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PDF icon FIFTY YEARS UNDER LAW[16059810].pdf10.77 MB
Approved for Release: 2022/04/28 C06863740 Fifty Years Under Law 1947- 1997 September 1997 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 Fifty Years Under Law 1947-1997 Office of General Counsel and Center for the Study of Intelligence September 1997 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 Acknowledgments Thanks go to Brian Late11, Director of the Center for the Study of Intelligence; Scott Koch of the History Staff; Paul Arnold, who serves as Editor in Chief of Studies in Intelligence; of the Office of General Counsel; the Office of Support Services Multi-Media Production Group; Emma Sullivan and the Historical Intelligence Collection Staff; and all of the Agency's outstanding printing and design professionals who worked on this anthology, for their superior efforts in putting this publication together in a very short period of time. Approved for Release: 2022/04/28 C06863740 V Approved for Release: 2022/04/28 C06863740 Contents Page Introduction iii "Executive Privilege in the Field of Intelligence," Lawrence Houston 1 (Fall 1958, Volume 2/4) "Impunity of Agents in International Law," M.C. Miskovsky 15 (Spring 1961: Volume 5/2) "The Protection of Intelligence Data," John D. Morrison, Jr. 29 (Spring 1967, Volume 11/2) "CIA, The Courts and Executive Privilege," Lawrence Houston 39 (Winter 1973, Volume 17/4) "The Marchetti Case. New Case Law," John S. Warner 43 . (Spring 1977, Volume 21/1) "The CIA and the Law. The Evolving Role of the CIA's General Counsel," 55 Daniel B. Silver (Summer 1981, Volume 25/2) "National Security and the First Amendment," John S. Warner 61 ' (Spring 1983, Volume 27/1) "Intelligence Gathering and the Law," Benjamin R. Civiletti 91 (Summer 1983, Volume 27/2) "Commentary on 'Intelligence Gathering and the Law' "by John S. Warner 115 (Summer 1983, Volume 27/2) "Disclosure Problems in Espionage Prosecutions," George W. Clarke 119 (Spring 1984, Volume 28/1) "The Supreme Court and the 'Intelligence Source' "by Louis J. Dube and 131 Launie M. Ziebell (Winter 1986, Volume 30/4) . "Lawrence R. Houston � A Biography," Gary M. Breneman 149 (Spnng 1986, Volume 30/1) "Presidential War Powers," Fred F. Manget (Summer 1987, Volume 31/2) 169 "Intelligence and the Rise of Judicial Intervention," Fred F. Manget 183 (Spring 1995, Volume 39/1) "Covert Action, Loss of Life, and the Prohibition on Assassination, 191 1976-96," Jonathan M. Fredman (1996, Volume 40/2) i Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 Fifty Years Under Law Introduction Non sub homine sed sub deo et lege . ("It is not by men but by God and the law [that we are governed]") �Inscription at Harvard Law School The Central Intelligence Agency is a creature of law. Fifty years ago, it was created by an act of Congress. Two years later, Congress passed a second act setting out the Agency's special authorities and administrative rules. Today, laws affect every Agency activity. The Agency operates under the Constitution, especially the Fourth Amendment. It spends money according to federal appropriations laws. It derives authorization for expenditures from yearly intelligence authorization acts. It collects intelligence under extensive legal rules of engagement. The identities of its covert employees are specifically protected by federal criminal statutes. It manages informa= tion subject to federal information and privacy laws. It handles waste man- agement under environmental regulations. The retirement of its employees, the protection of its secrets, the limits of its operations, even its relation- ships with other federal agencies, are all governed by laws. In the beginning, there were fewer laws and thus fewer lawyers. The Office of General Counsel has grown in numbers and presence throughout the Agency since Larry Houston began his tenure as the first General Counsel. Growth came with the greater complexity and number of laws that applied to the Agency and increased Congressional oversight that began in the mid- 1970s. The General Counsel has become not only a privy counselor to the Director of Central Intelligence in his intelligence community and CIA roles, but also the manager of a large law firm of more than 100 personnel which delivers legal services to a multibillion-dollar organization. This year, for the first time, the General Counsel Will be appointed by the President and confirmed by the Senate. At present, the Office of General Counsel has attorneys in four mainline (b)(3) divisions�Litigation, Administrative Law, Intelligence Support, and Logistics and Procurement Divisions. There is also an Operations Division composed of attorneys assigned on rotation to operating components, such as the area divisions of the Directorate of Operations and the Counterterror- ist, Counterintelligence, and Crime and Narcotics Centers. The Office of General Counsel also has attorneys serving in the front offices of the iii Approved for Release: 2022/04/28 C06863740 J Approved for Release: 2022/04/28 C06863740 ( Directorates of Intelligence and Science and Technology, the National Reconnaissance Office, the Office of Personnel Security, the Community Management Staff, and the Arms Control Intelligence Staff. In addition, the Legislation Group in the Office of Congressional Affairs is staffed by attor- neys who perform a legislative counsel function for the Agency. Further, a Law Enforcement Coordination Office was established recently within the Office of General Counsel to handle legal issues related to the Agency's support of law enforcement agencies. The interaction of the Agency with American jurisprudence has created a body of law that has become coherent enough to be taught as a subject in law schools as diverse as Georgetown, Yale, Virginia, Duke, and Pennsyl- vania. Intelligence and national security law is now a well-established aca- demic specialty that has resulted in at least two textbooks,' several centers, and an ongoing exchange of attorneys from the Office of General Counsel who teach adjunct courses in the subject at local law,schools. That interest in the law and its relation to intelligence led a number of authors to write articles, which were published in Studies in Intelligence over the last 40 years and which are now gathered in this collection. Studies in Intelligence is the in-house journal of articles on the theoretical, doctri- nal, operational, and historical aspects of intelligence that is now published by the Center for the Study of Intelligence at CIA. The articles republished in this collection range from one written by the first General Counsel in 1958 about executive privilege to one published last year on the assassina- tion prohibition in Executive Order 12333�both topics of continued and current legal interest. Former General Counsel John Warner contributed an article on national security and the First Amendment. Other topics include . presidential war powers, espionage prosecutions, and a biography of the first General Counsel. Former Attorney General Benjamin Civiletti's article on intelligence gathering and the law is included, as are articles on the evolving role of the General Counsel and the oversight of some intelligence activities by the federal judiciary. In all of these papers, there is a common theme, sometimes unspoken but always clear: CIA was created by law, authorized to act by law, and bounded by law. Lawyers may disagree on what the law is (and they fre- quently do), but there is no disagreement that CIA must conduct all of its activities according to law. Democracies are uncomfortable with secret intelligence activities, espe- cially in the American model with a free press and open debate of all issues. Sir William Stephenson (the man called "Intrepid") said, "We are rightly iv Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 repelled by secrecy; it is a potential threat to democratic principle and free government... .So there is the conundrum: How can we wield the weapons of secrecy without damage to ourselves: How can we preserve secrecy without endangering constitutional law and individual guarantees of freedom?". The rule of law reconciles this clash of seeming opposites and reaffirms the basic values and principles of American government, even when it must operate in the shadows and on the night watch. How intelligence law has developed in response to the challenging and dangerous post-World War II conditions is described in these articles by lawyers who actually helped make it. It is a highly interesting story and a fitting commemoration of CIA's 50 years of operation under the rule of law. Michael J. ()Neil .Acting General Counsel ... V Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. "Executive Privilege in the Field of Intelligence," Lawrence Houston (Fall 1958, Volume 2/4) A review of legal precedents for protecting sensitive informa- tion from disclosure in the courts and Congress, with par- ticular reference to Central In- telligence privileges. EXECUTIVE PRIVILEGE IN 'rub FIELD OF INTELLIGENCE Lawrence R. Houston Recent agitation in congressional and newspaper circles agaiust "secrecy in government" has focused attention on in- formation security measures in the Executive Branch. The courts, too, have declared in recent months that information used by the government in preparing criminal prosecutions and even some administrative proceedings must be divulged, at least in part, as "one of the fundamentals of fair play." In this atmosphere, the intelligence officer may reflect on the risk he runs of being caught between the upper and nether mill- stones of congressional or ,court demands on the one hand and the intelligence organization's requirement for secrecy on the other. Actually, the problem of demands for the disclosure of infor- mation which the government considers confidential is not a new one, as can be seen from the history of the Executive Branch's struggles to withhold information from the courts and Congress. The Executive has based itself in these struggles on the doctrine of the separation of powers among the three branches of government, which holds that no one of the branches shall encroach upon the others. The Separation of Powers Demands for the disclosure of information'held by the Execu- tive have been made by the courts and by the Congress since the early days of the republic. On the other hand, the very First Congress recognized, more than a year prior to the, ratifi- Communist Party v Subversive Activities Control Board; 'U.S. Court of Appeals, District of Columbia Circuit, decided 9 January 1958. Al 1 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence cation of the Bill of Rights, that some of the information held by the Executive ought not to be divulged. An act passed on 1 July 1790 concerning "the means of intercourse between the United States and foreign nations" provided for the settlement of certain expenditures which in the judgment of the President should not be made public.2 During his first term of office President Washington, anxious to maintain close relations with Congress, on several occasions passed information to the Con- gress with the warning that it not be publicized. In a special message dated 12 January 1790, for example, he wrote: I conceive that an unreserved but a confidential communica- tion of all the papers relative to the recent negotiations with some of the Southern Tribes of Indians is indispensibly requisite for the information of Congress. I am persuaded that they will effectually prevent either transcripts or publications of all such circumstances as might be injurious to the public inter- ests.' . Two years later, in March 1792, a House resolution empow- ered a committee "to call for such persons, papers, and records as may be necessary to assist their inquiries" into Executive Branch actions with respect to a military expedition under Major General St. Clair. The president did not question the authority of the House, but wished to be careful in the matter because of the precedent it might set. He discussed the prob- lem with his cabinet, and they came to the conclusion: First, that the House was an inquest and therefore might institute inquiries. Second, that it might call for papers gen- erally. Third, that the Executive ought to communicate such papers as the public good would permit and ought to refuse those the clisrlos-are of which would injure the public: Conse- quently were to exercise a discretion. Fourth, that neither the committee nor the House had a right to call on the Head of a Department, who and whose papers were under the Presi- dent alone: but that the committee should instruct their chair- man to move the House to address the President.' By 1794 President Washington, then in his second term, began to show less liberality ,in divulging information to Con- gress, for on 26 February of that year he sent a message to the Senate stating that "after an examination of [certain corre- ' Richardson, Messages and Papers of the Presidents, 2283. 3 1 id. 63. 'Writings of Thomas Jefferson, 303405. 62 2 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and intelligence spondence] I directed copies and translations to be made except in those particulars which, in my judgment, for public consid- eration, ought not be communicated." 5 Two years later, on 30 March 1796, he transmitted to the House his famous refusal to divulge certain information requested by the House in connec- tion with the Jay Treaty. In this treaty, many people be- lieved, the young republic did not get enough concessions from the British, and the Pedenlists who supported it had become the target of popular resentment. Washington replied as fol- lows to a House resolution: I trust that no part of my conduct has ever indicated a 4is- position to withhold any information which the Constitution has enjoined upon the President as a duty to give, or which could be required of him by either House of Congress as a right. . . The matter of foreign negotiations . requires cau- tion, and their success must often depend on secrecy; and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic. Pointing out that he had been a member of the general con- vention and therefore "knew the principles on which the Con- stitution was formed," Washington concluded that since "it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different De- partments should be preserved, a just regard to the Constitu- tion and to the duty of my office under all circumstances of this case forbids the compliance with your request." 6 Thus during Washington's administration the doctrine of the separation of powers came to provide the basis for execu- tive privilege in withholding information. This doctrine, not specifically enunciated in the Constitution, emerged from de- cisions taken on specific political situations which arose during the first years of the republic, as the same men who wrote the Constitution interpreted it in such ways as they thought pro- moted its intended ends. In this way it was established that the Executive Branch of the Government has within its control certain types of executive documents which the Legislature cannot dislodge no matter how great the demand. The Execu- tive Branch can be asked for documents, but should exercise 5 1 Richardson, op. cit. supra, note 2, 144. Italics supplied. 4 1 id. 186. 63 3 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence discretion as to whether their rele_ase would serve a public good or be contrary to the public interest. The Judiciary also recognized, as early as 1803, the independ- ence of the Executive Branch and its ability to control its own affairs. Chief Justice Marshall wrote: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the Executive, or executive officers, perform duties in which they have a discretion. Questions in this nature political, or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court." 7 It is notable that this executive privilege was applied in the congressional cases cited above to the President's responsi)Dility for foreign affairs. Under the Continental Congress, the De- partment of Foreign Affairs had been almost completely subject to congressional direction. Every member of the Congress was entitled to see all records of the Department, including secret matters. But after the Constitution was written, and pur- suant to its grand design based on the separation of powers, Congress in 1789 subordinated the Department of Foreign Affairs to the Executive Branch and provided that its Secretary should have custody and charge of all records and papers in the Department. In 1816 the Senate Foreign Relations Committee declared that the "President is the Constitutional representa- tive of the United States with regard to foreign matters" and that the nature of transactions with foreign nations "requires caution and success frequently depends on secrecy and dis- patch." Precedent in Intelligence Cases , Intelligence activities, intimately linked with foreign policy, played their part in the evolution of the Executive Branch's position on disclosure of information. In 1801 Congress in- terested itself in the expenditures of various Executive Depart- ments and instituted an inquiry "as to the unauthorized dis- bursement of public funds." In reply to charges that the War Department expended funds for secret service not authorized by law, Oliver Wolcott (Comptroller of the United States 1791-1795; Secretary of the Treasury 1795-1800) gave a clear exposition of the accounting requirements of intelligence which is applicable today: 7 Marbury v Madison, 1 Cranch 137 (1803). 64 4 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege ,and Intelligence I never doubted for one instant that such expenditures were lawful, and that the principle should now be questioned has excited a degree of astonishment in my mind at least equal to the "surpnse" of the Committee. Is it then seriously asserted that in the War and Navy De- partments � establishments which from their nature presup- pose an actual or probable state of war, which are designed to protect our country against enemies �that the precise object of every expenditure must be published? Upon what principle are our Generals and Commanders to be deprived of powers which are sanctioned by universal usage and expressly rec- ognized as lawful by all writers of the Law of Nations? If one of our Naval Commanders now in the Mediterranean should expend a few hundred dollars for intelligence respecting ;the force of his enemy or the measures meditated by him, ought the present Administration to disnilow the charge, or publish the source from which the intelligence was derived? Is it not equivalent to a publication to leave in a public office of ac- counts a document explaining all circumstances relating to a payment? Ought the truth be concealed by allowing fictitious accounts? Could a more effectual mode of preventing abuses be devised than to establish it as a rule that all confidential expenditures should be ascertained to the satisfaction of the Chief Magistrate of our country, that his express sanction should be obtained, and that the amount of all such expendi- tures should be referred to a distinct account in the Public Records? 8 The statute referred to in the debates was an Act of Con- gress passed on 9 February 1793 which gave the President au- thority, if the public interest required, to account for money drawn from the Treasury for the purpose of "intercourse with foreign nations" simply by his own certification or that of the Secretary of State. Actually, this statute reaffirmed the similar legislation of 1790 providing for the settlement of certain ex- penditures which, in the judgment of the President, ought not be made public.9 The substance of these Acts was revived and continued in later legislation, and President Polk utilized it in 1846 in refusing to accede to a House resolution requesting an accounting of Daniel Webster's expenses as Secretary of State in the previous administration. 8 Control of Federal Expenditures, A Documentary History 1775-1894, ' Institute for Government Record of the Brookings Institution, pp. 329-330. Punctuation modernized. 9 Richardson, supra, note 2. 65 5 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence In 1842 Webster had negotiated an agreement with the Brit- ish representative, Lord Ashburton, on the long-disputed boundary of Maine. To make the treaty more palatable to the public and enhance its chances of ratification in the Senate, Webster had spent money out of "secret service funds" to carry on favorable propaganda in the religious press of Maine. Sena- tor Benton termed this practice a "shame and an injury . . . a solemn bamboozlement." A Congressional investigation fol- lowed, during the course of which the request was levied upon President Polk. President Polk based his refusal to comply on the statutes which gave the President discretionary authority to withhold details on how money was spent. He supported his predeces- sor's determination that the expenditure should not be made public, asserting that if not "a matter of strict duty, it would certainly be a safe general rule that this should not be done." In his message to Congress he acknowledged the "strong and correct public feeling throughout the country against secrecy of any kind in the administration of the Government" but argued that "emergencies may arise in which it becomes absolutely necessary for the public safety or public good to make expendi- tures the very object of which would be defeated by publicity." He pointed out as an example that in time of war or impending danger it may be necessary to "employ individuals for the pur- pose of obtaining information or rendering other important services who could never be prevailed upon to act if they had the least apprehension that their names or their agency would in any contingency be divulged." 10 The non-disclosure of information relating to intelligence, was tested rather vigorously in several instances during the Civil War, and these tests established a strong precedent in favor of the inviolability of intelligence activities. Brigadier General G. M. Dodge, who conducted a number of intelligence activities in the West with considerable results, became the ob- ject of relentless criticism for his financing methods. He refused obdurately to break the confidence of his agents by revealing names and amounts paid, and when he was denied the funds necessary for these activities, he had to raise the money for his agents by confiscating cotton crops in the South '�5 Richardson, op. cit. supra, note 2, 2281. 66 6 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence and selling them at public auction. Three years after the end of the War, when War Department auditors discovered that General Dodge had paid spies for Grant's and Sherman's armies, they peremptorily ordered him to make an accounting of the exact sums. Receipts and vouchers signed by spies who lived in the South were obviously difficult to obtain, and fur- thermore the names of the agents, for their own security, could not be disclosed. As a result, when the War Department closed Dodge's secret service accounts 21 years after the war, they were apparently still without a receipt for every dollar spent." A leading legal decision governing the privilege of the Ex- ecutive Branch to withhold intelligence also had its genesis in the Civil War. In July 1861 William A. Loyd entered into a contract with President Lincoln under which he proceeded "within the rebel lines and remained during the entire war." He collected intelligence information all during the war and transmitted it directly to the President. At the end of the war he was reimbursed his expenses, but did not get any of the $200-per-month salary for which the contract called. After Loyd's death a suit was brought by his administrator against the Government to collect the salary Lincoln had contracted to pay him. The case was finally decided by the Supreme Court in 1876, and the claim was denied. Mr Justice Field set forth in his opinion a position on secrecy in intelligence matters which is still being followed today. He wrote that Loyd was engaged in secret service, "the information sought was to be obtained clandestinely," and "the employment and the service were to be equally concealed." The Government and the employee "must have understood that the lips of the other were to be forever sealed respecting the relation of either to the matter." Were the conditions of such secret contracts to be divulged, embarrassment and compromise of the Government in its pub- lic duties and consequent injury to the public would result, or furthermore the person or the character of the agent might be injured or endangered. The secrecy which such contracts im- pose "is implied in all secret employments of the Government in time of war, or upon matters affecting foreign relations," and precludes any action for their enforcement. "The pub- 'Perkins, J. R., Trails, Rails and War, Bobbs-Merrill (1929). A7 7 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence 'information on intelligence activities was determined by the resolution of these situations which occurred from the first years of the Republic through the Civil War. Decisions in later cases utilized the precedents which had here been estab- lished. In 1948 the Supreme Court, deciding a case concern- ing an application for an overseas air route, reaffirmed that "the President, both as Commander-in-Chief and as the na- tion's organ for foreign affairs, has available intelligence serv- ices whose reports are not and ought not be published 0 the world," and defined its own position on cases involving secret information: It would be intolerable that courts, without the relevant in- formation, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confi- dences . . . The very nature of executive decisions as to for- eign policy is political, not judicial.' Intelligence information is recognized by the three branches of Government as of special importance because of its connec- tion with foreign affairs and military security. Authorities for CIA Information Controls As an Executive agency CIA partakes of the privileges accorded generally to the Executive Branch with respect to withholding information, privileges ultimately dependent on the separation of powers doctrine. In addition, Congress has specifically recognized the secrecy essential in the operation of Central Intelligence by providing in the National Security Act of 1947 that the Director "shall be responsible for protecting intelligence sources and methods from unauthorized dis- closure." In the Central Intelligence Act of 1949, noting again this responsibility of the Director, Congress exempted the Agency from any law which requires the disclosure of the organization, functions, names, official titles, salaries, or num- licity produced by an action would itself be a breach of a con- tract of that kind and thus defeat a recovery." 12 The pattern of executive privilege as applied to withholding 'Totten Adm'r v United States; 92 US 105 (1876) . "Chicago and Southern Airlines, Inc. v Waterman Steamship Cor- poration; 33 US 103 (1948). AR 8 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence bers of personnel employed. Other statutes exempt the Agency from requirements to file certain information reports. Pursuant to the Director's task of safeguarding intelligence information, Agency regulations governing the release of infor- mation serve notice upon employees that unauthorized dis- closure is a criminal and an administrative offense. A crim- inal prosecution for unauthorized disclosure can be instituted against an employee under several statutes, including the Espi- onage Laws, or administrative sanctions including discharge can be applied against him. , Central Intelligence is also subject to the provision of Execu- tive Order 10501 that "classified defense information shp.11 not be disseminated outside the Executive Branch except under conditions and through channels authorized by the head of the disseminating department or agency." This provision, al- though it has never been tested in the courts, gives the Director added support in controlling the release of information to the courts and Congress as well as to the public. He can and will Upon request release information of no security significance to the courts or Congress; he can exercise discretion in the release of information produced by and concerning the CIA; but there are limitations on his authority over information originating in other departments, joint interagency documents, and per- sonnel security information. If the decision whether to com- ply with a demand for information cannot be made at the Director's level, it is referred to the National Security Council. CIA's position vis-a-vis the courts and Congress is unique beside that of other agencies, because of the recognized secrecy and sensitivity and the connection with foreign affairs pos- sessed by the information with which the Agency deals. This position has been tested on several occasions. Intelligence and the Courts The secrecy of intelligence employment which the Supreme Court recognized in the Totten case on the Loyd-Lincoln con- tract over eighty years ago is basically unchanged today. The difficulties encountered in the courts by a person claiming pay for secret work allegedly performed for the Government were illustrated in the Gratton Booth Tucker case in 1954. Tucker alleged that he had performed services "under conditions of utmost secrecy, in line of duty, under the supervision of agents 69 9 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and intelligence of the United States Secret Service and of the C.I.D. of the Armed Services and Department of Justice, FBI and of the Central Intelligence Agency." He claimed that from 1942 to 1947 he contributed his services voluntarily and "without thought of compensation in anticriminal and counterespionage' activities in Mexico and behind the lines in Germany," and that in 1950 he was assigned to Korea. For all this he brought suit against the United States in the Court of Claims, seeking payment of $50,000 annually for the years he worked and of $10,000 as expenses. On the very basis of these allegations, and without going into the matter any further, the court re- fused recovery, citing the Totten case as authority.14 Another aspect of the Government's privilege not to disclose state secrets in open court was decided several years ago by the Supreme Court in the Reynolds case. This was a suit for damages brought against the Government by the widows of three civilian observers who were killed in the crash of a mili- tary plane on which they were testing secret electronic equip- ment. The Air Force refused to divulge certain information which the widows thought necessary to their case, stating that the matter was privileged against disclosure pursuant to Air Force regulations prohibiting that reports be made available to persons "outside the authorized chain of command." The Air Force then made a formal claim of privilege, affirming that "the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force." An affidavit by the Air Force Judge Advocate General asserted further that the material could not be furnished "without seri- ously hampering national security." The Supreme Court accepted the Air Force argument, saying that "even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake." And these Air Force statements had been sufficient to satisfy the court of the military secret involved." The privilege of withholding national, security information from the courts has been subject to some limitation. One case, U.S. v Jarvinen,16 illustrates that this executive privilege is not "Gratton Booth Tucker v United States; 127 Ct. Cl. 477 (1954) . u United States v Reynolds; 345 US 1 (1952). "United States v Jarvinen; Dist. Ct. Western District of Washington, Northern Div. (1952). 70 10 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence judicially inviolable. Jarvinen was a casual informant in the United States who gave information in 1952 to CIA and later to the FBI that Owen Lattimore had booked passage to the USSR. He later informed CIA that he had fabricated the whole story. Soon thereafter Jarvinen was indicted for making false statements to government agencies. At the trial a CIA em- ployee called to testify by the Department of Justice prosecutor was directed by CIA not to answer. The witness' claim of privilege was not accepted, however, and when he refused the court's order to answer he was held in contempt and sentenced to fifteen days in jail. He was pardoned by the President. The CIA argument had been based on the provisior} of the CIA Act of 1949 that the Director "shall be responsible for pro- tecting intelligence sources and methods from unauthorized disclosure" and on Executive Order 10290, then in effect, which limited dissemination of classified security information. The court had reservations about the substantive merits of the priv- ilege, and the widespread publicity emanating from the case apparently vitiated the claim of need to protect sources and methods. It was the further opinion of the court that in a criminal prosecution the Government must choose either to present all the pertinent information, regardless of its sensi- tivity, or to risk dismissal of the case by not presenting any sensitive information at all. There have been several instances of indirect Agency par- ticipation in court, cases, usually when employees have been requested to furnish documents or testify on behalf of the Gov- ernment or private parties. In recent cases in which other Government agencies have participated there has been a co- operation between them and Central Intelligence representa- tives which was lacking in the Jarvinen case, and little difficulty has been encountered with respect to the privilege of with- holding classified information. A good example is the Justice Department's prosecution of the case against Petersen,17 an employee of the National Security Agency who had passed NSA documents to the Dutch. The Justice Department needed to present classified information to the court in order to substanti- ate its case, but the Director of Central Intelligence advised, in "United States v Petersen (E. D. Va. Criminal No. 3049, January 4, 1955). 71 11 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence the interest of security, that a particular document not be used. The Justice Department accepted this recommendation and succeeded in convicting Petersen on other evidence. CIA and Congress CIA's record of cooperation with congressional committees has on the whole been satisfactory. The Agency certainly recognizes that Congress has a legitimate interest in some intelligence information and obviously a better claim on it than say the private citizen who needs it for purposes of litiga- tion. Although, under the separation of powers doctrine, in- telligence gathering and production is an executive function and the responsibility of the Executive Branch, the Congress does have responsibilities in the foreign affairs field. It is, moreover, the appropriating authority for Agency funds, and indiscriminate withholding of information could not only result in a poorly informed Congress but also jeopardize the good will the Agency enjoys with it. Within the bounds of security, therefore, CIA has attempted conscientiously to fulfill requests from Congress proper to the legislative function. And Con- gress, for its part, has so far respected CIA's decision to with- hold information or produce it only in closed session with the understanding that it is not to be released. If summoned by a subpoena to testify before a Congressional Committee, all CIA employees, including the Director, are re- quired to appear or be held in contempt of Congress. There are few instances, however, in which an employee has been subpoenaed to testify involuntarily, and no documents have ever been released to Congress without the Director's approval. In most cases it has been as a matter of form or at Agency request that an employee's testimony has been called for and a subpoena served. In only two instances situations have arisen which led to strained relations between the Agency and congressional committees. When Agency testimony was de- sired by the Senate Internal Security Committee concerning the security status of John Paton Davies, CIA successfully re- quested several delays in the hearings on security grounds. And in 1954, while the Senate Committee on Government Operations was considering inquiring as to certain facts relat- ing to the security status of an Agency employee, counsel for the Committee and the General Counsel of CIA agreed on the 72 12 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence legitimate interests of the Agency and the Committee. The employee was never questioned by the Committee. No court cases have defined an employee's rights to withhold from Congress information which has been classified and the divulgence of which could work harm to this country's intelli- gence program. Such a case could theoretically arise through testing a Congressional contempt citation in a habeas corpus proceeding, but it is unlikely that such a test will be made. The employee could use an order from the Director as a basis for not testifying, and the Director's judgment has always been respected by the Congress when he has decided he cannot re- veal certain information. Because the information which CIA has is so clearly within the purview of the Executive Branch, this Agency has a much stronger legal basis for refusal than other departments have. If Congress should persist, there would of 'course have to be eventual Presidential support for continued refusal to give in- formation. Such support was tendered, outside the intelli- gence and foreign fields, in 1909 when Theodore Roosevelt with- stood a Senate resolution calling for certain papers in the Bureau of Corporations concerned with the absorption by U.S. Steel of another corporation. Roosevelt informed the Senate that he had obtained personal possession of the papers it de- sired but that the Senate could get them only by impeachment. "Some of these facts which they [the Senate] want," he de- clared, "for what purpose I hardly know, were given to the Gov- ernment under the Seal of Secrecy and cannot be divulged, and I will see ta it that the word of this Government to the individual is kept sacred." 18 Generally, there has been a spirit of cooperation between the Legislative and Executive Branches. In those cases where a conflict has occurred, and the Executive has refused to divulge information requested even in the strongest terms by the Legis- lature, the decision of the Executive has prevailed. The Con- stitution has been in existence for over 170 years and under it 34 Presidents and 85 Congresses have forged a strong interpre- tation of the separation of powers. In the field of foreign affairs intelligence, the Director of Central Intelligence, acting The Letters of Archie Butt, Personal Aide to President Roosevelt; by Abbott, pp. 305-06. 73 13 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 1. (Continued) Executive Privilege and Intelligence under the constitutional powers of the Executive Branch of Government together with powers granted by statute, can with- hold such information as he believes is in the best interests of the United States. If a showdown were to occur, however, the issue is between the President and Congress as to whether classified information should be divulged against the wishes of the Director, who is responsible for the protection of sources and methods 14istorical precedent in similar situations ap- pears to favor the President. 