr. .~~1MaICshG'tts ; ?/L free a. 1l ' ' t7(. `l:.nee to tiJtit':. a...~ I^ia,ctio
C'.Li.ployuaG'.:t. n or factual Criticism
of the Agency provided he does 1.Ot use in such. articles or interviews classified
r such L.~~
information which ..as not ~ baen c,eaxed for use. by. the Agency.
DISTRIBUTION: CALL EMPLOYEES
_FOR' OFFICIAL USE..
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 309
26 April 1972
CIVIL LITIGATION INVOLVING VICTOR L. MARCHETTI
1. As noted. in the Employee Bulletin of 19 April 1972 on the Victor
L. Marchetti case, the temporary rescraininng order was signed by Judge
Albert V. Bryan, Jr., on 18 April 1972, Since that time, counsel for i?Mr..
Marchetti have made various moves to try to have the restraining order dis-
solved. The Circuit,Court of Appeals has refused to take the appeal on this
aspect.
2. The problem which most concerns the court now is how to deal
with classified evidence which is currently under seal and, therefore, not
available to anyone without security clearance. After discussions with. the
court, four defense counsel have now been cleared for access.
3. The importance of the sealed exhibit is that it. contains a classi-
fied memorandum analyzing certain writings done by Nfr. Marchetti and des-
cribing in detail why some of his disclosures would have an immediate and
serious impact on intelligence sources and methods or on international rela-
tions. This document is of necessity classified Secret. Having inspected it,
Mr. Niarchetti's counsel now states h wishes to. discuss it with prospective
witnesses, The Government offered to clear such witnesses if they were
clearable and given access on the same terms as those for defense counsel.
Upon objection by defense counsel the court asked :shy this would not serve,
and counsel stated that he did not wish to give CIA the names of prospective
witnesses as this might enable CIA to affect their testimony. .
4. The Circuit tour
tive witnesses or try in any way to inf hence their position.
Justice has represented to the court that C.IA will have no contact wit i prospec-
cleared will have access to die sealee exI;ibit ann that the Ue partme nt o.t
Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6 ;
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
FOR OFFICIAL USE ONLY
5. If an Ag_!ncy employee receives a communication of any sort from
a person identi-ied as a prospective wita ss, he must state that under direc -
t.ions from the court he cannot discuss the case in. any manner and that the
prospective witness must have no further contact with the Agency or with any
of its employees, The Agency employee must also immediately inform the
Office of the General Counsel of such communication..
DISTRIBUTION: ALL EMPLOYEES
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
FOR OFFICIAL USE ONLY
CIVIL LITIGATION rIVOLVI-NG VICTOR L. MARCHETTI
Lo The opening developments in the case of Victor L. Marchetti were
junction should replace the Temporary Restraining Order. Ttivo witnesses
described in Employee Bulletins of 19 April and 20 April at which point a
..Temporary Resfraini-lg Order was still in effect preventing !\/.r.T.. Marchetti
from discussing or publishing on the subject of intelligence without clearance
from the Agency. A hearing was held before judge Albert V. Bryan, jr ? in
the United States District Court, Alexandria, Virginia, on 15 May 1972 as a
basis for determining whether a preliminary injunction and a permanent in-
appeared for the Govern.-nent.
2. Mr. Osborn, Director of Security; testified concerning M,L .
Marchetti's appearances on radio and TV subsequent to the publication of
his novel, The Rope Dancer. Mr. Osborn identified specific items mentioned
by Mr. Marchecti in th ose.app earances -:,inich were classified, The purpose
of this testimony was to show a course of action on the part of M Marc: etti
indicating a willingness to discuss information pertaining to the Agency with-
out prior clearance but this testimony was for this purpose only and vas not
the information on which the Government relied in requesting the injunction..
Such reliance was placed on the affidavit of Mr. Karamessi es, Deputy Director
for Plans, which descrined t:e immediate impact on intelligence sources and
methods and international --relations which would result from the publication of
1Vir. . %-Tarchetti's article, "Twilight t of the Spooks." This had been submitted
by Mr. Marchetti's ow-Li admission to si.-: publishers as well as ESQUIRE with-
out clearance by the Agency. Mir. Karamessines testified in closed cour` in
further development of the argu.-nent that j rave damage would be done by such
publication.
