H. R. 131

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP93B01194R001200080005-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 36
• Document Creation Date: December 19, 2016
• Document Release Date: August 3, 2005
• Sequence Number: 5
• Publication Date: February 25, 1981
• Content Type: MF

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2S February 1981
MEMORANDUM FOR: Chief, Legislative Division, OLC
VIA: Director of Information Services, DDA
I
Chief, Classification Review Division
SUBJECT: H. R. 131
REFERENCE: OLC 81-0295, 13 February 1981 (same subject)
1. The following are CRD's comments concerning H. R. 131 and the
Department of Defense commentary made earlier in connection with H. R. 1837
(not acted upon by the previous Congress) which is identical in wording to
H. R. 131.
2. We agree with DOD on the need for derivative classification and the
use of classification guides, but do not believe that provision therefor need
be made in the law itself. Section 507(a) of this Bill provides that the
President "shall prescribe regulations to carry out this title." The use of
guides and other forms of derivative classification (nowhere specifically
excluded by the Bill) could be authorized through implementing regulations
'6y i c tiding provisions similar to those of Executive Order 12065 (sections 2-1
and 2-2).
3. There also seems to be no real need for any separate provision in
this law covering information on "cryptologic activities, methods, materials
and devices," the unauthorized disclosure of which is alread a crime under
18 U.S.C. 798 (as the DOD commentary notes, but then concludes oppositely
that a provision in the law is needed). Moreover, such information is
clearly classifiable under Sections 504(a)(1), 504(a)(3), and/or 5040)(5)
of the Bill -- as is all information falling within one or more of these
and the other specified classification categories.
4. The same applies, in our view, to "special access programs," although
the case for including these in the law itself is perhaps somewhat stronger
On file OSD release instructions apply.
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than for either derivative classification or cryptology. Whether prescribed
by law or through implementing regulations, however, the DOD's proposed language
should be amended to read as follows (changes underlined):
"Agency heads and officials of the Executive Office of the President
authorized to originated classification of information as 'Top
Secret' pursuant to ... may establish special programs to control
the distribution of and all forms of access to particularly sensitive
informa ion .. Suchiuprograms may e estt ivied or continued only
by written direction of such an agency ieT actor official, the written
authorization of the Secretary of Defense being required :)r special
access programs applicable to cryptologic information, and that of
the Director of Central. Intelligence for t ose applic.a le to infor-
mation concerning foreign intelligence activities, sources, or
methods."
5. We agree with the DOD as to the inadequacy of the Bill's provisions
(Section 504(a)(2) et seq.) concerning what E.O. 12065 calls "foreign govern-
ment information," and similarly prefer use of that term in section 504(a)(2)
with a definition to be added under section 511. We would, however, prefer the
following definition (essentially the one adopted by the Information Security
Oversight Office in March 1980, after extensive consultations in which DOD,
State Department, CIA, and National Archives and Records Service representatives
participated):
"The term 'foreign government information' means,,,(a) documents or
material provided by a foreign government or governments, inter-
national organizations of governments, or any element thereof in
the expectation, expressed or implied, that the document, material
or information contained therein is to be held in confidence;
(b) information provided, in any manner, to the United States by
foreign governments, international organizations of governments,
or any element thereof with the expressed or implied expectation
that the information will be held in confidence, or (c) information
produced by the United States pursuant to or as a result of a joint
arrangement, evidenced by an exchange of letters, memorandum of
understanding, or other written record, with a foreign government
or organization of governments requiring that the information, the
arrangement, or both be kept in confidence."
The DOD's proposed language here might serve the purpose, but is loose
and does not adequately provide for intelligence liaison "joint arrangements"
of a less formalized nature than is implied by the DOD phrasing. A cable, dis-
patch, or operational memorandum may in some instances provide the only written
record extant; indeed, the "classifiable information" may in sonic instances be
the very fact that such an arrangement exists or has existed between a U.S.
agency and a foreign government entity.
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6. In keeping with present needs to redress in favor of national security
protection the balance now tilted by Executive Order 12065 toward declassification
and disclosure, the first sentence of section 506(a) of the Bill should be
deleted along with the last sentence of section 506(b). The remainder of both
sections could then be amalgamated into a single section to read (with certain
changes from the present text) as follows:
"SEC. 506. It is the policy of the Congress that information classi-
fied under this title or under a prior Executive Order authorizing
the classification of national security information shall be declassi-
fied as early as considerations of national security allow. The
President shall prescribe regulations for downgrading the classification
of such information, or for declassifying, transferring, retiring, or
destroying such information, as may be appropriate in each case, at
the earliest practicable date."