74 14 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. "Impunity of Agents in International Law," M.C. Miskovsky (Spring 1961, Volume 5/2) Legal grounds for holding another nation's agents not per- sonally liable for their directed violation of a nation's laws. IMPUNITY OF AGENTS IN INTERNATIONAL LAW International rules and institutions have existed since the earliest days, but it was not until the 16th and 17th cen- turies that there were developed the laws governing rela- tions between European states which became the basis of our present-day international law. The disintegration of the Holy Roman Empire and the emergence of sovereign states representing great concentrations of military, econonlic, and political power led to the development or formulation of new rules by which nations sought to govern their dealings with one another. At the same time the concept of sovereignty as a power constituting the sole source of laws was enunciated, and with it an explanation of the concept of the nation. The rules of international law and the concept of sover- eignty in a sense limit each other; and particularly in the treatment of crimes like espionage and subversion, interna- tional law is confronted with what Philip C. Jessup once called the "taboo of absolute sovereignty." The state is especially jealous of its power to punish those who it believes have tried to undermine its authority, and the principles of international law can apply in matters affecting the security of a state only at the discretion of that state. The Swiss diplomat Emerkh de Vattel, whose book Le Droit des Gens 1 had an influence on American political philosophy, was one of the early writers in international law who observed that men "put up with certain things although in themselves unjust and worthy of condemnation, because they cannot oppose them by force without transgressing the liberty of individual Na- tions and thus destroying the foundations of their natural society." Vattel was particularly concerned with the rela- tionships, duties, and responsibilities of nations during times of stress. Law of Nations. Fenwick, Trans. (Washington: Carnegie Institu- tion of Washington, 1916.) A21 15 . Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) , 4 Impunity of Agents Principles of National Jurisdiction The concept of sovereignty carries along with it the rule that the laws of a country are supreme within its own ter- ritorial limits. Consequently, generally speaking, whether a particular act constitutes a crime is determined by the laws of the country within whose borders it was committed. In extension of this territorial principle for determining national jurisdiction, however, there have been developed, in accord- ance with the varying experience of individual nations, at least four other pragmatic principles which a state may choose to follow in determining whether it can try a person crim- inally for acts committed in violation of its laws. A national- ity principle would determine jurisdiction by reference to the nationality or national character of the person committing the offense, so that his own state would try him under its law. Under a protection principle, jurisdiction would go to the state whose national interest was injured by the offense, wherever it was committed. _ A passive personality principle would similarly determine jurisdiction by reference to the nationality or national character of the person injured. And a universality principle, finally, would give it to the state hav- ing custody of the offender.2 In any case, however, a state may claim jurisdiction only with respect to an act or omis- sion which is made an offense by its own laws. The principle of territorial competence is basic in Anglo- American jurisprudence, and it has been incorporated in many other modern state codes. Its basis is the sovereign, which has the strongest interest, the best facilities, and the most powerful instruments for repressing crimes in its territory, by whomever committed. It is obvious that under the ter- ritorial principle the sovereign must exercise exclusive con- trol over the acts of persons within its territory; there is no question of its right of jursidiction to punish acts that con- stitute a threat to its authority. The concept of sovereignty is so strong, however, that it may also, in the protective principle of jurisdiction, push be- yond state borders with power to try persons outside engag- ing in acts against the security, territorial integrity, or p0- 'Research in International Law Supplement to the American Journal of International Law, Vol. 29 (1935) . A22 16 i Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents litical independence of the state. This principle was formu- lated in statutes of the Italian city-states in the 15th and 16th centuries, and many modern states apply it to both aliens and citizens. Conflicts arise, of course, where the pro- hibited acts are carried on in another state in which such acts are not illegal. Without agreement, it is difficult to see how the protective theory can be effective in such cases with- out an infringement of the sovereignty of the second state. In the United States, the rule seems to be that the pro- tective principle is not applied unless the legislation designat- ing the crimes so specifies. In the Soviet Union, espionage cases apparently do fall under the protective theory, of ju- risdiction. In the October 1960 International Affairs, G. Zhukov wrote: It should be noted that American plans of space espionage di- rected against the security of the USSR and other Socialist coun- tries are incompatible with the generally recognized principles and rules of international law, designed to protect the security of states against encroachments from outside, including outer space. This position would give the USSR (and other Bloc countries) jurisdiction over espionage offenses against them, no matter where perpetrated. Scope of Immunities On the other hand, the USSR has, in effect, recognized the immunity of American military attaches within its ter- ritory by not prosecuting the charges of espionage leveled against them. It thus honors the provisions of international law and agreement whereby officers, diplomatic representa- tives, consuls, armed forces, ships, aircraft, and other persons and instrumentalities of a state may be immune from the exercise of another state's jurisdiction even under the terri- torial principle and consequently not subject to legal penal- ties.3 While diplomatic immunity as applied to embassy officials is universally accepted, the question of what persons outside ' "Diplomatic Immunity from Local Jurisdiction: Its Historical De- velopment Under International Law and Application in United States Practice," by William Barnes. Department of State Bulletin, 1 August 1960. A23 17 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents this category can claim a similar immunity becomes more dif- ficult. There is nevertheless some authority in international law for the proposition that if a man is a duly commissioned agent of his government, albeit without diplomatic immunity, any illegal acts he performs within the scope of his duties may still be considered not his personal violations but his government's national acts, raising questions public and po- litical between independent nations. Under this theory the offended nation ought not try the individual before ordinary tribunals under its own laws but should seek redress accord- ing to the law of nations.4 This theory and variations of it have found acceptance in a number of situations. For example, in the Claims Con- vention between France and Mexico of 25 September 1924, Mexico assumed liability for certain acts of its revolutionary forces, accepting the even broader principle that the "re- sponsibility of the State exists whether its organs acted in conformance with or contrary to law or to the order of a- su- perior authority." The applicability of the theory in any particular case depends, of course, not only on its being ac- cepted by the offended nation but also on an acknowledgment by the offending nation that the offender is in fact its com- missioned agent, that it authorized or now adopts his acts as its public acts. For this reason texts on international law have denied its application to the acts of secret political agents and spies: ... An agent. .. secretly sent abroad for political purposes with- out a letter of recommendation, and therefore without being for- mally admitted by the Government of the State in which he is fulfilling his task. . . has no recognized position whatever accord- ing to International Law. He is not an agent of a State for its relations with other States, and he is therefore in the same position as any other foreign individual living within the boundaries of a State. He may be expelled at any moment if he becomes trouble- some, and he may be criminally punished if he commits a political or ordinnry crime. . . Spies are secret agents of a State sent abroad for the purpose of obtaining clandestinely information in regard to military or politi- cal secrets. Although all States constantly or occasionally send spies Secretary of State Webster to Attorney General Crittenden, 15 March 1841. See 2 Moore International Law Digest 26 (1906) . � Haekworth 557 (1943). A24 18 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents abroad, and although it is not considered wrong morally, politically, or legally to do so, such agents have, of course, no recognized posi- tion whatever according to International Law, since they are not agents of States for their international relations. Every State punishes them severely when they are caught committing an act which is a crime by the law of the land, or expels them if they cannot be punished. A spy cannot legally excuse himself by plead- ing that he only executed the orders of his Government, and the latter will never interfere, since it cannot officially confess to hav- ing commissioned a spy. Nevertheless governments do sometimes officially confess to having commissioned their clandestine agents and do in- terfere in their prosecution under the law of the 'offended land. Although the several historical cases on record have not afforded a fully adequate test of this ground for claim- ing personal impunity they do include some in which the of- fended nation has accepted it. In three cases the United .States has been involved. Paramilitary Raid During the 1837 insurrection in Canada the rebels ob- tained recruits and supplies from the United States. A small steamer, the Caroline, was used for this purpose by a group encamped on the American side of the Niagara River. On 29 December 1837, while moored at Schlosser, on the Ameri- can side, with 33 American citizens on board, this steamer was boarded by an armed body of men from the Canadian side under the orders of a British officer. They attacked the occupants, wounding. several and killing at least one Ameri- can, and then fired the steamer and set her adrift over Ni- agara Falls. The United States protested. The British Gov- ernment replied that the piratical character of the Caroline was established, that American laws were not being enforced along the border, and that destruction of the steamer was an act of necessary self-defense. In November 1840 British citizen Alexander McLeod was arrested by New York State authorities on a charge of mur- " H. Lauterpacht, Oppenheim's International Law (Longman's, 7th ed., 1918), Vol. I, pp. 770, 772. A25 19 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents der in connection with the Caroline affair. On 13 December 1840 Mr. Fox, the British Minister at Washington, asked on his own responsibility for McLeod's immediate release, on the ground that the destruction of the Caroline was a "public act of persons in Her Majesty's service, obeying the order of their superior authorities," which could, therefore, "only be made the subject of discussion between the two national Gov- ernments" and could "not justly be made the ground of legal proceedings in the United States against the persons con- cerned." On 28 December 1840 the U.S. Secretary of State, Mr. Forsythe, replied that no warrant for interposition in the New York State case could be found in the powers with which the Federal Executive was invested, and he also denied that the British demand was well founded. When on 12 March 1841, however, Mr. Fox presented the British Government's official and formal demand for McLeod's release on the same grounds, Daniel Webster, who had mean- while become Secretary of State, wrote to the Attorney General communicating the President's instructions and lay- ing down the following principle: That an individual forming part of a public force, and acting under the authority of his Government, is not to be held answerable, as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute. Webster answered the British on 24 April, admitting the grounds of the demand, but stating that the Federal Govern- ment was unable to comply with it. He apparently believed, however, that the British action would give New York State cause to exempt McLeod from prosecution. McLeod brought a habeas corpus proceeding, but his discharge was refused by the New York court. He was brought to trial on the mur- der charge and acquitted. In a final note to Lord Ashburton disposing of the Caroline matter, Mr. Webster wrote: This Government has admitted, that for an act committed by the command of his Sovereign, jure belli, an individual cannot be re- sponsible in the ordinary Courts of another State. It would regard it as a high indignity if a citizen of its own, acting under its A26 20 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents authority and by its special command in such cases, were held to answer in a municipal tribunal, and to undergo punishment, as if the behest of his government were no defense or protection to him." Confidential Factfinder, No Spy On 18 June 1849 Secretary of State Clayton issued to Mr. A. Dudley Mann, who was then in Europe, instructions for a mission it was desired he undertake as a special and con- fidential agent "to obtain minute and reliable information in regard to Hungary," then in revolt against the Austrian Im- perial Government. Mr. Mann proceeded to Vienna, where he , found the revolution practically .quelled, and therefore did not visit Hungary. The text of his instructions, however, was made public in 1850 when President Taylor released it to the U.S. Senate in response to a Senate resolution. The Austrian charg�'affaires in Washington, Mr. Hulsemann, then entered an official protest, declaring: Those who did not hesitate to assume the responsibility of send- ing Mr. Dudley Mann on such an errand, should, independent of considerations of propriety, have borne in mind that they were ex- posing their emissary to be treated as a spy. It is to be regretted that the American Government was not better informed as to the actual resources of Austria and her historical perseverance in defending her just rights . .. the Imperial Government totally dis- approves, and will always continue to disapprove, of those proceed- ings, so offensive to the laws of propriety; and that it protests against all interference in the internal affairs of its Government. Mr. Webster, by now again Secretary, replied: .. . the American Government sought for nothing but the truth; it desired to learn the facts through a .reliable channel. It so hap- pened, in the chances and vicissitudes of human affairs, that the result was adverse to the Hungarian revolution. The American agent, as was stated in his instructions to be not unlikely, found the 'The texts of the early diplomatic communications regarding the Caroline affair and the McLeod case can be found in the report on People v. McLeod, 25 Wend 482 (N.Y. 1841) . Others can be found in British and Foreign State Papers 1841-1842, volume 30. 2 Moore 24 (1906) contains a complete summary of the affair. So does "The Caro- line and McLeod Cases" by P. Y. Jennings, appearing in 32 Am. Jr. Int. Law 82 (1938) . The latter also contains information on the aftermath of the case in which McLeod sought reimbursement from a Claims Commission. A learned critique by Judge Talmadge of the decision in People v. McLeod is found in 26 Wend Appendix 663 (N.Y. 1842) . Text- books such as BISHOP p. 584 (1953) and 1 HYDE 239 (2d Edition 1931) give summaries of the affair. A27 21 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued)� Impunity of Agents condition of Hungarian affairs less prosperous than it had been, or had been believed to be. He did not enter Hungary nor hold any direct communication with her revolutionary leaders. He reported against the recognition of her independence because he found she had been unable to set up a firm and stable government. He care- fully forebore, as his instructions require, to give publicity to his mission, and the undersigned supposes that the Austrian Govern- ment first learned its existence from the communications of the President to the Senate. Mr. Hulsemann will observe from this statement that Mr. Mann's mission was wholly unobjectionable, and strictly within the rule of the law of nations, and the duty of the United States as a neutral power. He will accordingly feel how little foundation there is for his remark that "those who did not hesitate to assume the respon- sibility of sending Mr. Dudley Mann on such an errand, should, independent of considerations of propriety, have borne in mind that they were exposing their emissary to be treated as a spy." A spy is a person sent by one belligerent to gain secret information of the forces and defenses of the other, to be used for hostile purposes. According to practice, he may use deception, under the penalty of being lawfully hanged if. detected. To give this odious name and character to a confidential agent of a neutral power, bearing the conimission of his country, and sent for a purpose fully warranted by the law of nations, is not only to abuse language, but also to confound all just ideas, and to announce the wildest and most extravagant notions, such as certainly were not to have been ex- pected in a grave diplomatic paper; and the President directs the undersigned to say to Mr. Hulsemann that the American Govern- ment would regard such an imputation upon it by the cabinet of Austria, as that it employs spies, and that in a quarrel none of its own, as distinctly offensive, if it did not presume, as it is willing to presume, that the word used in the original German was not of equivalent meaning with "spy" in the English language, or that in some other way the employment of such an opprobrious term may be explained. Had the Imperial Government of Austria sub- jected Mr. Mann to the treatment of a spy, it would have placed itself without the pale of civilization, and the cabinet of Vienna may be assured that if it had carried, or attempted to carry, any such lawless purpose into effect in the case of an authorized agent of this Government the spirit of the people of this country would have demanded immediate hostilities to be waged by the utmost exertion of the power of the Republic�military and naval.' German Saboteur Werner Horn, a German, was indicted in the Federal Dis- trict of Massachusetts for unlawfully transporting explosives early in World War I from New York to Vanceboro, Maine. � 1 Moore 218 (1906) A28 22 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents Horn, claimed immunity from trial upon the indictment in a petition for habeas corpus. His contention, which the Circuit Court of Appeals for the First Circuit called "without prece- dent," was as follows: That your petitioner is an officer in the army of the empire of Germany, to wit, a first lieutenant in the division of the aforesaid army known as the. Landwehr; that a state of war exists between the empires of Great Britain and Germany, which state of war has been recognized by the President of the United States in an official proclamation; that your petitioner is accused of destroying part of the international bridge in the township of McAdam, province of New Brunswick and Dominion of Canada; that he is now held in custody by the respondent on the charge of carrying explosives illegally, which allegation, if true, is inseparably connected with the destruction of said bridge; that he is a subject and citizen of the empire of Germany and domiciled therein, and is being held in custody for the aforesaid act, which was done under his right, title, authority, privilege, protection, and exemption claimed under his commission as said officer as described aforesaid. Claiming thus that the felony for which he was indicted was incidental to an act of war cognizable only by the law of nations, Horn quoted Webster's statement in the Caroline af- fair: "That an individual forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespas.ser or malefactor, is a principle of public law snrictioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute." The Circuit Court did not dispute the principle, but, noting that "this exemption of the individ- ual is on the ground that his act was a national act of his sovereign," held that the petition failed "entirely to show either express or implied national authority for doing the acts charged in the indictment; therefore no question of interna- tional law is involved, and the District Court has full jurisdic- tion to proceed to trial of the indictment found by its grand jury-"9 European Cases In 1887 the German Government arrested and put on trial one Schnaebele, a French customs inspector who had operated 'Horn v. Mitchell, 232 F. 819 (1st Cir., 1916). Affirmed on other grounds 243 US 247 (1917) . A29 23 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents a network of secret agents in Germany. The arrest was made during an official visit he paid to Germany to hold a customs conference. In the course of his interrogation he admitted that he had been inciting Gernian nationals to treason. The French Government intervened on the grounds that Schnae- bele enjoyed extraterritorial protection during his visit to Ger- many. These grounds, which obviated any need for French acknowledgment of his commission as a subversive agent, were apparently considered sufficient: Bismarck ordered Schnae- bele released.10 In the 1920's the Italian secret service, using Italian agents in Switzerland, lured one Cesare Rossi from his Swiss hotel room to the Italian enclave at Campione, where he was ar- rested and taken to Italy. The Swiss Government protested these "acts attributable to the authorities of another state" which "not only violate national dignity but which also cause a state of unrest and suspicion . . ." It is not known whether \ the Italian authorities acknowledged such an attribution of their agents' acts in the diplomatic talks which followed, but the affair was settled in de facto accordance with the principle of agent impunity: on 21 November 1928 the Swiss Govern- ment announced that it considered the matter closed, since the Italian official involved in illegal intelligence activities had left Switzerland and two Italian nationals who had illegally relayed information had been deported.11 In Sweden there is apparently a trend toward the rule that if an apprehended agent is acknowledged by his government to have been acting under orders he cannot be brought to trial in the apprehending country; his illegal acts become a matter for diplomatic discussion between the two govern- ments. A case since World War II on which details are not available was disposed of in this way by a Swedish court.12 War and "Imperfect" War None of these cases offers a precise precedent for one in which a peacetime espionage agent is apprehended by the target country and then released to his government upon its " Johannes Erasmus, The Intelligence Service (Institute of Interna- tional Law, Goettingen University, 1952) , p. 55. 11 Ibid., p. 54. " Believed to be documented in Rytt Juidiskt Arkiv No. 15, 1946. A30 24 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents acknowledgment of his commission. In those that are other- wise quite close, war is an element in the circumstances, with the offended nation often a third party. Webster's final note on the Caroline affair specifically cited ins belli. The blame- lessness of the mere instruments of a government waging however unjust a war Is well recognized. Vattel Wrote: But as to the reparation of any damage�are the military, the general officers and soldiers, obliged, in consequence, to repair the injuries they have done, not of their own will, but as instruments in the hands of their sovereign? It is the duty of subjects to sup- pose the orders of their sovereign just and wise . . . When, there- fore, they have lent their assistance in a war which is afterwards found to be unjust, the sovereign alone is guilty. He aloneois bound to repair the injuries. The subjects, and in particular the military, are innocent; they have acted only from a necessary obedience." Yet there appears to be a similarity between the wartime situation in which a uniformed member of a force gathering information behind enemy lines, when captured, is treated as a prisoner of war rather than executed for spying and the peacetime situation of an intelligence agent whose acts are acknowledged and adopted by the sending state. In both the agent is a mere instrument of the state. The basis for the traditional practice of holding the agent personally respon- sible seems to be the clandestine nature of his acts. When these are adopted by the sending state they are no longer clandestine, and the ultimate responsibility is fixed. As for ius beth, texts on international law recognize that no clean-cut distinction can be made between war and peace in this respect. A contemporary authority cites some of the older texts for the proposition that: If a country feels that it is being threatened by the unlawful conduct of another country�such as perhaps by preparations for aggression�that country should be free to protect itself against such a threat with the help of defensive measures. This includes the employment of agents for the purpose of determining enemy intentions." "3 Vattel, Section 187. "Erasmus, op. cit., p. 115, footnote 120, citing Heffter-Geffeken 495) , Venselow (p. 227), Vattel (pp. 598 and 607), and Rogge, Nationale Friedens-Politik (p. 596) . A31 25 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents The older texts point out various types of hostile acts short of formal war that a sovereign might commission his subjects to perform.15 Judge Rutherford says: If one nation seizes the goods of another nation by force, upon account of some damage, etc., such contentions by force are re- prisals. There may be likewise other acts of hostility between two nations which do not properly come under the name of reprisals, such as the beseiging of each other's towns, or the sinking of each other's fleets, whilst the nations in other respects are at peace with each other. These are public wars, because nations are the con- tending parties. But as they are confined to some particular ob- ject, they are of the imperfect sort. . ." Vattel commented that: A war lawful and in form, is carefully to be distinguished from an unlawful war entered on without any form, or rather from those incursions which are committed either without lawful authority or apparent cause, as likewise without formalities, and only for havoc and pillage." He indicated that all hostile acts were lawful wars, if made with lawful authority and apparent cause, and "not for pillage and havoc." This rule had its application in admiralty cases. Justice Story stated: Every hostile attack of a piratical nature in times of peace, is not necessarily piratical. It may be by mistake, or in necessary self- defense, or to repel a supposed meditated attack by pirates�it may be justifiable, and then no blame attaches to the act; or, it may be without just excuse, and then it carries responsibility in dam- ages. If it proceed further; if it be an attack from revenge and malignity, from gross abuse of power and settled purpose of mis- chief, it then assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer." ' Judge Talmadge discusses this point in his learned critique of the decision in People v. McLeod, cited in footnote 7 above. " 2 Rutherford, Section 10, as cited in '26 Wend Appendix 663 (NY 1842) . 113 Vattel, Section 67. "The Marianna Flora. The Vice-Consul of Portugal, Claimant. 24 US (11 Wheat. 1,41) 1 (1828); 6 L. Ed. 405, 414. A32 26 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents These texts, therefore, in enunciating the principle of per- sonal impunity, are not speaking of war only in terms of for- mal declared war, but including also hostile acts when other- wise peaceful conditions exist. As Rutherford points out: In the less solemn kinds of war, what the members do who act under the particular direction and authority of their nation, is by the law of nations no personal crime in them; they cannot, there- fore, be punished consistently with the law, for any act in which it considers them only as the instruments, and the nation as the agent." A principle of international law which emerges from a study of the older texts might then be stated as follows. 'Where an individual, under orders from his sovereign, commits a hostile act upon a foreign nation, this cannot be said to be a contro- versy between individuals, to be decided by a court under do- mestic law where there is a common judge and arbiter. This is a controversy between nations, who admit no judge except themselves. While this rule arose during periods of historical development when concepts of hostilities and relations be- tween nations were much more rudimentary than at present, the basic problems of the rights and responsibilities of nations were similar to What they are now. This principle has been recognized by the United States since the early days of the Re- public. The third Attorney General of the United States, writing to the Secretary of State on 29 December 1797, declared.: It is well settled in the United States as in Great Britain, that a person acting under a commicsion from the sovereign of a -foreign nation is not amenable for what he does in pursuance of his cora- rniggion to any judiciary triblm21 of the United States." Broader Considerations We have not attempted in this discussion to take into ac- count the broader implications of general international ac- ceptance of a rule of law that the state is responsible for all the acts of a subject carried out pursuant to orders of the sovereign. It can easily be seen that a nation might demand " 2 Rutherford, Section 18, as cited in 26 Wend Appendix 663 (NY 1842) . " Quoted in 26 Wend Appendix 663 (NY 1842) . A33 27 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 2. (Continued) Impunity of Agents limitations placed on the rule, and in many cases a nation might totally reject the rule for its purposes. Questions such as the following would have to be pondered by all na- tions. Could a murder committed pursuant to orders by an agent of a foreign nation be permitted to go unpunished if the foreign nation demanded his return? What would be the im- plications for a small nation if a strong nation flooded the country with illegal espionage agents acting under orders, and upon capture made a request for their return? Would war or the threat of war as an alternative to punishment act as a deterrent on the use of authorized confidential agents collect- ing information from foreign countries? Some of these questions have been raised in the past and have moved many writers not to recognize the right of a sov- ereign to expect the return of an agent who pursuant to or- ders has committed an offense against another sovereign. We have not attempted to present here the opposing viewpoint of these writers or to disciiss the limitations on the rule of personal impunity as it appears in international law. The purpose of this paper has been simply to explore the precedents and authorities in international law to determine if there is any basis for the proposition that a government has the right to the return of one of its officers who has been apprehended abroad for criminal acts committed pursuant to its orders. There is such a basis. A34 28 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. "The Protection of Intelligence Data," John D. Morrison, Jr. (Spring 1967, Volume 11/2) Historical review of the problem and some remedial proposals. THE PROTECTION OF INTELLIGENCE DATA John D. Morrison, Jr. The unauthorized exposure of classified information is a chronic problem for governments and intelligence agencies. Defense against the conscious agent of a foreign power is different from, and in some ways less difficult than, deterring revelations due to carelessness, malice, or greed on the part of government employees. The problem is particularly acute in a democratic society whose laws and courts must provide broad protection to criminal defendants. The deterrence provided by the espionage laws and related statutes is weakened by the difficulty of prosecution under them. This is especially true in cases involving disaffected or careless employees of intelligence agencies; the defenses usually include strong equitable pleas which may excite a sympathetic public response. No legislation or administrative procedure can offer perfect pro- tection. It is submitted, however, that both our laws and our admin- istrative procedures could be improved so as to provide more effective deterrence. Some particular avenues that might be taken will emerge from the following discussion. The Espionage Laws: An Incomplete Structure A review of American legislation in the field of criminal espionage shows that historically there has been limited legislative effort directed to the protection of intelligence data. As a result There is a startling lack of protection for a governmental function of growing importance and sensitivity. Perhaps the need for laws protecting intelligence data has reached significant proportions only in the relatively recent past The changes, technological and other, in the manner in which nations deal with each other have caused some improvements in legislation dealing with the protection of state secrets. Diplomatic communications have traditionally been protected. As early as 1807, the Supreme Court suggested that ,the legislature recognize and provide against crimes affecting the national security which have 69 29 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection not ripened into treason."1 It was not until 1911, however, that Congress passed the first ,important statute dealing with the broad problem of espionage. In 1917 the language of the 1911 act was amended to read much as it does today. More recently congressional attention has been focused�and appropriate legislation enacted�on the problems involved in protecting atomic energy data2 and com- munications intelligence.3 The Internal Security Act of 19504 made it unlawful for a government employee merely to communicate classi- fied information to a known representative of a foreign governrnent.5 However, the espionage laws6 are still the basic statutory protection against unauthorized disclosure of intelligence materials and informa- tion. No legislation has yet been enacted to cover the new problems arising out of the chronic "cold war" status of international relations and the consequent need for a sophisticated, professional intelligence apparatus as an arm of the executive. The wartime concept of the military secret is inadequate to cover information about the personnel, activities, and products of such an apparatus, information whose extreme sensitivity is often not readily apparent even though its exposure may have a most damaging effect on the national security. These shortcomings point to the need for new legislation establishing a category "Intelligence Data" and providing that anything so desig- nated by an authorized official shall be judicially recognized as such solely on the basis of that designation. This would solve a vexatious and recurring problem for which there is no known cure in existing laws. That problem is the immunity enjoyed by an exposer of sensitive information when the information itself cannot for practical reasons be brought into the open for the purpose of prosecution. The Official Secrets Acts It has often been suggested that, if legislation is needed in this area, the British Official Secrets Acts with their broader protection offer a good example to be followed. It is not commonly understood 'Ex parte Bollman and Ex parte Swartwout, 4 Cranch 75, 127, 2 L. Ed. 554, 571 (1807). 242 U.S.C. 42271 et seq. *18 U.S.C. �798. 50 U.S.C. �783(b). 'See Scarbeck o. U.S., 317 F. 2d 548, cert. denied, 83 S. Ct. 1897 (1983)� � 18 U.S.C. ��791-798. 70 30 Approved for Release: 2022/04/28 C06863740 i. Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection that the British acts are based on a different legal theory from that underlying our espionage acts. Under our system the information divulged must be shown to be related to national defense and security either by its very nature or as coming within statutory definitions such as those for communications intelligence and atomic energy data. The British acts are based on the theory of privilege, according to which all official information, whether or not related to the national defense and security, is the property of the crown. It is therefore privileged, and those who receive it officially may not divulge it without the crown's authority. . In a British prosecution for unauthorized disclosure several con- sequences flow from the privilege theory. Portions of the trial' can be held in camera if the court agrees. Under our constitution, while certain procedural aspects can be considered in camera, no part of the actual trial could be heard privately. In Britain certain pre- sumptions may apply. For instance, if the defendant is known to have possession of privileged information and to have been in the company of a known foreign espionage agent, there is a presumption that he passed the information. The presumption is rebuttable; but our Supreme Court opinions indicate that such a presumption would not be permissible here. Most important, in the,English system it is not necessary to prove that any item of information relates to the national defense and security. A good example is the so-called Isis case in which two Oxford students published in their college magazine, Isis, the story of their experiences in the Navy, including technical intelligence operations in the Baltic. The prosecution merely testified that the article contained information which they had acquired in their official service and was, therefore. ?rivileged. After the verdict of guilty, the prosecution approached the court alone, without presence of defendants or defense counsel, and briefed the court, solely for purposes of sentencing, on the significance of each item of information to the government. Such a briefing, we believe, would be held error under our system? In another case, that of an RAF officer named Wraight who defected to Russia and then returned, a government witness who had inter- 'Jencks v. U.S, 353 U.S. 657, 668 (1957). But see post Jencks Statute 18 U.S.C. �3500(c) permitting in camera examination for relevancy and editing of pre-trial reports of government witnesses. 71 31 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection viewed the defendant for the security services was allowed to testify without publicly identifying himself. His name was handed in writing to the court Possibly this could be done here if the defense agreed to it, but it seems clear it could not be done over the defense's objection. In short, the Official Secrets Acts would seem to be in important respects unconstitutional in this country and therefore cannot be relied on as examples of means by which we could protect intelligence data. In addition, despite the technical advantages which the British laws provide for the prosecution, experience has shown that these do not by any means give complete protection; they are only to some degree more effective than our system. Intelligence Sources and Methods The statutory authorities and responsibilities Of the Director of Central Intelligence include the responsibility for "protecting intelli- gence sources and methods from unauthorized disclosure." 8 The Con- gress's use of the term 'intelligence sources and methods" indicates its recognition of the existence of a special kind of data encompassing a great deal more than what is usually termed "classified intelligence information." The espionage laws and the statutes designed to protect communications and atomic secrets, though they specify in detail the kinds of information they seek to protect, nevertheless do not cover everything that might be defined as intelligence data whose exposure could be detrimental to the national interests. For example, knowing the identities of U.S. covert intelligence officers .or the fact that US. intelligence is making a study of certain published unclassified ma- terials might be of great value to a foreign intelligence agency, but there is some question whether such information would be considered by a court to be included among the things protected by existing statutes. The Congress has also recognized the need for protecting intelli- gence sources and methods by enacting for CIA a number of special authorities and exemptions from legal requirements otherwise in general force throughout the government The Agency is exempted from the "provisions of any . . . law which require the publication 'National Security Act of 1947, 1102(d), 61 Stat 495 50 U.S.C. 1403. 