3. The reason for presenting this evidence arose out of the fact that
the normal remedy for breach of contract is an award. of monetary damages.
Mr. Karamessines' evidence was designed to demonstrate that financial
compensation was completely inadequate and justified the unusual remedy
of equitable relief hrough an injunction,
Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
 ? Approved For Release 2009/03/2/3 :CIAi-RDP94B0028OR001200140014-6
FOR O; FICILL USE ONLY
4, Defense coi.nsel tried to cross-examine both Mr. Osborn and.
-Ir. Karamessines to dernonstrate .that tie ciassificatiozs were erroneous
and the carnage which would he cone by the article submitted lor publication
was not as s rious as ass rt~d by ;VIr: _K rz~,esstnes; 'F? e ;udg refused
to permit questioning on either point and his ruling, therefore, effectively
-prchibited the defense from calling witnesses they said were available who
.would attack the validity of the classification and the asses ions of damage.
novel nor the article which he had given'to the various publishers.
j. Defense counsel put Mr. . Marchetti on the stand as the only defense,
witness. He made a statement saying his purpose in talking and writing .about
intelligence was to criticize certain aspects of U. S. Government intelligence
activities as he felt from his employment he was is a position to talk authorita-
tively on the subject. On cress -examination he admitted signing the secrecy
agreements, that some of the Ln:or:.:ation he had used was obtained while he
was employed by CLA, and that he had not submitted to the 'Agency his published
6. At the end of the hearing, Judge Bryan issued a preliminary injunc-
tion giving defense time. to fur his i certain iruormation they wanted to get into
the record for appeal. On 19 May, Judge Bryan issued a permanent injunction
accepting the Government's theory that Mr. Marchetti had contracted not to
_ublish on the subject of is e lligence without Clearance with the Agency as to
classified i.-ilormation. In the event 1VIr . 7 !arcnetti did not comply he could
- 10 be held in contempt of court and find or imprisoned. U he complies and
submits his writings to the Age ncy, only classified :formation t i re.;, can
be prohibited and he is free to publish whatever criticism he wishes subject
31 May 1972 in Baltimore, l~iaryland.
Appeals for the Fourth Circuit. Oral argument thereon is now set for
7. Mr. Marchetti has filed notice of appeal in the Circuit Court of
to that restriction.
DISTRIBUTION: ALL EMPLOYEES
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
Headquarters
?32.5
13 September 1972
CIVIL LITIGATION INVOLVTh G VICTOR L. MARCHETTI
1. The Circuit Court of Appeals for the Fourth Circuit on 11 September
affirmed the trial court's decision requiring Mr. Marchetti. to comply with the
terms of his secrecy agreement with CIA.
2. The opinion states as follows:
For the stated reasons, our conclusion is that the secrecy
agreement executed by Marchetti at the commencement of his em-
ployment was not in derogation of Marchetti's constitutional rights.
Its provision for submission of material to the CIA for approval
prior to publication is enforceable, provided the CIA acts promptly
upon such submissions and withholds approval of publication only of
information which is classified and which has not been in the public
domain by prior disclosure.
3.. This is the first judicial recognition and enforcement of the Agency's
secrecy agreement, the validity of which the Court accepted as needed to carry
out the Director's responsibility for the protection of intelligence sources and
methods. The technical requirement for Mr. Marchetti to submit his manuscript
for review by the Agency prior to publication, however, does not prevent him
from writing critical articles about the Agency, nor has the Agency ever con-
tended that it would or should.
vU1vCU, ailu we are 1UL dDlC LU pZ
the necessary writ of certiorari.
4. Mr. Marchetti may now appeal the case to the U. S. Supreme Court..
The steps required to have a case heard by the Supreme Court are quite in-
DISTRIBUTION: ALL EMPLOYEE
Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
M 2 ORANDT.T.A FOR THE LEGAL ADVISOR AND t.EGISIATIVE ASSISTANT TO THE CHAIRMAN,
JOINT CHIEF20F STAFF
o# secrecy agreements in
1. Reference (a) requested comments on the use'
contracts with intelligence speialista in DoD similar to those considered
Ref t (a) Legal Adviser to Chmn, JCS, memo of 12 June, 1972. to'JAG,
Subj: Restraining order in Marchetti case
knowledge, except in the performance of his official duties and the.laws of
the United States, c;ithout the express written consent of. the CIA.