7. For similar reasons and also to strengthen the Bill's provisions con-
cerning intelligence information, section 504(b) should be amended to read (changes
underlined):
"(h) the unauthorized disclosure of information described in sub-
section (a)(2) or of information leading to the identification of
a confidential foreign intelligence activity, source, or method is
presumed to cause at least :identifiable damage to the national security."
Note that subsection (a)(2) cited here should itself be amended as per
paragraph S above. y
8. The provisions concerning foreign government and intelligence information
can be further strengthened, and a major fault of the Bill can be corrected, by
amending section 509(d)(1) to read (changes underlined):
"(d) It is a defense to a prosecution under subsection (b) or (c)
that - -
"(1) before the commission of the offense with which the defendant is
charged, the information communicated had been publicly disclosed,
except that no such defense may be based upon any unauthorized
pub-lic-or o erdis_c_Tosure oflawfully classified foreign government
information or information concerning or derived from ofn intelli-
gence activities, sources, or metros;"
This portion of the Bill could, of course, be strengthened still further
by wording it to exclude all lawfully classified information from this provision
(not just foreign government or foreign intelligence information), as long as any
prior disclosure was unauthorized.
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9. Other OIS Divisions and. interested Agency components may wish to
comment on these and other aspects of this Bill and of the DOD's commentary which
are not addressed above, particularly as regards the accountability, identifi-
cation and marking provisions, and the extent, nature, and validity of the criminal
and other penalties which the Bill would impose.
STAT
Attachment:
1. H.R. 131
2. DOD/OGC Letter, 11 Aug 80
Distribution:
Orig - C/OLC/LD, w/atts.
1 - D IS, w/atts.
(Revision of E.O. 12065/Legislati.on), w/atts.
1 =CM
1 - no, w/o atts.
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97Tx CONGRESS
1ST SESSION Re R. 1 ;AN5% 1
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 unauthorized disclosure of
such information, to limit matters that may be classified and impose penalties
for unauthorized classification, to provide for declassification, and for other
purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 5, 1981
41~d 1: Mr. BENNETT introduced the following bill; which was referred jointly to the
Committee on Armed Services and the Permanent Select Committee on
Intelligence
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 unauthorized disclosure of such infor-
mation, to limit matters that may be classified and impose
penalties for unauthorized classification, to provide for de-
classification, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tines of the United States of America in Congress assembled,
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1 That (a) the National Security Act of 1947 is amended by
2 adding at the end thereof the following new title:
3 "TITLE V-CLASSIFICATION AND SAFEGUARD-
4 ING OF NATIONAL SECURITY INFORMATION
5 "PURPOSE
6 "SEC. 501. The purpose of this title is to establish pro-
7. cedures for the protection against unauthorized disclosure of
8 information and material relating to the national security that
9 is of such a nature that the unauthorized disclosure of such
10 information or material could cause identifiable damage to
11 the national security and to provide criminal penalties for the
12 unauhorized disclosure of such information and material.
13 "AUTHORITY FOR CLASSIFICATION OF NATIONAL
14 SECURITY INFORMATION
15 "SEC. 502. (a) Except as provided in the Atomic
16 Energy Act of 1954, national security information may be
17 designated and protected against -unauthorized disclosure
k8 only in accordance with this title. The authority to originate
101 the classification of national security information may be ex-
20 excised only by an official designated under section 503 to
1. have such ,,uthorit y and shall be exercised in accordance with
MeG~
22 tale provisions of section 1.04.
U
` "(b) There shall be three... categories of classification by
2which national security information may be designated, and,
except as otherwise expressly provided by law, no other cate-
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1 gory or degree of classification shall be used to identify or
2, protect national security information. The three categories of
3 classification shall be known as Top Secret, Secret, and Con-
4 fidential. National security information shall be designated by
5 these categories as follows:
6 "(1) The classification `Top Secret' shall be ap-
7 plied to that national security information the unau-
8 thorized disclosure of which reasonably could be ex-
9 pected to cause exceptionally grave damage to the na-
10 tional security.
11 "(2) The classification `Secret' shall be applied to
12 that `tional security information the unauthorized dis-
13 closure of which reasonably could be expected to cause
14 serious damage to the national security.
15 "(3) The classification `Confidential' shall be ap-
16 plied to that national security information the unau-
17 thorized disclosure of which reasonably could be ex-
18 pected to cause identifiable damage to the national
19 security.
