JOURNAL - OFFICE OF LEGISLATIVE COUNSEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R001100170009-6
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 11
• Document Creation Date: December 16, 2016
• Document Release Date: June 21, 2005
• Sequence Number: 9
• Publication Date: November 10, 1972
• Content Type: NOTES

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CP~7-"A 77! 71" 77 7 W)
Journal Office of Legislative Counsel
Friday - 10 November 1972
Page 2
4. 1 Mr. Fisher, in the office of Representative
Olin Teague (D., Texas), called and asked if we would relay to the wife of
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5. Met with Messrs. Donald Sanders,
Chief Counsel, and Richard Schultz, Associate Chief Counsel, House Internal
Security Committee, concerning the prospects for broadening the application
of 50 U. S. C....783(b) (Scarbeck statute). Neither were terribly optimistic
that any committee effort in this direction would be successful but they agreed
that there was a gap that needed to be closed, that they would study the pro-
posal carefully, and that they would endeavor to obtain Chairman Ichord' s
reaction. They clearly understood that this was merely an informal effort
to staff out alternatives and that no policy decisions have been made. They
agreed to treat the matter on that basis.
6. Mr. Warner and I met with Frank Slatinshek,
Chief Counse , House Armed Services Committee, and explained to him OGC's'
proposal for amendments to the National Security Act designed to more
effectively protect intelligence sources and methods. S.latinshek commented
that he was "all for us" in seeking such amendments and that .his only concern
was whether we could get the support we needed from the Administration, or
whether the introduction of such proposals in the Congress might open up
questions which we would prefer not to have raised. In any event he is, clearly
prepared to support whatever proposal we finally decide upon.
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Journal - Office of Legislative Counsel
Wednesday - 8 November 1972
Page 4
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Services Committee staff, who told me of his impressions from his recent LJn
trip to Indochina.
In addition to a written report he
plans to discuss his observations shortly with Chairman Stennis and will let
us know if he finds the Chairman particularly concerned about any Agency
problems in the area.
11. I ICalled Dick Schultz, Associate Chief
Counsel, House Internal Security Committee, and arranged to meet with
him and Donald Sanders, Chief Counsel, anytime this week at my convenience 25X1
to discuss possibilities of broadening 18 U. S. C. 783(b) (Scarbeck statute).
JOHN M. MAURY
egislative Counsel
cc:
O/DDCI
ivir. ous on
Mr. Thuermer
Mr. Clarke
DDI DDS DDS&T
EA/DDP OPPB
Coil D E IL L
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OLC 72-1118
3 November 1972
SUBJECT: Director's Instructions re Proposed Legislation to
Protect Classified Info
1. In meeting today with the Director, Colby, Houston, and
Warner, the Director instructed that:
a. We not bother with the "assignment of income" or
"forfeiture of annuity" proposals but go for the "intelli-
gence data" and/or "Scarbeck statute" solutions.
b. Since proceeding through the "Federal Criminal Code"
process may be unduly time consuming, we should seriously
consider an appropriate amendment to the National Security
Act (Warner noted that heretofore our committees have not
accepted responsibility for legislation involving criminal
penalties, and therefore this possibly may be foreclosed).
c. Houston is to push ahead with Justice regarding the
drafting and related problems, and necessary coordination
within the executive agencies including the White House.
d. We sound out our key committee and staff contacts
informally and keep Houston and Colby up-to-date on results.
JOHN M. MAURY
egislative Counsel
Distribution:
Original - Subject
I - Chrono
OLC/JMM:mrrmc (6 November 1972)
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SUBJECT: LRH 10 Oct. 1972 Memorandum to DCI Regarding
Protection of Classified Information
1. 4 possibilities suggested:
a. Rewrite contract of employment assigning
income from speeches or publications.
Amend CIA Retirement Act so that annuity is forfeited
if DCI determines secrecy agreement has been violated.
c? "Intelligence Data" legislation
d. Amend Scarbeck statute making it a crime to
reveal classified information to any unauthorized person.
2. Assignment of Income -- This has appeal because it is based
on contract law as applied to the Agency and the Agency has had success
in this regard in the Marchetti case; and, as LRH points out, it may
discourage the current willingness to divulge secrets for financial gain.
No legislation would be required. Draw backs are that it would be only
an effective deterrent when income is involved. Aside from its effect
as a deterrent, the assignment itself would not stop harmful unauthorized
disclosures. Further, the determination on clearing the publication rests
with the Director which suggests that the Director is in a position to
impose his will on what is to be published. From the outside, this may
not appear to be a responsible assumption of power.
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3. Forfeiture of Annuity_ -- (See attachment A for detailed
pro's and con's.) This proposal requires legislation and has only
limited application. If we are going to pay the price, let',s get a whole loaf;
such as, !'Intelligence Data" or Scarbeck legislation. NOTE: Ed
Braswell sees due process problems.
4. "Intelligence Data" Legislation -- This is probably the best
of all of the proposals. The problem is to define the term with sufficient
specificity (probably by locking it into "intelligence sources and methods")
to justify the fact that (1) the propriety of affixing the classification is not
a matter for jury determination and (2) there is no need to prove intent to
harm the U. S. Government or benefit a foreign government. Precedent
for this legislation is found in 18 U. S. C. 798(a) (COMINT) and 42 U. S. C.
2227 (Restricted Data). The legislation could also include authority for
injunction proceedings similar to that found in the Atomic Energy Act
(42 U.S.C. 2280) upon a showing that a person has engaged or is about to
engage in a proscribed activity.
