STATEMENT OF RALPH E. ERICKSON

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00823R000800120020-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 9, 2016
• Document Release Date: November 14, 2000
• Sequence Number: 20
• Publication Date: March 13, 1972
• Content Type: STATEMENT

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STATEMENT OF RALPH E. ERICKSON
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
BEFORE THE
SPECIAL SUBCOMMITTEE ON INTELLIGENCE
OF THE ARMED SERVICES COMMITTEE, HOUSE OF REPRESENTATIVES
H.R. 9853 and
Classification and Protection of Information
MARCH 13, 1972
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Mr. Chairman:
I am pleased to appear before this Committee to
testify on the legal basis for the current classification
procedures within the Executive Branch, and on H.R. 9853,
a bill to establish a commission for the continuing review
of classification procedures in certain executive depart-
ments and agencies. First, I will outline the existing
classification system and its historical antecedents,
and set out the most significant provisions of new
Executive Order No. 11652 issued by the President last
week. Then I will discuss the legal basis for the issuance
of Executive Order No. 11652 and its predecessors, and two
related areas of law. Finally, I will speak generally
to the appropriateness of and need for Congressional
action such as H.R. 9853 in the areas covered by new
Executive Order No. 11652. I also have two comments of
a technical legal nature on H.R. 9853.
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When we speak of classification and protection of
information on the ground that its release would damage
the national security, we are necessarily speaking of
withholding information from the American public. More-
over, the information withheld is often of the very sort
that would most assist the people in performing their
indispensible role in a democracy--making informed judgments
about the wisdom of their leaders and the policies of
their government. It is fundamental to our way of govern-
ment that our citizens are informed to the maximum extent
possible about the activities of government. "Yet," as
Justice Stewart pointed outin the New York Times case
last term:
"it is "elementary that the successful conduct
of international diplomacy and the maintenance
of an effective national defense require both
confidentiality and secrecy. Other nations
can hardly deal with this Nation in an atmos-
phere of mutual trust unless they can be
assured that their confidences will be kept.
And within our own executive departments, the
development of considered and intelligent
international policies would be impossible if
those charged with their formulation could
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not communicate with each other freely,
frankly, and in confidence. In the area
of basic national defense the frequent
need for absolute secrecy is, of course,
self-evident." 403 U.S. at 728.
It is in the unavoidable tension between the necessity for
a fully informed public in a democratic society and the
importance of protecting national security information to
preserve that society that our current system of security
classification has developed.
The existing system is based chiefly on Executive
Order 10501 and agency regulations issued pursuant to it.
As you know, the President has just issued a new Executive
order (E.O. 11652), effective June 1, 1972, to replace
Executive Order 10501. Although there are very significant
substantive changes in the provisions of the new order,
both orders limit access to national security information
by requiring it to be classified according to the serious-
ness of the damage that might result from its release.
Access to information so classified is prohibited except
by persons with a need to know it in connection with their
duties who have been determined to be trustworthy. Admin-
istrative and criminal sanctions may attach to the unauth-
orized release of such information.
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I should point out that I aim not talking here about
the closely related, but by no means coextensive, doctrine
of executive privilege. The doctrine of executive privilege
involves the constitutional authority of the President to
withhold documents or information in his possession or in
the possession of the Executive branch from the compulsory
process of the other branches of the Government. It makes
no difference whether the information is classified or
unclassified. Executive privilege has been invoked in the
past in the areas of foreign relations and military
affairs, as well as in the areas of pending investigations
and intragovernmental discussions, and the justifications
given for invoking it are in many instances similar to
those advanced for classifying Executive branch information.
However, classified information is often supplied to con-
gressional committees authorized to receive it for restricted
distribution. The mere fact of classification by.itself
does not constitute a sufficient basis for withholding
information from a committee of Congress. Conversely,
documents bearing no relation to the national security may
properly be the subject of a claim of executive privilege.
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1. The Existing System
Until the effective date of new Executive Order No. 11652,
on June 1, 1972, security classification in the Executive
Branch will continue to be governed by Executive Order 10501.