"OFFICIALS WITH AUTHORITY TO CLASSIFY NATIONAL
SECURITY INFORMATION
CiC: "S Ec. 503. (a)(1) The authority to originate the classifi-
23 cation of national security information as `Top Secret' may
24 be exercised only by the President, by the heads vi such
25 agencies, and by such off cii Is in the Executive Office of the
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1 President, as the President may designate by publication in
2 the Federal Register to have such authority, and by such
3 officials as may be designated to have such authority in ac-
4 cordance with subsection (b)(1).
5 "(2) The authority to originate the classification of na-
6 tional security information as `Secret' may be exercised only
7 by officials who have authority to originate the classification
8 of information as `Top Secret', by such other officials in the
9 executive branch of the Government as the President may
10 designate by publication in the Federal Register to have such
11 authority, and by such officials as may be designated to have
12 'sucli authority in accordance with subsection (b)(2).
13 "(3) The authority to originate the classification of na-
14 tional security information as `Confidential' may be exercised
15 only by officials who have authority to originate the classifi-
16 cation of information as `Secret', by such other officials in the
17 executive branch of the Government as the President may
18 designate by publication in the Federal Register to have such
19 authority, and by such officials as may be designated to have
20 such authority in accordance with subsection (b)(3).
21 "(b)(1) Any principal subordinate official of an official
22 designated by the President under subsection (a)(1) to have
23 authority to originate the classification of information as `Top
24 Secret' may be designated by such official to have such au-
25 thority, if such subordinate official has a frequent need to
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1 exercise such authority, as determined by the President or by
2 the official making the designation.
3 "(2) Any subordinate official of an official who (A) has
4 authority to designate information as `Top Secret', or (B) is
5 designated by the President under subsection (a)(2) to have
6 authority to designate information as `Secret' may be desig-
7 nated by such official to have such authority if such subordi-
8, nate official has a frequent need to exercise such authority, a4
9 determined by the President, by the head of such official's
10 agency, or by the official making the designation.
11 "(3) Any subordinate official of an official who (A) has
12 authority to,_designate information as `Secret', or (B) is desig-
13 hated by the President under subsection (a)(3) to have
14 authority to designate information as `Confidential' may be
15 designated by such official to have such authority if such sub-
16 ordinate official has a frequent need to exercise such authori-
17 ty, as determined by the President, by the head of such offi-
18 cial's agency, or by some other official having authority to
19 originate the classification of information as `Top Secret'.
20 "(4) Each designation under this subsection of an official
21 to have authority to originate the classification of information
22 shall be made in writing and shall state the name or position
23 of the official being designated to exercise such authority.
24 "(c) It is the policy of the Congress that the number of
25 designations under subsection (b) of subordinate officials to
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1 have authority to originate the classification of information
2 should be kept to the smallest number practicable. To carry
3 out this policy, periodic reviews of such designations shall be
4 made to determine whether officials so designated have a
5 continuing need to exercise such authority.
6 "(d) The President shall prescribe regulations to provide
7 procedures for the handling and classification of national se-
8 curity information that is originated by an agency that does
9 not have an official with authority to classify such
10 information.
11 it STANDARDS FOR CLASSIFICATION
12 ".EC. 504. (a) Information may not be classified unless
13 unauthorized disclosure of such information reasonably could
14 be expected to cause at least identifiable damage to the na-
15 tional security and unless such information concerns-
16 "(1) military plans, weapons, or operations;
17 "(2) information that is furnished to the United
18 States by a, foreign government or international organi-
19 zation and that has been designated by such foreign
20 government or international organization as requiring
21 protection against unauthorized disclosure;
22 "(3) intelligence activities, sources, or methods;
23 "(4) the foreign relations or foreign activities of
24 the United States;
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1 "(5) scientific, technological, or economic matters
2 relating to the national security;
3 "(6) programs of the United States Government
4 for safeguarding nuclear materials or facilities; or
5 "(7) some other category of information related to
6 the national security and requiring protection against
7 unauthorized disclosure, as determined by the Presi-
8 dent, by an official designated by the President tinder
section 503(a)(1), or by an official who is the head of
10 an agency.
11 "(b) The unauthorized disclosure of information de-
1.2 scrib-eJd.. in subsection (a)(2) or of information revealing the
13 identity of a confidential foreign intelligence source may be
14 presumed to cause at least identifiable damage to the national
15 security.
16 "(e)(1) Information may not be classified in order to con-
17 ceal violations of law, incompetence, inefficiency, wrongdo-
18 ing, or administrative error, to avoid embarrassment to any
19 person or agency, to restrain competition or independent ini-
20 tiative, or to prevent for any other reason the release of infor-
21 oration that does not require protection in the interest of na-
22 tional security. Any official who classifies information in vio-
23 lation of this subsection shall be subject to such administra-
24 tive disciplinary action, including suspension, as may be or-
25 dered by such official's superiors.