72 32 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 9 Simi- larly, the Agency is authorized to expend the funds made available to it for objects of a confidential, extraordinary, or emergency nature, such expenditures to be accounted for solely on the certificate of the Director. It is exempted from statutory requirements regarding exchanges of funds and the performance rating of employees and from laws and executive orders governing appeals from adverse personnel actions. Thus Congress has charged the Director of Central Intelligence with protecting intelligence sources and methods from unauthorized disclosure, has recognized that the term "intelligence sources and methods" encompasses an area not entirely covered in other statutes, and has affirmed the need for such protection by providing statutory authority for that purpose. The void in the statutory structure pro- tecting intelligence sources and, methods is the absence of sanctions against unauthorized disclosure which can be invoked without dis- closing the very sources and methods whose protection is sought. The Judicial View of Intelligence The courts have long recognized that the secret intelligence activities of the executive branch, though indispensable to the government, are by their nature matters whose disclosure would be injurious to the public. In 'the Totten case 1� compensation was sought under a secret contract with President Lincoln for espionage activities behind Con- federate lines. The opinion of the Supreme Court stated: If upon contracts of such a nature an action against the government could be maintained in the Court of Claims, whenever an agent should deem him- self entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of the dealings with individuals and officers, might be exposed, to the serious detriment of the public. A secret service, with liability to publicity in this way would be impossible; and, as such services are sometimes indispensable to the Government, its agents in those services must look for their com- pensation to the contingent fund of the department employing them, and to such allowance from it as those who dispense that fund may award. The secrecy which such contracts impose precludes any action for their enforce- ' Central Intelligence Agency Act of 1949, as amended, �6, 63 Stat 208, 50 U.S.C. �403g. "Totten v. U.S., 92 U.S. 105 (1876). 73 33 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection merit. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery. It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would in- evitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not let the confidence be violated. On this principle, suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband or wife, or of communications by a client to his counsel for professional advice, or of a patient to his physician for a similar purpose. Much greater reason exists for the application of the principle to cases of contract for secret services with the Government, as the existence of a contract of that kind is itself a fact not to be disclosed. [Emphasis supplied.] The Totten case marks the beginning of the juridical idea�and fudicial cognizance of it�that there is a kind of relationship to the state which is confidential, beyond judicial inquiry, and involving a trust of such nature that the courts cannot aid a breach of it, even in their solemn duty of administering justice." A secret agent is almost impotent in his own cause; he literally cannot maintain an action in the courts where his secret activities are germane to the case.12 Judicial Access to Sensitive Data Present espionage laws dealing with unlawful transmission or ob- taining of information related to the national defense 13 have been interpreted as requiring proof of certain questions of fact; evidence on these questions must be submitted to the jury for consideration of its weight and sufficiency. For instance, the information betrayed must in fact be related to the national defense and must not have been generally available." The courts have held that a jury cannot find on these facts unless it has access to the information allegedly related to the national defense and hears testimony regarding its use, importance, exclusiveness, and value to a foreign government or 'See Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 Fed- 353 ( 1912), in which the court struck documents from the record on the ground that it was against public policy to disclose military secrets. See cases cited in note 18. " De Arnaud v. U.S., 29 Ct. 555, 151 U.S. 483 (1894); Allen v. U.S., 27 Ct Cl. 89 (1892); Tucker v. U.S., 118 F. Supp. 371 (1954). 18 U.S.C. �4793, 794, and 798. " U.S. v. Heine, 151 F.2d 813, 816 (1945), citing Garin v. U.S., 312 U.S. 19, 28, 61 S.Ct 429, 85 L.Ed. 488 (1941). 74 34 Approved for Release: 2022/04/28 C06863740 . Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection potential injury to the United States." The defendant in a criminal proceeding must likewise have access to it, since the information itself may tend to exculpate him with respect to dealings in it" As Judge Learned Hand said in U.S. v. Andolschek, "The Government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully." 17 These rulings have left the government in the position of having to reveal in court the very information it is trying to keep secret or else not prosecute those who steal information and use it to the injury of the nation. To invoke the law's protection of the secret, the secret must be told. Judicial experience with the privilege which protects military and state secrets has been limited in this country." British experience, though more extensive, is still slight compared to that with other evidentiary privileges." Nevertheless, it is clear at least from the civil precedents that the court itself must determine whether the circum- stances are appropriate for the claim of privilege" and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.21 The latter requirement is the real difficulty. In dealing with it, courts have found it helpful to draw upon judicial experience ' Garin v. U.S., 312 US. 19, 30-31, supra note 14. " U.S. v. Reynolds, 345 U.S. 1, 73 S.Ct. 538 (1953); Jencks v. U.S., supra note 7. "142 F.2d 503, 506 (1944). " See Totten v. U.S., 93 US. 105,23 L.Ed. 605 (1876); Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 Fed. 353 (1912); Pollen v. Ford Instrument Co., 26 F. Supp. 58.1 (1939); Cresmer v. U.S., 9 F.R.D. 203 (1949). See also Bank Line v. U.S., 68 F. Supp. 587, 163 F.2d 133 (1947). 8 Wigmore on Evidence ( 3d Ed.) sec. 2212(a), P. 161, and sec. 2378( g) (5), pp. 785 et seq.; 1 Greenleaf on Evi- dence (16th Ed.) secs. 250-251; Sanford, Evidentiary Privileges Against the Pro- duction of Data Within the Control of Executive Departments, 3 Vanderbilt Law Review 73-75 (1949). See also Ticon v. Emerson, 134 N.Y.S. 2d 716, 206 Misc. 727 (1954). " Most of the English precedents are reviewed in Duncan v. Caramel, Laird & Co., Ltd., A.C. 624 (1942). For a thorough study of the history and application of the Official Secrets Acts see David Williams' Not in the Public Interest (London, 1965), reviewed in Studies X 3, p. 97. "Id. at 642. ' U.S. v. Reynolds, supra note 16, at 8, citing Duncan v. Caramel, Laird & Co., Ltd., supra note 19, and Hoffman v. U.S., 341 US. 479 (1951). 75 35 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection in dealing with an analogous privilege, that against self-incrimination. The Supreme Court said in U.S. v. Reynolds: 22 The privilege against self-incrimination presented the courts with a similar sort of problem. Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses. Indeed, in the earlier stages of judicial experience with the problem, both extremes were advocated, some saying that the bare assertion by the witness must be taken as conclusive, and others saying that the witness should be required to reveal th matter behind his claim of privilege to the judge for verification. Neither extreme prevailed, and a sound formula of compromise was developed. . . . Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any rase. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an emination of the evidence, even by the judge alone, in chambers!' Of course Reynolds was a civil case, but the evidentiary difficulty in criminal cases is quite comparable. Thus, citing Reynolds, the Supreme Court stated in Jencks v. U.S.:" it is unquestionably true that the protection of vital national interests may militate against public disrlosure of documents in the Government's possession. This has been recognized in decisions of this Court in civil causes where the Court has considered the statutory authority conferred upon the departments of government to adopt regulations not inconsistent with law for. . . use . . . of the records, papers, appertaining to his department The Attorney General has adopted regulations pursuant to this authority declaring all Justice De- Supra note 16, at 8-10. In Kaiser Aluminum 17 Chemical Corp. v. U.S., 157 F. Supp. 939 (1958), the Court of Claims held that judicial examination of a document for which execu- tive privilege has been asserted should not be ordered without a definite showing by plaintiff of facts indicating reasonable cause for requiring such a submission. Otherwise, said the Court, at 949, the executive determination would be merely preliminary and "the officer and agency most aware of the needs of government and most cognizant with [sic] the circumstances surrounding the legal claim will have to yield determination to another officer ( the Court) less well equipped." "Supra note 7, at 670. 76 36 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection partment records confidential and that no disclosure, including disclosure in response to subpoena, may be made without his permission. But this Court has noticed, in U.S. v. Reynolds, the holdings of the Court of Appealc for Second Circuit that, in criminal causes ". . . the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal oases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything �which might be material to his defense. . . ." ' The loophole afforded by this evidentiary difficulty has not been overlooked by the thief who limits his trade to information too sensitive to be revealed. Nor is it ignored by the more imaginative amon'g those accused of other crimes when they claim that their offenses were committed at the behest of an intelligence agency which uses its statutory shield to protect itself at the expense of its agent Judicial Evaluation of Sensitive Data It must be emphasized that undesired disclosure is only one dif- ficulty in the submission of intelligence data to a jury. There is another great problem, the capability of the jury to evaluate such data, often complex and technical and often meaningful only in the context of other sensitive information not otherwise bearing on the case.26 It can of course be argued that juries often have to grapple with tech- nical facts and that the law provides for assistance in such instances in the form of expert witnesses. But in a case dealing with secret information, resort to these legal devices merely increases the amount of sensitive data which must be shorn of its usefulness by disclosure, increasing the government's reluctance to prosecute and thwarting the protective congressional intent expressed in legislation. Some Avenues for Action The courts have recognized that intelligence activities are con- fidential per se and not subject to judicial inquiry. Congress, in the National Security Act, has charged the Director of Central Intelligence with the protection of intelligence sources and methods and has given The quoted material from the Reynolds case appears at 345 U.S. 12. ' Compare the holding in the Kaiser case, supra note 23, on the competence of the court to evaluate the contents of a document for which there has been a claim of executive privilege. 77 37 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 3. (Continued) Legal Protection him certain statutory authority and exemptions to assist him in meeting this obligation. Yet the espionage laws and related statutes enacted for the same or a similar purpose can often not be put to work just' when the offense represents the greatest potential threat to the public welfare. There are three steps which would go far toward solving the problems which still exist in this area. Two of them would seem to require new legislation; the third might be accomplished, at least with respect to CIA, by regulation under the DCI's existing authority. First would be a criminal statute defining what is to be protected and providing punishment for exposure. Second, this statute should also confer injunctive authority, because prevention of exposure i,s more to the point than punishment for violation and in many cases an injunction might offer greater deterrence than the penal provisions for violation. In addition, the act might provide that persons convicted under it would forfeit retirement benefits; precedent for this exists in 5 U.S.C. �8312, the so-called "Hiss Act" ' The third step would be a requirement by the Director that all employees, agents, consult-nts, and others who enter into a relation- ship with CIA giving them privity to intelligence data agree in writ- ing to assign as of that time to the Agency all rights in anything in- tended by them for publication based on information received in the course of their official duties. Perhaps a similar step could be taken by other intelligence agencies. Such agreements, along with appro- priate regulations governing the dissemination of intelligence data, could in themselves serve as a basis for injunctive relief, apart from or as an alternative to the statutory provision for injunctions against the criminal act of exposure. Some such steps are necessary if we are to overcome the short- comings in laws protecting intelligence information which limit prose- cution to cases where intent is clear and where divulging information in open court is not detrimental 78 38 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 4. "CIA, The Courts and Executive Privilege," Lawrence Houston (Winter 1973, Volume 17/4) UNCLASSIFIED Another privilege claim upheld CIA, flit, COURTS AND EXECUTIVE PRIVILEGE Lawrence B. Houston Over the years, CIA has had many occasions to negotiate in the various courts on the problem of security of its records and particularly of its intelligence sources and methods. Normally, some sort of accommodation has been reached to cover the needs of the court and the requirements of security. Only twice has the Agency been forced to the final step of claiming executive privilege. Both of these occasions were in civil actions wherein the claim of privilege is given weight by the court but does not bring about dismissal of the action as would be the case in a criminal triaL � The most recent case resulted in an interesting opinion by Judge Marvin E. Frankel, the Federal District judge in question. The case arose out of an in- surance dispute in which action was brought by Pan American Airways On September 6, 1970, Pan American was operating a Boeing 747 airplane on its scheduled route from Brussels, Belgium, to New York City, with a stop in Amsterdam, Holland. On the flight from Amsterdam to London, two of the passengers produced hand guns and grenades, forcibly took command of the crew and the passPngers, and ordered the pilot to proceed to Beirut, Lebanon. The hijackers, though not themselves Arabs, were working with and for the Palestinian operation called the Popular Front for the Liberation of Palestine (PFLP). In collaboration with other PFLP people who met them in Beirut, they laced the aircraft with explosives during and, after a stop in the Lebanese capital Then they caused the airplane to be flown to Cairo, Egypt, lighting fuses just before landing to ignite the explosives. The large complement of passengers and crew thus had scant minutes to disembark and flee as the plane landed at Cairo, before the craft exploded, burned, and was totally destroyed. Pan American, of course, carried insurance coverage. This was in two packages. The so-called "all risk" insurance was carried by a group of American insurance companies to the full value of the plane, $24 million, and the policy contained a "war risk" exclusion. In other words, the American companies would not pay for loss caused by an act of war as defined in the policy. Pan American then obtained war risk coverage in two lots, $14 million from a Lloyd's group in London and $10 million from the United States Federal Aviation Authority. The "all risk" defendants, were adamant that the loss was due to an act of war, and the other two defendants were just as firm that this hijacking did not come under the war risk exclusion. Pan American, therefore, brought suit against all the groups, and left it to the Federal District Court in New York to interpret the various policies. Several large and expensive teams of lawyers started research into all aspects of the episode and the background of those involved. Early in the course of this preparation, Mr. Lawrence E. Walsh, representing the American defendants, came to see me and Mr. John S. Warner, then Deputy General CounseL He claimed that the British defendants had had the help of documents- UNCLASSIFIED 63 39 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 4. (Continued) UNCLASSIFIED Executive Privilege tion from official British intelligence components to assist in building their case and, therefore, he claimed that the American defendants had the right to inspect any and all Amencan intelligence records in any way pertinent to the subject. We explained the security problems involved, particularly in the source and method area, and that these would present real obstacles to making available intelligence documentation. As a former Attorney General, Mr. Walsh actually had some familiarity with this subject We did not commit the Agency to any 'production of records Mr. Walsh subsequently obtained an order for discovery directed, among others, to the Department of Defense, Department of State, and CIA, directing the production of all records having to do with the episode in which the plane was destroyed, with the complete background and history of the PFLP and a large number of named individuals connected therewith, and with a number of other specifically identified subjects. The only body of unclassified material that was responsive in any way was a compilation of FBIS reports on the subject, which was offered but not accepted by the :all risk" insurers. We asked the United States Attorney to try to negotiate some middle position, as did State, but State finally gave defense counsel access to its records including classified material. A rough appraisal of what a full response to the discovery order would mean for CIA indicated that there would be a minimiun of over 5,000 items, the majority of them raw reports, many from highly sensitive sources, all involving security problems to one degree or another. We also came to the conclusion that while there was much valuable intelligence material in this, the salient facts 'pertaining to the destruction of the plane and to the PFLP were readily available from open sources. We, therefore, felt the American defendants would not be prejudiced in their case by failing to have CIA records. Accordingly, we entered a formal claim of sovereign immunity in answer to the discovery order, an action that must be taken personally by the Director. The claim was supported by an affidavit which set forth the security problems, including the danger, particularly in this case, to lives and well-being of sources who might be exposed through the court process. The case was argued at great length by eminent counsel for some of the outstanding firms in the country, as well as by the United States Attorney. On 17 September 1973, Judge Frankel handed down his opinion, which was long and dealt with the issues in great detail. In short, he came to the conclusion that the PFLP was not an organized military operation, and the hijacking was an isolated act not related to any military operations so that it did not come within the 'exclusion of the war risk policy and the American companies defending were ordered to pay the judgment in full. He then dealt specifically with the CIA claim of privilege, and his treatment is best set forth in the judge's own words as follows: The all risk defendants have unleashed manpower, suited to the sums at stake, in massive, works of factual and legal research. Lavish dis- covery has been had of State Department, FAA, and FBI documents to learn about the PFLP, the Middle East struggles generally, and the disputed hijacking. Several inches of secret and otherwise classified State Department papers have been made a peculiar sort of secret annex to the record, with counsel and the court (dubitante) submitting to "clearance" procedures for access. All risk counsel also demanded, 64 UNCLASSIFIED 40 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 4. (Continued) Executive Privilege UNCLASSIFIED however, secret Central Intelligence Agency (CIA) documents, and this agency, after some procedural rituals, interposed the "secrets of state" privilege. Ultimate determination of the issue thus posed was postponed until after trial. The all risk defendants at this point make the heady claim that if all else fails, they should have judgment for this reason against the -United States." There is a threshold question of some magnitude whether the problem should be considered as one of discovery against the Govern- ment as a party The all risk defendants have, strictly speaking, no claim against the United States, which has sold insurance to the plaintiff. The Government's 'proprietary" role as insurer does not comfortably or conveniently lead to the conclusion that all its agencies, however separate, must be treated as fractions of this single "party" for discovery purposes. It might well be held that the applicable standards for dis- closure are those of the Freedom of Information Act and that tht all nsk argument is ended by the duly imposed -secret" classification under the ruling in Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). But even viewing The Government as a monolith, and applying inter panes rules of discovery, the risk argument fails because: (1) the claim of privilege appears to have been justified in the circumstances, at least when measured against (2) the trivial showing of alleged need for disclosure. The CIA Director explained the refusal to disclose, even for in camera inspection, on the ground that: -The revelation of the identity of these sources to the Court or to the parties to this litigation could result not only in their loss to the Central Intelligence Agency for the future but also in serious physical danger to a number of them who are risking their lives and careers to assist us." The circumstances apparent to the court from the entirety of this case render this a realistic and convincing concern. The setting reeks of violence and danger. The loss of American and other lives through terror is a vivid part of OUT evidence. But there should be no need to linger over this. With characteristic responsibility, all risk counsel reported during the trial that one of their witnesses had probably lied in cross-examination, and that the explanation appeared to be potential physical dangers to him had he done otherwise. The matter was left at that. It seems appropriate to pay similar heed to the representation of the CIA without yielding an iota of the court's responsibility and power to judge for itself the grounds of a claim of privilege. This conclusion is reached easily in this case because the asserted needs for disclosure are shadowy and speculative at best. It is said that CIA documents might indicate ( by hearsay, of course) payments by Arab governments to the PFLP. But the all risk defendants had the PLA Commanding General on the stand for days and did not even ask about this. Moreover, other evidence adduced by the all risk defendants showed there were no such payments, or none of consequence. It is argued that CIA hearsay might disclose PFLP intent and "aims and UNCLASSIFIED 65 41 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 . 4. (Continued) UNCLASSIFIED Executive Privilege operations during 1970." But surely our record, including reams of State Department hearsay, to say nothing of PFLP's non-reticent func- tioning, is ample on that. It is argued that the all risk defendants tried unsuccessfully to procure a witness from the PFLP, and that the CIA files would be or show "other sources of alternative evidence." But this persists in overlooking the hearsay rule and is otherwise a matter of unlikely conjecture. In short, we have here, with the perspective of a huge record, a -formal claim of privilege set against a dubious showing of necessity." United States v. Reynolds, 345 U.S. 1, 11 (1953) The "formal claim" was made in a setting of substantial assurance that legitimate concerns for security and human life were at stake. Against that were extensive alternative sources, including broad disclosures by government agencies. The court is led upon the record as a whole to the firm judgment that the "intelligence" sought would not have enhanced significantly the factual knowledge needed for this lawsuit It is concluded, under the principles of United States v. Reynolds, that there was no occasion for insisting upon in camera inspection of the documents and that there is no basis either for the extraordinary judgment the all risk insurers seek or for any other "sanctions." It was, of course, gratifying to have the Agency claim of privilege upheld. However, there was still one point of concern left open by this opinion. There have been several degrees of privilege running back through legal history. Recent discussion has tended to differ between a claim of government privilege, which has to do with confidential communications' within the government, and a claim of sovereign immunity which is based on security considerations per- taining to the national interest The difference is that in the government privilege the courts take it upon themselves to review the information to see if it is relevant, and necessary to the case, but there is a body of law which indicates that the claim of sovereign immunity is not reviewable by the courts. It is this latter interpretation which we had placed on our claim. However, it will be noted Judge Frankel took a differing view as he says: It seems appropriate to pay similar heed to the representation of the CIA without yielding an iota of the court's responsibility and power to judge for itself the grounds of a claim of privilege. Whether he meant actually court review of the material involved or whether he had in mind some further demonstration of the need to protect the information is not quite clear. In this case, of course, the outcome was completely satisfactory. 66 UNCLASSIFIED 42 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. "The Marchetti Case: New Case Law," John S. Warner (Spring 1977, Volume 21/1) Security by injunction THE MARCHETTI CASE: NEW CASE LAW John S. Warner* The Marchetti case is truly a landmark case in the annals of the law�and it has far-reaching implications for the Central Intelligence Agency, the intelligence community, and the federal government as a whole, as will be demonstrated. Actually, the legal story consists of two separate but related legal actions. (1) The first case was initiated at the request of CIA by the United States of America, represented by the Department of Justice. CIA sought an injunction which would prevent a former employee, Victor Marchetti, from publishing a proposed magazine article by enforcing the secrecy agreement he signed upon entering into employment with CIA. After hearings, appeals, trials, and further appeals, a permanent injunction was issued. The decision of the United States Distfict Court for the Eastern District of Virginia in Alexandria, Va , was appealed to the U.S. Court of Appeals for the Fourth Circuit. There the onginal decision was affirmed, and a petition for a writ of certiorari** was filed with the U S Supreme Court. That court declined to review the decision of the Circuit Court, which is cited as U.S. v. Marchetti, 466F 2d 1309(1972). (2) The second case was initiated by Alfred A. Knopf, a publisher, and Marchetti and John D. Marks, co-authors of a proposed book, The CIA and The Cult of Intelligence, submitted to CIA on 27 August 1973 pursuant to the terms of the injunction issued in the first ease. This latter case, against the United States, was filed in the U.S. District Court for the Southern District of New York. On motion of Department of Justice lawyers, and after hearing arguments, that court ordered the case removed to the Alexandria District Court which had heard the first ease and had issued the injunction. The basic issue in this second case concerned the appropriateness of the deletions CIA had made from the Marchetti-Marks manuscript. After trial, the Alexandria District Court made a decision which was extremely adverse to the government's position. Upon appeal, the Fourth Circuit Court of Appeals reversed the District Court, fully approving the government's position�i.e., agreeing with all the deletions requested by CIA This case too was appealed to the Supreme Court, but certiorari was denied. This case is cited as Knopf v. Colby, 509F 2d 1362(1975). Perhaps this is the place for some background on the central figure, Victor Leo Marchetti Marchetti served for two years, 1951-1953, in France and Germany as a corporal in Army Intelligence, including six months of Russian Area study at the EUCOM Intelligence School in Oberammergau. Returning to the United States to complete his college studies, he graduated from Penn State in June 1955 with a bachelor's degree in History (Russian Area Studies), worked three months as an analyst at the National Security Agency, and entered on duty with CIA as a GS-7 on 3 *The author wishes to acknowledge the assistance of Lawrence R Houston and John K Greaney in the preparation of this article **A wnt of certiorari certifies that the Supreme Court agrees to hear the case in question, when such a wnt is denied, it means the Supreme Court sees no reason for taking the case to the Supreme Court 1 43 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case October 1955 at the age of 25 He rose relatively rapidly, primarily through the Office of Research and Reports, but also with tours in the Directorate of Operations and the Office of National Estimates From ONE, as a GS-14, he went to the Office of Plans, Programs, and Budget in January, 1966, and served there for two and a half years In July, 1968, having reached the GS-15 level, he became Executive Assistant to the Deputy Director of Central Intelligence for a penod of nine months He was then assigned to the Planning, Programming, and Budget Staff at the National Photographic Interpretation Center, and five months later resigned for "personal reasons" in September, 1969 In his assignments with the CIA PPB office, where he handled the papers for the "303 Committee" (later the "40 Committee") which passed on Covert Action proposals, and particularly with the DDCI, Marchetti got an overall view of the Agency and access to sensitive information afforded to extremely few Agency employees There was no evidence of serious disillusion or disenchantment with the Agency before he left After his departure from the Agency, Marchetti began writing, first a novels The , Rope-Dancer, and then non-fiction articles concerning Agency activities In March 1972, the Agency received a draft of an article Marchetti had written for Esquire magazine, together with the outline of a proposed book on CIA The source expressed the opinion that the Agency might be concerned with the content, because many aspects seemed classified and sensitive Indeed, the Agency was concerned Very serious classified matters were discussed Included were names of agents, relations with named governments, and identifying details of ongoing operations There were items which might have led to the rupture of diplomatic relations between the United States and other countries. Disclosure would cause grave harm to intelligence activities of the U.S Government and to CIA William E Colby, then Executive Director, telephoned me in my capacity of Deputy General Counsel at the time, asking what legal action could be taken The answer was that no criminal action would be successful once the matenal were published, but this might be the proper situation for seeking an injunction Colby asked whether we were certain of our legal position as to an injunction We noted that extensive legal research within the Agency and consultation with the Department of Justice had taken place five or six years before Colby asked for some documents on this as quickly as possible, and had them within 30 minutes. It is useful to digress to look at this novel legal approach. For years the Agency had recognized the practical impossibility, under existing law, of applying criminal sanctions to employees and former employees who disclosed classified information to unauthorized persons In the mid-Sixties, however, under threat of a revealing book by a disgruntled former employee, the lawyers looked into the possibility of civil sanctions�namely, an injunction to enforce his contract based on the secrecy agreement each employee signs at the beginning of his employment It was known, of course, that various industry agreements had been enforced in the courts�agreements that protected industrial processes and other proprietary nghts from disclosure by employees, both dunng and after employment Why shouldn't the U.S Government also be protected on the simple basis of a valid contract The conclusion was reached that a court action had a good chance of success The Department of Justice was consulted, and after thorough review agreed The pending threat went away, but the papers were preserved against later need What did Colby do with the documents when we produced them? He discussed them with the then-Director, Richard Helms, who took the matter up personally with 2 44 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case the President The President said he would turn this over to John Ehrlichman, then his Counsel Helms asked CIA General Counsel Lawrence R Houston and me to go to the White House to see Ehrlichman and discuss possible action on the proposed article and book by Marchetti. In late March 1972 we were shown into Ehrlichman's office in the White House In a few minutes Ehrlichman appeared, accompanied by an assistant, David R. Young They had done their homework, knew the factual situation, had studied the pertinent criminal law, and had the proper law books in their hands After thorough discussion, it was agreed that the criminal statutes would provide no remedy for the problem facing us Talk then turned to the injunction possibility. We presented our view in favor of a try in the courts for an injunction, conceding that there was no precedent involving the U.S Government in the case law Finally it was mutually agreed to have a try at an injunction Talk then turned to the means of preparing the ea. Houston and I urged care with respect to which Deparment of Justice attorney would handle the case, on the grounds that dealing with classified intelligence information would require considerable understanding to prepare a complaint, briefs, and oral argument while at the same time probecting the sensitive aspects; this, after all, was what the case was all about He then suggested Daniel J. McAuliffe, an attorney in the Internal Security Division of the Department of Justice, who was on detail to the White House. Ehrlichman described McAuliffe as very able and discreet Within a day or so, McAuliffe came to the Headquarters Building to begin his study of the case and to start his education into the intricacies of classification and intelligence There were to be many hours of joint study and consultation McAuliffe was indeed a thoroughly competent professional who performed the research and prepared the documentation which was the basis for the subsequent court action. When it came time to go to court, the matter was turned over to Irwin Goldbloom, another thoroughly expert and capable lawyer in the Civil Division of the Department of Justice One of the first problems came with the realization that if Marchetti published the information about which we were concerned, then the injunction proceeding would be useless Normally, in seeking an injunction, the person against whom it is sought is served with appropriate papers and given an opportunity to be represented before the judge. We were afraid, however, that Marchetti, if served, might immediately get in touch with the media and broadcast the very items about which we were concerned Accordingly, we took the backup documentation, together with the proposed temporary restraining order, to Judge Albert V Bryan Jr., of the U S District Court for Eastern Virginia, sitting in Alexandria We met Judge Bryan in his chambers, showed him quotations from Marchetti's manuscript which, to us, appeared most damaging if made public, and explained our theory of an injunction based on the secrecy agreement We also stated that Marchetti had not been served and explained why we came in with an ex parte proceeding under these circumstances Judge Bryan agreed with the argument put forward by Goldbloom and signed the temporary restraining order without hesitation on 18 Apnl 1972 He then called in one of the marshals and ordered him to serve Marchetti immediately with the executed order This set in Motion the proceedings leading to the first court hearing before Judge Bryan, at which Marchetti was represented by counsel for the American Civil Liberties Union The defense counsel appealed on technical grounds on an urgent basis, and the appeal was heard within a few days by the U S Fourth Circuit Court of Appeals sitting in Alexandria While the appellate court refused to stop the 3 45 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case proceedings, they did raise some troublesome questions, particularly about Clearance of witnesses for the defense who would.have access to the classified material They warned that nothing could be done which could be construed as intimidating or warning off witnesses Some details of the actual trial are appropriate here because of their relevance to the second ease Judge Bryan permitted the government to file classified briefs and classified exhibits Much testimony of witnesses was in camera�court closed to the public. The judge issued appropriate protective orders, binding on all parties and their . attorneys, and at the close of the trial ordered all classified records sealed This sealed record, of course, was made available to the Fourth Circuit Court of Appeals There were affidavits and oral testimony by Agency personnel as to which matters in the proposed Esquire article and the book outline were considered classified Judge Bryan had some difficulty in accepting simple testimony that a matter was classified The issue was not whether a matter had been properly classified, but rather whether it was in fact classified at all, in instances where the defendant argued that it was not For example, in a situation involving the true name of an agent, the judge was satisfied when shown an acknowledgment of an assigned pseudonym on a card showmg the agent's true name and stamped "Secret" Similar types of documents for other situations were exhibited to support the testimony of Agency employees, and the judge appeared satisfied as did the defendant's lawyers judge Bryan issued a permanent injunction on 19 May and an appeal was taken Now, what were the basic legal issues reviewed by the Circuit Court? From the beginning, Marchetti's lawyers (from the American Civil Liberties Union) urged that an injunction was a prior restraint in violation of the First Amendment providing that -Congress shall make no law. . . abridging the freedom of the press" By case law the amendment has been applied to the Executive Branch and to the courts The Circuit Court reviewed the constitutional basis for secrecy within the Executive Branch and its right and duty to maintain secrecy The Court went on to say that First Amendment rights and freedom of speech are not absolute rights, and that the secrecy agreement was a reasonable and constitutional means for the Director of Central Intelligence to implement his statutory charge to protect intelligence sources and methods from unauthorized disclosure In other areas, the Court said that the Agency must review