LETTER TO JAMES T. LYNN FROM W. E. COLBY RE THIS SUBMITS PROPOSED LEGISLATIVE IN ACCORDANCE WITH OFFICE MANAGEMENT AND BUDGET CIRCULAR NO. 1-19, REVISED

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 01481965
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 25
• Document Creation Date: December 28, 2022
• Document Release Date: August 7, 2017
• Case Number: F-2007-00094
• Publication Date: April 23, 1975

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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
23 April 1975
Honorable James T. Lynn, Director
Office of Management and Budget
Washington, D. C. 20503
Dear Mr. Lynn:
This submits proposed legislation in accordance with Office of
Management and Budget Circular No. A-19, revised. Enclosed are
six copies of a draft bill, "To amend the National Security Act of 1947,
as amended." Also enclosed are copies of .a sectional analysis, a
comparison with existing law, cost analysis, and drafts of the letters
of transmittal to the President of the Senate and the Speaker of the
House of Representatives.
The proposed legislation amends Section 102 of the National
Security Act of 1947 by adding a new subsection (g) defining "information
relating to intelligence sources and methods" as a separate category of
information to be accorded statutory recognition and protection similar
to that provided "Restricted Data" under the Atomic Energy Act. The
proposed law recognizes the authority of the Director of Central
Intelligenee and the heads of other agencies expressly authorized by law
or by the President to engage in intelligence activities for the United
States, to limit the dissemination of information related to intelligence
sources and methods of collection. It provides for a criminal penalty
for the disclosure of such information to unauthorized persons and for
injunctive relief.
The continued effectiveness of the United States foreign intelligence
collection effort is dependent upon the adequate protection of the intelligence
sources and methods involved. In recognition of this, Congress, under
Section 102(d)(3) of the National Security Act of 1947, made the Director of
Central Intelligence responsible for the protection of intelligence sources
and methods-from unauthorized disclosure. Unfortunately, there is no
statutory authority to implement this responsibility. In recent times,
serious damage to our foreign intelligence effort has resulted from unauthorized
disclosures of information related to intelligence sources and methods. The
circumstances of these disclosures precluded punitive criminal action.
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In most cases, existing law is ineffective in preventing
disclosures of information relating to intelligence sources and methods.
Except in cases involving communications intelligence, no criminal
action lies unless the information is furnished to a representative of a
foreign power or the disclosure is made with intent to harm the United
States or aid a foreign power. Except in the case of knowingly furnishing
classified information to either a foreign government or a foreign agent,
prosecution requires proof, to the satisfaction of the jury, that the
information affects the national defense within the meaning of the statute.
This can only be established by further public disclosure in open court
which may aggravate the damage to the security and intelligence interests
of the United States and raises an additional obstacle to prosecution. The
difficulties imposed by these burdens substantially reduce the effectiveness
of the general criminal statutes as a deterrent to unauthorized disclosure
of sensitive intelligence sources and methods information.
The proposed legislation is aimed solely at persons who are
entrusted with information relating to intelligence sources and methods
through a privity of relationship with the U. S. Government. A fully
effective security program might require legislation to encompass the
willful disclosures of information requiring protection by all persons
knowing or having reason to know of its sensitivity. However, in order
to limit the free circulation of information in our American society only
to the degree essential to the conduct of a national foreign intelligence
effort, this legislation proposes that prosecution be provided only for
persons who have authorized possession of such information or acquire
it through a privity of relationship to the Government. Other persons
collaterally involved in any offense would not be subject to prosecution.
Further, disclosures to Congress upon lawful demand would be expressly
excluded from the provisions of the proposed law.
In order to provide adequate safeguards to an accused, while at
the same time preventing damaging disclosures during the course of
prosecution, subsection (g)(7) provides for an in camera determination
by the court to decide as a question of law the validity of the designation
for limited distribution of the information upon which prosecution is
brought. Also, under subsection (g)(4), prior to court action, the
Attorney General and the Director of Central Intelligence must certify
that the information was lawfully designated for limited distribution,
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the information was not placed in the public domain by the Government,
and there existed a procedure whereby the defendant could have had the
information reviewed for possible public release. Further under sub-
section (g)(4), it is an affirmative defense if the information was lawfully
provided to a Committee of Congress, or if the defendant did not know or
had no reason to know that the information had been specifically designated
for limited distribution.
Finally, in order to prevent disclosures authority is provided
in subsection (g)(6) for the courts to enjoin those to whom the proposed
legislation otherwise applies upon the Attorney General's application
and showing that the person is about to make an unauthorized disclosure.