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1 "(2) Basic scientific research information not clearly re-
2 lated to the national security may not be classified.
3 "(3) Material containing a reference to classified infor-
4 mation which reference does not itself reveal classified infor-
5 mation may not be classified by reason of such reference or
6 be used as a basis for classification.
7 "(d) Whenever there is reasonable doubt as to which
8 category of cLassification should be applied, the less restric-
9 tive category should be used. Whenever there is reasonable
10 doubt as to whether information should be classified at all,
11 the information should not be classified.
12 ".IDENTIFICATION OF CLASSIFIED MATERIAL
13 "SEC. 505. (a) Each item of classified material shall
14 show on its face--
15 "(1) the category of classification of such material;
16 "(2) the identity of the official authorizing the
17 original classification of such material;
18 "(3) the office which originated the classification
19 of such material;
20 "(4) the dates of the preparation and of the classi-
21 fication of such material; and
22 "(5) whether such material is subject to declassifi-
23 cation at a particular time and, if so, when.
24 "(b) There shall be clearly indicated on the face of each
25 item of classified material or by other appropriate means
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1 which portions of such material are classified and which por-
2 tions are not classified, together with the degree of classifica-
3 tion of those portions which are classified. The President may
4 waive the requirements of the preceding sentence for speci-
5 fied classes of material.
6 "(c) Information that is furnished to the United States
7 by a foreign government or international organization and
8 that has been designated by such foreign government or ip-
9 ternational organization as 'requiring protection against unau-
10 thorized disclosure shall either retain its original designation
11 or be assigned a category of classification under this title, and
12 in either case shall be assured a degree of protection equiva-
13 lent to that required by the foreign government or interna-
14 tional organization furnishing such information.
15 "(d) A holder of classified information shall observe and
16, respect the classification assigned to such information by the
17 originator of such classification. If a holder of classified infor-
18 mation believes that such information should not be classi-
19 fied, that the classification which has been assigned to such
20 information is improper, or that such information is subject to
21 declassification under applicable regulations, such holder
22 shall so inform the originator of the classification of such in-
23 formation, who shall promptly reexamine such classification.
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"DECLASSIFICATION POLICY AND REGULATIONS
2 "SEC. 506. (a) It is the policy. of the Congress that de-
3 classification of classified information shall be given emphasis
4 comparable to that accorded classification of national security
5 information. Information classified under this title or under a
6 prior Executive order authorizing the classification of nation-
7 al security information shall be declassified as early as con-
8 siderations 9tf national security allow.
9 "(b) The President shall prescribe regulations to estab-
10 lish procedures for the systematic and periodic review of all
11 classified information for the purpose of downgrading the
12 cl4,ssification of such information, or of declassifying, trans-
13 ferring, retiring, or destroying such information, as may be
14 appropriate in each case, at the earliest practicable date. In
15 determining whether information should be declassified, the
16 public interest in disclosure of the information shall be con-
17 sidered and weighed against the need for continued classifica-
18 tion of the information.
19 "IMPLEMENTING REGULATIONS
20 "SEC. 507. (a) The President shall prescribe regulations
21 to carry out this title.. Such regulations shall include provi-
22 sions to ensure that-
23 "(1) any person given access to classified informa-
24 Lion (A) has been determined to be trustworthy, and
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1 (B) requires access to such information in the perform-
2 ante of official duties;
3 "(2) all classified material is appropriately and
4 conspicuously marked so as to put any person coming
5 in contact with such material on clear notice that the
6 contents of such material are classified;
7 "(3) classified information is used, possessed.,
8 stored, reproduced, and transmitted only under coni-
9 Lions that will prevent access to such information by
10 persons not specifically authorized to have such access
11 and that will prevent dissemination of such information
12 to persons not specifically authorized to receive it;
13 "(4) classified information disseminated outside
14 the executive branch is given protection equivalent to
15 that afforded within the executive branch;
16 "(5) appropriate records to assure accountability
17 for all classified information are established and main-
18 tained and that classified information is adequately pro-
19 tected during all transmissions of such information; and
20 "(6) classified information no longer needed in
21 current working files or for reference or record pur-
22 poses is destroyed or otherwise disposed of in accord-
23 ance with chapter 33 of title 44, United States Code
24 (relating to disposal of records).
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1 "(b) The President may waive the requirement in sub-
2 section (a)(1) that access to classified information be limited
3 to persons requiring access to such information in the per-
4 formance of official duties with respect to such persons and
5 classes of persons as the President may prescribe.
