NON D/D ITEM 1225, CIA DRAFT LEGISLATION 'TO AMEND THE NATIONAL SECURITY ACT OF 1947, AS AMENDED, AND FOR OTHER PURPOSES'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000600190082-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 12, 2016
• Document Release Date: May 3, 2002
• Sequence Number: 82
• Content Type: MEMO

From: Chief of Naval Operations
To: Chief of Legislative Affairs
Subj: Non DID Item 1225, CIA draft legislation "To amend the National
Security Act of 1947, as amended, and for other purppses"
Ref: (a) OLA ltr LA-62:pb of 7 Feb 1974
1. This replies to reference (a), which requested comments and rec-
ommendations on a proposed memorandum by the Department of Defense
(DoD) General Counsel concerning subject draft-legislation.
2. While the overall thrust of the proposed memorandum is concurred
in, vigorous exception is taken to a major change that memorandum would
suggest in the draft legislation. The basis for and details of this
non-concurrence, and recommended changes, are provided below.
a. Subsection (g)(5) of the draft legislation would establish use
of the "arbitrary and capricious" standard for the courts to use in
judging the reasonableness of classifications. The DoD memorandum is
correct in noting that this standard is difficult to apply to factual
situations. There has indeed been much controversy over the meaning
and use of "arbitrary and capricious" as astandard. But, the suggested
alternative in the DoD memorandum would likely be adverse to the Govern-
ment's interests and to the intended objectives of the draft legislation.
The DoD suggestion would unbalance proceedings by forcing the Government,
.in effect, to prove that the classified information at issue had been
validly classified from both procedural and substantive aspects..
Executive Order 11652, "Classification and Declassification of National
Security Information and Material," is the basic U.S. Government regula-
tion governing classification. A significant portion of that order is
devoted to procedural issues of classification: e.g., identification
of officials authorized to exercise classification authority, and to
downgrade and declassify material; document marking criteria; down-
.grading and declassification schedules; and exemption authority and
criteria. Procedural guidance for the implementation of that order
is given by a 17 May 1972 "National Security Council Directive Governing
the Classification, Downgrading, Declassification and Safeguarding of
National Security Information." Those documents have been further
implemented within the Department and Defense and the Military Services
NAVY HAS NO OBJECTION TO DECLASSIFICATION AND RELEASE.
y-P1r-
~~':4~ WASHINGTON,D.C. 20350 INFt3LYF21J"uR TO
OFF= OF THE CHIEF OF NAVAL OPERATIONS
NAVY review(s) VAor Release 2002/07/02: CIA-RDP75B0038OR000600190082-0
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by additional directives. If the legislation were to allow the court
to find the classification unreasonable whenever the plaintiffs could
establish failure of the Government to comply with any of its own
regulations on classifying information, procedural defects on designa-
tion of classifying authority or on document marking could cause
dismissal of the Government's case without substantive issues ever
having been argued. The test in this area should be one which the
courts could consistently use in determining the reasonablengss of
administrative actions on classification. Since the draft legislation
can and should be strengthened in this regard, consideration should be
given to the following suggested revision of subsection (g)(5), beginning
at page 3, line 12 of the draft bill: "...information involved was
designated without regard to the impact its disclosure would have on
national security or the foreign relations of the United States. In
making such determinations, the court shall disregard procedural errors
in applying designations which do not affect the substance of the
information designated." It is recommended that the proposed DoD
memorandum be modified to suggest this as a standard for consideration.
3. The proposed DoD memorandum contains two other sections which, while
not specifically non-concurred in, merit further review.
a. Subsection (g)(2) of the draft legislation provides a definition
using the phrase "...concerning foreign intelligence..." The concern
expressed in the proposed DoD memorandum over the meaning of that phrase
appears overstated and is not shared. Since the proposed DoD memorandum
has no specific recommendations to make in this regard,. consideration
should be given to passing by that subsection in silence.
b. Subsection (g)(6) of the draft legislation would authorize the
Attorney General to apply for injunctive relief to prevent the commission
of the offense which would be created by this bill. Since the contemplated
injunction authority would not apply to the press, the relevance of the
New York Times case cited in the proposed DoD memorandum is debatable.
