LETTER TO DAVID A. STOCKMAN FROM PHILLIP D. BRADY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000801030012-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 27, 2016
• Document Release Date: December 20, 2010
• Sequence Number: 12
• Publication Date: May 30, 1985
• Content Type: LETTER

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Office of Lgislstive and Intergovernmental Affair
ofbec of Arc AWetar+t Attoneey Gesenl Wishimron. D.C. Iosso
May 30 , 1985
Honorable David A. Stockman
Director
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
This is in response to your recent request for the views
of the Department of Justice concerning H.R. 271, a bill to
amend the National Security Act of 1947 to establish by law
procedures for the classification and protection of sensitive
information relating to the national security, to provide
criminal penalties for the unauthorized disclosure of such
information, to limit matters that may be classified and impose
penalties for unauthorized classification, and to provide for
declassification. The Department of Justice is opposed to the
enactment of this bill. While we generally favor legislation
prohibiting the unauthorized disclosure of classified
information, we think it both inappropriate and unnecessary for
Congress to prescribe procedures for the classification and
protection of national security information.
First, it is our opinion that H.R. 271 would entail
several policy and practical problems which, standing alone,
constitute a strong basis for opposing the enactment of this
bill._/f The Executive Branch, as a matter of policy, is far
*J It has also been the consistent position of the Department
of Justice that the protection of national security information
is a primary and fundamental constitutional responsibility of
the President that derives from his responsibilities as Chief
Executive, Commander-in-Chief, and the principal instrument of
United States policy. Although the constitutional powers of
the coordinate branches of the Federal Government are often
shared even where one branch has primary authority, we are
concerned that H.R. 271 would have the effect of limiting the
President's constitutional authority to protect sensitive
information relating to the foreign relations and national
security of the United States as be has deemed necessary in
Executive Order 12356. If B.R. 271 were to have such an
effect, it night raise sensitive and difficult separation of
powers questions.
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better equipped than Congress to establish and administer a set
of criteria for the classification and declassification of
national security information. The Executive possesses the
most timely and complete information necessary to determine
whether information should be classified to protect the Nation
from physical harm or damage to its foreign relations.
Moreover, the practical effect of B.R. 271 would be to
introduce an element Cf statutory rigidity into an area that
requires flexibility and adaptability in order to respond to
the changing circumstances and manifold contingencies of
foreign affairs. This process of change and refinement in the
criteria for classification is reflected in the issuance of
several Executive Orders in recent years governing the
classification of national security information, culminating in
the issuance of Executive Order 12356 in April 1982.
In particular, Section 502(b)(3) of the bill would weaken
the substantive criteria that the Executive Branch has
determined should govern classification determinations, by
requiring that information could not be classified unless its
unauthorized disclosure would cause at least 'identifiable
damage,' whereas currently, information that could reasonably be
expected to cause any damage to the national security is
classified pursuant to E.O. 12356, Section 1.1(a)(3) and 1.3(b).
Further, Section 504(d) would encourage challenges to
classification determinations by requiring that any 'reasonable
doubt' as to the level or propriety of classification should be
resolved by applying the least restrictive applicable
alternative.
Further, section 509, which would criminalize unauthorized
disclosures of classified information, would subject persons
who, without authorization, disclose classified information to a
foreign government or foreign agent, to life imprisonment or
imprisonment for any number of years, and would subject persons
who disclose classified information to any unauthorized persons
to fines not to exceed $5,000 and/or imprisonment for not more
than one year, or, if the offender had authorized possession of
the classified information, to imprisonment for not more than
ten years, and/or a fine not to exceed $10,000.
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The decision to endorse a criminal statute concerning the
unauthorized disclosure of classified information should be
made by high level administration officials, after careful
study of the matter, in accord with the agreement reached at an
inter-agency meeting chaired by the General Counsel of the
Office of Management and Budget, on March 27, 1985. Before
endorsing a proposal such as Section 509, the Department would
need to determine: (1) the effect of the proposal on existing
espionage statutes and relAted laws, in order to avoid
unintended consequences and troublesome inconsistencies; (2)
whether the proposed statute would survive constitutional
challenges predicated on the First Amendment, and other legal
challenges, and (3) whether the provision is redundant or, if
not, whether it adequately fills gaps in existing laws that
preclude us from prosecuting individuals who willfully disclose
national security information without authorization. These
issues could be properly assessed only after careful review.
In addition, we question the advisability of including the
defenses to prosecution in subsection (d), specifically the
defense that the information was not lawfully classified.
Presently, in prosecutions under similar statutes (i.e., 50
U.S.C. 5783 and 18 D.S.C. $798), the government does not have
to prove the legality of the classification. In fact, courts
have held that such an inquiry is irrelevant. See, United
States v. Boyce, 594 F.2d 1246 (9th Cir. 1979) (prosecut on
under 5798); Scarbeck v. United States, 317 F.2d 546 (D.C.
