1. The first agenda item of the PRM/NSC–11 Subcommittee that is operating
under the direction of the Attorney General2 is to consider proposed legislation
relating to the unauthorized disclosure of national security
information.3
2. The main features of this bill as we see them include:
A. Language which restricts the criminal act to the disclosure of
classified information as defined by Executive Order 116524 and implementing directives
promulgated pursuant thereto—(a) and (b)(1).
B. Language which requires that the disclosure be to an unauthorized
recipient yet permits unrestricted communication between identified
classes of individuals authorized to possess, control or receive
classified information—(a) and (b)(2).
C. A provision making it a defense that the information was previously
placed in the public domain, either officially or
unofficially—(c)(3);
D. A provision which eliminates as a criminal act disclosure of
classified information to a member of Congress or to a court of the
United States—(c)(2);
E. A provision which conditions prosecution on the availability of
administrative review of the classification either internally or under
the Administrative Procedures Act5—(c)(1);
F. A provision which provides that in certain cases (the failure of the
individual to seek review of the classification) the lawfulness of the
classification shall not be an element of the offense—(e).
3. Several of these provisions are similar, though broader, than
provisions which were incorporated in the Administration’s sources and
methods legislation introduced in H.R. 12006.6 The items mentioned
in paragraphs A, B and F are new.
4. The Agency is required to submit its comments at the next Subcommittee
meeting scheduled at 2 p.m. on 18 March 1977. I recognize that it will
be impossible for you to adequately examine this legislation in the time
provided. Accordingly, I will not represent my comments to be a
coordinated-agency position on this matter. However, I would appreciate
the communication of any first impressions you may have regarding the
Department of Justice bill or general comments relating to criminal
sanctions for the unauthorized disclosure of classified information.
These comments may be telephonically communicated to [less than 1 line not declassified]
Attachment
Memorandum From the General Counsel of the Central
Intelligence Agency (Lapham) to the Members of a PRM/NSC–11
Subcommittee8
Washington, March 18, 1977
SUBJECT
-
CIA Comments on Draft
Unauthorized Disclosure Legislation and Related Matters
1. This memorandum pertains to the first item on the agenda
distributed at last week’s organizational meeting of the PRM/NSC–11
subcommittee chaired by Mr. Harmon. That agenda called for comments
by 16 March on a draft criminal statute,9 copies of which were also
distributed at the meeting, relating to the unauthorized disclosure
of national security information, and on other possible civil or
criminal approaches to the overall problem addressed by the draft
statute.
The Context
2. The basic existing statute dealing with unauthorized disclosure of
national security information is the Espionage Act, enacted in 1917
and largely unchanged over the last 60 years, and particularly two
sections of that Act, 18 U.S.C. §§793 and 794.10 These provisions
are vague and clumsy in their wording. For example, they describe
the category of information to which they relate as “information
relating to the national defense,” which quite conceivably could
include everything from the most vital national secrets to the daily
stock market reports. Some of these uncertainties have been sorted
out by judicial interpretation, so that it is now settled that at a
minimum the provisions apply, and are constitutional as applied, to
those activities commonly
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associated with “spying,” e.g., selling secrets to the Soviets. It
remains unclear, however, whether as a matter of law these
provisions could be applied to other very different forms of
unauthorized disclosure, such as the publication of books or leaks
to the press. It is extremely doubtful that the provisions were
intended to have application in such situations, and as a matter of
historical fact, leaving aside the unsuccessful Ellsberg prosecution
and possibly one or two other cases, they never have been so
applied.11 The draft statute would pick up where the
Espionage Act appears for all practical purposes to leave off and
would extend criminal sanctions to acts of disclosure in situations
not characterized by dealings with foreign agents or powers.
3. In other than espionage situations, there obviously are critically
important public policies favoring the free flow of information and
ideas necessary to informed public discussion and debate, and at the
same time there are well-known or at least widely suspected
bureaucratic tendencies to overclassify, undoubtedly fed by the
slipperiness of the classification standards, and occasional efforts
to conceal embarrassing mistakes, or something worse, behind bogus
national security claims, all of which are factors that produce
hostility and skepticism when it comes to proposed secrecy
legislation. Beyond these barriers lie the fundamental
constitutional precepts with a direct bearing on legislation in this
field, namely, the First Amendment prohibition against the enactment
of any law abridging freedom of speech or press, the mandate, rooted
in the Fifth Amendment, that legislated norms of conduct be
expressed in terms that are reasonably certain and definite,
especially where criminal penalties are attached, and the procedural
guarantees surrounding the judicial process, not to mention the
rules of discovery.