any submission within 30 days, and that Marchetti, if dissatisfied with the Agency action, could seek judicial review This burden, the Court added, should not be on CIA The Court went on to say. Indeed, in most instances, there ought to be no practical reason for judicial review since, because of its limited nature, there would be only narrow areas for possible disagreement The Court also held that The issues upon judicial review would seem to be simply whether or not the information was classified and, if so, whether or not, by prior disclosure [by the Government], it had come into the public domain Inasmuch as the Court held that "the process of classification is part of the Executive function beyond the scope of judicial review," CIA would have no obligation to establish the propriety of classification, but would be required to establish only the fact of classification The three judges, Clement F. Haynesworth, Harrison L. Winter, and the late J Braxton Craven, Jr, agreed on the basic opinion except that Craven would not 4 46 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case subscribe to a flat rule that there should not be any judicial review of classification As he put it, I would not object to a presumption of reasonableness [on the part of the Government], and a requirement that the assailant demonstrate by dear and convincing evidence that a classification is arbitrary and capricious before it may be invalidated The opinion of the Circtut Court remanded the (,..e to the District Court to limit the injunction to classified information so that on 15 March 1973 it finally read as follows ORDERED That the operative provisions of the permanent injunction entered by this Court on May 24, 1972 be and they hereby are revised and that the -Ordered- provisions of said permanent injunction shall now provide: That the defendent, Victor L Marchetti, his agents, servants, employees and attorneys, and all other persons in active concert or participation with him, and each � of them, be, and they hereby are permanently enjoined from further breaching the terms and conditions of the defendant's secrecy agreement, dated 3 March 1955, with the Central Intelligence Agency by disclosing in any manner (1) any classified information relating to intelligence activities, (2) any classified information concerning intelligence sources and methods; Provided, however, that this Injunction shall not apply to any such information, the release of which has been authorized in accordance with the terms and conditions of the aforesaid contract, and Provided, further, that this Injunction shall apply only with respect to classified information obtained by said defendent during the course of his employment under the aforesaid secrecy agreement and which has not been placed in the public domain by prior disclosure by the United States; and it is FURTHER ORDERED. that the defendant shall submit to the Central Intelligence Agency, for examination 30 days in advance of release to any person or corporation, any manuscript, article or essay, or other writing, factual, fictional or otherwise, which relates to or purports to relate to the Central Intelligence Agency, intelligence, intelligence activities, or intelligence sources and methods, for the purpose of avoiding inadvertent disclosure of classified information contrary to the provisions and conditions of the aforesaid secrecy agreement, and such manuscript, article, essay or other writing shall not be released without prior authorization from the Director of Central Intelligence or his designated representative CIA had fashioned a workable tool in a court of law, based on a simple contract theory. This tool could prevent serious damage to the interests of the United States or threats to the personal safety of individuals, by acting in advance of the threatened disclosure Even if the government were able to take criminal action on a disclosure, the damage would already have been done Other agencies in the Intelligence Community were mged to establish secrecy agreement procedures In the face of increasing concern over publication of classified information, CIA had taken the initiative in the courts and won a significant victory in a landmark legal case 5 47 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case ii The second case starts with a letter from Marchetti's lawyer dated 27 August 1973 which transmitted a proposed manuscnpt of 517 pages pursuant to the terms of the permanent injunction issued in the first case CIA had 30 days to respond A task force was organized with representatives from the four directorates, and at the same tune each of the four Deputy Directors was charged with reading the entire manuscript within a matter of days. At a meeting of the four deputies and the task force, it was agreed that the manuscript was in fact "Top Secret�Sensitive," and should be so marked There were other difficulties the manuscript included compartmented information and sensitive need-to-know projects, and not all of the task force members or Agency lawyers had the requisite clearances (which were quickly granted) Also, some items were of prime interest to other agencies, including State, NSA, and Navy. Excerpts were sent to other agencies as appropriate The task force was informed that for each item adjudged as classified, the judgment would have to be backed up with documentation The process also began of sorting out which items would be assigned to which Deputy Director for final judgment Colby�by now DCI�was of course kept fully informed of precisely hOw this mammoth judgmental and mechanical task was being planned and pushed forward There was careful consideration of which items, although classified, were so widely known that no serious harm would result from publication. Colby made the decision that we should proceed to list all classified items consistent with the language of the injunction, with the view that at a later date, possibly at trial, CIA could withdraw on the softer items I debated this with Colby�probably insufficiently and not voCiferously enough�on the grounds that the authors and their lawyers would publicize the items withdrawn with the simple theme that CIA had listed them as classified and then changed its mind The inference drawn would be that CIA thereby confirmed the validity of each item previously deleted but subsequently cleared When, the book was published, this was precisely what happened�all of the items which CIA first deleted and then cleared were printed in boldface type so that any reader knew what CIA regarded as classified as of the submission of the manuscript It is impossible to overemphasize the massive job of reviewing these 517 pages of manuscnpt. Some reviewers had a tendency to delete three or four pages at a time so as to drop an entire subject, when in fact deletion of a few sentences, names, or places would have done the job. This happened particularly with the other agencies involved, but inasmuch as,the Agency was responding on behalf of all (no volunteers here to go on the record or to provide witnesses in court), there had to be consistency Finally the job was done, and a letter dated 26 September 1973 was sent forward attaching a listing of 339 deletions, referring, for example, to words three through eight on line 17 of page 276 This was done to avoid putting the classified words in the letter, so that the letter itself could remain unclassified for use in the open court record. In the letter, an offer was made for a conference to ascertain if by modest word changes some of the listed deletions could be made acceptable to CIA Such a conference was held on 4 October 1973 with Marchetti, his ACLU lawyer Melvin Wulf, myself as CIA General Counsel, and John K. Greaney as Assistant General Counsel It was an all-day session which got nowhere They presented a quantity of newspaper clippings which contained information similar to items in the manuscnpt and urged that such information in the clippings in effect made the items in the manuscript unclassified We countered that this was not so, and that if Marchetti would simply attribute the information in the manuscript to the media sources, CIA would have no problem But no, they wanted whatever authenticity could be gamed from asserting the information as Marchetti's knowledge Other 6 48 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case suggestions were made, such as deletion of names of people, substitution of a general geographical area for a specific capital or country, or deletion of certain details of operational projects These too were rejected, and by the end of the day it became clear that they were not going to make any changes One can wonder whether they came to negotiate, or simply to make a record that such a conference had been held The Agency in the next few days considered its position on the full 339 items, and made the decision that it would withdraw its objections to the -soft" items, which totalled 114. Later, after a thorough review of the remaining deletions, and more careful study by the four deputies and the lawyers as to what they would face as Witnesses in the actual trial, CIA withdraw on another 57 items, leaving 168 deletions on which CIA stood fast , Marchetti, in submitting the manuscript, had included John D Marks as co- author Marks was a former State Department employee, who had worked in intelligence and had signed a secrecy agreement It also developed that Marchetti had signed a contract for the publication of the book with Alfred A Knopf, Inc The court aspect of this second case now began with the filing of a legai action in the U.S. District Court for the Sourthern District of New York The plaintiffs were Knopf, Marchetti, and Marks, seeking an order which would permit publication of the remaining 168 deleted items. One can only speculate about the motives behind their choice of a court sheer legal tactics, easier jurisdiction in terms of the subject matter, or physical,convernence for plaintiffs' lawyers, who were all based in New York City. The ence law and court rules clearly favored jurisdiction where the injunction had been issued on 15 March 1973 Upon motion and after oral argument, the action was transferred to the Eastern District of Virginia (Alexandria) where the first case had been tried and where it would come before Judge Bryan, who had tried the first ence. So much for tactics or whatever Now came the depositions preparatory for trial sworn testimony with lawyers from both sides present for cross-examination Among the witnesses were the four deputies, the DCI, Marchetti, and Marks Marks had been granting interviews to � journalists and had appeared on radio and television discussing information similar to that contained in the manuscript Again, as earlier, it was argued that because the information was m the media it was no longer classified This was a bootstrap operation leak information in the manuscript, and then claim it is thereby declassified by publication. Marks, however, was put in a dilemma when asked whether he had given specific items to the press. If he admitted it, he could be subject to a citation of contempt under the original injunction inasmuch as he now was a co- author, if he denied it, he would be risking perjury charges. He resorted to pleading the Fifth Amendment on five occasions Later, at the trial, the judge took note of this, saying, in effect, you can't have it both ways It is worthwhile to digress here for a moment to comment on the degradation and dilution of security that charaetenzed this entire matter Obviously Marks, Marchetti's lawyers, and Knopf's lawyers had access to a mass of sensitive information It should be noted that Knopf's lawyer, Floyd Abrams, voluntarily undertook not to expose the manuscript to his client In court, not only the judge but his clerk, the bailiff, the stenographer, and others were exposed to sensitive classified information Papers and documents in the court and in the lawyers' offices were not stored under the rigidly controlled conditions prevailing at CIA Nor were most of these people trained, by experience or otherwise, in how to deal with highly classified information and documents The crowning blow came when CIA asked the District Court for access to the record of the first trial Back came the answer -We can't find it" And they never have' 7 49 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case Now came the tnal. It was clear from the briefs filed that the plaintiffs wished to re-litigate the First Amendment issue It was also clear that the judge would have none of this, but the issue was in the record for the inevitable appeal The four Deputy Directors were witnesses and collectively covered all the 168 deletion items They testified that the information was classified, and had been since the inception of the program or from the witness's first contact with it, and was still classified Then excerpts of classified documents were submitted as exhibits, heavily censored so as not to furnish new sensitive information. The witnesses than tied each of the deletion items to information in the various exhibits, which was the procedure Judge Bryan found acceptable at the first trial This time, however, Judge Bryan was having even greater difficulty in understanding the basic concept of classification and the procedure followed He appeared to think that the government should be able to punch a computer button that would result in a showing that a deletion had been classified by a proper official on a specific date in the past He accepted a few documents which specifically stated that certain types of information should be classified at certain levels. One such document, for example, was a DCI Directive specifying that locations of communications intelligence collection facilities \vould be classified "Secret" One such deletion item was thus accepted by the judge, together with an additional 25 In a decision stunning to the government, however, Judge Bryan found that the fact of classification of the remaining 142 items had not been proved To CIA, it seemed self-evident that matters such as names of agents and details of ongoing clandestine collection operations were classified In his opinion, judge Bryan stated that it seemed to him that the four Deputy Directors were making ad hoc classifications of material after having read the manuscript, although he recognized that the Deputy Directors had denied this No evidence or even assertions contradicted the four deputies. Could the judge have thought that they were lying? It was clear that the judge simply had not comprehended the classification system Further he had abandoned the method of proving classification which had been acceptable to him and to the defendants at the first trial, and had also been acceptable to the Circuit Court of Appeals In the second trial, however, he neglected to advise the government that he had so abandoned the procedure for proof, nor did he state what would be acceptable. Preparations accordingly were made for the appeal The Department of Justice lawyers who had handled the trial, Irwin Goldbloom�by now Deputy Assistant Attorney General, Civil Division�and his assistant, David J Anderson, started writing appeal briefs. There was the continuing close working relationship between them and, for the Agency, John Greaney and me Greaney and I, working with the information supplied by the four Directorates, wrote the classified briefs; The Department of Justice lawyers wrote their unclassified briefs, then we exchanged them for comment We all wanted to make certain that we made clear to the Circuit Court what classification in the intelligence arena was all about The briefs and other documents constituting the record were duly filed, consisting of several thousand pages In any event it was an enormous record for the Circuit Court to review Oral argument was heard on 3 June 1974 before the same three judges who had heard the first case, Haynesworth, Winter and Craven. At the close of questioning Judge Winter made an observation to the effect that "When this matter was before us previously, none of us then realized how enormously complicated this matter of classification really is "This observation clearly foreshadowed parts of the opinion, such as, in speaking of their opinion in the first case, . we did not foresee the problems as they developed in the District Court We had not envisioned any problem of identifying classified information embodied in a document produced from the files of such an agency as the CIA . We perhaps misled the District Judge into the 8 50 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marcheffi Case imposition upon the United States of an unreasonable and improper burden of proof of classification Finally, after an almost unprecedented length of time�more than nine months�the Circuit Court on 7 February 1975 handed down its opinion, total and complete victory for CIA and the U S. Government on the fundamental issues The plaintiffs of course petitioned the U S Supreme Court for a writ of certiorari, but this was denied What were the basic issues decided? 1) The court declined to modify its "previous holding that the First Amendment is no bar against an injunction forbidding the disclosure of" classified information acquired by an employee of the U.S Government in the course of such employment, and "its disclosure would violate a ,solemn agreement made by the employee at the commencement of his employment " The Court held "he effectively relinquished his First Amendment rights" 2) The District Judge properly held that classified information obtained by the CIA or the State Department was not in the public domain unless there had been official disclosure of it . . It is one thing for a reporter or author to speculate or guess that a thing may be so, or even. . to saY that it is so, it is quite another thing for one in a position to know of it officially to say that it is so. 3) The Court referred to. . . the fact that Marks, on Fifth Amendment grounds, on five different occasions declined to answer whether he was the undisclosed source of information contained in five magazine articles offered by the plaintiffs to show that the information was in the public domain. A pubhc official in a confidential relationship surely may not leak information in violation of the confidence reposed in him and use the resulting publication as legitimating his own subsequent open and public disclosure of this same information 4) . the individuals bound by the secrecy agreements may not disclose information, still classified, learned by them during their employments regardless of what they may learn or might learn thereafter. Also Information later received as a consequence of the indiscretion of overly trusting former associates is in the same category 5) The Court dwelt at some length on the well-established doctrine of presumption of regularity by a public official in his public duty . . in the absence of clear evidence to the contrary, courts presume that they [public officials] have properly discharged their official duties. . That presumption leaves no room for speculation that information which the district court can recognize as proper for Top Secret classification was not classified at all by the official who placed the "Top Secret" legend on the document The Court summarized by saying, In short, the government was required to show no more than that each deletion item disclosed information which was required to be classified in any degree and which was contained in a document bearing a classification stamp 9 51 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case classified in any degree and which was contained in a document bearing a classification stamp This summary not only is reasonable, but also reflects exactly the standard and procedure accepted by Judge Bryan in the first trial! How or why he rejected this standard in the second trial, one can only wonder 6) While it is not one of the primary issues, it is still important to note what the Court said about the deletions of additional and irrelevant information in the documents submitted as exhibits by the government Nor was it necessary for the government to disclose to lawyers, judges, court reporters, expert witnesses and others, perhaps, sensitive but irrelevant information in a classified document in order to prove that a particular item of information within it had been classified It is not to slight judges, lawyers or any one else to suggest that such disclosure carries with it serious risk that highly sensitive information may be compromised In our own chambers, we are ill-equipped to provide the kind of security highly sensitive information should hlve 7) The action of the Fourth Circuit Court of Appeals is embodied in the following For such reasons, we conclude that the burden of proof imposed upon the defendants to establish classification was far too stringent and that it is appropnate to vacate the judgment and remand for reconsideration and fresh findings imposing a burden of proof consistent with this opinion . Thus was written the penultimate chapter of the Marchetti case. The final chapter was the drafting* of proposed findings of the District Court, which act, it was hoped, would close the case Those readers who are lawyers can imagine the task In any event, the detailed findings�of fact for court approval, involving some 142 specific fact situations, were filed On 22 October 1975 a final order was issued No appeals were filed, and the order became final It was reported in the press that in answer to a question about contesting the "findings of fact" and the order entered by the District Court, Knopf's lawyer answered that more than $150,000 in legal fees had been spent and that it did not seem appropriate to contest the matter further The basic constitutional issues were settled, and further legal action would only be nitpicking on factual issues The ACLU also had no stomach for further legal battling The book, meanwhile, had been published with gaps for the deletions and boldface type for the original deletions subsequently withdrawn by the CIA Conclusion What had all this accomplished and what were the implications for the future'? For the first time CIA had taken the initiative in the courts to prevent the unauthorized disclosure of intelligence sources and methods The courts had affirmed in the particular circumstances the most fundamental of legal principles�the sanctity of a contract The courts had affirmed the right�and the duty�of the government to seek enforcement of that contract to protect its secrets, i e, sensitive classified information As previously mentioned, there was a degradation and dilution of secunty, and we have the acknowledgment by the Circuit Court itself that" . we are ill-equipped to provide the kind of security highly sensitive information should have" While it was not perfect, a highly useful tool had been fashioned *Onginally by Walter L Pforzheuner as a consultant to General Counsel 10 52 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case When the Rockefeller Commission (Commission on CIA Activities Within the United States) was established by the President on 4 , January 1975, there were immediate discussions concerning procedures to be followed by the Commission in protecting CIA sensitive classification information The Commission and its professional staff were cooperative. CIA asked that all staff members sign secrecy agreements. Bowing to the inexorable logic of the question posed by CIA of what law or legal tool could be used to protect classified information except the secrecy agreement, the Commission directed its staff members to sign such agreements Next came the Senate Select Committee to Study Intelligence Activities, and the House Select Committee on Intelligence At the request of CIA, the chairmen of the two committees directed all staff members to sign secrecy agreements During this same period the Department of Justice was conducting an investigation of possible crimes by employees or former employees of CIA The Special Prosecutor investigating Watergate was also investigating possible crimes by Agency personnel. At the request of the CIA, the Attorney General and the Special Prosecutor directed all their employees having access to CIA information to sign secrecy agreements While there may have been some leaks, no books or published articles not submitted to proper authority have appeared attributed to any of the above sources But for the Marchetti case, it is not likely that secrecy agreements would have been obtained in all of the above situations, and one can only speculate about possible publications In the meantime, CIA had been working closely with the Department of Justice on proposed legislation to provide criminal sanctions for the unauthorized disclosure of intelligence sources and methods As a part of that legislative package there was a provision for CIA to apply for an injunction when there were threatened violations of the proposed law Justice for two years would not concur in this provision, arguing that the Marchetti once established the principle of an injunction. CIA argued strongly the well-established fact that the other ten judicial circuits were not bound to follow the precedent established by just one circuit, the Fourth CIA wanted a firm statutory basis for an injunction in whatever jurisdiction a new once might arise Justice finally relented, and the President sent the legislative package forward to Congress with the injunction provision This was done in February 1976 with a recommendation for Congressional approval No action was taken in 1976, but it is hoped there will be some action in 1977 As a result of the various investigations of intelligence activities, the President on 19 February 1976 issued Executive Order 11905, entitled -Uruted States Foreign Intelligence Activities - The order was to clarify the authority and responsibilities of intelligence activities�in other words, a listing of do's and don'ts Section 7(a) is pertinent here. (a) In order to improve the protection of sources and methods of intelligence, all members of the Executive Branch and its contractors given access to information containing sources and methods of intelhgence shall, as a condition of obtaining access, sign an agreement that they will not disclose that information to persons not authonzed to receive it Section 7(c) provides that when there is a threatened unauthorized disclosure of intelligence sources and methods by a person who has signed a secrecy agreement, the matter will be referred -to the Attorney General for appropriate legal action, including the seeking of a judicial order to prevent such diselosure - Section 7(a) directs all intelligence agencies to do what CIA had done since it was established on 18 September 1947 Section 7(c) directs all agencies to do what CIA 11 53 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 5. (Continued) Marchetti Case had taken the initiative to do nearly four years ago�i.e., take a prospective violator of the secrecy agreement like Marchetti to court to prevent disclosure I feel that the above paragraphs under the heading of "Conclusion" show vividly and graphically the impact of the Marchetti case, not only as a legal precedent but also as a guideline for the conduct of intelligence on a day-to-day basis No one will claim that the Marchetti case offers a panacea to prevent disclosure of classified intelligence information. The United States needs criminal sanctions, as discussed earlier, for unauthorized disclosure of intelligence sources and methods where the injunctive remedy cannot or has not been applied (This is clearly demonstrated by the recent Department of Justice announcement that Philip Agee will not be prosecuted, should he return to the United States, for publication abroad of a book replete with details of Agency operations) If an author publishes a book or article prior to submission to CIA for review as to classified information, obviously injunctive relief is valueless Current laws provide no usable criminal sanctions, thus the need for the "sources and methods" legislative package. Nevertheless, the Marchetti case has provided an extremely valuable legal tool, helping the Agency in working with would-be authors and also helping to' improve security in Agency relationships with other government entities and agencies, the Congress, and the Judiciary. 4 12 54 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 6. "The CIA and the Law: The Evolving Role of the CIA's General Counsel," Daniel B. Silver (Summer 1981, Volume 25/2) THE CIA AND THE LAW: THE EVOLVING ROLE OF THE CIA'S GENERAL COUNSEL Daniel B. Silver As with many other aspects of the intelligence business the role of the General Counsel of the Central Intelligence Agency was affected profoundly, and perma- nently, by the exposures and investigations of the mid-70's. The ordeal of the Intelligence Community in the past decade can be viewed in large perspective as an unprecedented experiment in subjecting the intelligence activities of the United States to the process of oversight and the comprehensive rule of law. Although the exact form , of legal regulation of intelligence activities remains subject to modification, the broad lines are firmly established: extensive congressional oversight; an expanded role of the Attorney General in approving the use of -intrusive- techniques of investigation, and the existence of a pervasive, written�and, to a large degree, publicly debated�code of rules for the conduct of intelligence activities This code is composed of statutes, Executive orders and internal Agency regulations Of necessity, the CIA General Counsel has played, and will continue to play, a central role in the working out of this uniquely American encounter between the legal system and the Intelligence Community Espionage and the law lie in the same bed uneasily, if at all. The activities of the CIA, after all, are conducted predominantly abroad, frequently in violation of the laws of the countries in which they take place. Both at home and abroad, much of the CIA's activity necessarily takes place in secret Secret law generally is deprecated by legal philosophers; secret legal proceedings fit uncomfortably with our notions of legal process; and, to an increasing degree, secrecy in public affairs is viewed as contrary to the spirit of our political system. Thus, the Agency and its activities are by the very nature of things in a state of almost constant tension with the normal conditions of American law and government. Notwithstanding, the CIA always has maintained a degree of concern with legality that probably differs significantly from any other intelligence service in the world This is not surprising in view of the fact that CIA drew heavily in its early days from the American legal establishment and that lawyers have continued to be well represented in the ranks of its operating officers, as well as in the Office of General Counsel. As best I can judge from the historical record and the files of the Office of General Counsel, it would be erroneous to view the CIA in the pre-Church Committee period as an agency that considered itself outside the law or acted in a lawless manner To the contrary, the Agency's lawyers and senior officials tried to conform its activities to the law as they understood it, a difficult task given the sparse sources of legal authority. Nevertheless, it is fair to say that, like the rest of the Agency, the pre-Church Committee Office of General Counsel operated in a vastly different world than prevails today. It was a world in which the demands of external accountability were very few. In contrast, today the Agency exists in a permanent spotlight of external 51 55 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 6. (Continued) All concerned will profit scrutiny, exercised by a variety of entities the two permanent congressional commit- tees on a broad scale and other committees of the Congress on an ad hoc basis, the Intelligence Oversight Board, Justice Department and White House within the Executive Branch, and, perhaps most important, the press, whose unremitting examination of the Agency is aided by a flood of information coming from leaks, the publications of former employees and the products of the Freedom of Information Act It is safe to assume that the Agency's former relative insulation from outside scrutiny and pressure, having been breached, can never be restored The profound change that has occurred in recent years is manifested in the establishment of a detailed (and, to a large degree, public) legal code for the conduct of intelligence activities, constituted in large part through Executive order and internal Agency regulations. This code has been supplemented in several key respects by legislation, notably the Foreign Intelligence Surveillance Act of 1978 (FISA), which regulates intelligence-related electronic surveillance activities in the United States, and the Intelligence Oversight Act of 1980 (enacted as part of the Intelligence Authoriza- tion Act for FY 1981), which codified the oversight relationships between the intelligence agencies and the oversight committees in the Congress For the first time in Amencan history, there exists a substantial body of publicly available legal rules that purport to govern the conduct of intelligence activities in the United States and abroad by U S intelligence agencies There is an even more voluminous body of implementing Agency regulations Not least of all, there is an intelligence court, established under the FISA, which deals only with intelligence-related electronic surveillance and conducts all its activities in secret It remains to be seen whether this court will serve as a model for future expansion of Judicial involvement in intelligence activities. Impact on the Office of General Counsel The events of the last decade have led to a significant change in both the responsibilities of the General Counsel and the duties and composition of the Office of General Counsel One clear indicator of this change is size In 1980 the office had more than three times the number of lawyers it had had only six years earlier This expansion, which started in mid-1974, is attributable to many causes In part, it reflects the impact of the 1974 amendments to the Freedom of Information Act and the dramatic growth thereafter in litigation affecting the Agency (In the thirteen years following the Agency's establishment, there were two cases to which the Agency was a party, in contrast, today there are more than 180) In part, it reflects the expanding relationship between the Intelligence Community and the Congress, in which the Office of General Counsel plays a significant role Over and above these factors, however, it reflects an important evolution in legal regulation of intelligence activities and in the roles of the General Counsel in the following areas. a The General Counsel is the Agency official principally responsible for developing Agency-wide rules and regulations governing intelligence activities, as required by Executive Order 12036, and in negotiating the Agency's position on these rules with the Attorney General, whose approval is required under the Executive Order b The General Counsel has been given oversight responsibilities, under both Executive Order 12036 and its predecessor, Executive Order 11905, to report to the President's Intelligence Board on intelligence activities raising 52 56 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 6. (Continued) All concerned will profit questions of legality or propriety In addition, the General Counsel must Counsel the DCI concerning his responsibilities to report to the Congress, first under Executive Order 12036 and now under the recently-enacted Intelligence Oversight Act of 1980 c The General Counsel is required to ensure the legality and propriety of the Agency's activities It is particularly important in a time of increasing personal liability of government officials, and against a backdrop of cnminal prosecutions of former senior intelligence officials, to ensure that potentially controversial activities are carried out in a fashion that will provide maximum legal protection to Agency officers The Agency's General Counsel faces formidable challenges in trying to discharge and reconcile these responsibilities One is simply that of magnitude The legal problems and involvements of the CIA are massive both in number and complexity. Even as the number of litigated ences has grown, the predominant character of Agency litigation concurrently has shifted from routine FOIA eases to more esoteric areas of the law, such as enforcement of the Agency's secrecy agreement or, to eite a pending case, a challenge to the legality of the Agency's alleged provision of overhead photography to the Environmental Protection Agency for regulatory enforcement purposes At the same time there has been a great increase in the Agency's involvement in criminal cases as a potential source of information sought by either the government or the defense, or both In all of this litigation, the main role of the Office of General Counsel is to ensure that the Agency's interests are properly represented, or taken into consideration, by the Justice Department This is not always easy. It requires that Agency lawyers stay abreast of all developments in a ease, control the use and disposition of Agency information and be sufficiently steeped in the relevant law to be able to persuade the Justice Department to pursue the legal course that will contribute to development of the law in the manner most conducive to the Agency's interests Most of the cases in which the Agency is involved pit one public interest against another, as, for example, when the interests of criminal prosecution come into conflict with the need to protect national security information Thus, officials within the Justice Department, or other departments and agencies affected, frequently have strongly held views opposed to those of the Agency Confronting these policy differences�usually in a context where Agency lawyers feel that the Agency simply cannot affort to lose�requires advocacy that is forceful but that does not lead to a breach in the good working relations with the Justice Department which it is essential to maintain Litigation frequently receives the most attention, but it is by no means the sole claim on the time and energies of the Office of General Counsel. At least as important as defending the litigation of today is to prevent the potential litigation of tomorrow Indeed, probably the most important responsibility of the Agency's lawyers is to ensure that the Agency's potential for the effective accomplishment of its mission is not impaired by legal difficulties in the future or by events that could provoke a recur- rence of highly destructive investigations and criticisms There is no way to practice preventive law, or to ensure the legality and propriety of Agency activities, in a passive mode The Office of General Counsel must make sure that it is sufficiently informed of existing and proposed activities to be in a position to point out legal pit- falls In addition to purely legal considerations, the General Counsel must play a role�for which he is well suited as one of the Agency's principal bridges to the -outside world--in discerning and calling attention to proposed activities which, 53 57 pproved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 6. (Continued) All concerned will profit although within the bounds of legality, could expose the Agency to criticism disproportionate to the value of the intelligence objective All this requires a degree of aggressiveness, principally in educating the clients to the ways in which lawyers can be useful , A second challenge is that the roles currently imposed on the General Counsel require maintaining a careful balance between zeal as an advocate and objectivity as an instrument of internal oversight Traditionally, a lawyer's principal loyalty is to his client, in this case the Agency Obviously, the General Counsel cannot properly discharge his function unless he is a strong advocate for the Agency's interests This advocacy role has been of particular importance during a period in which the Agency was encountering severe hostility and criticism, hot only from the press and the Congress, but from within the Executive Branch. Beyond the advocacy role, however, all lawyers owe certain obligations to, the public good (for example, no lawyer knowingly can permit perjury by his client), and government lawyers, in particular, owe a duty to the public which is the ultimate client In the case of the CIA General Counsel, these inchoate obligations have been supplemented by Executive order provisions that clearly were intended to make the General