Your advice is requested as to whether there is any objection
to the submission of the proposed legislation to the Congress from the
standpoint of the Administration's program.
Sincerely,
Enclosures
W. E. Colby
Director
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A BILL
To amend the National Security Act of 1947, as ame d, and for
other purposes.
1 Be it enacted by the Senate and House of Rep sentatives of
2 the United States of America in Congress ass mbled, That
3 Section 102 of the National Security Act of 19i3, as amended,
4 (50 U. S. C. A. 403) is further amended by add the following
5 new subsection (g):
(g) In the interests of the security of d foreign
7 intelligence activities of the United States, a in order further
8 to implement the proviso of section 102(d)(3) flthis Act that the
9 Director of Central Intelligence shall be res xisible for
10 protecting intelligence sources and methods om unauthorized
11 'disclosure--
12
13
14
15
� (1) Whoever, being or having 'een in duly
authorized possession or control of i ormation relating
to intelligence sources and methods, �r whoever, being
or having been an officer or employe of the United States,
16 or member of the Armed Services of he United States,
_
17 or a contractor of the United States G virnment, or an
18 employee of a contractor of the Unite States Government,
,
19 and in the course of such relationship becomes possessed
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1 of such information, knowingly communicates it to a
2 person not authorized to receive it shall be fined not
3
4
5
6
�10
11
12
13
14
15
16
17
18
19
20
21
22
more than $5, 000 or imprisoned not more than five
years, or both;
(2) For the purposes of this subsection, the
term "information relating to intelligence sources and
methods" means sensitive information concerning--
(A) methods of collecting foreign
intelligence;
(B) sources of foreign intelligence,
whether human, technical, or other: or
(C) methods and techniques of analysis
and evaluation of foreign intelligence which,
in the interests of the security of the foreign
intelligence activities of the United States, has
been specifically designated for limited or restricted
dissemination or distribution, pursuant to authority
granted by law or Directive of the National Security
Council, by a department or agency of the United
States Government which is expressly authorized by
Law or by the President to engage in intelligence
activities for the United States;
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(3) A person who is not authorized to receive
Information relating to intelligence sources and methods
is not subject to prosecution as an accomplice within
the meaning of sections 2 and 3 of Title 18, United States
Code, or to prosecution for conspiracy to commit
an offense under this subsection, unless he became
possessed of such information in the course of a relation-
ship with the United States Government as described in
paragraph (1); Provided, however, That the immunity
conferred by this paragraph does not preclude the
indictment or conviction for conspiracy of any person
who is subject to prosecution under paragraph (1)
of this subsection.
(4) No prosecution shall be instituted under
this subsection unless, prior to the return of the
indictment or the filing of the information, the Attorney
General and the Director of Central Intelligence jointly
certify to the court that at the time of the offense--
(A) the information was lawfully
designated for limited or restricted dissemination
or distribution within the meaning of paragraph
(2) of this subsection;
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1 (B) the information had not been
2 placed in the public domain by the United States
3 Government; and
4 (C) there existed a review procedure
5 through which the defendant could obtain review,
6 by the Government agency described in paragraph (2)
7 of this subsection, of the necessity of continuing
8 the designation described in paragraph (2) of this
9 subsection in the interests of the security of the
� 10 foreign intelligence activities of the United States.
�11 (5) It is an affirmative defense to a prosecution
12 under this subsection that--
13 (A) the information was communicated only
14 to a regularly constituted subcommittee, committee
15 or joint committee of Congress, pursuant to lawful
16 demand, or
17 (B) the person communicating the information
18 did not know or have reason to know that the information
19
� 20
21
22
�
had been specifically designated as described in
paragraph (2) of this subsection.
(6) Whenever in the judgment of the Director of
Central Intelligence any person is about to engage in any
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1 acts or practices which will constitute a violation of
2 this subsection, the Attorney General, on behalf of
3 the United States, may make application to the appropriate
4 court for an order enjoining such acts or practices, and
5 upon a showing that such person is about to engage in.
any such acts or practices, a permanent or temporary
7 injunction, restraining order, or other, order may be
8 granted.
9 (7) In any judicial proceedings under this
10 subsection, the court--
11 (A) may review, in camera, 'information
12 relating to intelligence sources and methods
13 designated for limited or restricted dissemination
14 or distribution within the meaning of paragraph (2)
15 of this subsection for the purpose of determining if
16 such designation was lawful and the court shall not
17 invalidate the designation unless it determines that
18 the designation was arbitrary and capricious. The
19 determination of the validity of such designation
20 under the circumstances is a question of law;
21 (B) in any in camera review, may in
22 its discretion, require the presence of all parties
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or their attorneys and production of a record
of the proceedings;
(C) shall, at the close of the in camera
review, enter in the record an order pursuant to
its findings and determination.