6 "MATERIAL COVERED BY THE ATOMIC ENERGY ACT OF
1954
"SEC. 508. Nothing in this title shall supersede any re-
9 quirement made by or under the Atomic Energy Act of 1954.
10 Material designated as `Restricted Data' and material desig-
11 nated as `Formerly Restricted Data' shall be handled, pro-
12 tectpd,..classified, downgraded, and declassified in conformity
13 with the provisions of the Atomic Energy Act of 1954.
14 "UNAUTHORIZED DISCLOSURE OF CLASSIFIED
15 INFORMATION
16 "SEC. 509. (a) Any individual who knowingly communi-
17 cates classified information which that individual knows or
18 has reason to know is classified information to a foreign gov-
19 ernment or foreign organization or to any officer or agent
20 thereof not authorized to receive such information shall be
21 imprisoned for any term of years or for life.
22 "(b) Any individual who (1) is or has been in authorized
23 possession or control of classified information, or (2) is or has
24 been an officer or employee of the United States, a member
25 of the Armed Forces of the United States, a contractor of the
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1 United States Government, or an employee of a contractor of
2 the United States Government, and is or has been in posses-
3 sion or control of classified information in the course of that
4 relationship, knowingly communicates such information to a
5 person not authorized to receive it shall be fined not more
6 than $10,000 or imprisoned not more than ten years, or both.
7 "(c) Any individual who knowingly communicates clas-
8 ' sified information which that individual knows or has reason
9 to know is classified information to a person not authorized to
10 receive it shall be fined not more than $5,000 or imprisoned
11 not more than one year, or both. Nothing in this subsection
12 shall _ e ..onstrued to. infringe rights or liberties guaranteed
13 under the Constitution or laws 'of the United States.
14 "(d) It is a defense to a prosecution under subsection (b)
15 or (c) that-
16 "(1) before the commission of the offense with
17 which the defendant is charged, the information com-
18 municated had been publicly disclosed;
19 "(2) the information communicated was not law-
20 fully classified at the time of the offense with which
21 the defendant is charged; or
22 "(3) the information communicated was communi-
23 cated only to a regularly constituted subcommittee,
24 committee, or joint committee of Congress, pursuant to
25 lawful demand.
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,1 "(e) In making a determination as to whether the infor-
2 oration communicated was lawfully classified at the time of
3 the offense with which the defendant is charged, the court
4 shall determine the matter and shall examine such informa-
5 tion in camera. In any such determination, the burden is on
6 the United States to sustain the classification of such infor-
7 mation. After any in camera examination under this subsec-
8 tion, the couctt shall enter into the record its findings and
9 determinations with respect to.whether the information com-
10 municated was lawfully classified at the time of the offense
1.1 with which. the defendant is charged. Any determination by
12 the court under this subsection shall be a question of law.
13 "(f)(1) Whenever any person is about to engage in con-
14 duct that would constitute a violation of this section, the At-
15 torney General, on behalf of the United States, may apply to
16 the appropriate court for an order enjoining such conduct,
17 and upon a showing that a person is about to engage in such
18 conduct, a permanent or temporary injunction, temporary re-
19 straining order, or other order may be granted.
20 "(2) In making a determination as to whether a viola-
21 tion of this section is about to occur, the court shall examine
22 the information that is the subject of the possible violation
23 and shall not grant relief under this subsection if the informa-
24 tion is not lawfully classified. Examination of the contents of
25 such information shall be conducted in camera. In any such
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1 - determination, the burden is on the United States to sustain
2 the classification of such information. After an in camera ex-
3 amination under this subsection, the court shall enter into the
4 record its findings and determinations with respect to wheth-
5 er the information is lawfully classified.
6 "(g) For the purposes of this section:
7 "(1) The term `classified information' means infor-
8 mation that is designated as information that-
9 "(A) has been classified under this title;
10 "(B) was classified before the effective date
11 of this title under an Executive order; or
12 "(C) was furnished to the United States by a
13 foreign government or international organization
14 and was designated by such foreign government
15 or international organization as requiring protec-
16 tion against unauthorized disclosure.
17 "(2) The term `communicates' means to impart,
18 transfer, publish, or otherwise make available.
19 "(3) The term `authorized', when used in relation
20 to the possession, receipt, or control of classified infor-
21 mation, means with legal authority to have access to,
22 to possess, to receive, or to control such information.