Marchetti, thereafter, authored an article entitled "Twilight of the Spooks"
and signed a contract for its publication without permission from the CIA.
The United States brought an action to enforce specific performance, of the
lattar two documents contained the provision, in general, terms, that he
would not divulge or reveal any classified information, intelligence, or
2. The Marchetti case involved a former Central Intelligence Agency (CIA)
employee who had signed a "secrecy agreement" upon application for CIA
employment, signed.a second such agreement upon.entering his employment,
and signed a "secrecy oath" upon termination of his employment.. The first
document provided for the confidentiality of the employment. process.. The
in'the Marchetti case which was attached.
secrecy agreement.
employment, is still cited for the general proposition that an individual
must comply with the employment terms established by the Government. Yet,
the thrust of that adage has been seriously qualified by various decisions
holding that those terms must be reasonable and nondiscriminatory. See
Bal;aett v. Eullitt; 377 U.S. 360, 380 (1964); Cra-nD v. Board of Pub.
Instruction, 368 U.S. 278, 284 (1961); Sloch cr v. Board of Higher Educ.,
and subject matter. In the context of this case, those circumstances
include public employment conditioned upon the execution of the secrecy
agreements. The adage that one has no constitutional right to public
establish an absolute right,.but, rather, its protection: is dependent uponn
the circumstances surrounding the conduct in question such as time, place,
According to the great weight of authority, the First 4r_endment does not
viewed as rights which may be-similarly "waived" by the individual;
rights secured by the First bmerdment, however, are not traditionally,
3. In arriving at the conclusion that Marchetti's employment contract,.
constituted a relegation or waiver of his First Amendment rights,' the judge
cited no authority.. An individual may waive various constitutional rights,
subh,as the right against self-incrimination, the right to a trial by jury,.,
and the right to demand the issuance of a search warrant. The fundamental.
n _J r__ n_i____ nnnninninn f'I A nrlnnAnnnnCfnnnnAnnnA AnnA A n
 350 U.S. 551, 555 (1956); Wie:nan v. UZ;F_nraff, 31;4 U.S. 183, 191-192 (1952);
Schultz v. Palmber , 317 F.Supp. 659 (D. Wyo. 1970); Norton v. Blaylock, 235
F'.Supp. 659 (W.D. Ark. 1963); Parker v. Board of Educ., 237 F.Supp. 222 (D,
Md. 1965), aff'd, 348 F.2d 464 (4th Cir. 1965), curt denied, 382 U.S. 1030
(1966).] Employment terms affecting First Amendment rights are. particularly.
subject to.. divergent judicial approaches. Thus, it has been said;
be employee to forego the exercise of rights protected
by some of the first ten amendments to the -Constitution
as brought forward into the 14th Amendment. (Norton v.
Blaylock, supra at 662.)
employment upon the willingness of an employee or would
criteria and may not in general condition public
It is established by now that a State may not constitu-
tionally impose. arbitrary or discriminatory employment.
On'the other hand, it has also been saidt
No unconstitutionality results where the right of free
speech is reasonably curtailed as a prerequisite to
continued government employment. (Parker v. Board of
Educ., supra at 229; see also Schultz v. Palrberg, supra
at 664.)
Use of the secrecy agreements can be regarded to be consistent with the
above-cited cases if they are upheld as a reasonable means. for the accomplish-
ment of a legitimate objective. Disclosure of classified information
concerning national security or classification procedures would obviously be
detrimental to the public interest under certain circumstances, and the
secrecy agreements can reasonably be vicaw'ed as an appropriate measure
available in support of the use of secrecy agreements. As a caveat, however,
it is impossible to predict whether the rationale of the Marchetti opinion
will be uniformly adopted and whether such agreements would be enforced under
all circumstances.
4. In this respect.it was held that the First Amendment does not protect a -.
Federal cgployee against removal from employment for violating the confiden
tiality of department records. [Iunnarelli v. Morton, 327 F.Supp. 873 (E.D.
