ICRC JURISDICTION REGARDING INTELLIGENCE SOURCES AND METHODS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77-00389R000100070025-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 12, 2016
• Document Release Date: May 3, 2002
• Sequence Number: 25
• Publication Date: April 19, 1973
• Content Type: MF

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DRAFT
19 April 1973
MEMORANDUM FOR: Dr. James B. Rhoads
Acting Chairman, ICRC
SUBJECT : ICRC Jurisdiction Regarding Intelligence
Sources and Methods
1. You will recall that at the March meeting of the Committee
I reported new CIA action with respect to the AP appeal to ICRC of
the CIA denial of declassification. of certain documents concerning
the Guatemalan incident of 1954. By way of background, several
months ago CIA had concluded that the documents requested by the
AP must remain classified. When the AP appealed this decision to
the ICRC, the Agency did not furnish the documents for review by
ICRC, the Director taking the position that it would be inappropriate
to do so in light of the denial of declassification and his statutory
responsibility to protect intelligence sources and methods from
unauthorized disclosure. See the attached memorandum of 27 Novem-
ber to the Chairman and members of ICR C by the Acting General
Counsel of CIA. Chairman Eisenhower reported the impasse to the
President, whereupon Mr. Ehrlichman and Mr. Helms exchanged
letters on the matter. Possible further action was overtaken by the
fact of Dr. Schlesinger taking office as Director. Mr. Schlesinger
then reviewed the exchange of correspondence between Mr. Ehrlichman
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and Mr. Helms and wrote to Mr. Ehrlichman that, like Mr. Helms
before him, he believed determinations and decisions by the Director
of Central Intelligence involving intelligence sources and methods
should be exempt from the jurisdiction of ICRC. Mr. Schlesinger
advised Mr. Ehrlichman that he was requesting Chairman Eisenhower
to permit us to withdraw the AP matter from the ICRC agenda. Further,
he was ordering the documents in question re-examined with the view
to removing the issue of intelligence sources and methods to the extent
possible, with the hope that this could accommodate the AP's desires.
He said also he would pursue directly with the ICRC the matter of the
exemption of intelligence sources and methods qfte e-n from ICRC
jurisdiction. See the attached exchange of correspondence between
Ehrlichman and the two Directors of Central Intelligence.
2. My purpose in this memorandum is to request ICRC agree-
ment that ICRC should not have jurisdiction on matters concerning
intelligence sources and methods, including specifically appeals
from departmental refusals to declassify. If the Committee can so
agree, it then should be relatively simple to determine that the exist-
ing Executive Order and NSC Directive permit interpretation to that
effect, or that they do not, in which event it would be necessary to
request an appropriate amendment to the Order. Resolution of this
issue would also enable the Committee to finalize its procedures for
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publication in the federal Register, as agreed at the March meeting.
3. Our legal reasoning that intelligence sources and methods
are exempt from ICRC authority is developed in our 27 November
letter to ICRC and in the letters of Messrs. Helms and Schlesinger
to Mr. Ehrlichman. Essentially, we argued that the National Security
Act is specific that the Director of Central Intelligence is responsible
for protecting intelligence sources and methods from unauthorized
disclosure, that principle is endorsed and solidified in other statutes
and it has been recognized and upheld in various judicial decisions.
See--the--exchange-of correspondence between Mr. Ehrlichman and
the two Directors.
4. Additionally, the National Security Council has issued
directives specifically requiring protection of intelligence sources
and methods by the Director and the United States Intelligence
Board and requiring various actions by those officials. See NSC
Directive No. 1, February 1972. We believe it cannot be seriously
argued that that Directive, dealing specifically with intelligence
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activities and imposing v-a io-us responsibilities on the Director of
Central Intelligence and the United States Intelligence Board and
revised extensively just prior to thW issuance of E.O. 11652. (Febru-
ary and March 1972 respectively), was intended to be overridden by
the Executive Order or by the NSC Directive of May.
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5. Moreover, it would seem illogical for the ICRC to have
jurisdiction in matters of intelligence sources and methods if it is
not also to have atomic energy jurisdiction. (The Committee, you
will recall, has agreed to include in its procedures language denying
jurisdiction "of appeals involving information classified by the Atomic
Energy Act of 1954" and the Executive Order is authority for such
1/
action.)- The Atomic Energy Act creates a category of information,
called Restrictive Data, and provides for its protection by the Atomic
Energy Commission. The Commission thus has statutory authority to
protect Restricted Data and is not dependent on the Executive Order
in this regard. It would follow that if ICRC had authority to declassify
atomic energy information under the Executive Order, any declassi-
fication action by ICRC would accomplish nothing because the Commis --
sion) 9uld continue to protect Restricted Data under the authority of the
Atomic Energy Act. It would seem odd, therefore, to free atomic
energy information from the threat of Executive Order declassification
by other than the Atomic Energy Commission, and not provide similar
protection for intelligence sources and methods, which lacks specific
statutory protection of the nature of that afforded by the Atomic Energy
Act.
1/
We are not suggesting that ICRC should have atomic energy
jurisdiction. CIA has agreed to the proposed procedures paper, with
the reservation concerning intelligence sources and methods, and we
continue to support such exemption.
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6. Above and beyond these somewhat legalistic points is a
fundamental consideration. Authority in an outside body to review
and overrule decisions of intelligence officials to protect intelligence
sources and methods is inconsistent and incompatible with the con-
cept of the intelligence-gathering function. As Mr. Helms asserted
in his letter of 29 January:
The source -and-method problem is fundamental
to the effective operation of an intelligence activity. It
recognizes that a fiduciary relationship is established
between a source and the Agency. The Agency's general
reputation for respecting such fiduciary relationships is
essential to any hope of recruiting new sources and ex-
changing sensitive material with foreign intelligence
services whose history and secrecy have endured for
centuries. The content of the information involved is
not of primary concern, as it well may be innocuous in
itself, but if it reveals the source protection must be
provided.
The reason I am reluctant to submit the papers to the
ICRC is that any indication that an intelligence agency
can be forced to reveal its sources and methods to out-
side review seriously reduces the confidence of those
current and future sources and liaison relationships
that are essential to the intelligence function.
In retrospect, it may be that Director Helms would have been well
advised to stress this position when the Executive Order was nearing
the stage of approval. But there was no suggestion at that time, in
the language of the draft order or otherwise, that we might be faced
with an NSC Directive more far-reaching than the Executive Order
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itself and one which would vest in ICRC authority to act on appeals
from departmental decisions on declassification. In any event, we
deem it essential to the foreign intelligence function that the Director's
statutory responsibility to protect intelligence sources and methods
continue unimpaired and that it be fully supported by Executive Branch
actions. Accordingly, we request ICRC agreement to that effect and
specifically that ICRC will have no jurisdiction as to appeals from
declassification requests involving intelligence sources and m ethods.
It is our view also that if the Committee is willing to reach such an
agreement, it could advise the White House that it so interprets the
Executive Order, in the context of the provisions of the National
Security Act of 1947, and it would not be necessary to request an
amendment to the Executive Order. (The Department of Justice
memorandum of concerning the procedures to be adopted
by ICRC may not be consistent with this view, but that memorandum
was directed to another problem and it may be that the implications
of the National Security Act were not fully considered.) If, however,
the Committee, though willing to agree to our request, believes
that the Executive Order will not permit the requested iinterpretation,
we would want to offer an appropriate amendment to the Executive
Order.
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