23 "(4) The term `lawfully classified', when used in
24 relation to classified information, means-
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1 "(A) in the case of information classified on
2 or after the effective date of this title, that such
3 information-
4 "(i) is specifically authorized under the
5 criteria established by section 504 to be clas-
6 sified;
7 "(ii) is in fact properly classified and
8 identified in, accordance with the criteria es-
9 tablished by sections 504 and. 505 and regu-
10 lations issued under section 507; and
11 "(iii) was classified by an official author-
12 ized under section 503 to make such a clas-
13 sification;
14 "(B) in the case of information classified
15 before the effective date of this title, that such in-
16 formation-
17 "(i) is specifically authorized under cri-
18 teria established by an Executive order to be
19 protected from unauthorized disclosure in the
20 interest of the national security;
21 "(ii) is in fact properly classified under
22 the criteria and procedures established by
23 such Executive order; and
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17
1 "(iii) was classified by a person author-
2 ized by statute, Executive order, or regula-
3 tion to make such a classification; and
4 "(C) in the case of information designated as
5 information which (i) was furnished to the United
6 States by a foreign government or international
7 organization, and (ii) was designated by such for-
8 eign government or international organization as
9 requiring protection against unauthorized disclo-
10 sure, that such information was in fact furnished
11 to the United States by a foreign government or
12 international organization and was in fact desig-
13 nated by such foreign government or international
14 organization as requiring protection from unau-
15 thorized disclosure.
16 "PENALTY FOR IMPROPER CLASSIFICATION
17 "SEC. 510. Whoever classifies information in order to
18 conceal incompetence, inefficiency, wrongdoing, or adminis-
19 trative error, to avoid embarrassment to any individual or
20 agency, to restrain competition or independent initiative, or
21 to prevent or delay for any reason the release of information
22 which does not bear directly on the effectiveness of the na-
23 tional defense or the conduct of foreign relations shall be
24 fined not more than $1,000 or imprisoned not more than one
25 year, or both.
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18
1 "DEFINITIONS
2 "SEC. 511. For purposes of this title:
3 "(1) The term `national security information'
4 means information and material that is owned by, pro-
5 duced for or by, or under the control of the United
6 States Government and that requires protection against
7 unauthorized disclosure for reasons of the national se-
8 curity.
9 "(2) The term `national security'. means the na-
10 tional defense or foreign relations of the United States.
11 "(3) The term `information' includes material con-
12 taining information.
13 "(4) The term `agency' means any executive de-
14 partment, military department, Government corpora-
15 tion, Government-controlled, corporation, or other es-
16 tablishment in the executive branch of the Government
17 (including the Executive Office of the President), or
18 any independent regulatory agency.".
19 (b) The table of contents at the beginning of the Nation-
2() al Security Let of 194.7 is amended by adding at the end
21 thereof the following:
"T'ITI;i: V---CLASSIFICNTION AND SAl'EGIIARDING OF NATIONAL SEI:IIRITY
l NFORM ATION
"sec. 501. Purpose.
"Sec. 502. Authority for classification of national security information.
"See. 503. Officials with authority to classify national security information.
"Sec. 504. Standards for classification.
"Sec. 505. ldcntification of classified material.
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19
"Sec. 507. Implementing regulations; standards.
"Sec. 508. Material covered by the Atomic Energy Act of 1954.:
"Sec. 509: Unauthorized disclosure of classified information.
"Sec. 510. Penalty for improper classification.
"Sec. 511. Definitions.".
1 SEc. 2. The amendments made by the first section of
2 this Act shall take effect at the end of the ninety-day period
3 beginning on the date of the enactment of this Act.
0
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 Approved For elease gMWfW.l .~y[Rf 1 ~g9 001200080005-6
OFFICE OF GENERAL COUNSEL
11 August 1980
Honorable James T. McIntyre, Jr.
Director, Office of Management
and Budget
Washington, D. C. 20503
Dear Mr. McIntyre:
The views of the Department of Defense have been requested
on H. R. 1837, 96th Congress, 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 un-
authorized disclosure of such information, to limit matters
that may be classified and impose penalties for unauthorized
classification, to provide for declassification, and for other
purposes." "
Advice is requested as to whether there is objection to the
presentation of the attached report to the Committee.
The Committee has requested that this report be expedited.
Sincerely,
Werner Windus
Director
Legislative Reference Service
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Dear Mr. Chairman:
Reference is made to your request for the views of
the Department of Defense on H.R.'1837, 96th Congress, 1st
Session, 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 un-
authorized disclosure of such information, to limit mat-
ters that may be classified and impose penalties for
unauthorize4t%classification, to provide for declassifi-
cation, and for other purposes."
The bill establishes a security classification
system for national security information, designates
officials who may classify such information, sets
standards for classification and marking of documents,
promotes declassification measures, authorizes imple-
menting regulations, and establishes penalties for
unauthorized disclosures and improper classification.