Counsel an instrument of internal oversight. The internal oversight role poses a difficult balancing act whose difficulty has been intensified by widespread misunderstanding of what is involved. Under Executive Order 12036, the General Counsel is required to report to the Intelligence Oversight Board all Agency activities -that raise questions of legality or propriety "This language obviously goes far beyond requiring the reporting of undoubted illegalities It was intended to keep the Board informed of a range of ongoing activities found to be legal or proper but raising significant questions, so that the Board in turn could keep the President informed of how well the system of regulation was working and what sort of activities the intelligence agencies were able to conduct under the Executive Order. Notwithstand- ing the fact that the reporting is only within the Executive Branch, to a body with a very good record of . discretion, and for the sole purpose of keeping the President informed, it is apparent that many Agency officers attach opprobrium to the reporting of an intelligence activity. This view may be attributable to the circumstances in which the Board was created (i.e, as a reaction to the investigations of the mid-70's), but it is nonetheless a misunderstanding. Reporting to the Board is not the same as put- ting intelligence officers -on report" Unless an activity is reported as a clear violation of the, rules, reporting connotes no more than that the activity raises interesting questions�in many enses questions of whether the rules under the Exective Order are not excessively restrictive During my tenure as General Counsel, I have used the reporting requirement as a mechanism for attempting to give the Board a fair and balanced picture of both the successes and failures of regulation under Excutive Order 12036, in the hope that the imperfections in the system would be conveyed to the President and ultimately create a climate in which improvements could be made where needed No amount of formal legal rule can withstand massive repudiation by those affected. Thus, it is not sufficient, in my view, for the Office of General Counsel simply to rest on the powers and responsibilities formally attributed by law or Agency regulation Instead, the Agency's lawyers must earn the trust and confidence of Agency components and thereby ensure that the Office of General Counsel retains the practical elements it needs to do its job broad insight into operational activities, ongoing access to relevant information, and an ability to indentify 'potential problems early enough to practice preventive, rather than merely reactive, law 54 58 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 6. (Continued) All concerned will profit There is no magic formula for achieving this result I suggest that it is most likely to occur if the Agency's lawyers view their mission as congruent with the Agency's. The Office of General Counsel exists to help the DCI, the Intelligence Community Staff, the Directorate Of Operations and other components perform their authorized functions The contribution the Office of General Counsel can make to that effort is to ensure that the Agency's mission is not impeded by avoidable legal difficulties, that individual officers are protected against risks of civil and criminal liability; and that unavoidable legal intanglements, such as lawsuits against the Agency, are handled with as little disruption of Agency activities as is possible In short, it is incumbent on the General Counsel and his staff to demonstrate to the Agency, through example and per- suasion; that adherence to law is in everyone's )pest interest and that careful regard for legality is not synonymous with obstructionism Afterword: The Future of Regulation Judging from the large number of complaints one hears, there is little need to belabor the point that the pervasiveness 'of legal regulation has wrought profound change in CIA There is no doubt that this change is widely perceived in the Agency; it is also misunderstood by many as imposing restrictions and limitations that substantively prevent the accomplishment of the Agency's mission In fact, the substantive restrictions are far fewer than many would think In extensive discussions with operating officials at Headquarters and in the field, I have been struck repeatedly with the fact that most of the specific cases cited, in which legal restrictions were alleged to impede necessary operations, turned out to relate to Executive Order 12036 or the Agency's implementing regulations Instead, they related to internal Agency or Directorate of Operations policies, not required by law Thus, in my opinion, it is not fair to indict the system of legal regulation, or the lawyers who administer it, as a major substantive impediment to the accomplishment of the Agency's mission There have been very few cases (although those few were distressing) in which worthwhile intelligence operations proved to be absolutely impossible from a legal point of view. Moreover, the beneficial aspect of the present system far outweighs the disadvantages This beneficial aspect is the provision of legal certainty and protection to intelligence officers who otherwise would have to operate at great personal legal risk or not operate at all. The trend in federal law has been towards expanding personal liability of government officials for their acts, under evolving standards of behavior that expose officials to considerable hindsight criticism for actions that may have been assumed in good faith to be legal at the time they were carried out. The existence of a pervasive system of rules deriving from the authority of the President (and, in the race of electronic surveillance in the United States, from statute) renders it unlikely that any intelligence officer could be prosecuted for conducting an activity in accordance with those rules One of the most salutary features of the existing system of regulation is the requirement for written senior-level approval of most activities carried out in the United States or directed at U.S persons abroad Again, this "paper trail" insulates the officer in the field from exposure to liability and places accountability at the senior levels of the Agency Even the most senior officials, moreover, can expect to be safe in approving matters within the scope of existing rules upon advice of the Agency's General Counsel In other words, the current regulatory system, if it works properly, should leave no one but the General Counsel exposed to the risk of recrimination and liability That is a risk the General Counsel should shoulder willingly, if given the authority and responsibility to do the Job properly. 55 59 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 6. (Continued) All concerned will profit Despite the foregoing, the system in its present form fairly can be criticized for laying the hand of bureaucracy too heavily on an activity that requires flexibility and a capacity for quick reactions The endeavor to apply the rule of law to intelligence activities has been an experiment So far that experiment has erred in the direction of regulating too many aspects of the intelligence process and requiring too many bureaucratic approvals This is clearly recognized by the Agency's lawyers, who have been in the forefront of the effort to modify Executive Order 12036 and to simplify the Agency's implementing procedures In my view, the guiding factors in this effort should be selectivity and realism We should select those aspects of intelligence activities that pose the greatest potential threat to individual liberties or privacy and make sure that we have clear and easily understandable rules to guide Agency officers in these danger areas Given understandable guidance, I am convinced that Agency officers will be zealous in their desire to protect the legitimate rights of Americans and reluctant to repeat past experiences in which the Agency may have strayed from its classic mission Second, such rules as we have must be realistic There is little point in having volumes of Agency rules and regulations that are beyond the capability of officers to assimilate and that in many cases, for security reasons, cannot be available physically to officers in the field who need them the most Rules and procedures whose complexities lead to paralysis simply are unacceptable, they do not reflect a' proper balance between the intelligence needs of the United States and the constitutional and privacy concerns of our citizens � One of the most encouraging developments of the last several years is that I perceive a growing recognition of these essential points in the Agency, the Intelligence Community and the concerned public (excluding the radical fringes of both extremes) On the side of intelligence officers, I think there is growing acceptance that a system of legal regulation can be a benefit rather than the contrary. In the rest of the Administration, in the Congress and in the responsible sectors of the public, there is a growing recognition that legal regulation of intelligence activities must not be guided by the counsels of perfection This recognition has led to the virtual disappearance of strong pressures for a comprehensive -charters- bill that would purport to regulate all aspects of intelligence activity in great detail The Carter Administration and the Senate Select Committee on Intelligence tried for three years to create such a bill and failed abysmally I doubt that this naive venture will be resumed with any enthusiasm in the near future Today, the climate seems propitious for a helpful readjustment of the Executive Order on intelligence activities and the Agency's implementing procedures, but without strong pressure from within the Intelligence Community to discard the structure of legal regulation in its main features Intelligence officers in large numbers have come to recognize that sensible rules and procedures are beneficial Having witnessed the unedifying spectacle of the Felt-Miller trial, in which two former senior FBI officials were convicted of crimes because of inability to point to clear authorization for what they did, few intelligence officers are willing to run the risk that they too will become the victims of some future revisionist spasm in our national history (The fact that President Reagan has pardoned Messrs Felt and Miller does not appreciably reduce, in my view, the chilling effect this case will have on intelligence officers) I am persuaded that rules and regulations can be established to protect the rights of Americans, as well as afford equity to Agency officers, consistent with the Agency's needs for speed and flexibility, and that all concerned will profit as a result 56 60 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. "National Security and the First Amendment," John S. Warner (Spring 1983, Volume 27/1) Judicial views create a balance NATIONAL SECURITY AND THE FIRST AMENDMENT John S. Warner The title of this paper is deliberately chosen to place national security first This is not to say that the First Amendment may be ignored in national security legal matters. Rather, it is to put some perspective on the fact that the U.S Supreme Court has consistently viewed First Amendment issues when in a national security context in a manner different than such issues in law enforcement or other domestic settings Also, in other situations, the U.S. Supreme Court has shown considerable deference to powers of the President in the foreign affairs and foreign policy arena, and especially so where the intelligence function is involved. In order to be precise and avoid confusion in the mind of the reader whenever the term intelligence is used herein, it is referring to foreign intelligence, either the product itself or activities directed at foreigners (or agents of a foreign power) to gain information either of a positive nature or counterintelligence information. It does not encompass collection of informa- tion for law enforcement purposes The Center for Law and National Security, University of Virginia, School of Law held its First Annual Seminar on 8-11 January 1982 at St. Thomas, United States Virgin Islands. That seminar was co-sponsored by the Center and the Standing Committee on Law and National Security and the Interna- tional Law Section of the American Bar Association The subject of the seminar was -The First Amendment and National Security" Hence this paper, and its title as modified. Some of the special interest groups represented at the seminar clearly asserted that constitutional rights, i.e, -the law- was absolute and immutable, failing to distinguish or even recognize that -national security- could in any 19 61 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security way impact on such rights Analogies were drawn and precedents cited from case law in many situations where there were no -national security- factors It is the purpose of this article to demonstrate that the presence of -national security- considerations leads the Judiciary to conclusions in constitutional rights cases which would not be reached absent such -national security" factors In other words, such considerations have led to Judicial views which create a balance between -national security- imperatives and constitutional rights, the latter have been found not to be absolute There will follow apparently lengthy quotations from Judicial cases This is believed essential so that the reader can develop a reasoned concept of what our courts have been trying to tell us for two centuries, that -national security" is Just as much a part of our Constitution as are the pnvileges and rights afforded our citizens The Constitution also places heavy responsibilities on the Executive to preserve and protect -national security" While we find no neat or clearly delineated definition of -national security,- we do see sharp distinctions drawn between foreign policy activities and domestic security. CONSTITUTIONAL ORIGINS OF NATIONAL SECURITY It is appropriate to discuss the meaning of -national security- in the framework of law We first look to the words of the Constitution of the United States The preamble speaks of insuring -domestic tranquility- and providing for -the common defence.- Article II, Section 1, provides, -The executive power shall be vested in a President of the United States of America "Section 2 of that Article provides, -The President shall be Commander in Chief of the Army and Navy of the United States .. and that, -He shall have Power, by and with the advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur, Generally overlooked in discussing -national security- is Article I, Section 9, Clause 7 of the Constitution which provides -No Money shall be drawn from the Treasury, but in Conse- quence of Appropriations made by Law, and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time" What does this clause have to do with -national security-2 The last four words of Clause 7 were added as an amendment to permit a secret contingent fund for the President to expend for intelligence purposes and for delicate foreign activities A. Halperin v. Central Intelligence Agency, 629 F. 2d 144, (DC Cir. 1980). History is replete with examples of kings, sovereigns, and heads of nations using secret money to hire spies and to conduct delicate foreign relations The success of these activities depended upon maintenance of secrecy not only in the activities themselves but in accounting for the funds necessarily expended for such activities 20 62 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security There is an excellent historical review of the last four words, -from time to time," of Clause 7, and their intent and purpose to permit continuation of a secret contingent fund for the President That review is contained in Halperin, decided in the United States Court of Appeals for the District of Columbia Circuit on 11 July 1980 Those four words were proposed by James Madison as an amendment to Clause 7 during the final week of the Constitutional Convention Judge Wilkey in the Halperin orimion quotes Madison at the Virginia ratifying convention on 12 June 1788, -That part which authorized the government to withhold from the public knowledge what in their judgment may require secrecy, is imitated from the confederation Wilkey then states, "Madison's language strongly indicates that he believed that the Statement and Account Clause, following his amendment, would allow government authorities ample discretion to withhold some expenditure, items which require secrecy Judge Wilkey in continuing his review states, "First, it appears, that Madison's comment on governmental discretion to maintain the secrecy of some expenditures, far from being an isolated statement, was representative of his fellow proponents of the 'from time to time provision Second, as to what items might legitimately require secrecy, the debates contain prominent mention of military operations and foreign negotiations, both areas closely related to the matters over which the CIA today exercises responsibility." Judge Wilkey then summarizes, "Viewed as a whole, the debates in the Constitutional Convention and the Virginia ratifying convention convey a very strong impression that the Framers of the Statement and Account Clause intended it to allow discretion to Congress and the President to preserve secrecy for expenditures related to military operations and foreign negotiations" The review by Judge Wilkey then finds -yet further confirmation in the historical evidence of government practices with regard to disclosure and secrecy both before and after the enactment of the Constitution" It is then pointed out that "our nation's earliest intelligence activities were carried out by the Committee of Secret Correspondence of the Continental Congress." That Committee was created by the Continental Congress on 29 November 1775, and the Congress resolved to provide for expenses incurred by the Committee in sending "agents The Wilkey opinion states, "The Committee exercised broad discretionary power to conduct intelligence activities indepen- dent of the Continental Congress and to safeguard the secrecy of matters pertaining to its agents The opinion states further, -The importance of total secrecy in intelligence matters was appreciated in this era at the highest levels "The opinion then quotes from the increasingly well-known letter of 26 July 1777 which General Washington wrote to Colonel Elias Dayton issuing orders for an intelligence mission "The necessity of procuring good Intelligence, is apparent and need not be further urged All that remains for me to add is, that you keep the whole matter as secret as possible For upon secrecy, success depends in most Enterprises of the kind, and for want of it, they are generally defeated . 21 63 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security The Wilkey opinion points out that -as commander-in-chief of the colonial armies, Washington made full provision for intelligence activities and for proper funding" Considerable details are then set out in the opinion quoting from a letter to Washington from financier Robert Morris, member of the Committee of Secret Correspondence, dated 21 January 1788 That letter discloses that there was provided a cash account prior to specifying particular needs and a practice of drawing the funds in favor of a member of Washington's family in order to conceal the ultimate recipient of the funds The Wilkey opinion then states, "Rather than viewing such arrangements as devious or criminal, it is clear that our highest officials in the War for Independence viewed them as entirely propee and moreover essential to the success of their enterprise It is then pointed out in the opinion that when the Constitution became effective in 1789, secret funding for foreign intelligence activities was formalized in the form of a -contingent fund- or "secret service fund" for use by the President. In a speech to both Houses of Congress on 8 January 1790, President Washington requested -a competent fund designated for defraying the expenses incident to the conduct of our foreign affairs." By the Act of 1 July 1790 (1 Stat 128), Congress responded by appropriating funds for "persons to serye the United States in foreign,parts " By that Act there was required of the President a regular statement and account of the expenditures, but provision was made for -such expenditures as he may think it advisable not to specify" This statute was re-enacted by the Congress on 9 February 1793 (1 Stat. 299) authorizing funds for the financing of secret foreign affairs operations While the President was required to report eipenses of "inter- course or treaty" with foreign powers, the President or the Secretary of State could make secret expenditures without specification upon execution of a certificate for the amount of the expenditure and such certificate to be deemed a "sufficient voucher" for the sums expended Such authority has continued to exist in one form or another throughout the existence of our nation. Current law provides such authority to the Director of Central Intelligence, 50 U.S.C.A 403i, (1949) -The sums made available to the Agency may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds, and for objects of a confidential, extraordinary, or emergency nature, such expenditures to be ac- counted for solely on the certificate of the Director and every such certificate shall be deemed a sufficient voucher for the amount therein certified" Similar authority exists with respect to other government officials Section 107 of Title 31 of the U S Code authorizes the Secretary of State to certify expenditures with respect to -intercourse or treaty with foreign nations "(This language is identical with the 1790 and 1793 statute mentioned earlier.) By 28 U.S C.A. 537, the Attorney General may certify expenditures of the Federal Bureau of Investigation for -expenses of unforeseen emergencies of a confi- dential character,.. "Section 2017(b) of Title 42 of the U S Code authorized similar certification of expenditures in the atomic energy area by the 22 64 Approved for Release: 2022/04/28 C06863740 7. (Continued) Approved for Release: 2022/04/28 C06863740 National Security Department of Energy Similar authority is vested in the Secretary of Defense and Secretaries of the military departments by 10 U S C.A 140 Ha/pertn involved a Freedom of Inforintion Act (FOIA) request for Central Intelligence Agency documents detailing legal bills and fee agree- ments with private attorneys retained by the Agency. The Agency claimed exemption from disclosure under FOIA pursuant to section 102(dX3) of the National Security Act (50 U S C 403(dX3) 1947) which charges the Director of Central Intelligence with responsibility -for protecting intelligence sources and methods from unauthorized disclosure.- The plaintiff argued that such statute was violative of the -statement and, account- Clause 7, Section 9, Article I of the United States Constitution Based on the historical review above, Judge Wilkey for the Court concluded, -that the Statement and Account Clause does not create a judicially enforceable standard for the required disclosure of expenditures for intelligence activities.- And". it is a nonjusticiable political question. Courts therefore have no jurisdiction to decide whether, when, and in what detail intelligence expenditures must be disclosed." B. Totten.v. United States, 92 U.S. 105, (1875). While we need not deal in detail with all manifestations of Presidential responsibilities and powers under the Constitution, it is useful to look at some views as expressed by the United States Supreme Court Probably, the earliest pertinent case is Totten Here, recovery was sought as compensation for services rendered under an alleged contract with President Lincoln, made in July 1861, by which claimant was to proceed to the South and ascertain troop and fortifications information. In other words, he was a paid spy The Supreme Court said it had no difficulty as to the President's authority and that he was -authorized during the war, as Commander-in-Chief of the armies of the United States, to employ secret agents . and contracts to com- pensate such agents are so far binding upon the government as to render it lawful for the President to direct payment of the amount stipulated out of the contingent fund under his control" The Court objected, . � , .. however, to the filing or maintenance of such a suit in a court of justice The Court then stated that the service under the contract was a secret, service, with the information sought to be obtained clandestinely, and to be communi- cated privately Further, the employment and the service were to be equally concealed and both employer and agent must have under- stood that the lips of the other were to be forever sealed -This condition was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent.- . ...ft ,,. 23 65 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security Totten continues, "The secrecy which such contracts impose precludes any action for their enforcement," And " public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated" It is to be noted that no statutes are cited in the opinion There is reference to the contingent fund which is fully discussed in Halperin above There is reference to the Constitution by implication by the Court's reference to the role of the President as Commander-in-Chief Here then is Supreme Court recognition of the inherent power of. the President to act in national security matters, i e, to hire spies and conduct foreign relations and to do so secretly, and that such acts do not become a justiciable issue It appears that Totten in saying "matters which the law itself regards as confidential" is taking judicial notice, aided by the Constitution and ptovision of the contingent fund by the Congress, of required secrecy thus denying the traditional rights of contract under the common law to be heard by the judiciary C. DeArnaud v. United States, 151 U.S. 483, (1894). . A somewhat similar case came before the U S Supreme Court in DeArnaud This case arose out of Civil War services by DeArnaud for which he was paid by Major General Fremont, signing a receipt, dated 23 October 1861, which stated in part "for account of secret service rendered to the United States" While the Court disposed of the case on the basis of operation of the statute of limitations, nevertheless it alluded to Totten by stating it would be "difficult for us to point out any substantial differences between the services rendered by Lloyd (in Totten) and those rendered by Arnaud" � The time spent on Totten (and DeArnaud) is worthwhile since it is the earliest direct expression by the Supreme Court, and Totten has been repeatedly cited in cases up to modern times with no deviation in the thrust of its doctrine The Totten case (and DeArnaud) and the historical review in the Halperin case vividly and amply demonstrate that intelligence and foreign affairs activities, and the necessity for maintenance of secrecy, were an integral part of the framing of the United States Constitution Equally demonstrated are the inherent powers of the President to conduct or authorize such activities With many of the Framers involved, our first Congress acted to provide secret contingent funds by law and succeeding Congresses have provided similar funds Thus, secret intelligence, secret foreign activities, and secret funds are a fundamental and essential part of national security Any attempt to gauge the application of Constitutional protections and privileges without considering national security factors which may be involved is truly to dismiss what in fact is part of our law It is now time to look at two of the leading U S Supreme Court cases con- cerning the President's authority and responsibility in foreign affairs and intelligence matters These cases are repeatedly cited when -national security" elements are involved in litigation 24 66 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security D. United States v. Curtiss-Wright Export Corp. 299 U.S. 304, (1936). At issue here was the validity of a Presidential proclamation issued pursuant to a Joint Resolution of Congress authorizing the President to proscribe arms sales and exports to foreign countries, violation of which constituted a criminal offense It was argued by defendants that this was improper delegation by the Congress of its functions ,to the Executive The Court discussed -the differences between the powers of the federal govern- ment in respect of foreign or external affairs and those in respect of domestic or internal affairs That there are differences between them, and that these differences are fundamental, may not be doubted - The Court indicated that there are -inherent powers of external sovereignty- and in the field of international relations the President is -the sole organ of the federal government' The Court then stated- -It results that the investment of the federal government wiih the powers of external sovereignty did not depend upon the affirmative grants of the Constitution The powers to declare and wage war, to conclude peace, to- make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as neces- sary concomitants of nationality As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the interna- tional family Otherwise, the United States is not completely sovereign" The Court opinion continues -It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations�a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Consti- tution It is quite apparent that if, in the maintenance of our international relations, embarrassment�perhaps serious embarrass- ment�is to be avoided and success for our aims achieved, congres- sional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restric- tion which would not be admissible were domestic affairs alone involved Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and, especially is this true in time of war He has his confidential sources of information He has his agents in the form of diplomatic, consular and other officials Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results 25 67 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security The Court then concluded by stating that "the statute was not an unlawful delegation and the discretion vested in the President was warranted E. Chicago and Southern Air Lines, Inc. v. Waterman Steamship Corp. 333 U.S. 103, (1944 In this case, the issue was whether judicial review of orders of the Civil Aeronautics Board as authorized by statute also included such orders granting or denying a certificate of convenience and necessity for overseas and foreign air transportation which are subject to approval by the President pursuant to that statute The Court ruled in the negative, saying that such orders -are not mature and are therefore not susceptible of ludicial review at any time before they are finalized by Presidential approval After such approval has been given, the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate 'S The rationale of the Court follows "The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelli- gence services whose reports are not and ought not to be published to the world It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret Nor can courts sit in camera in order to be taken into executive confidences But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial Such decisions are wholly confided by our Constitution to the political departments of the government, Executive, and Legislative They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry" This long review of the history of conduct of intelligence efforts and foreign affairs operations clearly establishes the fact of such activities as an inherent responsibility of the President and the need for secrecy and the embodiment of these principles in the Constitution with full awareness of the import of the words used They were recognized as essential elements of sovereignty and existence as a nation Then, our First Congress reaffirmed these principles in enacting law to provide the contingent fund for the President as the means to conduct intelligence and maintain secrecy We see the clearly expressed distinction between the powers of the Executive in respect of foreign affairs and those in respect of domestic affairs These principles are fundamental and become a part of the concept 26 68 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 . 7. (Continued) National Security II FOURTH AMENDMENT � WARRANTLESS ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH Consideration of judicial treatment of -national security- factors when faced with assertion of Fourth Amendment protection sheds some light and is relevant to judicial views of First Amendment assertions in -national security" cases Clear analogies can be drawn from judicial treatment of the national security issue when faced with either Fourth or First Amendment assertions Distinctions are made between domestic security issues and actions of foreign powers, i e., foreign intelligence and counterintelligence. The distinction between domestic and foreign will also show up in the travel/passport cases to be discussed. 1, The Fourth Amendment to the United States Constitution states -The right of the people to be secure in their persons, hou,ses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Wa'rrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" Recognition of the value of electronic surveillance in the national security field coupled with concern for Fourth Amendment implications was found in President Roosevelt's authorization of 3 September 1939 for the Federal Bureau of Investigation to conduct wiretaps and physical trespass either to install microphones or to conduct searches Succeeding Presidents approved or reissued this authority up until passage of the Foreign Intelligence Surveillance Act of 1978, 50 U.S C 1801, 25 October 1978 Various Court decisions raised doubts that continued reliance on Presiden- tial authority to conduct electronic surveillance was sufficient in all types of cases Also, there were continuing developments in case law surrounding application of Section 605 of the Communications Act of 1934 (47 U S C 605) to federal investigations of domestic criminal activities As a result, in 1968 the Congress passed the Omnibus Crime Control and Safe Streets Act (18 U S.0 2510) containing provisions authorizing and requiring prior judicial authoriza: tion of any electronic surveillance in connection with law enforcement investigatidns That Act took particular note of the long used authority asserted by the President and used by the FBI to conduct electronic surveillance for -national security- purposes. Section 2511(3) provides as follows -(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat 1143, 47 U S C 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United 27 69 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power" . This subsection neither adds to nor subtracts from the President's power to conduct electronic surveillance in the interest of national secunty No court decisions have indicated otherwise (There il here, however, an expression of Congress that explicitly includes foreign intelligence and counterintelligence in the concept of national security.) A. United States v. United States District Court, 407 U.S. 297, (1972) - Keith. In referring to Section 2511(3), the Court stated -. .. Congress simply left presidential powers where it found them." In this case, the Attorney General by affidavit stated he approved the wiretaps :`to gather intelligence informa- tion deemed' necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government " On the basis of that affidavit, the Government asserted that "the surveillance was lawful, though conducted without prior Judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security" Since there was no evidence of any involve- ment, directly or indirectly, of a foreign power, the Court concluded that any special circumstances applicable to domestic security surveillances would not warrant an exception to the general Fourth Amendment requirement that a warrant be obtained The Court made it clear that the President's powers with respect to surveillance of foreign powers were not at issue by saying -Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country" B. United States v. Brown, 484 F. 2d 418 (5th Cit. 1973), cert. denied, 415 U.S: 960, (1974). . � This issue was, however, squarely addressed in Brown. The Court referred to its earlier decision in United States v Clay, 430 F 2d 165 (5th Cir 1970) in which it -concluded that the President had such authority over and above the Warrant Clause of the Fourth Amendment We found that authority in the in- herent power of the President with respect to conducting foreign affairs We took our text from Chicago and Southern Air Lines v Waterman SS Corp , 333 U S 103, (1948)." The Brown opinion then utilizes quotations from Chicago and Southern set forth in this paper. Continuing, the Brown opinion states _ that Keith teaches .. . . in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial 28 70 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security approval However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. Accord, Zweibon v Mitchell, D.D C 1973, 363 F Supp 936, United States v Butenko, DNJ , 1970, 318 F Supp 66, restrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere -Our holding in Clay is buttressed by a thread which runs through the Federalist papers that the President must take care to safeguard the Nation from possible foreign encroachment, whether in its existence as a Nation or in its intercourse with other nations" See e g, The Federalist No 64, at 434-36 (Jay), The Federalist No 70 at, 500 (Hamilton) (J. Cook ed 1961)" In a specially concurring 'opinion in the Brown case, Circuit Judge Goldberg said -There can be no quibble or quarrel with the findings and conclusions that the wiretap under consideration here had its origin and complete implementation in the field of foreign intelligence This Court and the able district judge have conducted inescapably inde- pendent reviews of the action of the then Attorney General in authorizing this warrantless electronic surveillance All agree in the determination that the wiretap was indeed directly related to legiti- mate foreign intelligence gathering activities for national security purposes, and that it was, therefore, a legal wiretap - C. United States v. Butenko, 494 F. 2d 593 (3d Cir. 1974), cert. denied sub nom., Ivanov v. United States, 419 U.S. SR, (1974). Perhaps the most extensive judicial review of the law on warrantless electronic surveillance for gathering of foreign intelligence is contained in Butenko After trial and conviction of Butenko and Ivanov in 1964 of conspiring to violate the provisions of 18 U.S C 794(a) and (c), there were appeals and voluntary disclosure by the government that it had overheard conversations of Ivanov by means of electronic surveillance 1 The Court faced head-on the question of whether Section 605 of the Communications Act of 1934, 47 U.S C 605, was to be construed to restrict the President's authority to gather foreign intelligence information and use such information to assist in securing criminal convictions The Court pointed out that in enacting Section 605, the Congress did not address the statute's possible bearing on the President's constitutional duties as Commander-in-Chief and as administrator of the Nation's foreign affairs Had the Congress explored the question, the Court opines it would have recognized that any action by the Congress that arguably would hamper the President's effective performance of his duties in the foreign affairs field would have raised constitutional questions In the absence of such legislative consideration, the Court would not 29 71 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security ascribe to Congress an intent that Section 605 should reach electronic surveillance conducted by the President in furtherance- of his foreign affairs responsibilities, and therefore concluded that Section 605 does not render them unlawful Thus, there are no limits placed on the uses to which material so obtained may be put. 2 The Court then turned to an analysis of the applicability of the Fourth Amendmerit to electronic surveillance conducted pursuant to the President's foreign affairs powers The Court reviewed the expansive language of Curtiss- Wright (cited and discussed earlier) but also discussed Keith (also cited and discussed earlier) agreeing with its conclusion that the Foutth Amendment is applicable even though unlike Keith the subject of the surveil- lance is not a domestic political organization The Court stressed the strong public interest, i.e., "the efficient operation of the Executive's foreign policymaking apparatus depends on a continuous flow of Informa- tion.