Pinn. 1971).] Accordingly, it is considered that a viable legal argument is
intended to avoid such compromises.
the Supreme.Court has emphasized that such provisions must contain "terms
susceptible of objective measurement," expressing an ascertairab;}e standard
loyalty oaths, required as a condition precedent to Government empleymnt,
5. Some general comments on the structuring of the proposed secrecy agree
ments are considered appropriate.
a. Since the secrecy agreements are intended to restrict the speech. of
Federal employees, it is imperative that they narrowly define the prescribed
activity with as much,precision as feasible. In considering language used in
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
-2-
 Approved For Release 2009/03/23: CIA-RDP94BOO28OR001200140014-6
Prepared by:
'AGC, U. S. navy
tain
Ca
,
p
Assist_uit ;ud e A v0Cate Gc 4~
(Clio L. )
Rm. 2511--ARLX--Ext. 4r_-+.i5'S- 4s2 G
8 September 1972
STAT .
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
Sufficiently definitive.
o conduct. ;e? Ra^_,?ett v. :^,uliitt, Burrs, Cram v. Board of Pub. Instruc-
tion, suar.a.) The agreav:ent., _set forth in the subject opinion appear to be
b. Since the law of contracts is involved, it should be noted that the
'secrecy oath" executed upon termination of employment, as set forth at
pages 3 through 5 of the Marchetti opinion, would not by itself impose any
contractual obligation upon the cmp1cyes.. The Government does not offer any
consideration in return for the promises fade by the employee in that oath,
and in the absence of any cuid pro auo those promises would not be enforceable.
The "secrecy agreement:," set forth at pages 2 and 3 of subject opinion, do
establish an enforceable obligation upon the employee since the consideration
for employment and his employment waa,in fact, conditioned upon ccmpliance
with-those previsions. Accordingly, primary attention should be directed to
those agreements. The secrecy oath or a siiailar document, however, may be
used as an advantageous means to confirm the employee's recognition of the-
obligations which he did assume upon the execution of the regiments.
c. As .a final note, there is no compelling legal reason to include a
subscription to an oath in any of the documents set forth in subject opinion.
Execution by signature alone is adequate.
6.-' According to informal cotiunications with the U. S. Attorney's Office in
Alexandria, an appeal of the permanent injunction granted in subject case has
 Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
SUBJECT: Scope: of`the' Tenn Sources' and: Methods ~as F.iiployed I n thee
methods. This. has been prepared at oura request-by-the Defense Intel I i-.
uepartenc or uerense position on the-,legal and practical considera-
tions involved in the. question of whether:secrecy-agreements should
encompass. all sources and methods or"mist classified sources and
1. Pursuant. to your .reguest,please find 'attacheit a. surmrrv nf-`+`ha
be appended the respective Department of Defense and Central Intelli-
Attorney General requesting his opinion In. this matter to which.can
letter from you or the Director of Central Intelligence to-tho
I have taken the ' l iberty of preparing. -a proposed' draft of a..
'gene Agency positions on this. question.
~:smc:2 Sept 76:DIAGC:73945
OSD Record Copy
Signer's Copy
DIA CS Comeback Copy w/o Encls.
DIA
File Copy R
DIA GC Chron Copy
Approved For Release 2009/03/23: CIA-RDP94B00280R001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
? WASHINGTON. D.C. 20300
U-266/AGC 8 September 1976
MEMORANDUM OF LAW FOR THE DEPUTY TO THE DCI FOR THE INTELLIGENCE COMMUNITY
SUBJECT: Department of Defense Position on the Scope of the Term
Sources and Methods as Employed in the Secrecy Agreement
The Department of Defense (DoD) takes the position that the term intelli-
gence sources and methods as employed in paragraph 7. of Executive Order
(E.O.) 11905 must be read to refer only to classified intelligence sources
and methods for the following reasons::--
1. The U.S. Court of Appeals for the 4th Circuit opinion in the
Marchetti case is construed to stand at least in part for the proposition
that only classified intelligence information containing sources and
methods is protectable under a secrecy agreement because of the First
Amendment rights of the U.S. Constitution and only classified intelligence
information containing sources and methods would be protectable from
publication by judicially imposed restraint. The opinion of the Circuit
Court provided in part:
"As we have said, however, Marchetti by accepting employment
with the CIA and by signing a secrecy agreement did-not
surrender his First Amendment right of free speech.- The agree-
ment is enforceable only because it is not a violation of
those rights. We would decline enforcement of the secrecy
oath signed when he left the employment of the CIA to the extent
that it purports to prevent disclosure of unclassified informa-
tion, for, to that extent, the oath would be in contravention
of his First Amendment rights.