Originally issued in 1953 by President Eisenhower, Executive
Order 10501 replaced Executive Order 10290 issued in 1951 by
President Truman. These Orders were the first efforts to
establish a comprehensive Executive Branch system for
classification and protection of information relating to
they .
the national defense. However, / by no means introduced the
c,
practice of marking documents "Confidential," "Secret," and
so forth. Such markings date back at least to the War of
1812, although the present marking system appears to date
from around the time of the First World War.
Executive order 10501 has been amended a number of times
since its issuance in.1953, but until last week the changes
were technical, or altered the list of agencies authorized
under section 7 to classify defense information. The Order
comprehensively provides what information may be classified,
who may classify it, when and by whom information may be
declassified, and who may have access to information that has
been classified. It also specifies in considerable detail how
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classified material is to be marked, stored, transmitted and
disposed of. Finally, it contains review procedures, and
directs the imposition of administrative sanctions, or referral
to the Justice Department, for unauthorized release of classi-
fied information.
The new Order covers the same areas, but in a significantly
different manner. Since summaries of the provisions of the old
order are generally available, it would be more useful here to
turn to the provisions of the new Order, effective June 1, 1972.
Section 1 of E.O. 11652 provides that:
"Official information or material which requires
protection against unauthorized disclosure in
the interest of the national defense or foreign
relations of the United States (hereinafter
collectively termed 'national security') shall be
classified in three categories, which are 'Top
Secret,' 'Secret,' and 'Confidential,' depending
upon the degree of its significance to national
security."
Material may be classified "Top Secret" only if its "unauthorized
disclosure could reasonably be expected to cause exceptionally
grave damage to the national security." The definitions of
"Secret" and "Confidential" substitute for the language "excep-
tionally grave damage," the language "'serious damage" and
"damage," respectively. Classifiers are directed to use the
classification "Top Secret" only with the "utmost restraint,"
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and the classification "Secret" only "sparingly." Section 2
governs who may classify information. Only certain high
officials of the agencies listed in subsection 2(A) may orig-
inally classify information "Top Secret." Authority to orig-
inally classify "Secret" may be delegated only by officials who
themselves possess original "Top Secret" classification auth-
ority, and is also possessed by senior officials in the agencies
listed in subsection 2(B). Subsection 2(C) permits further
delegation of authority to classify "Confidential." It is
expected that the new restrictions will result in a.substantial
reduction in the number of individuals with classification
authority at all levels. Section 3 governs authority to down-
grade and declassify. In order to facilitate timely and
efficient declassification, there are fewer restrictions on
delegation of authority to downgrade and declassify than on dele-
gation of authority to classify. Subsections 3(C)-(E) provide
for the declassification of material no longer in the possession
of the originating agency. Section 4 contains several rules
relating to classification. Subsection 4(A) requires a classi-
fied document to be marked to show:(1) whether it is subject
to or exempt from automatic declassification; (2) in what
office and on what date it was prepared and classified; (3) to
the extent practicable, which portions are classified and at what
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level to facilitate excerpting. Subsection 4(B) requires
each agency to provide a method of identifying the individual
who classified any document, so that persons can be held
accountable for classification abuses. This, I believe, is
an important factor. Subsection 4(C) concerns information
furnished to the United States by other countries. Sub-
section 4(D) requires a holder to "observe and respect" the
classifications assigned by the originator. Section 5 governs
downgrading and declassification. Unless information is
exempted from automatic declassification under subsection 5(B)
it must be downgraded and declassified according to the
schedule contained in Section 5(A). Under that schedule,
"Top Secret" information is downgraded to "Secret" after two
years, to "Confidential" after 4 years and declassified after
10 years. "Secret" information is downgraded to "Confidential"
after 2 years and declassified after 8. "Confidential" infor-
mation. is declassified after 6 years.. Material may be exempted
from automatic declassification under subsection 5(B) only by
an official with "Top Secret" classification authority. That
official must specify in writing in which of four exemption
categories the material falls. He must also.indicate a date or
event for declassification where possible. These requirements,
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and the injunction to keep use of the exemption to an
absolute minimum, are designed to drastically reduce the
quantity of material remaining classified for extended
periods. Subsection 5(C) requires exempted material to be
reviewed for declassification purposes if, 10 or more years
after its origination, such review is requested by another
agency or a member of the public? Subsection (E) provides
that all material is automatically declassified after 30
years unless the head of the originating' agency "personally
determines in writing at that time" that its "continued
protection is essential to the national security or dis-
closure would place a person in immediate jeopardy." If
he makes such a determination, he must also specify a period
for continued classification. Section 6 leaves the details
of access, marking, safekeeping, accountability and disposal
to directives of the President issued through the National
Security Council. However, it sets out general policies to
which such regulations must conform. Section 7 provides that
the National Security Council shall monitor implementation of
the order. To assist the Council, Section 7 also establishes
an Interagency Classification Review Committee and gives it
extensive powers to oversee agency compliance with the order
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and act on complaints from inside and outside the government.