- The Court then stated, "Also, foreign intelligence gathering is a clandestine and highly unstructured activity" The Court pointed out that while the "Constitution contains no express provision authorizing the President to conduct surveillance, . . it would appear that such power is similarly implied from his duty to conduct the 'Nation's foreign affairs" The Court went on to say, "To demand that such officers .. must interrupt their activities and rush to the nearest magistrate to seek a warrant would seriously fetter the Executive in the performance of his foreign affairs duties" The Court then held in sum that prior judicial authorization was not required since the surveillances were "conducted and maintained solely for the purpose of gathering foreign intelligence.- 3 The Court then dealt with the matter of probable cause, stating, "the crucial test of legality under the Fourth Amendment, is the probable cause standard,- which is subject to post-search judicial review and such "review represents an important safeguard of Fourth Amendment rights .. The Court went on to say of the probable cause standard, that, "Although most often formulated in terms of an officer's probable cause to believe that criminal activity has or will take place, the standard may be modified when the government interest compels an intrusion based on something other than criminal activity. ." The Court then states "The government interest here�to acquire the information _necessary to exercise an informed judgment in foreign affairs�is surely weighty. Moreover, officers conceivably undertake certain electronic surveillance with no suspicion that a criminal activity may be discovered Thus, a demand that they show that before engaging in such surveillance they had a reasonable belief that criminal activity would be unearthed would be to ignore the overriding object of the intrusions Since the primary purpose of these searches is to secure foreign intelligence information, a judge, when reviewing a particular search must, above all, be assured that this was in fact its primary purpose and that the accumulation 'of evidence of criminal activity 30 72 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security was incidental If the Court, for example, finds that members of a domestic political organization were the subjects of wiretaps or that the agents were looking for evidence of criminal conduct unrelated to the foreign affairs needs of a President, then he would undoubtedly hold the surveillances to be illegal and take appropriate measures -Since, interceptions of conversations of Ivanov were `solely for the purpose of gathering foreign intelligence,' they are reasonable under the Fourth Amendment Because we have already concluded that a warrant was not required under the circumstances here, we, therefore, hold that Ivanov's Fourth Amendment rights were not violated 4 The Court concluded -Rarely, if ever, do the phrases of the Constitution themselves decide cases without at least some interpretative assistance from the judiciary. The Constitution speaks through the Judges, but its phrases are seldom so cabined as to exclude all flexibility Charged with the assignment to make a choice, a judge must be responsible for the choice he makes -The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign na- tions toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveil- lance here did not trench upon Ivanov's Fourth Amendment rights -To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed But the Fourth Amendment proscribes only 'unreasonable' searches and seizures -Accordingly, the judgment of the district court denying Ivanov's request for disclosure and an evidentiary hearing will be affirmed D. United States v. Truong Dinh Hung and United States v. Ronald Louis Humphrey, 629 F. 2d 908, (4 Cir. 1980), cert. denied, 102 S. Ct. 1004. The most recent chapter in the saga of the developing law of warrantless electronic surveillance and searches arises out of the companion cases of Truong and Humphrey who were convicted of espionage in violation of 18 U.S C 794(a) and (c) and other statutes They sought appeals on grounds which included warrantless electronic surveillance and searches 1 Truong, a Vietnamese citizen, living in the United States, had his telephone tapped and his apartment bugged by the federal government from 31 73 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) . National Security May 1977 to January 1978 No court authorization was sought or obtained for this telephone tap Through the tap, it was learned that Truong procured copies of classified documents from Humphre, an employee of the United States Information Agency At Truong's request, Dung Kra11 received packages containing copies of the classified documents and delivered them to represen- tatives of the Socialist Republic of Vietnam Unkno,A n to Truong, Kra11 was a confidential informant employed by the CIA and the FBI Kra11 kept these agencies fully informed and gave the packages to the FBI for inspection, copying, and approval This operation continued from September 1976 until , 31 January 1978 when Truong and Humphrey were arrested 2 The district court accepted the governtnent's argument that there exists a foreign intelligence exception to the warrant requirement of the Fourth Amendment and that approval for the surveillance by the President's delegate, the Attorney General, was constitutionally sufficient The district court also decided the executive could proceed without a warrant only so long as the in- vestigation was -primarily" a foreign intelligence investigation Based on an internal memorandum of 20 July 1977 indicating that the government had begun to assemble a criminal prosecution, the district court decided that thereafter the investigation was primarth criminal and excluded all evidence secured through warrantless surveillance after that date 3 The appeals court agreed with the district court but pointed out that the Supreme Court had never decided the issues However, they relied on the analysis conducted in the United States v United States District Court (Keith), 407 U S 297 (1972) which is discussed earlier in this paper, where the surveillance was against domestic organizations The appeals court here said -For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate' the President in carrying out his foreign affairs responsibilities First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations ' "More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveil- lance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lay behind foreign intelligence surveillance The executive branch, containing the State Depart- ment, the intelligence agencies, and the military, is constantly aware of the nation's security needs and the magnitude of external threats posed by a panoply of foreign nations and organizations On the other hand, while the courts possess expertise in making the probable cause determination involved in surveillance of suspected criminals, the courts are unschooled in diplomacy and military affairs, a mastery of which would be essential to passing upon an executive branch request 32 74 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security that a foreign intelligence wiretap be authorized Few, if any, district courts would be truly competent to judge the importance of particu- lar inforniation to the security of the United States or the 'probable cause' to demonstrate that the government in fact needs to recover that information from one particular source "Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the Constitution with the conduct of the foreign policy of the United States in times of war and peace See ';Jnited States v Curtiss-Wright Corp, 299 U S 304 (1936) Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U S at 316-18, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance "In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance. Accord, United States v Butenko, 494 F. 2d 593 (3 Cir), cert denied sub nom, Ivanov v United States, 419 US 881 (1974), United States v. Brown, 484 F. 2d 418 (5 Cir 1973), cert denied, 415 U S 960 (1974), United States v Clay, 430 F. 2d (5 Cir 1970), rev'd. on other grounds, 403 U.S 698 (1971)" 4 Butenko, Brown and Clay dealt only with overhearing of the defen- dants during the course of warrantless electronic surveillance for foreign intelligence purposes which was not directed at them as targets In each case, such surveillance was determined to be legal, and the result was that the defendants were not entitled to review the results, which were not a part of the evidence against them Here in Truong-Humphrey was the head-on confrontation�the evidence obtained in warrantless electronic surveillance directed at defendants, but conducted "primarily- for foreign intelligence purposes, was admissible evidence in the prosecutor's case against them 5. The reasoning set out by Truong-Humphrey in support of the lawfulness of such surveillance seems to be a strong argument against the wisdom and constitutionality of the Foreign Intelligence Surveillance Act of 1978, 50 U.S C 1801 (FISA) and its requirement for a judicial warrant by the Executive in order to conduct electronic surveillance for foreign intelligence purposes in the United States Certiorari was denied as to Butenko and Brown prior to passage of FISA The reasoning of Truong-Humphrey accurately reflects Butenko and Brown and agrees, with no other circuit courts substantially in disagreement That part of FISA requiring a Judicial warrant before the Executive is permitted to wiretap a known KGB agent, or for that matter the Soviet Embassy itself, flies directly in the face of these three cases which represent the best judicial law 33 75 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security on the subject Opponents of enactment of this part of FISA commented that the title of the Act should be changed to reflect its intended purpose, i e, to -An Act to Convey Fourth Amendment Rights on Foreign Embassies and all Foreign Intelligence Agents in the United States" Only the media hysteria and over-reaction of the mid-seventies could bring about such a result under the clarion call of -protecting the Constitutional Rights of Citizens" . E. Physical Search. . On the issue of physical search, the United States Foreign Intelligence Surveillance Court (FISC) established by FISA, by order of 4 June 1981, determined it had -no statutory, implied, or inherent authority or jurisdiction to review" an application for the FBI to undertake an intelligence physical search of property under control of a foreign power However, previously on at least two occasions judges of FISC have issued orders, at the request of the Justice Department, authorizing searches of personal property, (H R Rep No 1466, 96th Congress, 2d Session 1980) The Department of Justice in its Memorandum of Law, of 3 June 1981, accompanying its application, changed direction from the Justice Department under the previous'administration and urged that FISC reject its application -because of its lack of jurisdiction "That memorandum went on to say, -The Department of Justice has long held the view that the President and, by delegation, the Attorney General have constitutional authority to approve warrantless physical searches directed against foreign powers or their agents for intelligence purposes," and that this power -has also been upheld by the only appellate court that has considered this question in the context of a physical search of the property of an agent of a foreign power" and cites the Truong-Humphrey case How, in legal logic, can a physical search be distinguished from electronic surveillance in Fourth Amendment terms? The answer is, it cannot III LEGISLATION AFFECTING NATIONAL SECURITY Much effort is directed herein at the judicial view of -national security" and the role of the Executive as interpreted by the court Attention should now be turned to action by the Congress in legislating on various aspects of -national security "Not all such legislation can be catalogued here, but we will highlight action relating to those aspects of -national security" which touch on intelligence or foreign activities and the need for secrecy We have discussed previously the enactment since the first Congress of contingency funds for the Executive to carry out secret intelligence and foreign affairs activities A. National Security Act of 1947, 50 U.S.C.A. 402. Until passage of this law, there was no utilization of the word -intelli- gence" in the United States Code, other than a short reference to-detail of Army officers to the fields of intelligence or counterintelligence, 10 USC A 2065(b) Congress addressed itself fully to the question of intelligence as an integral part of -national security " It established a Central Intelligence Agency with a head thereof, titled the Director of Central Intelligence, under a new National Security Council presided over by the President 34 76 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) Nat tonal Security The CIA was given various duties for the purpose of coordinating the intelligence activities of the Federal Government -in the interest of national security - While the Congress, of necessity, decided to formalize "intelli- gence- and -national securits ,- it could not bring itself to use the word -espionage,- but this was a clearly intended duts of CIA as the classified Congressional Committee hearings accurately reflect At P 127 of Book I of the Final Report of the Senate Select Committee to Studs Governmental Operations with Respect to Intelligence Activities, April 26, 1976 (Church Committee), it is stated, "The Select Committee's record shows that the legislating committees of the House and Senate intended for the Act (The National Security Act of 1947) to authorize the Agency (CIA) to engage in espionage" The Director of Central Intelligence was furnished little authority by this Act except for the ability to terminate employment of any CIA employee whenever he deemed it "necessary or advisable in the interests of the United States - This he could do notwithstanding the provisions of any other law. On the other hand, a proviso was added that charged him with the responsibility "for protecting intelligence sources and methods from unauthorized disclo- sure.- This statutory charge was to play a large role in litigation to be discussed later B. Central Intelligence Agency Act of 1949, 50 U.S.C.A. 403a. � In what was originally a part of the National Security Act in early drafts, the CIA Act of 1949 provided the Agency with tools and authority to accomplish its intelligence mission It was given needed procurement author- ity, ability to pay appropriate travel, allowances, and related expenses of its employees 1 To enable secret funding of its yearly appropriation, CIA was autho- rized .to transfer to and receive from other government agency funds to perform its functions, and as to funds transferred to CIA such expenditures could be made under CIA authorities The principal such authority was permanent contingent fund provisions such as previously discussed From that time up through the present, CIA is the only government agency which expends a major part of its funds under contingent fund provisions which provide for a simple certificate of the Director as to the amount of such expenditures without further detail 2 Another authority which was essential was the provision (50 USCA 403g) that "In the interest of the security of the foreign intelligence activities of the United States and in order further to implement the [sources and methods proviso]' , the Agency shall be exempted from the provisions of any other law which requires the publication or disclosure of the organization, functions, names, offi- cial titles, salaries, or numbers of personnel employed by the Agency" This provision was to become important in resisting requests for access under the Freedom of Information Act, 5 U S C 552 (FOIA) 77 35 i Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 . ' 7. (Continued) National Security C. Criminal Disclosure Statutes. For purposes of this article, I shall not discuss the espionage statutes, 18 U S C 793 and 794 enacted in 1917, except to indicate they are woefully inadequate to deal with cases of unauthorized disclosure or publication of classified information In many respects, they are even inadequate to deal with classic cases of espionage They have, however, withstood the challenge of being unconstitutional as violative of due process because of indefiniteness See Conn v United States, 312 U S 19, (1941) I 50 U.S C.A 783(b), enacted in 1950, makes it unlawful for an employee of the United States to disclose to a person whom such employee knows or has reason to believe to be an agent of a foreign government information of a kind which shall have been classified as affecting the security of the United States Note here the statutory words "classified- and "security" In Scarbeck v United States, 317 F 2d 546, (1963), cert denied, 83 S Ct 1897 (1963), the statute was tested and the defendant asserted that evidence should be heard on whether the information was properly classified and the burden was on the Government so to prove The Court rejected this argument, stating "The factual determination required for purposes of Section . 783(b) is whether the information has been classified Neither the employee nor the jury is permitted to ignore the classification given under Presidential authority - , 2 Section 798 of Title 18, also enacted in 1950, was intended to proscribe unauthorized disclosure of classified information pertaining to communica- tions intelligence or cryptographic systems These terms were then defined in the law which made it a crime for anyone to disclose or communicate to an unauthorized person, or to publish such information In a recent case, United States v. Boyce, 594 F 2d (9 Cir 1979), the defendant who had been convicted under Section 798 raised the same objection as in Scarbeck, i e, that the documents were improperly classified The Court rejected this contention, stating -Under section 798, the propriety of the classification is irrelevant The fact of classification of a document or documents is' enough to satisfy the classification element of the offense " 3 The Atomic Energy Act of 1954, 42 USCA 2011 establishes a category of atomic energy information known as Restricted Data and defines such information The Act makes it a crime for anyone to communicate or dis- close Restricted Data (i) "with intent to injure the United States or with intent to secure an advantage to any foreign nation" or (n) -with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation", 42 U.S C A 2274 Further, the Act provides at 42 USCA 2280 authority for the government to seek an injunction for a threatened violation of these criminal provisions The recent case of United States v the Progressive, 467 F Supp 990, (7 Cir 1979) in which the government was granted an injunction under this statute will be discussed later in Part IV. 36 78 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security D. National Security Agency Act of 1959, 50 U.S.C.A. 402 Note. Despite the fact that the National Security Agency was not created by statute, but rather 131 administrative action of the Secretary of Defense, the Congress acted in 1959 to grant its activities additional protection from public disclosure by the NSA Act of 1959 which provides .. nothing in this Act or any other law shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such Agency" , (This closely parallels the CIA provision referred to earlier, 50 U.S C.A 403g) This provision would be helpful to NSA in later litigation under FOIA E. Intelligence Identities Protection Act of 1982, P.L. 97-200. The continuing development of -national security- law is reflected in most recent legislative action, i e., the Congress approving in 1982 the -Intelligence Identities Protection- legislation Similar proposed legislation had been introduced as early as 1975, and committees of three different Congresses have considered this issue The purpose of these bills was to prohibit unauthorized disclosure of information identifying United States 6ersonnel, including agents, informants, and sources and to protect the secrecy of these intelligence rela- tionships That section of the bills relating to disclo- sures by persons not having had access to classified information was the subject of intense debate over four years Many assertions were made by special interest groups and others that this latter section was flatly and facially unconstitutional, but support for this assertion by directly relevant case law was conspiciously absent Among those who urged this view were included those who also assert the First Amendment is an absolute Some of these interest groups made similar assertions in Zemel v. Rusk, Cole v. Richardson, Laird v Tatum,, Marchetti I and II, Snepp, Truong-Humphrey, Haig v Agee, (all cited and discussed herein) and had their assertions rejected by the Supreme Court, which balanced -national security- against constitutional rights Hav- ing lost their First Amendment arguments at the bar of the Supreme Court, they attempted to win that argument in Congressional committee rooms, but finally lost that battle on the floor of the House and the Senate The Intelligence and Judiciary Committees of both Houses, over more than a 'three-year period, carefully crafted well designed provisions to meet the objective of improving the effectiveness of U S intelligence, and protect- ing the safety of intelligence personnel At the same time, the provisions were deemed adequate and sufficient to pass Constitutional muster In a last minute effort to weaken the effectiveness of the proposed bills, those interests which had objected to such legislation on constitutional grounds were instrumental in 37 79 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security ) having amendments made to H R. 4 and S 391 as they were reported out by the committees In rousing and prolonged debate, particularly in the Senate, the amendments added by the committees were rejected in roll-call votes, and the provisions of S 391 as introduced by Senator Chafee and supported by the Administration were approved and signed into law on 23 June 1982 by President Reagan before assembled officers and employees of CIA at the Headquarters Building at Langley, Virginia � The interest groups opposed to any measures to improve the effectiveness of intelligence won temporary victories in the Congressional committee arena Such groups include within their ranks expogents of the absolutist view of the First Amendment But it is interesting and significant that those forces lost on the floor of the House and the Senate on roll-call votes Those votes for the bills as amended on the floor were, in the House 354 to 56 and in the Senate 90 to 6 Thus, resounding majorities in both Houses voted their belief that this law is constitutional in the framework of protecting "national security" despite the shrill protests of the media and First Amendment absolutists IV FIRST AMENDMENT NATIONAL SECURITY CASES We now begin to come face to face with judicial expressions of resolution of the apparent dilemma of the protective words of the First Amendment and the necessities of the survival of the nation through the exercise of Presidential powers under Article II of the Constitution A. Near v. Minnesota, 283 U.S. 697, (1931). Most treatises on the First Amendment include Near v. Minnesota, and so shall I While that case dealt with a state law proscribing publication of defamatory newspapers (which was struck down on First Amendment grounds), the Court took great care to make it clear that the First Amendment was not absolute The example they chose to illustrate an exception lay in the "national security" area, i e, military matters � . . the protection even as to previous restraint is not absolutely unlimited "and "No one would question but that a government might prevent actual obstruction to its recruiting efforts or the publication of the sailing dates of transports or the number and location of troops" B. Kent v. Dulles, 357 U.S. 116, (1958). Many point to Kent v Dulles as judicial vindication of an asserted First Amendment right to travel This it is not Factually, the issue concerned refusal of the Secretary of State to issue a passport based on the applicant's failure to file affidavits concerning membership in the Communist Party as re- quired by law The Court held for the applicant, concluding that the statutes ' See The President at Langley,- Studies in Intelligence, Fall 1982, Volume 26, Number 3 38 80 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security did not give the Secretary of State the kind of authoritx exercised to deny travel "solely because of their refusal to be subjected to inquiry into their beliefs and associations " The Court stated it did not reach the question of the constitutionality of the statutes concerned It did state "The right to travel is part of the libem ' of which ,the citizen cannot be deprived without due process of law under the Fifth Amendment" The Court then added "If we were dealing with political questions entrusted to the Chief Executive by the Constitution we Ikould have a different case" In other. words, if appropriate "national security- considerations were in- volved, such as the President's responsibilities for foreign affairs, the result might be different�and so it was as we shall see in the next case and in the later case of Haig v Agee C. Zemel v. Rusk, 381 U.S. 1, (1965). First Amendment rights were again asserted in a passport case where the Secretary of State refused to validate a passport for travel to Cuba in Zemel v Rusk The Court stated .. .. we cannot accept the contention of appellant that it is a First Amendment right which is involved For to the extent that the Secretary's refusal to validate passports for Cuba acts as an inhibition (and it would be unreasonable to assume that it does not), it is an inhi- bition of action . . The right to speak and publish does not carry with it the unrestrained right to gather information - The Court, picking up on the "right to travel- as a liberty of a citizen referred to in Kent v Dulles, discussed above, went on to say, "the fact that a citizen cannot be inhibited without due process of law does not mean that it can un- der no circumstances be inhibited - The Court in referring to the restriction on travel to Cuba then said, "the restriction is supported by the weightiest con- siderations of national security" D. New York Times Co. v. United States, 403 U.S. 713, (1971). Due to the haste with which this "Pentagon Papers- case was brought to the Supreme Court, there were many complaints in the opinions about such haste It is difficult to draw clear lessons, abetted by the fact of six separate concurring opinions, all but two shared by more than one Justice and three separate dissenting opinions (two of them individual dissents) There were disparate views ranging from the absolute views of the First Amendment of a minority to the view of some Justices that they were "not prepared to reach the merits, - The final result, of course, was that injunctions againt the New York Times and the Washington Post were not sustained One can draw a lesson that the Government did not carry its burden of proving grave, immediate, and irreparable harm to the national security of the United States Others would assert that this case stands for the principle that 39 81 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security there can be no prior restraint of the media Hom ever, as Justice White put it, with concurrence of Justice Stewart, "I do not say that in no circumstances would the First Amendment permit an injunction against publishing informa- tion about government plans and operations" He also noted that in this case, "a substantial part of the threatened damage has already occurred" Justice Marshall, in concurring with the result, conceded that "in some situations it may be that under whatever inherent powers the Government may have as well as the implicit authority denved from the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the invocation of the equity Jurisdiction of this Court as an aid to prevent the publication of mate- rial damaging to 'national security' however that term may be defined" E. Cole v. Richardson, 405 U.S. 676, (1972). In Cole v. Richardson, First Amendment rights were .again asserted In this case, an employee of the State of Massachusetts refused to subscribe to a required oath of employment which provided in part that the subscriber will oppose the overthrow of the Government of the United States by force, violence, illegal, or unconstitutional method Other parts of the oath of office provided for upholding the Constitution of the United States The Court held that such an oath was not inconsistent with the constitutionally required oath of office "to uphold the Constitution" F. Laird v. Tatum, 408 U.S. 1, (1972). Just a few months later, the U S Supreme Court dealt with assertions of First Amendment rights in a case more directly related to "national security,- 4 e , collection of intelligence by the U S Army in Laird v Tatum. Here the Army had established a system for collecting intelligence, principally through monitoring the media, concerning civilians possibly 4nvo1ved in potential or actual civil disturbances No legally proscribed collection means were utilized The Court reviewed the various statutes which authorized the President to utilize the armed forces to quell insurrection The plaintiffs asserted that the chilling effects of the mere existence of this collection activity on their First Amendment rights were constitutionally impermissible The Court held "No logical argument can be made for compelling the military to use blind force When force is employed it should be intelligently directed, and this depends upon having reliable information�in time As Chief Justice John Marshall said of Washington, 'A general must be governed by his intelligence and must regulate his measures by his information It is his duty to obtain corrrect information Here again, the Court refused to spread the umbrella of First Amendment rights to exclude -national security- needs for intelligence G. United States v. Marchetti, 466 F. 2d 1309 (4 Cir. 1972), cert. denied, 409 U.S. 1063 (1972), hereinafter Marchetti I. The competing demands of "national security- need for secrecy in intelligence matters, First Amendment rights, free speech, and prior restraint 40 82 i Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) Notional Security were thoroughly analyzed and dealt with in United States v Marchetti � The Central Intelligence Agency sought an injunction requiring its former em- ployee, Marchetti, to submit to the Agency any proposed writing relating to the CIA prior to release to anyone else, the purpose being to assure that such writing did not include any classified information CIA relied upon a secrecy agreement signed by Marchetti when he became a CIA employee wherein he agreed he would never divulge any classified information unless authorized by the Director of Central Intelligence. It was claimed that the First Amendment barred any such prior restraint and the New York Times case was cited in sup- port of this claim The Court in its opinion pointed out that 'free speech is not an absolute concept and referred to the type of exception for "national security" set out in Near v. Minnesota The Court then commented on the government's right to secrecy in foreign affairs matters and intelligence, citing Curtiss-Wright Export and Chicago and Southern Air Lines The Court � 13ointed out that the Director of Central Intelligence is charged by law with the re- sponsibility "for protecting in- telligence sources and methods from unauthorized disclosure " 50 U S 403(dX3) The Court stated such secrecy agreements as signed by Marchetti "are entirely appropriate" to imple- ment the Congressional charge of responsibility The Court upheld the injunction, saying, "Marchetti by accepting employment with the CIA and by signing a secrecy agreement did not surrender his First Amendment right of free speech The agreement is enforceable only because it is not a violation of those rights." Thus, a valuable legal tool had been established, enforceable in a court, based on a simple contract concept This tool could prevent serious damage to the "national security" interests of the United States or threats to the personal safety of individuals, by acting in advance of a threatened disclosure�with no abridgement of First Amendment rights H. Environmental Protection Agency et al v. Mink et al, 410 U.S. 73, (1973). EPA v. Mink is discussed briefly here because.of the reaction of Congress The Freedom of Information Act, 5 U S C 552 (FOIA) provided for exemp- tion from forced disclosure matters "specifically required by an Executive Order to be kept secret in the interest of national defense or foreign policy" After discussing the legislative history of that act, the Court held " but the legislative history of that Act disposes of any possible argument that Congress ' See The Nbrcheui Cdse New case L.p.v,- 1)1 John s Warner, Studies in Intelligence Spring 1977, Volume 21, Number 1 41 , 83 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security intended the Freedom of 'Information Act to subject executive security classifications to judicial review at the insistence of anyone who might seek to question them " The Congress promptly amended the existing FOIA concerning the exemption relating to matters to be kept secret pursuant to an Executive Order to provide additionally, "and (B) are in fact properly classified pursuant to such Executive Order,", Public Law 93-502, 21 November 1974 That law also provided that any documents withheld under any of the exemptions may be examined by the court in camera and such "court shall determine the matter de novo " The President's veto message of 17 OdIober 1974 stated, ". the courts should not be forced to make what amounts to the initial classification decision in sensitive and complex areas where they have no particular expertise" He stated this provision "would violate constitutional principles. And, "It is my conviction that the bill as enrolled is unconstitutional and unwork- able "There are many who agreed then and agree now on the basis of the spectacle that has been visited upon our judicial system by this revision Consider the case of Philip Agee v Central Intelligence Agency decided in the District Court for the District of.Columbia on 17 July 1981, Agee v CIA, 524 F Supp. 1290. The Court conducted a random in camera review of the 8,699 CIA documents responsive to the Agee request This review was 'done mainly at CIA Headquarters "because of the volume and sensitivity of the material" In granting the CIA's motion for summary judgment of dismissal, Judge Gerhard A Gesell said "As far as can be determined this is the first FOIA case where an individual under well-founded suspicion of conduct detrimental to the security of the United States has invoked FOIA to ascertain the direction and effectiveness of his Government's legitimate efforts to ascertain and counteract his effort to subvert the country's foreign intelligence program It is amazing that a rational society tolerates the expense, the waste of resources, the potential injury to its own security which this process necessarily entails" In a footnote, Judge Gesell notes that as of January 1981 CIA had expended 25,000 manhours on the request involving salaries of $327,715 and computer costs of $74,750 with present total costs far exceeding such sum, none of which can be charged to Agee under the statute. Here again, the hysteria and media over-reaction of the mid-seventies led to passage of a law vetoed as being unconstitutional and flying into the face of well-established case law that the determination of what is secret and must be protected in the interest of "national security" is a matter to be left to the Executive Branch In testimony before the Senate Select Committee on Intelligence on 21 July 1981, the Deputy Director of Central Intelligence, Admiral B R Inman, pointed out that prior to the 1974 amendments, CIA had received virtually no FOIA requests and since then has been deluged with such requests and with resulting litigation with 1,212 new FOIA requests logged in 1980 Admiral 42 84 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security Inman concluded, -I believe it is absolutely clear that the FOIA is impairing our nation's intelligence efforts" Many of the same interests asserting First Amendment privilege in the passport cases, Marchetti I and II, Snepp, and in the vanguard of resisting passage of the Intelligence Identities Protection Act of 1982 are also leaders in the multiplicity of FOIA lawsuits filed against all of the national security agencies I. Knopf v. Colby, 509 F 2d 1362 (4 Cir. 1975), cert. denied, 421 U.S. 992 (1975), to be known as Marchetti II. We now come to Marchetti II where the author is requesting judicial review of deletions of classified information requested by CIA upon its review of the manuscript submitted pursuant to the injunction granted in Marchetti I The Court noted that in its consideration of the earlier case it had been -influenced in substantial part by the principle that executive decisions respecting the classifying of information are not subject to Judicial review,:' and then cited EPA v Mink. It also noted the revisions to FOIA of 1974, indi- cating the new standard of review should be applicable. Even under this standard after review of some of the deleted items, the Court referred to the -presumption of regularity in the performance by a public official of his public duty" And, -That presumption leaves no room for speculation that information which the district court can recognize as proper for top secret classification was not classified at all by the official who placed the 'Top Secret' legend on the document" The effect of the Court's ruling was to approve all of the deletions of classified information requested by CIA. The Court also declined to modify its previous holding (in Marchetti I) that the First Amendment is no bar against an injunction forbidding disclosure of classified information when such disclosure would violate a solemn agreement made by the employee at the commencement of his employment. The Court concluded -With respect to such information, by his execution of the security agreement and his entry into the confidential employment relationship, he effectively relinquished his First Amendment rights" J. United States v. The Progressive, 467 F. Supp. 990 and 486 F. Supp. 5, (1979). Here in The Progressive case a temporary restraining order, and later a preliminary injunction, was granted by a Federal District Court to prevent publication by a magazine of an article purported to contain the basic theory of why the hydrogen bomb works and how it is constructed The Court balanced the statements of the Secretary of Defense and the Secretary of State that publication would irreparably harm the national security of the United States against First Amendment assertions In granting the injunction, the Court stated "A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all In that event, our right to publish is moot" And - . ' one cannot enjoy freedom of speech, freedom to worship or freedom of the press unless one first enjoys the freedom to live" 43 85 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security The Court denied reconsideration, and we can only surmise what appellate rulings would have been in the Circuit Court and the Supreme Court, since substantially the same information was published by another author in another publication, and the case became moot However, the Court's opinion is worthy of noting in its attempt to balance "national security" and survival against First Amendment considerations K. Snepp v. United States, 444 U.S. 507, (1980). The enforceability of a secrecy agreement was again raised in Snepp v. United States Plaintiff makes the assertion that such agreement is unenforce- able as a prior restraint on protected speed) and thus violative of the First Amendment. Snepp was employed by CIA and signed a secrecy agreement similar to that in the two Marchetti cases After terminating his employment with CIA, Snepp published a book based on his experiences in CIA about certain CIA activities without submitting it to CIA for review for classified information The government sought an injunction as in Marchetti I but additionally requested that all profits attributable to the breach of contract by failure to submit his manuscript be impressed with a constructive trust. The Court found that Snepp's employment with CIA involved an extremely high degree of trust and that he "deliberately and surreptitiously violated his obligation. . ." The Court found undisputed evidence that a CIA agent's violation of his obligation to submit writings impairs the CIA's ability to Perform its statutory duties. The Court referred to the finding of the District Court that publication of the book had "caused the United States irreparable harm and loss" The Court found it immaterial whether the book actually contains classified information�for the purposes of this case, the CIA did not contend in the case that Snepp's book contained classified material However, upon being questioned on this point at a hearing before the House Permanent Select Committee on Intelligence on 6 March 1980, a CIA witness made it very clear that the Snepp book did in fact contain a number of matters that were classified. The Court approved the injunction as to all future writings relating to intelligence matters, thus putting its stamp of approval on the Marchetti cases It also approved the constructive trust as an appropriate remedy for both the Government and the former agent The Court said "If the agent publishes unreviewed material in violation of his fiduciary and contractual obligations, the trust remedy simply re- quires him to disgorge the benefits of his faithlessness Since the remedy is swift and sure, it is tailored to deter those who would put sensitive information at risk." To deny this remedy "would deprive the Government of this equitable and effective means of protecting intelligence that may contribute to national security "The majority opinion in a footnote rejects a dissent which analogizes Snepp's obligation to a private employee's covenant not to compete by saying -A body of private law intended to preserve competition, however, simply has no bearing on a contract made by the Director of the CIA in conformity with his statutory obligation to 'protect intelligence sources and methods from unauthorized disclosure.'" 