34. Memorandum From the General Counsel of the Central Intelligence Agency (Lapham)1
- Deputy Director of Intelligence
- Deputy Director of Operations
- Deputy Director of Administration
- Deputy Director of Science and Technology
- Office of Legislative Counsel
- Director of Security
- George W. Clarke, Asst. to DDCI
- PRM/NSC–11 Subcommittee
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[Page 125]
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]
- Source: Central Intelligence Agency, Office of the Director of Central Intelligence, Job 97M00248R: Policy Files, Office Level and Above, Box 1, Folder 12: PRM 11—Intelligence Structure and Mission (Folder 1). No classification marking.↩
- This subcommittee was charged with Task 1 of PRM/NSC–11: to review the adequacy of existing laws and directives. See Document 29.↩
- See footnote 11 below.↩
- E.O. 11652 established a new system for classification and declassification of government documents relating to national security.↩
- P.L. 79–404.↩
- H.R. 12006 (94th Congress) proposed to amend the National Security Act of 1947 to make the Director of Central Intelligence responsible for protecting intelligence sources and methods. The bill was referred to the House Committee on Armed Services in February 1976, where it died.↩
- Printed from a copy that bears this typed signature.↩
- No classification marking. Brackets are in the original.↩
- Attached but not printed.↩
- There are a number of other provisions, in the Espionage Act and other statutes, but none are of such general application. So, for example, the statutory inventory would include the so-called photographic statutes (18 U.S.C. §§795 and 797 and 50 U.S.C. §781, outlawing sketches or photographs of certain military installations or equipment), 18 U.S.C. §798 (which covers cryptographic information), 18 U.S.C. §952 (which relates to disclosure of foreign diplomatic codes), the so-called restricted data statute, 42 U.S.C. §§2271–81 (applicable to information concerning atomic energy and weapons), and 50 U.S.C. §783 (making criminal the disclosure by Government employees of classified information to foreign agents). Other statutes become applicable only in wartime. All the statutes in this group have limited utility in that they are directed to rather specialized circumstances that do not often occur. [Footnote is in the original.]↩
- Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted. Apart from a natural reluctance to proceed in such situations, stemming from the absence of any clearly applicable statute, the principal stumbling block standing in the way of investigations is the Department of Justice practice of insisting on an advance commitment that the compromised information, which as disclosed is very apt to be fragmentary and only partially accurate, will be declassified for purposes of prosecution. Essentially a commitment to declassify is a commitment to officially confirm in accurate terms, and probably to augment, the information involved, and thus the more sensitive the information, the more painful the declassification decision required to be made. The upshot is that the worst and most damaging leaks are the ones least likely to be investigated. [Footnote is in the original.]↩
- There is no section labled (a) in the original.↩
- Printed from a copy that bears this typed signature.↩