It also requires each agency to set up an administrative unit
to ensure compliance with the Order. Subsection 7(C)
authorizes the Attorney General to render
the Order. Section 9 authorizes agencies
requirements for access, distribution and
fied information. Section 11 provides a
declassification of the papers of former
permits access to classified material by
interpretations of
to institute special
protection of classi-
system for the
presidents. Section 12
historians and former
government officials. Section 13 directs imposition of
administrative sanctions for both unauthorized release of
classified information and unnecessary or excessive classifica-
tion. The latter is designed to counteract what have proved
to be overwhelming pressures to classify unnecessarily and to
overclassify. Where a violation of criminal statutes may be
involved, agencies are directed to refer a case to the Depart-
ment of Justice.
In addition to Executive Order 11652, several other
authorities relating to Executive Branch classification and
protection of information should be mentioned. The Atomic
Energy Act establishes special requirements for classification
and protection of information relating to nuclear technology.
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Section 8 of the new order recognizes this special treat-
ment. Executive order 10865 deals with personnel security
and treatment of classified information and material outside
the Executive Branch; Executive Order 10450 establishes a
personnel security program for government employees.
2. Authority for the Issuance of E.O.11652 and Other
Legal Considerations
Neither Executive Order 10501 nor new Executive Order
11652 is issued pursuant to express statutory authority. They
are based instead on the broad executive powers and responsi-
bilities of the President under Article II of the Constitution:
article II, section 1, vesting the executive power in the
President; article II, section 2, making the President
Commander in Chief of the Army and Navy; and article II,
section 3, requiring,the President to "take care that the laws
be faithfully executed."
The Commission on Government Security stated at page 158
of its 1957 report:
"When these provisions [of article II of the
Constitution] are considered in light of
existing Presidential authority to appoint
and remove executive officers directly
responsible to him, there is demonstrated the
broad Presidential supervisory and regulatory
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authority over the internal operations of the
executive branch. By issuing the proper
Executive or administrative order he exercises
this power of direction and supervision over
his subordinates in the discharge of their
duties. He thus 'takes care' that the laws
are being faithfully executed by those acting
in his behalf; and in the instant case the
pertinent laws would involve espionage,
sabotage, and related statutes, should such
Presidential authority not be predicated upon
statutory authority or direction."
Justice Stewart in last Term's New York Times case
recognized both the power and the duty of the Executive
under the Constitution to establish and maintain a security
system:
"It is clear to me that it is the constitu-
tional duty of the Executive--as a matter of
sovereign prerogative and not as a matter of
law as the courts know law--through the
promulgation and enforcement of executive
regulations, to protect the confidentiality
necessary to carry out its responsibilities
in the fields of international relations and
defense." (403 U.S. 729-30).
Additionally, a number of statutes contemplate the
existence of a classification system such as provided in
Executive Order 10501 and new Executive Order 11652 for
material relating to the national security. The espionage
laws, 18 U.S.C. ?? 792-7.98, alternatively refer to classified
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information or make it imperative to establish a classifi-
cation system in order to enforce them fairly and effectively.
See United States v. Heine, 151. F.2d 813 (2 Cir. 1945),
cert. denied 328 U.S. 833 (1946). Subsection (b) of the
Internal Security Act of 1950, 50 U.S.C. ? 783, makes it
a crime "for any officer or employee of the United States"
to communicate to a foreign agent "any information of a
kind which shall have been classified by the President as
affecting the security of the United States . . . ." See
also 50 U.S.C. ? 783(c). As mentioned above, The Atomic
Energy Act requires classification of certain information
as "Restricted Data." The Freedom of Information Act
(P.L. 89-487)', which is discussed below is a further recent
congressional recognition of the security classification
system.