Thus, Marchetti retains the right to speak and write about
the CIA and its operations, and to criticize it as any other
citizen may, but he may not disclose classified information
obtained by him durin the course of his employment which is
not already in the public domain."
2. The fact that several U.S. District Courts may be willing to allow
withholding of unclassified intelligence information containing sources and
methods when requested pursuant to the Freedom of Information Act (5 U.S.C.
552) is not considered sufficiently persuasive authority to support an
assumption that the same reasoning would be accepted in the pre-publication
restraint context especially in view of the Supreme Court's historical
reluctance to allow any pre-publication restraint. (See generally New York
Times Co. v. United States,.403 U.S. 713).
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 / I
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
The opinion opened as follows:
."We granted certiorari in these cases in which the United
States seeks to enjoin the New York Times and the Washington
Post from publishing the contents of a classified study
entitled "History of U.S. Decision-Making Porcess on Viet
Nam Policy." POST, pp. 942, 943.
'Any system of prior restraints of expression comes to this
Court bearing a heavy presumption. against its constitutional
validity.' BANTOM BOOKS, INC. v. SULLIVAN, 372 U.S. 58, 70
(1963); see also NEAR v. MINNESOTA, 283 U.S. 697 (1931).
The Government 'thus carries a heavy burden of showing justi-
fication for the imposition of such a restraint.' ORGANIZATION
FOR A BETTER AUSTIN v. KEEFE, 402 U~:S. 415, 419 (1971). The
District Court for the Southern District of New York in the
NEW YORK TIMES case and the District Court for the District of
Columbia and the Court of Appeals for the District of Columbia
Circuit in the WASHINGTON POST case held that the Government
had not met that burden. We agree."
Mr. Justice White, in a concurring opinion, summed up the essence of this
case as follows:
"The Government's position is simply stated: The responsi-
bility of the Executive for the conduct of the foreign
affairs and for the security of the Nation is so basic that
the President is entitled to an injunction against,ppblica
tion of a newspaper story whenever he can convince a court
that the information to be revealed threatens 'grave and
irreparable' injury to the public interest; and the injunction__
should issue whether or not the material to be published is
classified, whether or not publication would be lawful under
relevant criminal statutes enacted by Congress, and regardless
of the circumstances by which the newspaper came into possession
of the information.
At least in the absence of legislation by Congress, based on
its own investigations and findings, I am quite unable to
agree that the inherent powers of the Executive and the
courts reach so far as to authorize remedies having such
sweeping potential for inhibiting publications by the press."
3. The Intelligence Community has been able to live with and adhere to
the idea that classification is the criteria to be employed in the pro-
tection of sensitive information and any effort to seek to enhance the
Government's ability to withhold additional information at this late date
and in the present political climate must be approached with the utmost
caution. By not appealing the U.S.'Federal District Court's decision in
the case of U.S. v. Jarvinen the Central Intelligence Agency (CIA)/
Director of Central Intelligence (DCI) set a. precedent in 1952 which is
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
considered to be equally valid in 1976 and as Warranting continued adherence
(see Guide to CIA Statutes and Laws (1970), footnote 21 at page 16).
"Since the intelligence source was hardly a secret one and
since no classified information was involved, an appeal, risking.
an adverse decision in terms harmful to the exercise of the
Director's responsibility to protect sources and methods in
the future, was not warranted. Pardon was sought, and granted
by President Truman on December 16, 1952. (The subject of
the prosecution) was acquitted. United States v. Jarvinen,
No. 48547, October 1952.(unpublished)."