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-?
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SECTIONAL ANALYSIS AND EXPLANATION
The draft bill by adding a new subsection (g) to the National
Security Act of 1947 further implements a proviso of that Act imposing
a duty upon the Director of Central Intelligence to protect intelligence
sources and methods from unauthorized disclosure. Where possible,
the new subsection is based upon existing provisions of law specifically
18 U. S. C. 798 (relating to communication intelligence) and 42 U.S. C.
2204 et seq. (relating to a:tomic energy Restricted Data).
Paragraph (1) of the new subsection identifies the special and
limited class of individuals having privity of access to the sensitive
information defined in paragraph (2) below and proscribes their culpable
communication of such information to an unauthorized recipient.
Paragraph (2) of the new subsection defines the special category
of information relating to intelligence sources and methods which is subject
to the new provisions. It also recognizes the authority of the Director and
heads of other agencies expressly authorized by law or by the President to
engage in intelligence activities for the United States, to provide for the
appropriate designation of such information.
Paragraph (3) of the new subsection assures that only the special
and limited class of individuals identified under paragraph (1) above will
be subject to prosecution as a result of the violation of the new subsection.
This is in keeping with the intent that the new provision penalizes as
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unlawful only the conduct of those whose access to the designated informa-
tion is dependent upon understandings arising out of a relationship involving
trust and confidence. Collateral prosecution related to the violation of any
other provision of law, however, is not vitiated by this paragraph.
Paragraph (4) of the new subsection provides that no prosecution
shall be instituted unless the Attorney General and the Director of Central
Intelligence first jointly certify to the court that the information was lawfully
designated for limited dissemination; the information was not placed in the
public domain by the Government; and a review procedure existed whereby
the defendant could have secured a review of the information in question for
a determination on public releasability.
Paragraph (5) of the new subsection provides an affirmative defense
to prosecution if the information was provided to a congressional committee
pursuant to law or the person communicating the information did not know or
have reason to know, that the information had been designated for limited
dissemination pursuant to paragraph (2).
Paragraph (6) of the new subsection permits the Attorney General to
petition a court for the injunction of any act which the Director believes will
violate any provision of the new subsection. This authority is intex?,ded to
provide prompt judicial action to avoid damage to the U.S. foreign intelligence
effort in circumstances where punitive criminal action alone, being
necessarily ex post facto, may be inadequate in achieving the underlying
objective of the legislation which is to protect intelligence sources, methods
2
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LJ
and techniques from unauthorized disclosure.
Paragraph (7) of the new subsection provides for judicial review,
as a question of law of the validity of any designation made pursuant to
paragraph (2) above. This will ensure that the designation is not applied
arbitrarily or capriciously. It provides that the judicial review may be
conducted in camera? with all parties and counsel present at the court's
discretion, to preclude the disclosure of sensitive information in open
court and avoid aggravating the damage to intelligence sources and methods.
3
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CHANGES IN EXISTING LAW
Changes in existing law made by the draft bill are shown as
follows: existing law in which no change is proposed is shown in
roman; new matter is underscored.
NATIONAL SECURITY ACT OF 1947
as amended
(50 U. S. C. A. 403)
TITLE I�COORDINATION FOR NATIONAL SECURITY
CENTRAL INTELLIGENCE AGENCY
SEC. 102
(g) In the interests of, the security of the foreign intelligence
activities of the United States, and in order further to implement the
proviso of section 102(d)(3) of this Act that the Director of Central
Intelligence shall be responsible for protecting intelligence sources
and methods from unauthorized disclosure--
(1) Whoever, being or having been in duly
authorized possession or control of information relating
to intelligence sources and methods, or whoever, being
or having been an officer or employee of the United States,
or member of the Armed Services of the United States, .
or a contractor of the United States Government, or an
employee of a contractor of the United States Government,
and in the course of such relationship becomes possessed
of such information, knowingly communicates it to a
person not authorized to receive it shall be fined not
more than $5,000 or imprisoned not more than five
years, or both;
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(2) For the purposes of this subsection, the
term "information relating to intelligence sources and
methods" means sensitive information concerning--
(A), sources of foreign intelligence,
Whether human, technical, or other;
(B) methods of collecting foreign
intelligence; or
(c) methods and techniques of analysis
and evaluation of foreign intelligence which,
in the interests of the security of the foreign
intelligence activities of the United States, has
been specifically designated for limited or restricted
dissemination or distribution, pursuant to authority
granted by law or Directive of the National Security
Council, by a department or agency of the United
States Government which is expressly authorized by
law or by the President to engage in intelligence
activities for the United States;
(3) A person who is not authorized to receive information
relating to intelligence sources and methods is not subject to
prosecution as an accomplice within the meaning of sections 2 and 3
of Title 18, United States Code, or to prosecution for conspiracy
to commit an offense under this subsection, unless he became
possessed of such information in the course of a relationship
with the United States Government as described in paragraph (1);
Provided, however, That the immunity conferred by this paragraph
Woes not preclude the indictment or conviction for conspiracy of
any person who is subject to prosecution under paragraph (1) of
this subsection.