The Key Elements
4. In view of the opposing forces and values, it seems to us that any
proposed legislation must be as finely drawn as possible if it is to
have any decent chance of survival in both the Congress and the
courts.
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Further, it seems
to us that any proposed bill must have the following essential
features:
- (a) A clear definition of the class of persons that would be
exposed to liability.
- (b) A clear definition of the type of information that would
be covered—that is, as to which communication would be
restricted.
- (c) A clear definition of the kind of communications that
would be restricted—that is, the circumstances in which the
disclosures of restricted information would constitute an
unlawful act.
- (d) A provision establishing a mental standard of
culpability—that is, the intent element of the offense.
- (e) Provisions creating a procedure for prompt and independent
review, upon request by a person subject to the law’s
restraints, of official determinations that particular
information requires protection against disclosure.
- (f) Provisions that eliminate or at least minimize the need to
publicly disclose sensitive information, over and above the
information compromised by the unauthorized disclosure, in order
to establish the commission of an offense.
- (g) Sanctions effective for the purpose of deterring the
conduct declared to be unlawful.
The Draft Statute
5. In form, the draft statute would amend Chapter 93 of Title 18 of
the United States Code by adding a new section 1924, entitled
“Unauthorized Disclosure of Classified Information.” Chapter 93
contains an assortment of criminal provisions relating to the
conduct of public officers and employees, and since the draft
statute is in keeping with that theme, we think its placement in
Chapter 93 would be appropriate.
6. Generally speaking, as we understand the basic scheme, the draft
statute would make it an offense for any member of a class
consisting of all those persons authorized to possess or control
classified information to communicate such information to any person
not a member of that class. We have several reservations about that
basic scheme, and we have organized our comments in the order of the
considerations that we deem to be of key significance, as outlined
in paragraph 4 above.
7. Subsections (a) and (b)(2) must be read together to determine the
coverage of the bill, as to persons. Subsection (a) provides:
(a) Whoever, being or having been in authorized possession or
control of classified information or material, or being or having
been an officer or employee of the United States, a member of the
Armed Forces of the United States, a contractor of the United States
Government, an employee of such a contractor, or an employee of
Congress, and in the course of that relationship acquires knowledge
of classified information or material, knowingly communicates such
information or material to a person not authorized to receive it
shall be fined not more than $10,000 or imprisoned not more than
five years.
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Under this language, the affected class consists of specifically
enumerated categories of persons (members of the Armed Forces,
etc.), to the extent they acquire knowledge of classified
information in the course of government employment or employment by
a government contractor, plus anyone else formerly or presently “in
authorized possession or control of classified information or
material.” The latter catchall category is explained by subsection
(b)(2), which provides:
(b)(2) A person is deemed to be authorized to possess, control,
or receive classified information or material, (A) if he is an
officer or employee of the United States, a member of the Armed
Forces of the United States, a contractor of the United States
Government or an employee of such contractor, with a security
clearance of the same characterization as the classified information
or material, (B) if he is a Member of Congress, an employee of
Congress, or an officer or employee of the Judicial branch of the
United States Government, or (C) if he has been authorized in
writing to possess, control, or receive classified information by an
officer of the United States appointed by the President.
8. As we see it, subsections (a) and (b)(2) are redundant in some
respects and inconsistent in others. So, for example, looking just
to subsection (a), one would conclude that employees of Congress,
but not members of Congress, are part of the affected class.
However, looking to subsection (b)(2), as one must in order to find
the meaning of the phrase “[w]hoever, being or having been in
authorized possession or control of classified information or
material,” as that phrase is used in subsection (a), the conclusion
to be drawn is that the affected class includes members as well as
employees of Congress. The confusion comes about because subsection
(b)(2) introduces the concept of a class of authorized recipients of
classified information, without however making clear the function of
that concept, and the net result is that the bill lacks a plain and
definite statement indicating who is, and who is not, exposed to
liability.