An outline of the legal basis for the classification
of documents would not be complete without a discussion of
two related areas of law. The first of these concerns
the public's statutory right of access to the records of
government agencies and departments under the Freedom of
Information Act. (5 U.S.C. ? 552). Under that Act every
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agency is required to make its records available to any
person on request unless the requested records fall under
one of the nine exemptions set out in subsection (b).
The first of these exemptions from mandatory release if for
matters:
"specifically required by Executive Order to
be kept secret in the interest of national
defense or foreign policy."
The House Report accompanying the Act specifically mentions
information classified pursuant to Executive Order 10501
as within the exemption of subsection (b)(1). (See. H..Rept.
No. 1497, 89th Cong., 2d Sess. 9-10).
A 1970 Ninth Circuit case interpreting the first
exemption recognizes only a very limited judicial power to
inquire into the propriety of a classification under
Executive Order 10501 in determining whether a record is
exempt from mandatory disclosure under the Freedom of
Information Act. That case held that the courts would
review the propriety of a classification assigned by the
Executive branch only to determine whether the classifica-
tion was arbitrary or capricious. The court said it would
not attempt to decide for itself whether the documents were
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properly classified. See EFpsteiin v. Resor, 421 F.2d 930
(9th Cir. 1970), cert. denied 398 U.S. 965. A government
petition for certiorari has just been granted in a recently
decided District of Columbia case interpreting the first
exemption. See Mink v. E__, No. 71-1708 (D.C. Cir.,
filed Oct. 15, 1971). The Court of Appeals in M ink held,
among other things, that a District Judge should subject
classified documents to an in camera inspection to deter-
mine which portions were classifiable and which could be
released.
Finally, there is the question to what extent the
Executive branch can enlist the aid of the courts in pre-
venting the publication of material where such publication
would be dangerous to the national security. By hypothesis
we are speaking of the case where the material in question
is already in the hands of the potential publisher, so
there is no question of the Executive being compelled to
furnish it for publication.
The leading case in this area, the New York Times case,
was handed down last June. New York Times Co. v. United
States, 403 U.S. 714 (1971). While the Justices applied a
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number of different standards, it seems clear that injunc-
tive relief against publication of classified material
already in the hands of the press will be granted only in
the most extreme circumstances, at least in the absence of
specific legislation. Mr. Justice White's opening statement
in his concurring opinion in the New York Times case
suggests the very great difference seen by the Court between
the case where the Government is attempting to resist
mandatory disclosure of material still in its own hands and
the case where the Government is asking the courts to pre-
vent publication of material already in the hands of others:
"I concur in today's judgments, but only
because of the concededly extraordinary pro-
tection against prior restraints enjoyed by
the press under our constitutional system.
I do not say that in no circumstances would
the First Amendment permit an injunction
against publishing information about govern-
ment plans or operations. Nor, after
examining the materials the Government
characterizes as the most sensitive and
destructive, can I deny that revelation of
these documents will do substantial damage
to public interest. Indeed, I am confident
that their disclosure will have that result.
But I nevertheless agree that the United
States has not satisfied the very heavy
burden that it must meet to warrant an
injunction against publication in these
cases, at least in the absence of express
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and appropriately limited congressional auth-
orization for prior restraints in circumstances
such as these."
Although the foregoing quote from Justice White's con-
curring opinion indicates the possibility of effective con-
gressional authorization for prior restraint on publication
of classified material, we are making no suggestion that
such legislation be enacted at this time.
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3. Congressional Action, H.R. 9853
It is generally agreed that the security system established
by Executive Order 10501 and related authorities has failed to
strike the proper balance between the necessity for informing
the public and the necessity for maintaining the confidentiality
of certain information. Earlier witnesses at these hearings
have testified at length about the ,problems with the existing
system. Witnesses for the Departments of Defense and State have
explained in great detail the provisions of the new order, and
why they are expected to be effective in eliminating those
problems. At least as important as the new order's extensive
revision of the substantive rules governing classification and
declassification, is the powerful administrative machinery it
creates to ensure that those revised rules will be more than
empty exhortations.