44 86 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security L. Haig v. Agee, 453 U.S. 280, (1981). First Amendment rights are again asserted in connection with the revocation of Philip Agee's passport by the Secretary of State pursuant to departmental regulations in Haig v Agee The notice to Agee of revocation of his passport stated, his "activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States It was stated such action was based on Agee's stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States and evidence of facts and actions in carrying ' out that campaign The Court stated that beliefs and speech are only a part of Agee's campaign, contrast- ing it with Kent v Dulles The Court also stated, "for Agee's conduct in foreign countries presents a serious danger to American officials abroad and serious danger to the national security.- ' The Court stated that the freedom to travel abroad in the form of a passport "is subordinate to national security and foreign policy consider- ations." Further, it pointed out -that the freedom to travel outside the United States must be distinguished from the right to travel within the United States" The former, 1 e., the freedom to travel outside, can be regulated within the bounds of due process. The Court went on to say, -It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation" and, -Protection of the foreign policy of the United States is a governmental interest of great importance, since foreign policy and national security considerations cannot be neatly compartmentalized" The Court cites in this portion cases already cited herein, Chicago and Southern, Curtiss-Wright Export, Zemel v. Rusk, Snepp, and then jumps back to Near v Minnesota The Court in finding that Agee's First Amendment claim. has no foundation stated -Agee's disclosures, among other things, have the declared purpose of obstructing intelligence operations and the recruiting of personnel They are clearly not protected by the Constitution The mere fact that Agee is also engaged in criticism of the Government does not render his conduct beyond the reach of the law To the extent the revocation of his passport operates to inhibit Agee, 'it is an inhibition of action,' rather than of speech" CONCLUSION While the term -national security" is of relatively modern origin, nevertheless its substance is fully embedded in our law beginning with the Constitution Article II provides for a President who shall be Commander in Chief of the Army and the Navy and states that he shall have power to make treaties with other nations These powers and responsibilities were granted as concomitant with other aspects of sovereignty in a world of contesting and 45 87 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security often hostile nations The duty was clearly and explicitly placed on the President to preserve and protect this nation by foreign activities and by force of arms if necessary, i.e, to protect the "national security - In the very molding of the Constitution, it has been demonstrated that the Framers were mindful of the necessity for the conduct of intelligence activities and equally mindful of the necessity for secrecy of those activities The history set forth above relating to the amendment of the Statements and Accounts clause of Article I dramatically emphasizes that secret intelligence as an element of national security is an integral part of our Constitution Whenever other provisions of the Constitution are asserted as conveying privileges or rights, such assertions must be considered against the Constitution as a whole. Where Presidential duties involving national defense, foreign activities, and intelligence are present in situations where First Amendment (or Fourth Amendment) nghts are asserted, it is the role of the Judiciary to balance what may seem to be conflicting Constitutional principles From Totten on, the Supreme Court has trod most carefully where these national security issues are involved It has shown great respect for the powers and responsibilities vested in the President by the Constitution and by the fundamental concepts of sovereignty which enable a nation to exist and preserve its national security. In theiandmark cases, Curtiss-Wright Export and Chicago and Southern, it laid the judicial groundwork for the later First Amendment, electronic surveillance and passport cases Here were made the distinctions between foreign affairs and internal affairs Also discussed was the relationship between intelligence concerning foreign matters and the exercise of Presidential powers. Similar distinctions were made by the Judiciary in electronic surveillance cases In various Circuit Courts of Appeal (Keith, Brown and Butenko), it was determined that inherent Presidential power to authorize wiretaps and bugging in the interests of national security could not overcome the restraints of the Fourth Amendment in purely domestic security matters As to collection of foreign intelligence and counterintelligence from agents of foreign powers, the courts uniformly held that Presidential powers were paramount. In considering whether the general statute prohibiting disclosure of wire communications (Communications Act of 1934) was applicable, Butenko held that it could not ascribe to Congress an intent to intrude on such activities conducted by the President in his constitutional role as Commander- in-Chief and as administrator of the Nation's foreign affairs These courts drew reinforcement in reaching their judgments from Curtiss-Wright Export and Chicago and Southern, as did the Court in the 1980 decision in the Truong-Humphrey case which reaffirmed Keith, Brown and Butenko. Congress clearly approved the concept of secret intelligence and related foreign activities by authorizing in the First Congress a secret contingency fund for the President for these purposes and thereafter providing similar funds throughout our existence as a nation Intelligence was formally recog- nized by Congress in establishing the Central Intelligence Agency in 1947 and giving it necessary authority to conduct intelligence and related activities and also the necessary authority to keep such matters secret Some of these authorities to keep matters secret were granted to the National Security 46 88 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 7. (Continued) National Security Agency in 1959 Criminal statutes were enacted with respect to disclosure of communications intelligence (18 U S C 798), classified information by govern- ment employees (50 USCA 783(b)) and Restricted Data relating to atomic energy (42 USCA 2274) Most recently, the Congress in 1982 (P L 97-200) made it a criminal offense to disclose the identity of intelligence personnel under cover By an overwhelming majority in roll-call votes in both Houses, the argument was rejected that this legislation was violative of the First Amendment It is against this total background that "national security" and the First Amendment must be considered Certainly Near v. Minnesota is the precursor of the cases to come In the passport cases, Kenev Dulles, Zemel v. Rusk, and finally in Haig v Agee where First Amendment rights were asserted, the Supreme Court balanced those rights against "national security " These same cases are relied on in the Marchetti I and II and Snepp cases The array of decisions discussed must lead to a heightened awareness that secret foreign policy activities, intelligence, strategic military plans and operations were all of a part of the powers vested in the President by the Framers of the Constitution The Congress, from its inception, implemented those powers with necessary funds and the laws to maintain essential secrecy The Judiciary has consistently paid due deference to these powers vested in the Executive, recognizing the weighty responsibility placed on the Executive on which the existence of our nation depends Sharp distinctions have been drawn between purely domestic security and law enforcement as against foreign policy activities, including intelligence operations The Supreme Court has weighed and balanced most carefully the seeming dilemma of the privileges afforded citizens by the Constitution and the exercise by the Executive of its constitutional responsibilities for "national security For those who wish to explore seriously the subject of "Law and National Security," there is a wealth of judicial expression of philosophy on the subject But, the subject cannot be thoroughly examined by sole reference to law unless that law has been considered in the context of "national security " As aptly said in Kennedy v. Mendoza-Martinez, 372 U.S 144, (1963) and quoted in Haig v. Agee "While the Constitution protects against invasion of individual rights, it is not a suicide pact " First Amendment absolutists should constantly be reminded with this quota- tion that the Judiciary performs the function of weighing the apparently competing demands of First Amendment rights and "national security" imperatives, as demonstrated by the cases dealt with herein 47 89 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. "Intelligence Gathering and the Law," Benjamin R. Civiletti (Summer 1983, Volume 27/2) Conflict or compatibility2 INTELLIGENCE GATHERING AND THE LAW � Benjamin R. Civiletti This article focuses on the evolving relationship between the rule of law and the intelligence-gathering activities of our government. The collection and utilization of intelligence information are essential ingredients of foreign policy and national security, and the dramatic increase in international tensions emphasizes our country's crucial need 'for timely and accurate foreign intelligence. Nevertheless, past excesses in the conduct of intelligence activities indicate that such operations cannot be implemented without careful regard for the rule of law.' The following analysis considers the complexities of developing a rule of law that comports with the genuine need of our government to engage in foreign intelligence activities and preserves the civil liberties and privacy interests of our citizens.' I. THE NATURE AND ROLE OF INTELLIGENCE GATHERING In the past, the line between foreign and domestic intelligence gathering often�was not clearly drawn.' The Executive Branch, however, is now careful to distinguish these two concerns. Thus, intelligence is defined to include only foreign intelligence and counterintelligence,' both of which, in turn, are defined as information relating to -foreign powers, organizations or per- sons." ' Recent bureaucratic reorganizations and the promulgation of rules, regulations, and guidelines have also reflected this sharp domestic/foreign distinction.' In the Federal Bureau of Investigation (FBI), for example, criminal and intelligence investigations are handled by two separate divisions 7 Similarly, the President's Executive Order on Intelligence Activities specifi- cally provides that it does not "apply to or interfere with any authorized civil or criminal law enforcement responsibility of any department or agency."' This distinction between foreign intelligence and domestic law enforce- ment reflects not only the attitude of the courts 9 and the legislature, I� but also the present belief of the Executive Branch that the purposes of intelligence gathering are fundamentally different from those of domestic law enforce- ment and, therefore, require different regulations. Law enforcement is � This article is adapted from the Tenth Annual John F Sonnett Memorial Lecture, delivered by Mr Civiletti, then Attorney General of the United States, at the Fordham University School of Law on 15 January 1980 Several attorneys in the Department of Justice, particularly Kenneth B Reisenfeld of the Office of Intelligence Policy and Review, assisted Mr Civiletti in preparing this paper The article was published in the Fordham University Law Re- view, Volume 48, Number 6, May 1980, and is presented here by permission of Mr Civiletti and the editors of the Law Review In the years since Mr Civiletti prepared the article, the sta- tus of some of the issues he addressed has changed A commentary taking note of these developments is appended to this article 13 91 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law intended to discover and punish. acts which society deems unacceptable Intelligence activities are intended to acquire information so that the President and his advisOrs can make informed decisions in conducting international diplomacy, foreign relations, and national security affairs " In counterintelli- gence, however, there are some areas in which intelligence and domestic law enforcement interests overlap This intersection is particularly apparent when the government attempts to monitor clandestine information gathering by foreign agents in the United States because many forms of foreign espionage conducted within our nation's borders are crimes under federal law '2 The need to observe the activities of agents of foreign powers and to defend against their operations demands considerable caution " Intelligence activities, which, as presently defined, pertain only to foreign affairs and national security issues," must be kept strong and effective The government needs to obtain the best information available concerning 'the intentions and activities of foreign powers The ability of the United States to react to events in foreign lands is limited under any circumstances. Without timely and accurate information, the ability to react constructively is elimi- nated. Moreover, obtaining critical intelligence is exceedingly difficult Although it may be virtually impossible, given today's technology, for any country to conceal substantial troop movements, the transfer of funds and arms and the strategies of foreign governments are not as readily detectable Unless we possess current, accurate knowledge about the actions a foreign power is likely to take, our information base is limited, and the more limited our information base, the more speculative are our analyses, and the greater the danger to our security. Secrecy, however, is an essential element of effective intelligence gathering Even if we are able to gain information concerning a hostile foreign nation, our success will be shortlived if we disclose the facts of our success Further, if we reveal the information obtained, we will not 'only lose our advantage and risk changes in the acquired plans, but we will also jeopardize or perhaps destroy our sources and methods of gathering information 15 What makes these seemingly 'self-evident observations controversial is that intelligence activities can come perilously close to intruding upon our most basic statutory and constitutional rights 16 This inherent danger is increased by the highly sophisticated technological advances, commonly used throughout the world today, that widen the range of possible intelligence-gathering activities. The necessity of secrecy, however, often prohibits any judicial review of questionable intelligence activities.'' The Executive Branch, there- fore, is required to redouble its efforts to ensure that intelligence activities are not exempted from all responsible checks and balances 16 The need to create durable mechanisms to regulate and review intelligence activities has led to the evolution of intelligence law II. THE DEVELOPMENT OF INTELLIGENCE LAW Although both law enforcement and intelligence activities have existed in this country since before the creation of the Republic," they have developed largely along separate tracks because of their conflicting natures Law 14 92 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law enforcement emphasizes openness, stability, and a balancing of interests, its concerns are domestic and its scope is comprehensive Intelligence activities require secrecy, flexibility, and a single-mindedness of purpose, they focus on foreign developments and rapid adaptability to specific circumstances Given these disparities, it is no surprise that law enforcement and intelligence activities did not converge in the United States until recently e The first permanent peacetime intelligence organizations in the United States were created in the latter part of the nineteenth century 20 These were relatively ineffective, however, and during World War 1 the nation relied to a great extent on the intelligence capabilities of its allies 2 It was not until World War II that American intelligence efforts began to flourish under the Office of Strategic Services " Apart from various directives dealing essentially with organizational matters, there was almost no accompanying development of law relating to intelligence activities.23 After World War II, a permanent Central Intelligence Agency (CIA) was created by the National Security Act of 1947 " This statute was the first public declaration by any nation concerning the existence and functions of its intelligence service The Act is remarkably concise; in five short subparagraphs it instructs the CIA to collect intelligence information and to perform other related functions at the direction of the National Security Council." The Act's sole express restriction is the proviso that the CIA should not have any police, subpoena, or law enforcement powers or internal security functions " This limitation was as much a concession to established law enforcement agencies as it was an effort to prevent the creation of an American secret police 27 With the exception of espionage statutes enacted originally in 1917 and subsequently amended," and administrative housekeeping laws enacted to facilitate the operation of the CIA and the National Security Agency, there were no other laws expressly relating to United States intelligence activities from 1947 until the 1970s 29 In fact, during this period laws were passed that, if taken literally, would have obstructed or prevented clearly legitimate and necessary intelligence programs 3� Faced with an absence of particularized law or precedent and an array of general purpose laws inappropriate to intelli- gence endeavors, the government and its intelligence agencies understandably ignored the broad range of legal strictures that apply in other areas of governmental activity The deference shown to intelligence matters for almost thirty years by the public, press, Judiciary, Congress, executive officials, various Presidents and Attorneys General considerably strengthened the assumption that intelligence efforts were so different or special that modified legal standards should be applied to them 31 Over the past few years, however, this perception has changed, and express legal principles have been specific- ally developed to govern intelligence activities Although there may continue to be some confusion about how the law applies to a particular matter, there is no longer any doubt that intelligence activities are subject to definable legal standards The first comprehensive statement of intelligence law, which delineated various standards, authorizations, and prohibitions designed to govern our intelligence operations, was announced by President Ford on February 18, 15 93 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. , (Continued) Intelligence and Law 1976 " After two years of experience with President Ford's order, President Carter issued his own executive order which broadens and strengthens the controls over the intelligence community." For example, this order requires that various procedures be developed, subject to the approval of the Attorney General, to govern the complete range of collection and dissemination practices by all intelligence agencies when the information collected or disseminated pertains to persons entitled to the protection of the United States Constitution." The United States is the only country that has issued such a comprehensive, statement President Carter also ordered that the government's document classifica- tion systerh be changed. s5 This new executive order officially embraces the principle that even a properly classified document should sometimes be declassified if the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure." The order also creates an administrative mechanism, complete with disciplinary sanctions, designed to eliminate any abuses of the system," such as the unnecessary classification of documents." Congress has also played an important role in the development of intelligence law. In 1978, Congress enacted the Foreign Intelligence Surveil- lance Act (PISA)," which mandates judicial review of certain proposals from intelligence agencies regarding the conduct of intelligence-related electronic surveillance in the United States 40 Moreover, the Attorney General retains sole authority to approve agency-certified surveillance applications before they are submitted to the court.'' This judicial and executive review process helps ensure that only necessary and carefully considered electronic surveillances , will be initiated 42 Governing standards for intelligence operations are also provided by the Case-Zablocki Act, which requires that Congress be advised of any international agreement to which the United States is a party, including agreements between intelligence services.'s Both the Senate and the House of Representatives have created independent committees with primary responsi- bility for overseeing the activities of the intelligence agencies." The Freedom of Information Act 45 and the Privacy Act 46 have also had a significant effect on the information collection, dissemination, and storage practices of the intelligence agencies. For the past three years (1976-1979), Administration and Congressional representatives have endeavored to develop comprehensive charter legislation that would delineate proper and improper intelligence activities 47 This goal, however, has proved far more elusive than many had anticipated. Intelligence agencies are called upon to operate in societies with vastly different cultures, most of which we do not fully understand, and to provide services in an atmosphere of international political tension and volatility. The effort to reach agreement on a charter that gives the agencies sufficient flexibility to meet changing situations to protect our security, without delegating virtually unlimited discretion, has been herculean On February 8, 1980, Senators Huddleston, Mathias, Bayh, and Gold- water introduced the very complex and comprehensive National Intelligence Act of 1980 (S 2284) 45 With few exceptions, S. 2284 represented a consensus 16 94 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law nized " A final factor that weighs in the balance is the government's ability to pursue its goal in a manner less intrusive on fundamental personal liberties 6' Utilizing this balancing standard, courts have held it constitutional for the United States to compel private citizens to disclose their contributions to presidential campaigns," to require private lobbyists for foreign governments to register,63 and to require citizens acting as agents of a foreign power to dis- close the details of their agency and their activities 64 The law is less settled, however, when the government obtains information about an individuals activities without his consent, and under circumstances in which that person is not subject to legislative, iudicial or administrative compulsion Judicial opinions indicate that it is not unconstitutional for an undercover agent in a law enforcement investigation to obtain information that a person is willing to disclose, even though that disclosure is induced by some form of deception " NevertheleSs, when the information disclosed concerns political activities and is gathered by a law enforcement agency for purposes other than criminal prosecution the practice may be unconstitutional 66 Although these decisions are helpful, they do not specifically address the different considerations that exist when the information is sought by an intelligence agency for intelligence-gathering rather than law-enforcement purposes " If the government can compel agents of foreign powers to register , and describe their political activities, is it unconstitutional to place covert domestic agents in those same foreign agent groups to obtain information?" Case law indicates there is no absolute answer and that each situation must be carefully considered, balancing both the need of the government and the effect on the individual 69 The Executive Branch has tried to provide some guidance in this area President Carter's Executive Order on United States Intelligence Activities generally prohibits an intelligence agency from covertly placing agents in any organization in the United States unless the organization is acting on behalf of a foreign power and is primarily composed of individuals who are not United States persons,7� or unless the infiltration is undertaken on behalf of the FBI as part of a lawful bureau investigation 7' The order also permits agencies to have employees participate in organizations, without disclosure of their intelligence affiliation, in certain narrow circumstances under publicly available guidelines approved by the Attorney General " The CIA, for instance, is not required to disclose participation by agency employees in domestic organizations for the purpose of developing individual associations and credentials needed to substantiate a cover employment." Approval of such undisclosed participation must be given by an appropriate CIA senior official, and all such approvals are subject to review by the Attorney General " These procedures go considerably beyond the requirements of any existing statute or judicial decision They reflect an awareness of the chilling effect that undisclosed government involvement may have on the exercise of First Amendment freedoms and privacy Thus, the procedures attempt to balance the competing interests of the individual and the government by defining categories of permissible participation and by requiring appropriate review in each case 18 96 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law B. Fourth Amendment Issues Another constitutional provision often at issue in intelligence gathering is the Fourth Amendment's prohibition against unreasonable searches and seizures 75 Intelligence techniques involve traditional searches as well as the utilization of new technology that has not yet been considered by the courts The FISA 76 requires that a court order be obtained for most traditional forms of wiretapping or eavesdropping conducted within the United States 77 Such a warrant is also required before the government employs most surveillance devices in the United States to gather information under circumstances where there is -a reasonable expectation of privacy and a warrant would be required for law-enforcement purposes "78 For example, consider the instrument known as a beeper. This device is attached to a vehicle and emits periodic radio sig- nals which enable the person monitoring the device to determine the location of the vehicle The FISA does not require a court c,-der before a beeper can be used to determine the location of a foreign agent's ca - unless, under applicable decisions, a court order would be required if the FBI used such a device to'lo- cate a bank robber. Thus, while the Fourth Amendment's applicability to the use of beepers is not yet completely clear, these devices have been involved in numerous criminal cases and there is some judicial precedent to which intelligence agencies can turn for guidance 79 The rapid development of technology, however, permits intelligence agencies to use surveillance devices that have never had the benefit of judicial review. As each new technique is considered, the Department of Justice must determine whether it is necessary to seek court approval before using the device. The FISA thus poses a problem The court's jurisdiction under the Act is limited to issuing orders for electronic surveillance as defined in the Act." Yet the definition of electronic suiveillance itself requires consideration of judicial interpretations of the Fourth Amendment, and there may not be any precedent covering a particular new technology. For example, case law indicates that a court order must be obtained before a microphonic surveil- lance device is used to intercept a private conversation if the communicant has a reasonable expectation of privacy.8' The cases, however, do not clearly define the limits of such an expectation. Placing such a listening device in a home, office, or other private location requires a warrant." Using a tape recorder to record a conversation that can be heard by an individual lawfully in an adjacent room does not require a warrant " Use of a parabolic microphone, such as those used by television crews to enhance the entertain- ment value of professional football, may well require a warrant." It is often difficult, therefore, to determine when a particular surveillance technique requires a warrant. For instance, suppose an intelligence agency is able to use a normal, readily available tape recorder to listen to sounds that are discernible, though not intelligible, to the human ear without any physical intrusion, and then subject that recording to audio enhancement to render the sounds intelligible. Is that activity one which would require a warrant if undertaken for law enforcement purposes? The answer is not clear 89 Consider a similar issue. No one would suggest that the FBI must obtain a warrant before reading the daily newspaper. The FBI may act on the basis of 19 97 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law information contained in the paper without the slightest suggestion that it has undertaken a search. If members of a criminal conspiracy decide to use the classified advertisement section of the paper to communicate their plans, an FBI agent may certainly read that same section and, if clever enough, discover the conspiracy. The situation is undoubtedly the same if the advertisement is published in a foreign language. Suppose, however, the conspirators believe their advertisement is completely indecipherable by outsiders because it is written in a complicated mathematical code generated by a computer that is beyond the state of the art Assume further that the FBI is able to break that code by using an even more sophisticated computer. Surely most people would agree that the FBI has not undertaken esearch within the meaning of the Fourth Amendment. The answer, however, is uncertain. It is, of course, possible to argue that the conspirators had a reasonable expectation that their communications were secret. Nevertheless, the decision to put those communi- cations in the public domain, even though in cryptic form, may justify the conclusion that their privacy expectation is not one that the courts are prepared to protect from governmental surveillance. This analysis rests, in part, on reported cases which indicate that one who broadcasts a message on a radio, a public communications medium, does not have an expectation of privacy,86 and in part, on eases which permit police, without a warrant, to take trash from outside a person's home and subject it to chemical analysis to 'determine whether any drugs have been discarded 8' These First and Fourth Amendment issues, many of which involve attempts to apply case law in novel contexts, are typical of those presented to the Department of Justice. The precedents developed and rules promulgated by the Justice Department, however, are often not subject to judicial review or public comment Thus, the American principle of checks and balances can be eviscerated when it comes to intelligence activities. It is extremely important, therefore, that we institutionalize in the Executive Branch a process for obtaining a multiplicity of views on the fundamental legal issues arising from intelligence activities " Tor example, in the Justice Department, the Attorney General receives advice on these matters from former CIA employees, members of the American Civil Liberties Union, and the Department's Office of Intelligence Policy and Review. It is likewise important for intelligence agencies to encourage meaningful in-house criticism of their proposals The ability to argue against his client's project is one of the most difficult, but most important, skills a lawyer must acquire if his practice is to meet minimal standards of social responsibility." This is particularly true in the government This process of debate, consideration of conflicting opinions, and careful review will help ensure that intelligence decisions are properly and legally made Although this process may not always result in perfect legal decisions, it will at least guarantee that the legal issues are considered, the appropriate questions asked, and reasonable conclusions reached IV. THE FUTURE OF INTELLIGENCE LAW The evolution of the law applicable to intelligence activities is directly influenced by world conditions The current emphasis on legal guidelines for 20 98 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law intelligence operations is a result of past excesses which were disclosed during a period in our history when a President was forced out of office and an unpopular war was prolonged despite vigorous public dissatisfaction 9� Current events, however, may provoke a different analysis Some may now argue that attempts to regulate intelligence activities are futile and self-destructive Others may seriously question the costs and benefits of regulation in view of the enormity of hostile acts abroad While such reexamination is necessary and constructive, it should not cause us to lose sight of the past Watergate did happen CHAOS and COINTELPRO were actual programs 9' Those abuses had their beginnings in action which appeared necessary and reasonable to the officials who began them As the programs grew, however, the justifications expanded and responsibility disappeared The proliferation of law governing intelligence activities has not been entirely without cost It has limited some of the flexibility and ease of action formerly enjoyed by intelligence officials." We have gained, however, much more than we have lost Intelligence agencies now operate under the most lucid statements of authonty, and limitations thereon, ever available. The protection of individual rights and liberties from infringement by intelligence activities is at a high point. At the same time, there are few, if any, cases in which it has proved impossible under the law to collect truly vital intelligence information Rather, intelligence officials think more carefully and answer more precisely before proposing or authorizing particular activities Nevertheless, there is still more work to be done in this area Existing law provides inadequate protections to the people who serve our nation as intelligence officers. They need, and deserve, better protection against those who would intentionally disclose their secret mission and jeopardize their safety by revealing their identities Although public comment and criticism of intelligence activities and specific operations is proper, exposing the identities of particular intelligence personnel and thereby placing them in danger serves no legitimate purpose. Our proper concern for individual liberties must be balanced with a concern for the safety of those who serve our nation in difficult times and under dangerous conditions 93 We must also adopt legal procedures to resolve the problem of graymail, where criminal defendants who have had access to classified information escape punishment by threaten- ing to disclose secret information during a criminal trial 94 Although it is not impossible to prosecute such cases," the court's ability to protect legally irrelevant secret information from unnecessary disclosure must be strengthened Further protection for the intelligence community could also be achieved by a change in the Hughes-Ryan Amendment, which requires the timely reporting of covert action to seven congressional committees " This cumber- some procedure disseminates knowledge of intelligence operations to such a large number of persons that the secrecy essential to their success becomes doubtful A carefully crafted amendment to the statute should require reporting only to the Senate and House intelligence committees 97 This would give Congress the information it needs without unduly jeopardizing intelli- gence projects 21 99 Approved for Release: 2022/04/28 006863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law While we pursue legislative solutions to these problems, the process of self- regulation in the Executive Branch must continue Many of the regulations are publicly available," and as they gain wider review we will all benefit from the analysis and critical comment of others " The need for governmental self- regulation, however, will increase as modern technology grows ever more sophisticated The state of the art is already so advanced as to bear little relation to traditional Fourth Amendment analysis, and will continue to outstrip the development of decisional law for the foreseeable future Although these technological advances will benefit national security by providing increased efficiency of intelligence gathering, they will also increase the responsibility for fashioning proper safeguards in intelligence law The interpretation of constitutional provisions, statutes, executive orders, and procedures affecting intelligence gathering will evolve in response to changing perceptions and new experiences While we must guard against the adoption of an overly pliant construction of our self-imposed rules, I am confident that, in the light of experience, we can continue to devise new standards which do not compromise our essential liberties and which support a strong intelligence community equal to its critical mission 22 100 ' Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Low REFERENCES A number of congressional committees and executive commissions have thoroughly investigated instances of misconduct by the intelligence agencies E g S Rep No 755, 94th Gong, 2d Seas (1976) hereinafter cited as the Church Committee Report, United States' Intelligence Agencies and Activities, Performance of the Intelligence Community, Hearings Before the House Select Comm on Intelligence, 94th Gong , 1st Seas (1974), Domestic Intelligence Operations for Internal Security Purposes, Hearings Before the House Comm on Internal Security, 93rd Cong 2d Sess (1974), Staff of Subcomm on Constitutional Rights of the Senate Comm on the Judiciary, 92nd Gong 2d Seas Report on Army Surveillance of Civilians, A Documentary Analysis (1972), Commission on CIA Activities Within the United States, Report to the President (June 1975), (hereinafter