9. The preferable approach in our judgment would be to devote a
single subsection to a delineation of the affected class, rather
than squeezing the definition into multi-purpose subsections such as
(a) and (b)(2). As to the proper dimensions of that class, we think
that if anything the net may have been cast too widely in the draft
statute and that consideration should be given to narrower
definitions of the class. In addition, we note that if the affected
class is defined to include all former government employees who may
have had access to classified information, it will necessarily
include at least some newspapermen, and therefore, assuming that
publication is one of the forms of communication to which the bill
applies, a direct albeit limited control will be placed on what
information a newspaper can publish without a threat of
prosecution.
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(b)12 The type of
information that would be restricted
10. Under subsection (a) the restraint on communication would extend
to all classified information, which is defined in subsection (b)(1)
to mean:
. . . any information, (A) regardless of its origin, that is
marked or designated pursuant to the provisions of a statute or an
executive order, or a regulation or rule issued pursuant thereto, as
information requiring protection against unauthorized disclosure for
reasons of national security, or (B) that was furnished to the
United States by a foreign government or international organization
and was designated by such foreign government or international
organization as requiring protection against unauthorized
disclosure.
The essential effect of this language is to incorporate by reference
Executive Order 11652, and the implementing National Security
Council directive of 17 May 1972, governing the procedural and
substantive aspects of classification, declassification, and
downgrading of national security information. We doubt the wisdom of
this approach. In the first place, E.O. 11652 and the implementing NSC directive are subject to amendment
at the stroke of the President’s pen, so that the adoption of
subsection (b)(1) would leave the President free to fix and revise
the standards of criminal liability as he might see fit, a
prerogative that Congress would almost certainly not want to endorse
even assuming that such a sweeping delegation of power would be
constitutionally valid. In the second place, the importation into
the bill of the executive classification system, in its entirety,
would open up the possibility that genuinely sensitive information
might go unprotected due to some procedural irregularity in the
manner of its classification (classifying official not identified on
the face of a document, etc.). And in the third place, it seems to
us that the universe of classified information is quite simply too
large, and encompasses such a great variety of material of so many
different degrees of importance to the national security, as to make
impractical the idea of extending criminal sanctions to the
unauthorized disclosure of all such information.
11. Here again we would favor a narrower and more discriminating
approach along the lines of the sources and methods legislation that
CIA has previously supported
and that was introduced as H.R. 12006 in the last Congress. We also
believe that the standards against which information is to be
measured to determine whether it falls into the restricted category
should be spelled out in the bill rather than identified by
reference to E.O. 11652 or any other
existing executive branch directives. Additionally, under subsection
(b)(1) as drafted, it is a point of special interest to CIA to know whether the Director’s
statutory duty to prevent the unauthorized disclosure of
intelligence sources
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and
methods, 50 U.S.C. §403(d)(3), would authorize him, independently of
E.O. 11652, to designate certain
information as restricted.
(c) The kind of communications that would be
restricted
12. As already noted, the conduct declared unlawful by subsection (a)
is the communication of restricted information by any person
authorized to possess it to any person not authorized to receive it.
Assuming the intent element of the offense is clarified, this
strikes us as workable, although we believe that “communicates”
should be a defined term and that the definition should include the
acts of furnishing, transmitting, or otherwise making available
[restricted information to an unauthorized person], as well as the
act of publication.
(d) The intent element
13. Under subsection (a) an offense is committed if a person acts
“knowingly.” However, it is unclear with reference to what fact or
facts a person must have knowledge. Must he know that he is a member
of the affected class, or that he is dealing with an unauthorized
recipient, or that the character of the information is such as to
bring it within the law’s definition of restricted data, or some
combination or all of these facts. That matter requires
clarification. Similarly, since it presumably is not the intention
to make punishable an inadvertent act (as for example a
communication with a person reasonably believed to be an authorized
recipient), willfulness should probably be added as an element of
the offense. In the same vein, consideration should be given to some
sort of a general exclusion for communications made in the course of
the performance of official duties, this to take care of the not
uncommon situations in which high-ranking officials disclose
classified information during news briefings, etc.