The bill provides a legislative base for the security
classification system of the Executive Branch which here-
tofore has operated under Presidential orders. Although
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the bill adopts a number of security classification princi-
ples of E.O. 12065, "National Security Information," it
departs significantly from its provisions in a number of
respects. Before the Department of Defense can support
its enactment, substantial revision of-the legislation is
necessary as indicated below.
Section 503 is deficient in that it does not make
"mom
provision for the use of derivative classification au-
thority as'provided by Section 2-1 of E.O. 12065. Without
a provision authorizing information to be classified be-
cause it incorporates classified information from other
documents or~.material, it will be necessary to expand
greatly the number of officials exercising original clas-
sification authority. Also, it makes no provision for
classification guides as provided in Section 2-201 of
E.O. 12065. These guides enable information regarding
each classified system, program, plan or project to be
identified and marked in a systematic and consistent manner.
Section 504(a) fails to include in its definition of
classified information "cryptologic activities, methods,
materials and devices." As the unauthorized disclosure of
such information is a crime under 18 U.S.C. ?798, it should
be included in the coverage of 'the proposed legislation.
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Section 504(a)(2) refers to information furnished by
a foreign government that has been "designated" as requiring
protection. Foreign government information is often fur-
nished in confidence without being physically marked or
designated "classified." To avoid any misinterpretation as
to the intended meaning of "foreign government information",
the following definition should be added to Section 511(5):
"(5) The term 'foreign government -infor-
mation' means information that has been
provided to the United States in confi-
dence by, or produced by the United States
pUsuant to a written joint arrangement
requiring confidentiality with, a foreign
government or international organization
of governments."
This definition would permit Section 504(a)(2) to be re-
vised to read, "foreign government information." It
would also 'Lead to a revision of Section 505(c) as fol-16
lows:
"(c) Foreign government information
shall either retain its original clas-
sification or be assigned a United
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States classification that shall ensure
a degree of protection equivalent to
that required by the entity that fur-
nished the information." .
Comparable changes should also be made in Sections 509(g)
(1)(C) and 509(g)(4)(C) if the section prescribing crim-
inal penalties is retained in the bill.
Section 504(c provides that any official who classifies
information in violation of the section shall be considered
for disciplinary action. There is no objection to such a
provision p1~~.vided that it is limited to wilfull violations.
The word "wilfully" should be added after the word "offi-
cial" on line 22 of p. 7. on the other hand, Section 510
provides for a criminal penalty for virtually the same
offenses. The relationship of the two provisions is un-
clear. In any event, the Department believes that its
system of administrative sanctions is sufficient and that
express statutory penalties for improperly classifying a
document are unnecessary.
Section 505(a) provides that "each item of classified
material" shall be identified by prescribed classification
markings. The marking requirements should be limited to
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documents and to markings at the time of original classi-
fication. Further, the markings should designate the-
original classification authority (not the name of the
official) originating the classification and simply the
date the document is originated. In its revised form,
Section 505(a) would read:
"Sec. 505(a) Each classified document shall
be marked at the time of its original clas-
sification to show on its face:
(1)
one of the three classification designa-
tio,is.specified in Section 502;
(2) the identity of the original classifica-
tion authority;
(3) the office that originated the classifi-
cation;
(4). the date of the document; and
(5) the date or event for declassification
of information that is subject to declas-
sification at a particular time or for
review."
Section 505(b) requires that "each item of classified
material" indicate on its face or by other means those
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portions that are classified and those that are not. "Por-
n marking" should be required on documents, not hardware.
The section should be revised to read:
"(b) Each classified document shall, by mark-
ing or other means, indicate clearly those
portions that are classified, with the
applicable classification designation, and
those portions that are not classified:
The President may waive the requirements
of the preceding sentence for specified
classes of documents or information."
In order to make it clear that classified information
may be expressed in some form other than a document such as
hardware, tape recordings, computer data, or oral communi-
cation, a new Section 505(c) should be added to read as
follows:'
"All other forms of classified information
may be identified in accordance with regu-
lations established pursuant to Section 507."
Section 507(a)(2) should, in turn, be revised to read:
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 7
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Pperson coming in. contact with classified
information' have notice of the need to pro-
tect such information from unauthorized
disclosure."