Cir. 1963) (prosecution under 5763). This is reasonable
because classification itself places the holder of the
information on notice of the necessity for pursuing authorized
channels for disclosure and because of the problem of revealing
additional classified information in the course of proving the
validity of the classification of the information that has been
disclosed.
Subsection (e) of Section 509 make; the determination of
whether the information is lawfully classified a matter of law
to be determined by the court. This provision could constitute
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a basis for challenges based on alleged violations of due
process and the Sixth Amendment right to trial by jury.
Whether this provision would be upheld by the courts is
uncertain in light of case law holding that all factual issues
relevant to guilt or innocence are to be decided by the jury
rather than by the court. See, e. ., United States v. Walker,
677 F.2d 1014 (4th Cir. 1982)1 United States v. Austin, 462
F.2d 724 (10th Cir..-,j972)1 Belton v. United States. 382 F.2d
150 (D.C. Cir. 1967)-. Further issues exist w t respect to
Section 509 concerning the lack of a 'willfulness' element, the
effect of the proposed statute on existing provisions of the
law, and whether the coverage of the statute is meant to
include recipients of classified information as accomplices,
conspirators, or solicitors. Moreover, courts are ill-
equipped, and often disinclined to make determinations as to
whether, and to what extent, an unauthorized disclosure would
damage the national security. See United States v.-Bung, 629
F.2d 908, 913-914 (4th Cir. 1980), and cases cited therein.
Subsection (f) of this Section would authorize the
Attorney General to seek an injunction against the unlawful
disclosure of classified information and would authorize the
courts to grant such injunctions upon a showing that a person
sought to be enjoined is about to engage in such conduct and
that the information was lawfully classified. We believe
subsection (f) would be interpreted narrowly to create a
statutory right of action in the Attorney General to seek an
injunction on behalf of the United States against unlawful
disclosures, and not to alter in any way the substantive result
reached by the Supreme Court in New York Times Co. v. United
States, 403 U.S. 713, 714 (1971). In that case, several
Justices commented on the lack of an express statutory
prohibition against the publication of information in the
circumstances presented. Subsection (f), however, does not
purport to provide 'limited congressional authorization for
prior restraints -[tailored to specific] circumstances . . .,'
such as was suggested by Justice White in his concurring
opinion in New York Times Co. See 403 U.S. at 732 (White, J.,
concurring, joined by Stewart, J.) Therefore, we believe that
the only effect of subsection (f) would be to provide to the
Executive Branch, by statute, a procedural right of action to
seek injunctive relief. We do not believe that such statutory
authority is necessary, or that the lack of such express
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authority would preclude the Government's seeking an injunction
on a particular set of facts, if the substantive burden
required by New York Times Co. v. United States could be met.
Thus, while the authority provided by subsection (f) might be
useful procedurally in that it would eliminate any possible
doubts about the Attorney General's authority to seek such
injunctive relief, it would not serve to lessen the heavy
burden imposed upon the Government in justifying the imposition
of such a brio: restraint and the actual benefit to the
Government may be minimal.
Finally, with respect to the bill's Section 510, we are of
the opinion that the present system of administrative sanctions
is sufficient to deter improper classification and feel that
the fear of criminal sanctions would cause those who make
classification decisions to act with excessive caution.
At a minimum, Section 510 should be modified to provide
that it is a defense to prosecution that the information in
question was properly classifiable or that the classifier
believed in good faith that the information was properly
classifiable. As presently written, this section can be read
to expose the classifier to criminal liability if concealment
were one of his motives, even if he believed in good faith that
disclosure would harm the national security. If there is to be
any criminal liability for improper classification, it should
not turn upon the presence of a purpose to conceal, but upon
the absence of a good faith belief that disclosure would damage
the national security.
Classifying information the disclosure of which would
clearly be harmful to the national security could have the
secondary effect of concealing incompetence, inefficiency,
wrongdoing or administrative errors, or of avoiding
embarrassment to individuals or agencies. For example,
information concerning an unsuccessful missile test firing may
clearly warrant classification, because the disclosure of that
information would cause grave damage to the national security,
yet the effect of classifying that information might well be to
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conceal incompetence, inefficiency, wrongdoing or errors by
those who carried out the test firing. Indeed,'such a
concealment may be one of the proper purposes of classifying
the information in question; the information that must be
concealed from our adversaries may not be that the test firing
occurred or the purpose of the test firing, but the error which
caused it to fail. Concealment is not wrongful, however,
unless it is done for its own take rather than to protect the
national security against damage.
For all of these reasons, but most particularly because of
the policy and practical problems associated with this bill, we
think it both inappropriate and unnecessary for Congress to
enact B.R. 271.
Sincerely,
Phillip D. Brady
Acting Assistant Attorney General
Office of Legislative and Intergovernmental Affairs
Michael R. Dolan
Deputy Assistant Attorney General
Office of Legislative and
Iatergovernmenta1 Ltfair8
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