THE DEVELOPMENT AND ISSUANCE OF E. O. 11652

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 01481998
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 3
• Document Creation Date: December 28, 2022
• Document Release Date: August 7, 2017
• Case Number: F-2007-00094
• Publication Date: October 4, 1974

Approved for Release: 2017/01/18 C01481998
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(b)(3)
4 October 1974
The Development and Issuance of E. O. 11652
LI 75 -1
1. The purpose of this memorandum is to record some of
the steps, to the extent that we know them, by which E. 0. 11652
and the implementing National Security Council Directive came into
existence. In particular, some of the minutiae is not well-known
and is likely to be lost or forgotten with the passage of time. This
background should be useful to an understanding of the depth of. the
commitment of the Nixon Administration to the Executive Order
and the NSC Directive, particularly the latter.
2. E: O. 11652, approved in March 1972 and effective June 1,
1972, succeeded E. O. 10501 as the law for classifying and protec-
ting national security information. E. 0. 10501, which had replaced
an Executive order developed from World War II experience, was
issued in 1953 and. was amended only a few times in the succeeding
years. Its provisions for protecting, classifying, and using national
security information were not essentially different from those now
embodied in E. O. 11652. As amended, it also had requirements
for declassifying information. I believe it is generally accepted
that under E. 0. 10501 the government classified too many documents
and did much too little toward accomplishing declassification. It
was these defects in the operation of E. 0. 10501 which brought on the
movement for and ultimate issuance of E. 0. 11652.
3. In January 1971 Dr. Kissinger, as National Security Ad-
visor, issued a directive to the appropriate agencies,- CIA included,
calling for an interdepartmental study and appropriate revision of
E. 0. 10501. It was clear from his directive that there was no thought
that the protective features off.E. 0. 10501 were inadequate--the ob-
jective was to get rid of the overclassification and 'permanent clas-
sification practices.
4. William Rehnquist, then an Assistant Attorrier
chaired an Interdepartmental committee. CIA was represented by
David Young of the White House, who Was not however
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on the National Security Council staff, was a member and, at the
end, was chairman. The committee proceeded with its work through
the ensuing months. In June the Pentagon Papers issue erupted.
It was directly as a result of that matter that the President attended
a meeting of the committee in June or July of that year (1971). He
directed that there be strict limits on the numbers of government
employees authorized to classify information and the new Executive
Order duly incorporated that feature. l (This restriction continues
to receive attention. The Interagency Classification Review Commit-
tee, consistently presses the point and congressional committees have
shown interest in it.) Towards the end of 1971, the committee's
work lagged, I think because of Rehnquist's imminent and then actual
nomination to the Supreme Court. When Rehnquist was nominated,
David Young took over as Chairman in December 1971. The signifi-
cance of all this was that the Kissinger instruction was now a year
old, the crisis of the Pentagon Papers continued, but no new order
had been prepared or issued. Moreover, as I remember, on the
occasion of the Pentagon Papers issue, the Administration made
known that revision of the E. 0. 10501 had been under study for some
months and the press had indicated some doubts on this: There was,
accordingly, some pressure on the Young group to finalize an Execu-
tive order promptly, which was done, and E. O. 11652 was approved
on March 8, 1972.
5. I am sure this delay in preparing an Executive order
is the reason the E. O. 11652 omits the essentials for the protec-
tion and use of information but provides in Section 6 that the
'President acting through the National Security Council shall issue"
implementing directives in the areas specified in Section 6.
1/ That the President's requirements came about because Ells-
berg leaked the Pentagon Pa_pe,rs is somewhat ironic. Ellsberg was
able to leak the papers because he had. access to them, not because
he had authority to classify.
2/ The Executive Order does not provide for access, use, phys-
7-
ical protection, transmittal and storage protection, needLto-kiibw,
third agency rule, or security clearances. These provisions are
in the NSc Directive and Appendix A to the Directive.
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6. The NSC Directive issued on May 17, 1972, over the sig-
nature of Dr. Kissinger, is much broader in scope than is the Execu-
tive Order. (Incidentally, at a White House conference of Erhlichman,
Helms, and Houston in March, the forthcoming Executive Order
was "accepted." by Mr. Helms. The NSC Directive, on the other hand,
was never accepted by this Agency, and in fact various of our comments
and suggestions during the drafting stage were not accepted.) It
is interesting also that although the Order provides that the Presi-
dent, "acting through the National Security Council", will issue the
implementing directives, it was Kissinger, not the President, who
signed the Directive and Kissinger did so in his capacity as Assis-
tant to the President for National Security Affairs, which is not a
statutory NSC office. Indeed we have not been able to locate any
document designating Dr. Kissinger as an official of the National
Security Council, but it may be that one exists. It may be signifi-
cant also that the Directive is dated May 17, 1972, just five days
before Kissinger accompanied the President to Moscow. It is hard
to believe this subject and the draft directive could command much
of Kissinger's time and attention at that time. �
7. These features of the approval of the Directive are m'en-
tion.ed not to argue that CIA, or any agency, is in a position to chal-
lenge the legality of the NSC Directive, although a private person
might be able to do so. The point is that aside from Kissinger's
signature, which may or may not have been affixed by him, we have
no indication of White House approval or comMitment Co the Direc-
tive at that time by anyone other than David Young.
Associate Lieneral Counsel
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