As late as 8 March 1971 the DCI, Mr. Helms, issued a classified United
States Intelligence Board memo entitled "Guidelines Governing Disclosure
of Classified Intelligence, the contents of which are believed supportive
of the argument that classification of sources and methods has been
traditionally required in order to insure their protection.
4. The relationship between the President, National Security Council
(NSC) and DCI as spelled out in the National Security Act of 1947 (50
U.S.C. 402, 403) as well as the manner in which this legislation has been
implemented by practice during the last 30 years should be considered.
The fact that the NSC advises the President and that the DCI is under the
NSC and performs its coordination under the direction of the NSC,Suggests
that the DCI is subject to greater Presidential supervision and control
and enjoys less independence then might appear at first-blush. The DCI's
responsibility for the protection of sources and methodsfrom unauthorized
disclosure is considered to carry with it, by implication, the words "as
determined by the President". DoD believes that the"President through
the classification system, which is currently spelled out in E.O. 11652,
has prescribed the exclusive system and criteria to be employed by the
Executive Branch of the Government in connection with the protection of
sensitive intelligence sources and methods. The President has included
specific reference to intelligence sources and methods in this E.O.. and
is felt to have further circumscribed the DCI's responsibility in this area
by the language contained in section 9 of E.O. 11652.
5. There is no question that the DCI has an administrative responsi-
bility under the provision of the National Security Act; therefore it is
considered appropriate that a Director of Central Intelligence Directive
(DCID) be employed to implement the secrecy agreement provision of E.O.
11905. However it is considered vital that it be appreciated that the DCID
will be applicable throughout the Executive Branch of Government and its
affect will not be merely limited to laying the foundation for pre-
publication judicial restraint. Rather it will be cited as the basis for
imposing a condition precedent to some Federal employment, may become the
basis of adverse administrative action against Federal employees and be
Approved For Release 2009/03/23: CIA-RDP94BOO28OR001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
employed as a form of notice of the possibility of criminal prosecution.
It will apply to those persons in the Federal employ who run the gamut
from the unique status of those employed by CIA and the National Security
Agency (NSA) throu
h
t
d
g
excep
e
service employees at such places as the
Defense Intelligence Agency, regular Civil Service employees and include
quite possibly some of.those who are members of unions. It would also
of course be binding on members of the military service. The potential
problems which might arise under the varying conditions of employment of
these various categories of people is not a matter which is believed to
have been explored to date.
6. DoD insistence on the continued application of the classification
criteria is believed to be further supported by the language in the White
House proposed and Justice Department reviewed legislation amending the
National Security Act of 1947 which was announced by the Attorney General
at the White House Press Conference at which E.O. 11905 was made public.
The language employed in the criteria describing positions of special trust
in the proposed E.O. intended to replace E.O. 10450 which is currently
being circulated for comment by the Office of Management and Budget also
tends to support the DoD position. Both of these documents speak in terms
of classified intelligence information containing sources and methods.
7. Finally, it is suggested that considerations of consistency would
encourage if not dictate that the information to be protected would be so
defined as to provide Government with the maximum number of possible
alternatives (i.e. prior restraint, adverse administrative action, criminal
prosecutions, etc.) as might be available to it under th_e law.
FOR THE DIRECTOR:
General Counsel
Defense Intelligence Agency
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
STAT
Next 1 Page(s) In Document Denied
Iq
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
 1. BACKGROUND: At a meeting of intelligence lawyers called by the DDCI at his
office on Thursday, 26 Aug, Admiral Murphy decided on the recommendation of
DoD that the question of whether the term sources and methods as used in E.O.
11905 included all sources and methods as advocated by CIA or only classified
sources and methods as suggested by DoD, be referred to the Attorney General
for his opinion before the DCID on secrecy agreements is promulgated. Admiral
Murphy further indicated that he wanted both positions included in the request
STAT to the Attorney General.
Approved For Release 2009/03/23: CIA-RDP94B0028OR001200140014-6
__ ...? rrr.v....v a. Iw....r. J.M. 1 J It__d JflCC I'
ROUTE TO
ACTION
SIGNATURE (Grade and Surname)
ORIGINA (Symbol)
TELEPHONE NO
DATE
1
RCI .
Coord
..t l