Moreover, it seems highly questionable to try to anticipate the courts
in this area, and to severely weaken the Government's hand to deal with
intended unauthorized disclosures of any but the most irreparably
damaging nature. Since the wording of the proposed DoD memorandum
suggests approval of the standard of "direct, immediate, and irreparable
damage to our nation" enunciated by Justice Stewart in the New York Times
case, it should be noted that application of that standard to this draft
legislation would make it virtually impossible to enjoin the unauthorized
disclosure of "Secret" or "Confidential" material. The definitions of
those classifications as set forth in Executive Order 11652 do not encompass
information meeting Justice Stewart's standard. In view of these factors,
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consideration should be given to revising the proposed DoD memorandum
so as to'take note of potential problems similar to those encountered
in the New York Times case, but omitting the gratuitous suggestion of
a standard which would excessively restrict the application of the
intended injunctive authority.
4. The enactment of the proposed subject legislation is strongly
supported.
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 OFFICE OF L,,G7SLA,`IVE AFFAIRS
WASHINGTON. D. C. 20350
proved For Release 2002/07/02 : CIA-RDP75B00380R000600190082-6REPLY REFER 7o
From: Chief of Legislative Affairs
`fib. OPNAV
MARCOR:PS
OGC
LA-62 ,pb
CDR Gresens
Ext. 76196
r
Subj: Non D/D Item 1225 "To amend the National. Security Act
of 1947, as amended, and for other purposes. "
Ref: (a) OLA ltr LA--62:ms dtd 28 Ian 74 w,%encl
Encl: (1) Copy of OSD memo dtd 5 Feb 74 w/encl
1 Reference (a) forwarded subject item for information and study pending
submission of the Office of the Secretary of Defense proposed report.
2. The enclosure is referred for comment and recommendation.
3. The views. of the addressees listed above should be received in the
Office of the Chief of Legislative Affairs by 19 February 1974 in order to be
incorporated in the report expressing the position of the Department of the
Navy. Addressees are requested to furnish copies of their responses to
all a:Li d
on an information addressees.
P. A PP
40,
J HN R. CROCK
aptain, JAGC, U
.S. Navy
Director, Legislation
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Y~ wON,A.C.S 41
5 February 1974
MEMORANDUM FOR THE SECRETARY OF THE ARMY
Attention: Chief of Legislative Liaison
THE SECRETARY OF THE NAVY
Attention.: Chief of Legislative Affairs
THE SECRETARY OF THE AIR FORCE
Attention: Director, Legislative Liaison
THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF
Attention: Administrative Assistant
THE ASSISTANT SECRETARY OF DEFENSE
.(Intelligence)
Attention: Executive Director
THE ASSISTANT SECRETARY OF DEFENSE
(manpower- and Reserve Affairs)
THE ASSISTANT SECRETARY OF DEFENSE
(Public Affairs) .
THE DEPUTY ASSISTANT SECRETARY OF DEFENSE
(Administration)
DIRECTOR, NATIONAL SECURITY AGENCY
Attention:. Counsel
SUBJECT: Non D/D Item 1225, CIA draft legislation To amend the
National Security Act of 1947, as amended, and for other
purposes."
Copies of the above subject proposal have been previously circulated
by this Office.
Comments of the addressees are requested on the attached draft report
not later than February 19, 1974.
Frank J.herlock
Director, Legislative Reference Service
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STATINTL
.jam U I
DATE OF DOG D4AT E.q RECD DATE OUT SUSPENSE DATE
TO PLC
FROM
siation ?I 3 ?' t4 rate? ..~' 's 3.
Security Act of 194T*
CROSS REFERENCE OR
POINT OF FILING
DATE
SENT
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STATINTL