LETTER TO HONORABLE JAMES O.; EASTLAND FROM GEORGE L. CARY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800160016-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 12, 2016
• Document Release Date: May 13, 2002
• Sequence Number: 16
• Publication Date: March 30, 1976
• Content Type: LETTER

OLC 75-1788/b
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WASH)NGTON.D.C. 20505
Honorable James O. Eastland, Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
3 h: X 76
This is in response to your request for our views on S. 796, a bill
"To amend chapter 5, subchapter II, of Title 5, United States Code,. to
provide for improved administrative procedures."
Subsections (b) through (e) of section 553 of the, Administrative
Procedure Act establish certain procedures to be followed by Federal
agencies in rulemaking. These procedures include advance public notice
of rulemaking, opportunity to submit views, and delayed effectiveness 'of
rules . Subsection (a) of section 553 makes these procedures inapplicable
"to the extent that there is involved a military or foreign affairs function of
the United States. " S. 796 would amend subsection (a) and exempt instead.
"a matter pertaining to a military or foreign affairs function of the United
States that is (A) specifically authorized under criteria established by
Executive order to be kept secret in the interest of the national defense.
or foreign policy and (B) is in fact properly classified pursuant to such.
The foreign intelligence responsibilities performed by the Central .
Intelligence Agency are fully excluded from the requirements of section 553
because they fall within the existing general exemption for military or
foreign affairs functions. It is our position that foreign intelligence functions
should continue to be generally excluded from public rulemaking procedures,
and for this reason we are opposed to narrowing the existing exemption,
The existing exemption fully protects sensitive intelligence matters
from public disclosure and, therefore, achieves society's interest in pre
serving the necessary secrecy of certain foreign intelligence activi.ties.
This would not necessarily be accomplished under the exemption proposed in
S. 796 because the responsibilities of the Director of Central Intelligence
to protect intelligence sources and methods from unauthorized disclosure are
an explicit statutory direction (50 U.S. C. 403) and are not based upon
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Executive order, as required in the bill e Therefore, by- limiting the
exemption to matters classified under Executive order, S. 796 raises a.
potential conflict with the Director's statutory authorities. In addition, the
"properly classified" standard proposed in S. 796 could invite litigation,
in the course of which sensitive information could be compromised. .
There is an additional consideration which militates against rezm.ovinlig,
the "exemption from public rulemaking procedures for the foreign intelligence
function. This involves striking a balance between the desirability of public participation in decisions which directly affect the public and society's
interest in conducting the Government's business efficiently and, in the
foreign intelligence field, discreetly. Rules involving foreign intelligence
functions have such a minimal public impact, if any, that, on balance, the
public's interest would be best served by preserving the current exemption.
from the rulemaking procedures, The Central Intelligence Agency is not
engaged in economic, social or other kinds of regulation which affect
the public; -nor is it a policy making agency in the field of foreign r-el.a.tions..
The Agency was established under the National Security Act of 1947 to. correlate
and evaluate foreign intelligence and to perform other intelligence-related
duties at the direction. of the National Security Council.
One of the purposes of Executive Order 11905, issued by the President
on 19 February 1976, is "to assure compliance with law in the management
and direction of intelligence agencies and departments of the national. govern-
ment." We believe that this Executive order is responsive to the interests
underlying the proposed change in the current exemption in section 553.
For the foregoing reasons, this Agency opposes favorable consideration
The Office of Management and Budget has advised there is no objection
to the submission of this report from the standpoint of the Administration's
program.
George L. Cary
Legislative Counsel
Distribution
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