(4) No prosecution shall be instituted under this subsection
unless, prior to the return of the indictment or the filing of the
information, the Attorney General and the Director of Central
Intelligence jointly certify to the court that at the time of the
offense--
(A) the information was lawfully designated
for limited or restricted dissemination or distribution
within the meaning of paragraph (2) of this subsection:
2
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(B) the information had not been placed
in the public domain by the United States Government;
and
(C) there existed a review procedure through
which the defendant could obtain review, by the
Government agency described in paragraph (2) of
this subsection, of the necessity of continuing the
designation described in paragraph (2) of this
subsection in the interests of the security of the
foreign intelligence activities of the United States.
(5) It is an affirmative defense to a prosecution under'
this subsection that--
(A) the information was communicated only
to a regularly constituted subcommittee, committee
or joint committee of Congress, pursuant to lawful
demand, or
(B) the person communicating the information
did not know or have reason to know that the information
had been specifically designated as described in
paragraph (2) of this subsection.
(6) Whenever in the judgment of the Director of Central
Intelligence any person is about to engage in any acts or practices
which will constitute a violation of this subsection, the Attorney
General, on behalf of the United States, may make application
to the appropriate court for an order enjoining such acts or
practices, and upon a showing that such person is about to engage
many such acts or practices, a permanent or temporary '
injunction, restraining order, or other order may be granted.
Ii) In any judicial proceedings under this subsection,
the court--
(A) may review, in camera, information relating
to intelligence sources and methods designated for limited
or restricted dissemination or distribution within the
meaning of paragraph (2) of this subsection for the purpose
of determining if such designation was lawful and the court
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shall not invalidate the designation unless it determines
that the designation was arbitrary and capricious. The
determination of the validity of such designation under
the circumstances is a question of law:
(B) in any in camera review, may in its discretion,
requirethe presence of all parties or their attorneys and
production of a record of the proceedings;
(C) shall, at the close of the in camera review,
enter in-The record an order pursuant to its findings
and determination.
4
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
Honorable Nelson A. Rockefeller
President of the Senate
Washington, D. C. 20510
Dear Mr. President:
This letter transmits for the consideration of the Congress a
draft bill to amend the National Security Act of 1947, as amended.
Over the years, serious damage to our foreign intelligence
effort has resulted from the unauthorized disclosure of information
related to intelligence sources and methods. In most cases, the
sources of these leaks have been-persons who were made privy to
sensitive information by virtue of their relationship of trust to the
United States Government. Deliberate breach of this relationship
of trust to the detriment of the United States Government is subject
only to partial legal sanction. In most instances prosecution lies
only if the offender makes the unauthorized disclosure to a represen-
tative of a foreign power or the prosecution must show an intent to
harm the U.S. or aid a foreign power. Moreover, in many instances
the requirement to reveal in open court the significance of information
disclosed is a deterrent to prosecution.
Presently, Section 102(d)(3) of the National Security Act of 1947,
as amended, places a responsibility on the Director of Central
Intelligence to protect intelligence sources and methods. However, no
legal sanctions are provided for him to implement this responsibility.
The legislation proposed in this draft bill would close this gap to the
limited degree necessary to carry out a foreign intelligence program,
but at the same time give full recognition to our American standards
of freedom of information and protection of individual rights.
The proposed legislation recognizes the authority of the Director
of Central Intelligence, and the heads of other agencies expressly authorized
by law or by the President to engage in intelligence activities for the
United States, to limit dissemination of information related to intelligence
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sources and methods of collection and provides criminal penalty for the
disclosure of such information to unauthorized persons.
The proposed legislation is limited to individuals entrusted with
the sensitive information described in the legislation by virtue of their
position as officer, employee, contractor, or other special relationship
with the U. S. Government. Strictly from the standpoint of protecting the
information, this legislation ideally would encompass willful disclosure to
unauthorized persons by any person knowing, or having, reason to know of
its sensitivity. However, our American tradition would not permit a law
sufficiently broad to apply to the media or other private citizens. Hence,
application of the proposed legislation is limited to those given access to
the information by virtue of their relationship to the Government.
