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May 8, 2001
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May 29, 1974
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Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190014-5 INTERNAL USE ONLY OLC 74-1154 29 May 1974 MEMORANDUM FOR THE RECORD SUBJECT: Meeting at the White House on S. 2543 1. Today, and I attended an interagency session in the White House summoned by Bill Timmons, Assistant to the President for Legislative Affairs, to discuss tactics for tomorrow for Senate consideration of the Freedom of Information Act amendments, particularly the Muskie amendment bill which would strike the current presumption favoring an agency head who submits an affadavit to the court that he has reviewed the material in question and it should not be released under existing Executive Order or statute. The following points emerged: a. The Administration does not want to officially adopt the compromise and foreclose its option for veto or challenging it on constitutional grounds (the consti- tutional grounds include whether the Judiciary can break Executive classification, the effectiveness of sanctions in the bill, including removal of officers when they are presidential appointees over whom only the President exercises removal power and the inherent authority of the President in the field of foreign relations). b. It was generally concluded that the bill emerging out of conference would be even less acceptable than the compromise (this might not necessarily be true for the Agency since the House report does not envisage Judicial review of withholdings authorized by statute, i. e. , "Restricted Data". Communication Intelligence and Intelligence Sources and Methods, we assert, fall in the same category). sr t r, .? v Approved For Release 2001/0/30: CIA-RDP75B00380R000600190014-5 Approved For Release1b1 W'A . 81 - & 5 00380R000600190014-5 c. Vince Rakestrow of Justice believes he has enough votes to beat the Muskie amendment (this is doubtful since Muskie already has 2l co-sponsors.). I said that Doug Marvin, Senator Roman L. Hruska's, (R. , Neb. ), key man on the legislation, had just told me that it would be very close and Paul Summitt, Senator John L. McClellan' s. (D. , Ark. ), Chief Counsel, is very pessimistic. d. Mark Feldman of State said that one answer to the legislation is to beef up the ICRC structure, and spend more throughout Government on the declassification program under the implementing National Security Council directive. e. I said that we had accepted the compromise on the basis of our evaluation that it is the best that we can expect but pointed out that we did have a case on the born classified concept which Bob Dixon of Justice appeared to find interesting. f. I said that one untapped resource in the Senate appeared to be the Joint Committee on Atomic Energy since the Muskie amendment would subject Restricted Data to court review, a paradox since the unauthorized disclosure of same constitutes a criminal offense. I asked who could possibly get to Senator John O. Pastore, (D., R. I. ), on this issue and Pat O'Donnell, Special Assistant to the President, suggested Tom Korologos, Deputy Assistant to the President for Legislative Affairs, and asked if we would send over a short talking paper for Korologos to use with Senator Pastore the first thing tomorrow morning. 2. All in attendance were urged to work with their contacts on the Hill. Distribution: Original - Subject l OGC 1-OS 1 - ISAS/DDM&S, OLC / LLMAI ppov . FLReT se 2001/08/30: CIA-RDP75B00380R000600190014-5 a'y A J 3~ ' S 8988 with section 120(a) '(b) Not later tha In issuing such r shall take into no onstration progra 147 of the Federal the fiscal year intended. '(C) For the 2. Title I of th ing paragraphs (respecting nut 1977) to read "(2) For the in rural areas, Fund, $730,000; June 30, 1977. Fund, $425,000,0 June 30, 1977." AUTHORITIE Approved For Release 2001/08/30 : CIA-RDP75B0038OR00060 190014-5 CONGRESSIONAL. RECORD -SENATE May 28, 1974 dary system and the on account of any iTuiy 1, 1977, the Secre- tions to administer the tiou relating to assist- transportation service. is Transportation Dem- authorized by section id Highway Act of 1973. nsportation service on and small urban areas. ntary to and not a sub- average amount of State izations for fiscal year follows: t of the Highway Trust for the fiscal year ending oral-aid secondary system t of the Highway Trust for the fiscal year ending the table.) Mr. MATHIA ment intended t United States a purposes. for himself, Mr. ERVIN, submitted an amend- be proposed by them 1 (S. 3267) to provide energy needs of the met, and for other anted and to lie on the table.) Mr. McINTYR the bill (S. 3267), s dom of Information Act provides that agencies are permitted to withhold from the public classified information relating to national defense or foreign policy (ex- emption 1). The amendment I submit today to S. 2543 would in no way alter that protection for sensitive military or diplomatic data. It would only provide that suits contesting the propriety of agency claims under the first exemption would be handled by Federal judges in the same way as cases challenging the validity of claims under the eight other permissive exemptions from the act's dis- closure standards. The purpose of the deletion I propose is to preserve for judges the freedom to conduct complete de novo review of Free- dom of Information Act cases in which information is withheld by agencies un- der the claim that it falls within exemp- tion 1 of the