cited as the Rockefeller Commission Report) 2 A number of authors have grappled with the evolving rule of law in the area of national se- curity E g, Theoharis & Meyer, The "National Security" Justification for Electronic Eavesdropping An Elusive Exception, 14 Wayne L Rev 749 (1968), Developments in the Law�The National Security Interest and Civil Liberties, 85 Han/ L Rev 1130 (1972), Comment, Privacy and Political Freedom Applicability of the Fourth Amendment to "National Security" Investigations, 17 UCLA L Rev 1205 (1970), Note, Foreign Security Surveillance and the Fourth Amendment, 87 Han/ L Rev 976 (1974) 3 The difficulty of distinguishing between domestic and foreign intelligence-gathering operations has partially resulted from an inability to define clearly the terms applicable to vaTIOUS types of surveillances The confusion has generally been clarified as case law and statute have increasingly abandoned or defined the term national security For example, in Katz v United States, 389 U S 347 (1967), the Court reserved decision on the question of the applicability of the Fourth Amendment warrant requirement to national security electronic surveillance Id at 358 n 23 In United States v United States Dist Court (Keith) 407 US 297 (1972), the Court analyzed the domestic aspects of national security but once again reserved -the issues which may be inVolved with respect to activities of foreign powers or their agents" Id, at 322 (footnote omitted), see United States v Smith, 321 F Supp 424, 429 (C D Cal 1971) (applicability of warrant requirement to foreign national security surveillance not decided, although warrant mandated for domestic security surveillances) Keith may have added to the confusion surrounding the meaning of national security The opinion emphasizes that it is often difficult to distinguish between domestic and foreign threats to the nation's security 407 U S at 209 n 8 The Court acknowledged that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U S C "2510-2520 (1976), uses the term national security to refer only to the activities of foreign powers Id � 2511(3) Nevertheless, the Court continued to apply the term national security to both domestic and foreign intelligence operations 407 US at 309 n 8 In Zweibon v Mitchell, 516 F 2d 594 (D C Cir 1975) (en bane), cert denied, 425 U S 944 (1976), the court extended Keith and the warrant requirement to a wiretap of a domestic or- ganization that is neither the agent of, nor acting in collaboration with, a foreign power, even if the surveillance is undertaken in the name of foreign intelligence gathering The court, in a very long footnote, attempted to distinguish between "internal security" or -domestic secunty" and "foreign security " Id at 613 n 42 The court's efforts failed, however, when it concluded "'National security' will generally be used interchangeably with 'foreign security,' except where the context makes it clear that it refers to both 'foreign security and internal security " Id On remand, the district court established its own categorization and distinguished "domestic security," "domestic national security," and -foreign security" surveillances Zweibon v Mitchell, 444 F Supp 1296, 1299 n 3 (D D C 1978), rev d in part and remanded on other grounds, 606 F 2d 1172 (D C Cir 1979) 23 101 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law Although these classifications appear to correlate 'toughly with the distinctions provided in Exec Order No 12036, 3 C FR 112 (1979); the terminology used may foster continued confusion 4 Exec Order No 12036, ' 4-206, 3 CF R 112, 133 (1979) 5 Id � � 4-202, -205, 3 C FR 112, 133 (1979) (emphasis added) Foreign intelligence is defined as -information relating to the capabilities, intentions and activities of foreign powers, organizations or persons,- id � 4-205, 3 C F R at 133, and counterintelligence is defined as -information gathered and activities conducted to protect against espionage and other clandestine intelligence activities, sabotage, international terronst activities or ssqssi- nations conducted for or on behalf of foreign powers, organizations or persons "Id '4-202, 3 C F R at 133 Intelligence organizations have not always had the benefit of such specific definitions Sherman Kent, former chairman of the CIA's Board of National Estimates, descnbed intelligence in his pivotal book as comprising three definitional subjects knowledge that our nation must have regarding other nations to assure itself that planning and decisionmaking will not be conducted in ignorance, an organization structured to obtain, centralize, and evaluate that knowledge, and the activity of gathering such knowledge S Kent, Strategic Intelligence for Amencan World Policy at ix (1949) 6 Although many of the regulations and guidelines are not available in published form, they can be obtained from the agency which they govern Requests should be made in the same manner as requests under the Freedom of Information Act 7 All foreign intelligence and counterintelligence investigations are handled by the Intelli- gence Division (Division 5), and all domestic security and international terronsm investiga- tions are within the purview of the Criminal Investigation Division (Division 6) See note 6 .supra 8 Exec Order No. 12036, ' 4-107, 3 C FR 112, 133(1979) 9 See note 3 supra 10 See notes 41-51 infra and accompanying text 11 Positive foreign intelligence surveillances differ markedly from those in criminal investiga- tions For example, a foreign intelligence surveillance may be undertaken without probable cause to believe a cnme has been committed, and may be of considerable duration and scope United States v. Humphrey, 456 F Siipp 51, 56 (ED Va 1978) Its purpose LS to gather information about the intentions and capabilities of a foreign government, not to obtain admissible evidence of a crime Id But see United States v Stone, 305 F Supp 75, 82 (D.D C 1969) (foreign intelligence wiretap used as evidence in criminal trial), United States v O'Baugh, 304 F Supp 767, 768 (D DC 1969) (wiretap of embassy used as evidence in criminal proceeding) Foreign counterintelligence activities more closely parallel law enforcement activities Nevertheless, while it is true that many activities of the targets of countenntelligence surveillances may be criminal, see, e.g., 18 U.S C � 641 (1976) (relating to unauthorized use of government property), id " 792-799 (relating to espionage), id � � 2151-2157 (relating to sabotage), id ' � 2381-2391 (relating to treason, sedition, and subversive activities), the primary objective of the surveillance is not preparation for prosecution But see, United States v Humphrey, 456 F Supp at 56 (distinguishing between foreign intelligence surveillance and domestic surveillance and stating that -It would seem rare that the government would engage in domestic electronic surveillance without some plans to prosecute at some time '') Zweibon v. Mitchell, 516 F.2d 594, 648 (D.0 Cir 1975) (en bane) (claiming it is a "myth to characterize national security surveillance as purely non-prosecutorial in the criminal sense"), cert denied, 425 U S 944 (1976) The objective of a counterintelligence surveillance is to identify, isolate, and prevent breaches of security in the foreign intelligence and national defense apparatus The distinction between certain intelligence surveillances and law enforcement activities was carefully set forth in the Senate Report accompanying the Foreign Intelligence Surveillance Act, S Rep No 604, 95th Gong, 1st Sess 4-7 (1977), reprinted in 1978 US Code Cong & Ad News, 3904,3905-09 24 102 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law 12 See note 11 supra There has been some concern regarding the adeouacy of the espionage statutes in certain circumstances See Espionage Laws and Leaks Hearings Before the Subcomm on Legislation of the House Permanent Select Comm on Intelligence, 96th Cong , 1st Seas (1979) See generally Edgar & Schmidt, The Espionage Statutes and the Publication of Defense Information, 73 Colum L Rev 929 (1973), Nimmer, National Security Secrets v Free Speech The Issues Left Undecided in the Ellsberg Case, 26 Stan L Rev 311 (1974) 13 Only a small percentage of all counterintelligence cases can be considered for successful criminal prosecutions, and investigations of foreign intelligence agents are seldom conduct- ed from the outset as they would be were eventual prosecution expected Many counterin- telligence professionals believe that criminal prosecutions should never be brought against hostile agents because doing so may only result in then replacement by other, unknown agents of whose activities we may not be aware Moreover criminal proceedings may not only confirm the accuracy of classified information that has been passed to a foreign power, but may also reveal at least some of the matenal to a far wider audience This problem is known as -graymail "See Senate Select Comm on Intelligence, 95th Cong , 2d Seas, Report on National Security Secrets and the Administration of Justice (Comm Pring 1978) Graymail problems, however, are not insurmountable For example, in United States v Kampiles, 609 F 2d 1233-(7th Cir 1979), the trial court's procedures and judgment avoided the graymail problem The trial court prevented classified information from being introduced at trial by issuing a protective order after in camera, ex parte proceedings in which the government presented evidence of the sensitive document that was passed to the Soviets and of the FBI's counterintelligence investigation into the document's disappear- ance Id at 1248 The court of appeals upheld the espionage conviction based upon the de- fendant's confession that he had met with and sold a classified document to a Soviet intelligence officer and upon sufficient other evidence to corroborate the reliability of the defendant's confession Id. at 1238 The Administration has introduced legislation to resolve the graymail problem and to establish a workable and fair procedure for handling classified information in �criminal cases See note 94 Infra 14 See note 5 supra and accompanying text 15 There is continuing debate concerning the need for and scope of legitimate government secrecy Compare Snepp v United States, 100 S Ct 763, 765 n 3 (1980) (stating -the government has a compelling interest in protecting both the secrecy of information important to our national secunty and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service-) and Colby, Intelligence Secrecy and Security in a Free Society, Inel Secunty 3 (Fall 1976) (setting forth a conceptual framework for limiting unnecessary government disclosures) with Church Committee Report, supra note 9, (Bk I) at 16 (recognizing the dangers of excessive secrecy to a democracy) and M Halperin & D Hoffman, Top Secret National Security and the Right to Know (1977) (arguing that the secrecy veil of the intelligence community needs to be pierced) See generally Investigation of Publication of Select Comm on Intelligence Report Hearings Before the House Comm on Standards of Official Conduct, 94th Cong , 2d Seas (1976) 16 See pt III infra 17 The Foreign Intelligence Surveillance Act of 1978, 50 US CA �" 1801-1811 (West Supp 1979), does provide judicial review of certain intelligence activities See note 40 infra The proposed National Intelligence Act of 1980, S 2284, 96th Gong, 1st Seas, 126 Gong Rec S 1307 (daily ed Feb 8, 1980) (hereinafter cited as S 2284), would expand the scope of judicial review to cover physical searches as well as electronic surveillance both within the United States and abroad Id ' 801 18 Executive Order 12036 and its implementing regulations create an effective structure for oversight of intelligence activities within the Executive Branch The duty to identify, inspect, and report unlawful or improper activity is placed upon senior officers throughout 25 103 6, - Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law the intelligence community Exec Order No 12036, ' 1-7, 3 CF R 112, 119-120 (1979) This obligation is reinforced and monitored by the Inspectors General and General Counsel for each agency Id � 3-2, 3 C F R at 131 These officers are required to investigate and re- port to the Intelligence Oversight Board any activities that raise questions of legality or propriety Id The executive order also gives the Attorney General substantial oversight and review responsibilities Id to establish and approve procedures for each agency which will ensure compliance with law and protection of constitutional rights and privacy Id � 3-305, 3 C F R at 131 To advise and assist the Attorney General in connection with his intelligence-related responsibilities, the Office of Intelligence Policy and Review was established 45 Fed Reg 13729 (1980) (to be codified in 28 C FR � 0 33) This office is cur- rently staffed by ten attorneys and is under the direction of the Counsel for Intelligence Pol- icy The Executive Branch oversight apparatus also includes the President's Intelligence Oversight Board (I0B), which is composed of th?ee individuals appointed by the President Exec Order No 12036, ' 3-1, 3 C F.R at 130 The IOB periodically reviews the oversight procedures and guidelines of each intelligence agency, forwards reports of illegality to the Attorney General, and informs the President of its findings and any serious questions of le- gality or propriety Id. � 3-102, 3 C.F R at 130-31 This comprehensive system of oversight within the Executive Branch is supplemented by extensive review in Congress See note 96 Infra 19 There is clear evidence that General Washington authorized and relied upon substantial intelligence activities in the conduct of the Amencan Revolution For an excellent account of the history and evolution of United States intelligence capabilities, see A Dulles, The Craft of Intelligence (1963) See also H Ransom, Central Intelligence and National Security (1958), Church Committee Report, supra note 1, (Bk VI) at 9-15 20 The first permanent intelligence agency was the Office of Intelligence established by the Navy in 1882 Church Committee Report, supra note 1, (Bk VI) at 309 Three years later the Army organized its own intelligence unit, the Military Intelligence Division Id 21 A Dulles, supra note 9, at 40-41. 22 H Ransom, The Intelligence Establishment 65-76 (1970) 23 A Dulles, supra note 19, at 42-44 24 50 U S C � 403 (1976) 25 Id � 403(dX1)-(5) 26 Id. � 403(dX3) 27. Rockefeller Commission Report, supra note 1, at 61 S 2284, supra note 17, proposes to re- place the National Security Act provisions governing intelligence activities As Senator Huddleston noted when he introduced S 2284 -The National Security Act of 1947, the cur- rent 'charter' for intelligence activities, is vague and cursory As Clark Clifford, a primary author of that legislation, told this committee, that act' was considered interim legislation that would be replaced once the Executive and Congress better knew what was required (In S 2284) we have given the intelligence community authority to do what needs to be done" 126 C,ong Rec S 1305 (daily ed Feb 8, 1980) 28 18 U S C � � 792-794 (1976) 29 A key aspect of the present structure and functioning'of the intelligence community is that of all the organization; engaged in foreign intelligence, only the CIA has been created by legislation The National Security Agency, the FBI, and the Defense Intelligence Agency have been operating without legislative charters 30 For example, there are a variety of statutes which, if applied literally, would limit the ability of the FBI to engage in undercover investigative operations for the collection of foreign intelligence or counterintelligence E g. 31 U S C � 484 (1976) (restncting the use of proceeds from government operations), td ' 521 (restricting the deposit into banks of 26 104 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law proceeds from government operations), id � 869 (restricting acquisition or creation of proprietary corporations or business entities) In recent years. Congress has used the Department of Justice Appropriation Authorization Act to provide an annual waiver from these requirements for intelligence operations See, e g Dep t of Justice, Appropriations Act, Fiscal Year 1980, P L 96-132, � 7(a), 93 Stat 1040, 1045-46, reprinted in (1979) U S Code Gong & Ad News 31 It was not until 1972 that the Supreme Court acknowledged the Executive Branch did not have full discretion to undertake intelligence operations to protect national security United States v United States Dist Court (Keith), 407 US 297, 316-317 (1972) In fact, the Justice Department declined prosecution of individuals involved in two large-scale mail opening programs operating between 1953 and 1973 because of the ambiguity of the law as it related to intelligence operations during that period Dept of Justice, Report Concerning Its Investigations and Prosecutorial Decisions With 'Respect to Central Intelligence Agency Mail Opening Activities in the United States (1977) Since Keith, however, the courts have attempted to define the constitutional limits of intelligence investigations See note 3 supra 32 Exec Order No 11905, 3 C F R 90(1977) 33 Exec Order No 12036, SC FR 112 (1979) For example, President Carter's order goes well beyond President Ford's order in specifying the preconditions for targeting United States persons for electronic surveillance Compare id � 2-202, 3 C F R at 126 with Exec Order No 11905, ' 5(bX2), 3 C FR 90, 100 (1977) President Carter's order also governs, for the first time, television and movie surveillance, Exec Order No 12036, ' 2-203, 3 C F R at 126, and covert procurement and contracting Id ' 2-303, 3 C F R at 129 34 Exec Order No 12036, � 2-201, SC FR 112, 126 (1979) 35 Exec Order No 12065, 3 C FR 190(1979) 36 Id ' 3-303, 3 C FR 190, 197 (1979) 37 Id � 5, SC FR 190, 201-04 (1979) 38 Id � 1-3 to -6, 3 C FR 190, 193-95 (1979) 39 Foreign Intelligence Surveillance Act of 1978, Pub L No 95-511, 92 Stat 1783 (codified at 50 USC A �� 1801-1811 (West Supp 1979)) 40 FISA directs the Chief Justice to -publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear application for and grant orders approving electronic surveillance anywhere within the United States 50 USC A � 1803(a) (West Supp 1979) The Chief Justice is also directed to designate three judges -who together shall comprise a court of re- view which shall have junsdiction to review the denial of any application made under this Act Id � 1803(b) The Attorney General, rather than the court, is authorized to approve electronic surveillance of certain communications transmitted by means of communications used exclusively between or among foreign powers and of technical intelligence from property under the open and exclusive control of a foreign power Id ' 1802(aX1XA)-(B) The Attorney General must advise the court of his actions id � 1802(aX3) 41 Id � 1804 42 Experience has demonstrated that our intelligence agencies are functioning well under FISA The record refutes the argument that congressional consideration of such statutes would undermine the entire intelligence apparatus of the United States See generally S Rep No 379, 96th Cong , 1st Sess (1979) 43 1 U S C � 112(b) (1976 & Supp 11 1978) 44 The Senate Select Committee on Intelligence was created by S Res 400, 94th Cong , 2d Seas, /12 Gong Bee 14673-75 (1976) The House Permanent Select Committee on Intelligence was established by H B Res 658, 95th Gong. 1st Sess , 123 Cong Rec H7104- 06 (daily ed July 14, 1977) 27 105 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law 45 5 U S C 552(1976) 46 Id � 552a 47 One of the purposes of the Church Committee was to create a record to serve as a foundation for drafting such legislation Church Committee Report, supra note 9 48 S 2284, supra note 17 49 President Carter stated there was -virtually complete agreement (between the Executive Branch and the Senate Select Committee on Intelligence) on the organization of the intelligence community and on the authorizations and restrictions pertaining to intelligence collection and special activities" 126 Cong Rec S 1307 (daily ed Feb 8, 1980) He continued, however, to state that "a few issues remain to be resolved "Id One of the pri- mary disagreements between the administration and the authors of S 2284 relates to prior reporting to Congress of covert operations and sensitive collection operations See note 98 infra 50 See note 53 infra 51 For example, S 2284, supra note 17, prohibits assassination, id ' 131, covert domestic propaganda, id � 133, covert contracting with educational institutions, id � 134, and accomplishing indirectly what cannot be done directly, id � 135 52 Fortunately for all Americans, the vast preponderance of the information our government seeks comes from foreign persons and organizations, most of them located outside the United States In all cases, the federal government collects the information this country needs without intentionally violating United States law United States law contains few limitations on the collection of intelligence from foreign sources See, e g, 50 USCA � 1802(a)(1XA)(i) (West Supp 1979) (electronic surveillance directed at communications exclusively between or among foreign powers may be approved by the Attorney General without court order), Exec Order No 12036, � 2-208, 3 C F R 112, 128 (1979) (restricting only the collection of nonpublicly available information concerning United States Persons) 53 A United States person is defined in Executive Order 12036 as -a citizen of the United States, an alien lawfully admitted for permanent residence, an unincorporated association organized in the United States or substantially composed of United States citizens or aliens admitted for permanent residence, or a corporation incorporated in the United States " Exec Order No 12036, � 4-214, SC F.R 112, 133(1979) FISA uses a similar definition 50 U.S C A. � 1801(1) (West Supp 1979) S 2294, supra note 17, however, provides a more lim- ited definition of United States person, Id � 103(21) For example, it excludes corporations incorporated in the United States and unincorporated associations organized in the United States which are -openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments" Id One's status as a United States person is, in general, not determined by one's location Thus, a United States citizen abroad remains a United States person for intelligence law purposes, while a foreign visitor to this country does not automatically become a United States person upon entry into this country There are a number of restrictions in the law which protect foreign visitors from unwarranted intelligence activities in this country, but those limitations are signifi- cantly different from the ones applicable to United States persons For example, Executive Order 12036 protects United States persons and foreign visitors alike from unregulated covert electronic or mechanical monitoring, physical searches, mail surveillance in the United States, and from unlawful physical surveillance by the FBI Exec Order No 12036, " 2-202 to 2-206, 3 CF R at 126-27 The protections provided for foreign visitors, however, are far more limited than those mandated for United States persons See e g, id � 2-208, 3 C F R at 128 54 See e g, Exec Order No 12036, � 2-1 to -3,3 C FR 112, 125-30 (1979) 55 The collection, retention, and dissemination of publicly available information is not regulated by Executive Order 12036 or by the procedures for the various intelligence agencies which were approved by the Attorney General pursuant to this order Exec Order 28 106 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law No 12036 � 2-201, -208, 3 CF R 112, 126, 128(1979) Consequently, the definition of pub- licly available information is a threshold consideration to the application of legal standards to intelligence gathering The procedures for the CIA and the Department of Defense define the term publicly available similarly The Defense Department's definition provides "'Available publicly' means information that has been published oi broadcast for general public consumption, is available upon request to a member of the general public, could law- fully be seen or heard by any casual observer, or is made available at a meeting open to the general public "See note 6 supra S 2284, supra note 17, fails to define what information is publicly available but provides the following standard for the collection and use of publicly available information "Publicly available information concerning any United States person may be collected by an entity of the intelligence community when such information is relevant to a lawful function of that entity, and may be retained and disseminated for lawful governmental purposes" Id � 211(c) 56 The First Amendment freedoms of association and of expression are implicated whenever the government compels an individual to delineate his political affiliations before a legislative committee, e g, Eastland v United States Servicemen's Fund, 421 US 491, 509 (1975), Gibson v Florida Legislative Investigation Comm. 372 U S 539, 544-46 (1963), Sweezy v New Hampshire, 354 U S 234, 249-50 (1957), or a grand Jury, e g, Branzburg v Hayes, 408 U S 665, 690-91 (1972), Bursey v United States, 466 F 2d 1059, 1085-86 (9th Cir 1972), In re Wood, 430 F Supp 41, 45-46 (S D N Y 1977), /n re Verplank, 329 F Supp 433, 437-38 (C D Cal 1971), or to identify his political beliefs as a condition of exer- cising first amendment rights, e g, Lamont v Postmaster Gen, 381 US 301, 305-07(1965), NAACP v Alabama, 357 U S 449, 462 (1958), or of obtaining government employment, e g, Shelton v Tucker, 364 US 479, 487-88 (1960) See generally L Tribe, American Constitutional Law � 12-2, at 581-82 (1978) 57 There are, however, severe limits on the government's right to compel information For example, it is unconstitutional for a state to compel a private political organization to furnish its membership list to the state where the effect of doing so would be to subject the organization's members to economic reprisal, loss of employment, or physical coercion E g, Louisiana ex rel Gremillion v NAACP, 366 U S 293, 295-96 (1961) (upholding temporary injunction restraining enforcement of statute requiring certain not-for-profit organizations to file membership fist(s), Bates v City of Little Rock, 361 U S 516, 527 (1960) (invalidating occupational license tax statute which required membership list), NAACP v Alabama, 357 U S 449, 466 (1958) (reversing civil contempt judgment against NAACP for refusing to disclose its membership list in violation of foreign corporation registration statute) These foreseeable consequences would dramatically chill the individual's freedom of expression and of private political accriciation '58 Bates v City of Little Rock, 361 U S 516, 525 (1960) 59 Gibson v Florida Legislative Investigation Comm 372 U S 539, 546 (1963) 60 Buckley v Valeo, 424 U.S 1, 64-68 (1976) (per curiam) Exacting' scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the govern- ment's conduct in requiring disclosure "Id at 65 (citing NAACP v Alabama, 375 U S 449, 461 (1958)) 61 Lamont v Postmaster Gen 381 U S 301, 310 (1965) (Brennan, J, concurring), Shelton v Tucker, 364 U S 479 488 (1960) This ad hoc balancing test has been criticized for being "so unstructured that it can hardly be described as a rule of law at all "T Emerson, The Sys- tem of Freedom of Expression 16 (1970) Nevertheless, the Supreme Court in Buckley v Valeo, 424 US 1 (1976) (per curiam), used the balancing test and acknowledged that the governmental interest in disclosure must be weighed against not only the damage to the in- dividuals involved but also the injury suffered by the public at large, Id at 64-68 Buckley, however, made it more difficult to prove a constitutional abridgement by requiring evidence of such probable harassment resulting from disclosure as was found in NAACP v Alabama, 357 U S 449, 462 (1958) 424 U S at 72 According to Chief Justice Burger, this 29 107 Approved for Release: 2022/04/28 C06863740 Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law increased evidentiary burden on litigants challenging compelled disclosure marks a departure from the "historic safeguards guaranteed by the First Amendment " Id at 238 (Burger, C J, concurring in part and dissenting in part) 62 In Buckley v Valeo, 424 U S 1 (1976) (per ciruam), the Supreme Court upheld the, requirement of the Federal Election Campaign Act of 1971, 2 U S C � � 431-456 (1976), that political committees record and transmit to the government the names of individuals contributing in excess of ten dollars to political committees or independent candidates The Court considered the substantial governmental interest in maintaining the integrity of the electoral process to be of such magnitude as to outweigh the possibility of First Amendment infringements 424 U S at 66-68 The Court upheld the ten-dollar minimal threshold reporting requirement based upon a finding that it was not irrational Id at 83 This deference to a complex congressional judgment rspresents the Court's hesitation to substitute its Judgment for that of the legislature See Shelton v Tucker, 364 U S 479, 490 (1969 (Frankfurter, J, dissenting), cf td at 488 ("legislative abridgement (of First Amendment freedoms) must be viewed in the light of less drastic means for achieving the same basic purpose") (footnote omitted) In a slightly different context, Shelton's least restrictive alternative test has been more stringently applied In Pollard v Roberts, 283 F Supp 248 (E D Ark), aff 'd per curtam, 393 U S 14 (1968), the district court enjoined a quasi-grand jury investigation which had subpoenaed essentially the contributor list of the Arkansas branch of the National Republican Party The prosecutor issued the subpoena in the cOurse of his investigation of possible election law violations The court, relying on the principles of Shelton, held that "even if a (s)tate can legitimately compel a limited disclosure of individuals affiliated with a group, it does not follow that the (state) can compel a sweeping and indiscriminate identification of all of the members of the group in excess of the (s)tate's legitimate need for information " /d at 257. 63 The reporting requirements of the Foreign Agents Registration Act of 1938, as amended, 22 U SC � � 601-621 (1976), were upheld against a First Amendment challenge in Attorney Gen v Irish N Aid Comm, 346 F Supp 1384, 1389-91 (S DN.Y), cert denied, 409 US 1080 (1972) The court found that the disclosure of defendant's activities bore a substantial relation to a legitimate government interest�informing the government and the public as to sources of foreign propaganda�and that the government interest outweighed "any possible infringement of the First Amendment rights of the defendant's members or � contributors" /d at 1391 The court was careful to emphasize the vital governmental interest in safeguarding our political process from unacknowledged foreign influences and, on the basis of these concerns and the foreseeable complications with United States foreign policy, rejected the First Amendment claim Id 64 There are three basic statutes requiring the registration of individuals or organizations that serve as spokesmen or agents for, or receive money' from, foreign governments First, 22 US C ' 612 (1976) provides that anyone who acts as an agent of a foreign principal must file a registration statement with the Attorney General The registration statement must contain a thorough description of the registrant's business and employees, the agency relationship, and the activities performed for the principal Second, 18 U.S C � 951 (1976) requires that anyone who acts as an agent of a foreign government must notify the Secretary of State Third, 18 U S C � 2386 (1976) provides that organizations which accept support from foreign governments must register with the Attorney General if they engage in activities designed to forcibly control or overthrow the United States government, or if they engage in activities constituting military training This statute has been�successfully challenged under the fifth amendment See Albertson v Subversive Activities Control Bd , 382 U S 70, 77-78 (1965) 65 The use of informers or infiltrators in a criminal investigation does not give rise to any viola- tion of the First or Fourth Amendments Handschu v Special Servs Div 349 F Supp 766, 769 (S D N Y 1972) For Fourth Amendment purposes, a person assumes the risk that any known party to a conversation concerning criminal conduct is an undercover police agent 30 108 Approved for Release: 2022/04/28 C06863740 i Approved for Release: 2022/04/28 C06863740 8. (Continued) Intelligence and Law E g , Hoffa v United States, 385 U S 293, 300-03 (1966), Lewis v United States, 385 U S 206, 211 (1966) The Fourth Amendment, however, does restrict the scope of permissible ac- tivities of an undercover agent See, e.g, Gouled v United States, 255 U S 298, 304-06 (1921) (informant overstepped constitutional bounds when he obtained entry into business office of suspect by deception and secretly ransacked office and seized incriminating documents) Infiltration for law-enforcement purposes into a political organization or rally which might dampen the exercise of First Amendment rights of the participants has also been upheld Socialist Workers Party v Attorney Gen, 419 U S 1314, 1319-20 (1974), United States v McLeod, 385 F 2d 734, 750 (5th Cir 1976) Nevertheless, because of the in- herent danger that First Amendment activities may be significantly impaired, undercover investigations in university classes or political organization meetings will be sustained only if there is a substantial government interest to justify the probable impairment of First Amendment rights White v Davis, 13 Cal 3d 757, 768-73, 533 P 2d 222, 229-32, 120 Cal Rptr 94, 101-04 (1975) (in bank), see Socialist Workers Party v Attorney Gen, 419 U S at 1319 66 Compare White v Davis, 13 Cal 2d 757, 773, 533 P 2d 222, 232, 120 Cal. Rptr 94, 104 (1975) (in bank) (reversing demurrer of plaintiff's complaint and finding that police undercover surveillance on university campus, which gathered information that pertained to no illegal activity, was a Prima facie violation of First Amendment rights) with Fifth Ave Peace Parade Comm v Gray, 480 F 2d 326, 332-33 (2d Cir 1973) (affirming dismissal of complaint and finding police surveillance of a large antiwar demonstration to be a perfectly lawful method of preserving public safety and deterring violence), cert denied, 415 U S 948 (1974) and Anderson v Sills, 56 N .1 210, 229-31, 265 A 2d 678, 688-89 (1970) (reversing in- junction of widespread police surveillance program and holding that, absent proof of bad faith or arbitrariness, the Executive Branch should perform detectional and preventive functions and gather any information reasonably believed to be necessary without judicial interference) See generally Note, Domestic Intelligence Informants, the First Amend- ment and the Need for Prior judicial Review, 26 Buffalo L Rev 173 (1976), Note, Governmental Investigations of the Exercise of First Amendment Rights Citizens' Rights and Remedies, 60 Minn L Rev 1257 (1976) 67 But cf United States v United States Dist Court (Keith), 407 U S 297, 320 (1972) (extending Fourth Amendment to domestic security electronic surveillances), Zweibon v Mitchell, 516 F 2d 594, 611-13 (DC Cir 1975) (en bane) (extending Fourth Amendment to national security electronic surveillance), cert denied, 425 U S 944 (1976) 68 There is very little case law in this area because of the difficulty of proving sufficiently spe- cific injuries to overcome the threshold case and controversy standing requirement as articulated in Laird v Tatum, 408 U S 1(1972) Mere allegations of a subjective chilling im- pact of government surveillance on First Amendment activities is not an adequate basis for Justiciability Id at 12-13 Allegations of disruption, harassment, or bad faith are generally required before one can litigate First Amendment rights when intelligence activities are involved E g , Berlin Democratic Club v Rumsfeld, 410 F Supp 144, 149-51 (D D C 1976) 69 In Buckley v Valeo, 424 U S 1(1976) (per cunam), the Court refused to grant a blanket ex- emption from the federal contributor reporting requirements for all minor parties and independent candidates Id at 74 Instead, the Court established a case-by-case procedure which allows each such party to prove that disclosure of contributor lists would substantially impair its members' constitutional rights Id Since Buckley, political parties have had varying success in the lower courts Compare Wisconsin Socialist Workers 1976 Campaign Comm v McCann, 433 F Supp 540, 548-49 (E D Wis 1977) (injunction issued relieving party from complying with Wisconsin Campaign Financing Act) and Partici() Nuevo Progressista v Hernandez Colon, 415 F Supp 475, 482-83 (D P R 1976) (per cunam) (injunction issued prohibiting the use of government inspectors to enforce Puerto Rico's political contribution and disclosure statute) with Oregon Socialist Workers 1974 Campaign Comm v Paulus, 432 F Supp 1255,1259-60 (D Or 1977) (injunction denied where Oregon Campaign Disclosure Act was found to have minimal impact on First Amendment rights of party) 109 Approved for Release: 2022/04/28 C06863740 31 Approved for Release: 2022/04/28 C06863740 o 8. (Continued) Intelligence and Law 70 See note 53 supra 71 Exec Order No 12036, � 2-207(a), 3 C F R 112, 127 (1979) 72 Executive Order 12036 and the procedures adopted pursuant to it have established formal controls over this sensitive form of information gathering Exec Order No 12036, ' 2-207, 3 C FR 112, 127 (1979) Guidelines have been approved thus far for the CIA, the Department of Defense, and the FBI See note 6 supra But see Wisconsin Socialist Workers 1976 Campaign Comm v McCann, 433, F. Supp 540, 548 (E D Wis 1977) (prior to adoption of Executive Order 12036 and public procedures, the court expressed skepticism that harassment of dissident political groups had been terminated) 73 The CIA guidelines authorize undisclosed participation in organizations in the United States "to develop associations and credentials to be utilized for purposes relating to foreign intelligence as for example by Joining an organization to which an employee would ordinarily be expected to belong if his cover employment were his true employment "Such undisclosed participation is also permitted "to obtain training or education relevant to CIA employment to obtain publications of organizations whose membership is open to the general public to maintain or enhance the qualifications of CIA employees, and to make it possible for them to stay abreast of developments in their fields of professional expertise to maintain the cover of CIA personnel, programs and facilities, which are not publicly ac- knowledged as such by the United States Government to utilize individuals on a witting or voluntary basis who are members of an organization within the United States to develop persons of foreign nationality as sources of contacts for purposes related to foreign intelligence to place employees in an organization within the United States to identify and develop persons of foreign nationality as sources or contacts for purposes related to foreign intelligence (and) to protect the degree of CIA interest in a particular foreign intelligence subject matter, but limited to participation in an organization that permits such participation by government employees in their official capacities "See note 6 supra 74 Exec Order No 12036, ' 2-207 3 C FR 112, 127 (1979) 75 U S Const amend IV 76 See notes 39-42, supra and accompanying text 77 50 USCA "� 1801-1804 (West Supp 1979) 78 Id � 1801(1X1), (4), see note 40 supra. The drafters of FISA relied on the Supreme Court's decision in Katz v United States, 389 U S 347 (1967), and intended the statute to reflect evolving concepts of the Fourth Amendment as interpreted by the courts Thus, the legislative history of FISA manifests Congress' intention to incorporate the Katz standard for constitutionally protected privacy interests into the definition of electronic surveillance, which serves to activate the statute's requirements D Rep No 604, 95th Cong , 1st Seas 4-18 (1977), reprinted in (1978) U S Code C,ong & Ad News 3904, 3905-20 79 Most circuits have recognized that the use of beepers to trace airplanes or automobiles on public thoroughfares does not implicate the Fourth Amendment primarily because there is no reasonable expectation of privacy in activities that are readily observable in public E g, United States v Bruneau, 594 F 24 1190, 1197 (8th Cm )(airplane), cert denied, 100 S Ct 94 (1979), United States v Curtis, 562 F 2d 1153, 1156 (9th Cir 1977) (airplane), cert denied, 439 U S 910 (1978), United States v Hufford, 539 F 2