Section 507(a)(5) would seem. to require accountability
records for "all classified information." Because of the
volume of classified documents, only certain categories of
highly classified information should be subject to a regis-
ter and receipt system. In its revised form, Section 507
(a)(5) would read:
"(5) tappropriate records to assure control or
accountability for all classified information
are established and maintained and that classi-
fied information is adequately protected during
all transmissions of such information, and"
Section 508 provides that the bill shall not apply to
material covered by the Atomic Energy Act. The section
should be amended to read:
"Sec. 508. Nothing in this title shall super-
sede any requirement in the.Atomic Energy Act
of 1954, as amended, or the regulations issued
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thereunder, relating to the handling, protec-
tion, classification, downgrading and declassi-?
fication of 'Restricted Data' or 'Formerly
Restricted Data."
The Atomic Energy Act does not itself prescribe classifi-
cation, downgrading and declassification procedures, only
the implementing regulations.
auld make it a crime to knowingly com-
munica ssified information to persons not authorized
to receive it. The gradations of the crime would depend
upon whethe,g.the unauthorized disclosure was to a foreign
government, whether the unauthorized disclosure was by a
military or civilian employee or a contractor employee, or
whether it was simply passed to an unauthorized person by
one having no civilian, military or contractual relation-
ship with the U.S. Government. The bill prescribes the
defenses to prosecution, the right of the Attorney General
to seek an injunction, and provision requiring-an in
camera inspection by the courts.
While the Department of Defense supports legislation
that would broaden the Government's authority to prosecute
unauthorized disclosure cases,"it recommends that Section
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 9
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509 he dropped from the bill and considered as separate.
legislation.
Section 509 raises a number of issues separate and
apart from the provisions establishing a security classi-
fication system. The following are some of the principal
considerations that should be addressed.
? There is aserious question whether criminal
sanctions should be applied to all unauthorized disclosures,
or whether criminal penalties should be confined to par-
ticular sensitive categories of information. A review of
the Government's prosecutive history suggests that only the
most serious breaches of national security are presented to
a grand jury.
l
? Although Section 509(c) plainly extends to
reporters who knowingly publish classified information,
it also provides that the bill is not intended to violate
Constitutional rights (free press). The resulting confu-
sion as to the scope of the statute needs to be addressed.
0 It is a defense to prosecution if the
classified information has been publicly disclosed.
Such a provision leads to an ever widening body of
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unauthorized disclosures, with each public disclosure
leading to more detailed disclosures, all of which
would go unpunished due to the public nature of the
disclosure.
? There is no provision to resolve
problems associated with the discovery and use of
classified information during the prosecution of the
case. An explanation of those problems, and-possible
legislative solutions, were addressed in the House
Intelligence Committee Hearings on "gray mail legis-
lation", H.R. 4736 and H.R. 4745, on August 7, 1979.
Finally, H.R. 1837 makes no provisions for special
access programs to control access, distribution, and
protection of particularly sensitive information, such
as is provided for in Section 4-201 of E.O. 12065.
Therefore, the following section should be added as a
new Section 504.
"SPECIAL ACCESS PROGRAMS
"Sec. 504. Agency heads authorized to originate
the classification of information as 'Top Secret' pursuant
to Section 503(a)(1) of this title may create special access
programs to control access to and distribution.and safe-
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guarding of particularly sensitive information classified
pursuant to this title or prior Executive orders governing
the classification of information in the interest of national
security. Such programs may be created or continued only by
written direction of such an Agency head, except that for
cryptologic information, such programs may be created or
continued only by the Secretary of Defense and for foreign
intelligence sources and methods, only by the Director of
Central Intelligence."
The Office of Management and Budget advises that, from
the standpoint of the Administration's program, there is no
objection tt~the presentation of this report concerning H.R.
1837 for the consideration of the Committee.
Sincerely,
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 ^ UNCLASSIFIED
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^ INTERNAL ^
114E f1AI1V CONFIDENTIAL
0
SECRET
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
H. R. 131
FROM:
EXTENSION
NO.
C
le ,
lassification Review
DATE
Division, Room 322 Ames
25 February 1981
TO: (Officer designation, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
DDIS
Please note that OLC has. asked
2.
for our comments by COB 27 Februa
DIS
2
FEB 19$1
3.
5.
6.
Chief, LD/OLC 6 D 15
9.
10.
T DDIS mes (27 Feb
981)
P.S. Regarding paragraph 9 of
i 1. Distribution:
memorandum
Orig. PRS - Addressee w
att
(attached), none of the
1 - OIS Subject
F
w/att
other OIS Divisions have
12. 1 - C/ C (
YI
any comments regarding the
proposed H.R. 131.
13.
14.
15.
Approved
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FORM
3-62
USE PREVIOUS
EDITIONS
610
F0 SECRET ^ CONFIDENTIAL ^ INTERNAL NAL D UNCLASSIFIED
S+AT