act, permitting withholding for material "specifically required by Executive order to be kept secret in the interest of the national defense or for- eign policy"-that is, classified informa- tion. The language of section (b) (4) (B) (ii) would, if left in the statute, give a special status to exemption 1 material, unlike that accorded any other claimed Government secrets. The subsection would substitute for de novo judicial re- view of the Government's case for with- holding (with the burden on the Govern- ment to sustain its action) an arrange- ment shifting that burden to a judge to decide whether or not the contested se- crecy compiled with the undefined "rea- sonableness" standard. If an agency head certified that classi- fled material being withheld is properly classified, the judge-even after in cam- era examination-may only reject such certification by finding the withholding to be "without a reasonable basis" under the criteria of the Executive order auth- orizing governmentwide ? classification practices. There is no definition in the bill or the accompanying report of what such a reasonable basis would be. I believe there is no reason to require the courts to accord such special status to cases involving classified secrets, as opposed to other types of sensitive in- formation the Government seeks to with- hold. The standard of full de novo re- view should be the same in all Freedom of Information Act cases. Mr. President, I ask unanimous con- sent that a detailed memorandum fur- ther explaining the provisions of S. 2543 and my objections to subsection (b) (4). (B) (ii) be included in the RECORD at this point. There being no objection, the mem- orandum was ordered to be printed in compelled disclosure of documents ... classi- fied pursuant to this Executive Order. Nor does the Exemption permit in camera in- spection of such documents to sift out so- called 'non-secret components.' Obviously, this test was not the only alternative avail- able. But Congress chose to follow the Ex- ecutivo's determination in these matters and that choice must be honored." Later, in his opinion, Justice White added: "Congress could certainly have pro- vided that the Executive Branch adopt new procedures or it could have established its own procedures-subject only to whatever limitations Executive privilege may he held to impose upon such congressional order- ing." In his concurring opinion Justice Stewart held that Congress "has built into the Freedom of Information Act an exemp- tion that provides no means to question an Executive decision to stamp a document 'secret,' however cynical, myopic, or even corrupt that decision might have been." Responding to this decision-and the effect it had of denying Representative Mink and her co-plaintiffs access to classi- fled information dealing with the contro- versy over the nuclear tests in the Aleu- tians-Senator Muskie and Representative Moorhead jointly Introduced legislation which would have required in camera in- spection of documents claimed to be exempt from disclosure under any of documents claimed to be exempt from disclosure under any of the nine exemptions. In the case of Exemption 1 claims, the original bill would have had judges, after in camera examina- tion, "determine if such records, or any part thereof, cannot be disclosed because such disclosure would be harmful to the national defense or foreign policy of the United States." The thrust of this pro- posal, and of all the considerable dissatis- faction with the Mink ruling, was the con- viction that someone other than the classi- fiers themselves-i.e., judges-must look be- hind the fact of classification to weigh its validity. In the version of the bill passed by the House the requirement for in camera inspec- tion became specific permission ("may ex- amine the contents of any agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth In subsec- tion (b)."). Additionally, the language of the first exemption was changed by the insertion of the underlined words to make the Act not apply to matters: "(1) authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy.?' The sponsors of the House bill (approved 383-8 on March 14, 1974) felt they had ac- complished their purpose of overruling the Mink decision. John Moss, who sponsored the original FOI Act, said on the floor, "Two amendments to the Act Included in this bill are aimed at increasing the authority of the courts to engage In a full review of agency action with respect to information classified by the Department of Defense, the Depart- ment of State, and other agencies under Executive order authority ... It is the intent of the committee that the Federal courts be free to employ whatever means they find ,necessary to discharge their responsibility. This was also the intent in 1960 when Con- gress acted, but these two amendments con- tained In the bill before you today make it crystal clear." (Emphasis added.) Provisions of S. 2543 FREEDOM OF INFORMATION ACT- AMENDMENT AMENDMENT NO. 1330 (Ordered to be printed and to lie on the table.) Mr. MUSKIE (for himself, Mr. ERVIN, Mr. JAVITS, Mr. SYMINGTON, Mr. HART, Mr. CHILES, Mr. HUMPHREY, Mr. McGov- ERN, Mr. GRAVEL, Mr. CLARK, Mr. TUN- NEY, Mr. METCALF, Mr. MONDALE, Mr. RIBIcorF, Mr. MATHIAS,. Mr. HATHAWAY, Mr. PEncy, and Mr. BURDICK) submitted the RECORD, as follows: BACKGROUND On January 22, 1973, in Environmental Protection Agency v. Patsy Mink, the Su- preme Court held that the Freedom of In- formation Act was so worded as to bar in camera judicial examination of documents which officials certified were