In order to provide adequate safeguards to an accused, to prevent
damaging disclosures during the course of prosecution, and to prevent
prosecution with respect to information unreasonably designated, the
legislation provides for in camera review by the court of the information
disclosed to review and decide as a question of law the validity of the
designation for limited distribution. Further, prior to court action, the
Attorney General and the Director of Central Intelligence must certify
that the information was lawfully designated for limited distribution, the
information was not placed in the public domain by the Government, and
there existed a procedure whereby the defendant could have had the informa-
tion reviewed for possible public release. It is also an affirmative defense
if the information was provided to a committee of Congress pursuant to law
or if the defendant had no reason to know that the information was designated
� for limited distribution.
The legislation also provides for injunctive relief in those instances
where unauthorized disclosure is threatened and serious damage to the
intelligence collection effort would result.
We would appreciate early and favorable consideration of the proposed
bill. The Office of Management and Budget has advised that there is no
objection to presenting the proposed bill to the Congress from the standpoint
of the Administration's program.
Sincerely,
W. E. Colby
Director
2
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D. C. 20515
Dear Mr. Speaker:
This letter transmits for the consideration of the Congress a
draft bill to amend the National Security Act of 1947, as amended.
Over the years, serious damages to our foreign intelligence
effort have resulted from the unauthorized disclosure of classified
information related to intelligence sources and methods. In most
cases, the sources of these leaks have been persons who were made
privy to sensitive information by virtue of their relationship of trust
to the United States Government. Deliberate breach of this relationship
of trust to the detriment of the United States Government is subject
only to partial legal sanction. In most instances prosecution lies only
if the offender makes the unauthorized disclosure to a representative of
a foreign power or the prosecution must show an intent to harm the U. S.
or aid a foreign power. Moreover, in many instances the requirement
to reveal in open court the significance of information disclosed is a
deterrent to prosecution.
Presently, Section 102(d)(3) of the National Security Act of 1947,
as amended, places a responsibility on the Director of Central Intelligence
to protect intelligence sources and methods. However, no legal sanctions
are provided for him to implement this responsibility. The legislation
proposed in this draft bill would close this gap to the limited degree
necessary to carry out a foreign intelligence program, but at the same
time give full recognition to our American standards of maximum feasible
freedom of information and protection of individual rights.
The proposed legislation grants to the Director of Central
Intelligence, and to the heads of other agencies expressly authorized by
law or by the President to engage in intelligence activities for the
United States, the authority to limit dissemination of information related
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to intelligence sources and methods of collection and provides criminal
penalty for the disclosure of such information to unauthorized persons.
The proposed legislation is limited to individuals entrusted with
the sensitive information described in the legislation by virtue of their
position as officer, employee, contractor, or other special relationship
with the U. S. Government. Strictly from the standpoint of protecting the
information, this legislation ideally would encompass willful disclosure to
unauthorized persons by any person knowing, or having reason to know of
its sensitivity. However, our American tradition would not permit a law
sufficiently broad to apply to the media or other private citizens. Hence,
application of the proposed legislation is limited to those given access to
the information by virtue of their relationship to the Government.
In order to provide adequate safeguards to an accused, to prevent
damaging disclosures during the course of prosecution, and to prevent
prosecution with respect to information unreasonably designated, the
legislation provides for in camera review by the court of the information
disclosed to review and decide as a question of law the reasonableness of
the designation for limited distribution. Further, prior to court action,
the Attorney General and the Director of Central Intelligence must certify
that the information was lawfully designated for limited distribution, the
information was not placed in the public domain by the Government, and
there existed a procedure whereby the defendant could have had the
information reviewed for possible public release. It is also an affirmative
defense if the information was provided to a committee of Congress pursuant
to law or if the defendant had no reason to know that the information was
designated for limited distribution.
The legislation also provides for injunctive relief in those instances
where unauthorized disclosure is threatened and serious damage to the
intelligence collection effort would result.
We would appreciate early and favorable consideration of the
proposed bill. The Office of Management and Budget has advised that
there is no objection to presenting the proposed bill to the Congress from
the standpoint of the Administration's program.
Sincerely,
W. E. Colby
Director
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COST ANALYSIS
This legislation does not involve any measurable costs. Any
court costs to the Government would be more than offset by the
savings that would result if the legislation deters the compromise of
sensitive sources and methods which, if compromised, would require
extensive and costly counteractions to mitigate the damage and to
offset the advantages to the opposition.
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