(e) Review procedures
14. Subsection (c)(1) provides:
(c) It shall not be an offense under this section:
(1) If at the time of the disclosure there did not exist a review
through which the defendant could obtain review of the
lawfulness of the classification of the information or material.
Any failure to declassify information or material pursuant to
such review shall be agency action adversely affecting the
individual requesting the declassification.
As we understand this provision, it would require a showing,
presumably to a judge as a preliminary pre-trial matter rather than
to a jury as an element of the government’s proof at trial, that
there existed at the time of the alleged unauthorized disclosure an
administrative procedure through which the defendant could have
sought and obtained review of the information involved to determine
whether it
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could be
classified. It is our further understanding that this provision
would create a judicial remedy under the Administrative Procedure
Act, 5 U.S.C. §§701, et seq., in the event a
review requested and conducted pursuant to the required
administrative procedure resulted in a refusal to declassify.
15. Subsection (c)(1) is obviously designed to enhance the appeal and
acceptability of the draft statute, by providing safeguards against
arbitrary classification decisions by executive branch officials.
More than that, this subsection is woven into the fabric of the
statute and, in conjunction with subsection (e), discussed below, it
would play a major role in shaping the offense of unauthorized
disclosure by eliminating, in circumstances where the defendant did
not avail himself of the review procedure, any requirement of proof
that the classification of the information was valid and
justified.
16. In principle we have no objection to a two-tier system of
administrative and judicial review. Indeed such a system exists
today in connection with FOIA
requests, more particularly those requests as to which the Agency
considers or claims the exemption set forth in 5 U.S.C. §552(b)(1),
which provides that the FOIA does
not apply to matters that are “(A) specifically authorized under
criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order.” And in
addition to the internal Agency and external judicial reviews that
are available to an FOIA
requester, in cases where the documents subject to the request are
classified, there is an existing avenue of appeal to the Interagency
Classification Review Committee, an entity established pursuant to
Section 7 of E.O. 11652 to monitor
the implementation of that Order.
17. While we are comfortable with the concept embodied in subsection
(c)(1), we would like to know more about the characteristics of the
administrative review procedure that it would require. For that
matter, we think the required procedures should be described in some
detail in the bill, both in order to enable agencies to determine
whether their existing procedures satisfy the requirement and in
order to head off potential arguments by defendants that the
opportunity for review afforded them was not the sort of opportunity
contemplated by the bill. There is also a point relating to the
comparability of the standards of judicial review available under
the APA on the one hand and the
FOIA on the other that needs
to be discussed.
(f) Provisions limiting the proof necessary to
establish the commission of an offense
18. Subsection (e) provides:
(e) In any prosecution under this section where the defendant did
not seek review of the lawfulness of the classification of the
information
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or
material, it shall not be an element of the offense that the
information or material was lawfully classified at the time of
the disclosure.
This provision rules out the validity of classification as an element
of the offense, in cases where the defendant did not pursue the
administrative and judicial remedies mandated by subsection (c)(1).
It is not clear whether, although the government need not establish
the validity of classification in these circumstances, an accused
could still defend on the grounds that the information in question
was not properly classified. In our opinion that issue should be
ruled out as a defense as well as an affirmative part of the
government’s case. Apart from that consideration, the provision
seems to us to represent a promising approach to the problems of
proof often associated with prosecutions involving the unauthorized
disclosure of sensitive information.
(g) Sanctions
19. Subsection (a) provides that an offense would be punishable by a
fine of not more than $10,000 or imprisonment for not more than five
years. These penalties are adequate and sufficiently flexible in our
view, assuming the appropriateness of criminal sanctions.
(h) Other
20. Subsection (c)(3) provides:
(c) It shall not be an offense under this section:
(3) To disclose any information already in the public domain, but
to disclose additional details or information confirming
previously unconfirmed information, which details or information
remain classified, continue to be an offense under this
section.
We regard this provision as undesirable. Whether information is in
some sense in the public domain, and how it came to be in the public
domain (i.e., by official statements or otherwise), are questions
that clearly have a bearing on the continuing validity of the
classification of that information, and that being true those
questions should certainly be open for consideration in the review
process to which subsection (c)(1) refers. But those questions have
no evident relevance at a trial in which the validity of
classification is foreclosed as an issue, as is contemplated by
subsection (e).