exempt from disclosure as being "specifically required by Executive order to be kept secret in the in- terest of the national defense or foreign As reported out of the Subcommittee on Administrative Practices and Procedures, S. 2543 was substantially parallel to the House an amendment intended to be proposed poolicy "(The first ofggtti nine permissive provisions to permiitt givn~~ccpamera review with- by them jointly to the lp~` ft o ' ii't~" 3lS Ei hYt 1~7 ,~~ Ark lri 2ft'09i h ct'~`il, dvf;Tduct such re- amend the Freedom of 43i `tFo ev s e e d'f e o e a a weight to ac- Mr. MUSKIE. Mr. President, the Free- ber majority, "that Exemption 1 permits cord Executive Branch testimony as to the Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190014-5 S8989 May 28, 1974 CONGRESSIONAL RECORD-SENATE . legitimacy of a classification. "In such a "This standard of review does not allow propriety of a classification marking. They case," the Subcommittee version of the bill the court to substitute its judgment for that will be able to accord-and It should be said, "the court shall consider the case do of the agency-as under a de novo review- assumed that faced with such a delicate task, novo, with such in camera examination of the but neither does it require the court to defer they will accord-whatever weight is fitting requested records as it finds appropriate to to the discretion of the agency, even if it to government arguments in favor of con- determine whether such records or any part finds the determination not arbitrary or tinued secrecy. But they will also be able, thereof may be withheld under any of the capricious. Only if the court finds the with- should they wish, to seek and give credence exemptions set forth in subsection (b) of holding to be without a reasonable basis to the impartial counsel of qualifled out- this section, and the burden is on the agency under the applicable Executive order or alders, not plaintiffs or defendants, to help to sustain its action." (Emphasis added.) statute may it order the documents re- them with their task. They will, in short, Additionally, S. 2543, as reported by both leased." (Emphasis added.) be able to behave like judges. Subcommittee and Committee, amends Ex- In short, before conducting an in camera emption 1 by adding the underlined words so examination of classified material, judges that it reads: "(1) specifically required by an may weigh opposing arguments. Once they U.S. PARTICIP TION IN THE INTER- Executive order or statute to be kept secret proceed to the in camera scrutiny, however, NATIONAL EVELOPMENT ASSO- in the interest of national defense or for- the Government gets special permission to CIATION-A ENDMENT eign policy and are in fact covered by such make an ex parte showing in its own behalf. order or statute." Even If the wording is dif- And if, for example, the head of the Export- AMEND ENT NO. 1358 ferent from the House bill in detail, the pur- Import Bank, where 13 officials now have (Ordered to b printed and to lie oil pose of S. 2543, before amendment in full classification authority or of the United the table.) Committee, was obviously. Identical to the States Information Agency (where 387 offi- Mr. DOMINI Mr. President, I am purpose of the House authors-to overrule cials have original classification authority) Mink and leave the courts free to conduct in or of any of the 23 other government agen- today submitting or printing an amend- camera scrutiny of classified material, if cies or 11 designated offices in the Executive ment Senator M USE and I intend to judges found such examination necessary to Office of the President is willing personally offer to S. 2665, bill to provide for in- their rendering a decision on the validity of to vouch for the propriety of a secrecy mark- creased particip ion by the United the exemption claim. ing, judges may only overrule that voucher States In the Inte ational Development Indeed, the draft report language in the on the basis of an undefined reasonableness - Association. The endment addresses Committee Print on S. 2543 of January 15, standard. the right of our c izens to own sold. 1974, said, "By expressly providing for in Objections to section 4(B) (ii) of S. 2543 In the way of brief background, on camera inspection regardless of the exemp- 1. The provisions of 4(B) (ii) are so tion invoked by the government, S. 2643 weighted in favor of classification markings April 4, 1973, Seri' for MCCLURE offered would make clear the congressional intent- as to make it almost impossible for judges, an amendment to the Par Value Modi- implied but not expressed in the original even after conducting in camera review, to fication Act whit stipulated that U.S. FOIA-as to the availability of in camera ex- overrule any secrecy stamp the government citizens could no longer be prevented amination in all FOIA cases. This examina- wishes to keep In place. When a plaintiff from purchasing, lling, or owning gold. tion would apply not just to the labeling but seeks classified material, he is automatically This amendment assed by a vote of 68 to the substance of the records involved.", at a disadvantage in arguing his case in that to 23. The gold o ership provision was (P. 16, emphasis added.) Later (p. 28), the he cannot know the contents of the records amended in the use by the Banking draft report added, "It is essential .. to he seeks and cannot show affirmatively that the proper workings of the Freedom of In- the public might benefit from their dis- and Currency Co mittee which struck formation_Act that any executive