I would like to address myself to the important question
whether congressional action, in addition to the executive
action already taken, is desirable at this time, with particular
reference to H.R. 9853. It should be noted at the outset that
Congress can, if it wishes, legislate in much of the area now
occupied by the new Executive order. While meaningful dis-
cussion of the limits on congressional power in this area can
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be conducted only in the context of particular legislative
proposals, it can be noted as a general matter that the
constitutional doctrine of executive privilege is one limit
on the power of Congress to legislatively determine the
extent. of protection of information by the Executive branch
of our government.
For a number of reasons it is my belief that executive
action is preferable to congressional action in this area,
except in the extreme circumstance where executive action
has proved unsatisfactory and the Executive is unwilling or
unable to undertake necessary corrective measures. Whatever
the wisdom of the assignment, our Constitution largely con-
fides the conduct of the nation's foreign affairs and the
maintenance of the national defense to the Executive. Because
it is the Executive who must usually act for the nation in
these areas, it is also the Executive who is in the best
position to judge when such action requires secrecy in order
to succeed. From the very beginning of this nation, it has
been recognized that the President must sometimes decide to
act in secrecy in order to promote the national interest.
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This is true even though it may impede the flow in informa-
tion to the public. Justice Stewart, in the New York Times
case, made the following remarks about who must resolve
this conflict:
I think there can be but one answer to this dilemma,
if dilemma it be. The responsibility must be where
the power is. If the Constitution gives the
Executive a large degree of unshared power in the
conduct of foreign affairs and the maintenance of
our national defense, then under the Constitution
the Executive must have the largely unshared duty to
determine and preserve the degree of internal
security necessary to exercise that power successfully.
It is an awesome responsibility, requiring judgment
and wisdom of a high order. I should suppose that
moral, political, and practical considerations would
dictate that a very first principle of that wisdom
would be an insistence upon avoiding secrecy for its
own sake. For when everything is classified, then
nothing is classified, and the system becomes one to
be disregarded by the cynical or the careless, and
to be manipulated by those intent on self-protection
or self-promotion. I should suppose, in short, that
the hallmark of a truly effective internal security
system would be the maximum possible disclosure,
recognizing that secrecy can best be preserved only
when credibility is truly maintained. But be that
as it may, it is clear to me that it is the con-
stitutional duty of the Executive--as a matter of
sovereign prerogative and not: as a matter of law as
the courts know law--through the promulgation and
enforcement of executive regulations, to protect the
confidentiality necessary to carry out its responsi-
bilities in the fields of international relations and
national defense."
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Executive Order No. 11652 demonstrates the advantages
of executive action in this area. Its provisions reflect
the best judgment of the agencies in the Executive branch
most concerned with the national defense and foreign affairs
on how to solve the problems everyone agrees exist. If the
new rules governing classification and declassification
prove inadequate in any respect, amendments can readily be
made. Administrative problems have proved troublesome in
the past. The National Security Council and the new Inter-
agency Classification Review Committee 'established by
Section 7 of the new order are in an excellent position to
study and assess the effectiveness of the security programs
instituted pursuant to the provisions of the new order. If
the Council or the Committee finds failings in these programs,
immediate corrective action can be taken.
Unless the bodies charged with administering the new
order fail in their assigned tasks, a commission such as
that established by H.R. 9853 would be duplicative and
unnecessary. Before such legislation is passed, clearly the
administrators of Executive Order 11652 should be given the
unfettered opportunity,to establish that it will prove effec-
tive.
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Finally, I have two comments of a technical legal
nature on H.R. 9853. First, we note that Section 506(f)
authorizes the granting of a broad transactional immunity
to witnesses. This is in conflict with the policy
established by title II of the Organized Crime Control Act
of 1970, codified at 18 U.S.C. ?? 6001-6005. Title II
substituted a uniform narrower use immunity provision for
the various immunity provisions previously in the United
States Code. Second, we note that since the bill would
establish the Commission on a permanent basis, there should
as a technical matter be a provision authorizing appropria-
tions.
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