branch re- closure. In the FOIA generally, the burden the Senate specifi enacting date of De- view, itself, be reviewable outside the execu- of proof to sustain withholding is put on cember 31, 1973 all substituted language tive branch. And the courts-when necessary, the government, but in dealing with elas- which left it up the President as to using special masters or expert consultants sified material, the requester may have no when gold ownersr p could go into effect. of their own choosing to help in such sophis- effective way to dispute a government asser- An amendment ffered on the floor of ticated determinations-are the only forums tion: "It's secret, because it's secret." Thus, the House to resto the Senate language now available in which such review can prop- it is important for judges to use all the with a definite off ctive date failed on a any be conducted." resources they can summon to judge the While there is no Indication in the full delicate matter of secrecy. S. 2543 would tie vote. The con rees chose to accept Committee report (No. 93-864 of May 16; oblige them to give extra weight to official the House langua The President sub- 1974) of any roll-call or other vote in Com- sources and, by inference, make it harder for sequently signed e measure into law mittee changing the Subcommittee draft, them to employ outside experts, if such could Public Law 93-11-thus restoring the S. 2543 as unanimously approved is a clean be found. right to own gold a future unspecified bill with an entire new subsection, 4(B) (it), 2. This heavy presumption given official time. which would radically change the circum- testimony perpetuates the almost mythical stances under which in. camera review of status of classified information as a cate- Shortly after t s, the Senate again classified material could be conducted. The gory of secret exempt from the regular pro- showed its desire allow citizens to own new language in Exemption (1) is retained visions of the FOIA. Review, the report makes and hold gold wh I offered an amend- and the draft report language from page 28 clear, would not be de novo in Exemption 1 merit to S. 1141, tli bicentennial coinage now appears on page 31, but the effect of the cases; it would be a special animal, as though bill. My ameendme t again called for a new subsection is to foreclose de novo re- documents marked Secret by the General specific dat as to hengold ownership view of Exemption 1 cases and to introduce Services Administration were automatically would be allowe . This amendment a new and special standard for court con- entitled to different consideration than those passed. When the Dose and the Senate sideration of classified material. claimed to be "geological and geophysical When Exemption 1 is asserted, the bill pro- information and data" by the Federal Power met in conference 01 the coinage bill, the vides, "a court may review the contested Commission (Exemption 9) or "trade secrets" gold provision end; tment date was once document in camera if it is unable to resolve by the Patent Office (Exemption 4). again stricken. Th , on two separate ac- the matter on the basis of affidavits and other 3. It is inappropriate-!f not obnoxious- tions the Senate ha voted its overwhelm- information submitted by the parties. In to provide judges such detailed instructions ing support of pri to gold ownership. conjunction with its in camera examination, on how to conduct their inquiry in a case The amendment: enator McCLURE and the court may consider further argument, before them. One wonders how the authors I will offer to S. 2 ' will amend the Par or an ex parte showing by the Government, of 4(B) (ii) would react to statutory stipula-. Value Act-Public aw 93-110-and al- In explanation of the withholding. If there tions on the evidence admissible in a closed has been filed in the record an affidavit by low citizens to ow' and hold gold as of the head of the agency certifying that he hearing on an accused juvenile delinquent September 1, 1974. he amendment is a or to such a weighting of the scales in favor has personally examined the documents simple one. It in ds section 3 (c) of withheld and has determined after such ex- of the government in an anti-trust proceed- Public Law 93-110 deleting all of such amination that they should be withheld un- ing. One also wonders at the apparent con- dor the criteria established by a statute or tempt shown for Federal judges in so nar- subsection and rose ing in its place: Executive order ..., the court shall sustain rowly demarcating the bounds of their con- The provisions of is section pertaining such withholding unless, following its in duct in cases which might conceivably deal to gold shall take effe_ September 1, 1974. camera examination, it finds the withholding Wiar-a subject ecis area on still l tr cotreaated ted as s the CivclassifiCivil Our amendment' ill restore a right is without a reasonable basis under such War Recommendation taken away from a American people criteria." (Emphasis added.) The report on almost 40 years ago. In 1934, President S. 2543 is frank to admit that these sentences Section 4(B) (ii) should be struck from holding Jt in. to- red all T Americans cans h h This scrap the premise that classified material can S. 2643. Without It, judges will be able- Roosevelt orde be treated, like other reeoj!ljtgip(leitcFW-ot2~ge~P1 }lirr R~~ r-nql "n of private exempt from disclosure. On ptEe re- in camera review o crass! ed docu n port says: they may find necessary to determining the property, and it is time for this act to be