5; Broadening Scarbeck Statute -- This has the same advantages
as the "intelligence data" legislation. The problem is that the Scarbeck
statute standard involves any classified information. Currently, it is a
crime only if the "classified information" is passed to an agent of a foreign
government or a Communist front organization. The proposal would make
it a crime to pass plammiCio+cl hformation to u any unauthorized portion such
as a newspaperman and the recipient himself on the basis of this crime
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statutes. The Commission on the revision of the Criminal Code has
already reacted negatively to this recommendation. Since an authorized
recipient is a determination to be made within the Executive Branch under
the authority of the President, one can see the likelihood of charges that
such a statute would be used politically.
6. Strategy -- With respect to both four and five above, LRH
recognizes their serious policy and political implications and believes
our prospects for success are better if we work through the revision of
the Federal Criminal Code. This may be too limiting. It is quite likely that
that revision will drag out over a number of Congresses. Perhaps the
makeup of the upcoming Congress will be favorable towards legislation
seeking to tighten up in the area of protecting classified information. It
is quite possible that the Armed Services Committee would look favorable
upon "intelligence data" amendment to the CIA Act of 1949 or to the
National Security Act of 1947. It is recognized that there is concern that
any amendment to those Acts may carry over into other provisions. While
this may be a risk it is a risk that can be assessed.and at least in the
House can be avoided through the use of a "closed rule" when the matter
comes to the floor. Also the Scarbeck statute is a part of the Internal
Security Act of 1950 which in the House falls under the jurisdiction of
Ichords Internal Security Committee and Eastland's Internal Security
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Subcommittee in the Senate. Both of these Committees are considered to be
favorable forums for such legislation. In summary, the
Judiciary Committees of both Houses do not have a jurisdictional lock
on the legislation, seeking the improvements through the general
revision of the Federal Criminal Code most likely will be a long drawn-out
process, and there are other alternatives which ought not to be dismissed
at this time.
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UR GiNL
10 October 1972
MEMORANDUM FOR THE RECORD
SUB'ECT: Proposal for Annuity Forfeiture Upon Determination
By the Director That a Participant Has Violated.
Secrecy Agreement
Arguments for the Proposal:
1. Policy. Policymakers want tighter laws to prevent unauthorized
disclosures. Any related proposal, having reasonable survivability prospects
in the legislative process, should be pushed.
2. Obligations of Law. Consistent with the Director's responsibility for
"protecting intelligence sources and methods" he should take the lead in
pushing any reasonable proposal giving him additional leverage in fulfilling
that responsibility. Under current authority the Director can terminate an
employee, but he has no comparable leverage once retirement benefits vest.
Obviously, in any one case a retired employee can do just as much or more
damage to intelligence sources and methods.
3. Statutory Precedent. Statutory precedent exists: SUSCA 8311 to
8313 and P. L. 88-643, section 234(a).
4. Minimum Repercussions, The proposition involving as it does an
amendment to the 1964 CIA Retirement Act is unlikely to prompt floor. amend-
ments aimed at the Director's authorities in the 1947 and 1949 Acts.
5. Court Decisions. The proposition is a logical statutory extension
of the Marchetti case decision by denying benefits to one who has breached a
condition of employment.
6. Congressional Climate. The 93rd Congress may be so constituted
that it will present an unique opportunity for obtaining favorable action on
this or similar proposals.
rl `7: 1 f, F 115 ""71 P, 771 17 rn 7-- P
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mFLZdtL G u~' Sr W 18 i ii u L-i:e~It U1YL
Arguments Against the Proposal:
1. Public Reaction. Regardless of its merits, the proposition will
most likely generate strong public reaction that the Agency and/or the
Administration is applying the screws to CIA employees for a number of
nefarious reasons, e. g., to avoid embarrassment to Administration
policies, to attempt to influence the judgment ot.the objectivity and integrity
of CIA employees, etc.
2. Histor The legislative precedent fQr the proposition was born
in a period of American history which many people still view with emotion.
This will tend to support misunderstanding of the proposition regardless of
its merit.
3. Limited Effect. The CIA Retirement Act applies to only one-third
of the work force. The other two-thirds are also exposed to highly sensitive
information and are signatories to secrecy agreements, but would not be
subject to the proposed sanctions (an interesting side effect of this disparity
is to provide further support for extending the CIA Retirement Act to all
employees).
4. Lack of Specific Precedent. The general law which applies to all
Federal staff retirement systems, including CIA's, provides for the forfeiture
of retirement benefits for, among other things, a conviction arising out of
"disclosure of classified information". The proposal provides for such for-
feiture on a unilateral determination by the Director. The obvious point is
why is existing law not sufficient and what justifies resort to administrative
fiat.
5. Due Process--Justiciability. In the 93rd Congress we will be facing
Senator Ervin and others who apparently have sincere difficulty in appreciating
why we are placed at a disadvantage in court cases. Clearly, since the
proposal does not provide for appeal and is not on its face justiciable, we
should expect a strong fight from Senator Ervin and others.
6. General Applicability. If the proposition has validity, it should
apply to all Federal employees who sign secrecy agreements and should,
therefore, conform to .the process and other requirements that now appear
in the comparable sections of Title 5. It should apply to all Federal staff
retirement 'systems.
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7. Half a Loaf. The principal purpose to be served by the proposal
is to deter the unauthorized disclosure of classified information. Yet it
has only limited application. If we are going to step in the breach, weather
the storm of public/congressional reaction, and use up our credit in a number
of our Hill accounts, shouldn't we go all out and attempt to get an enactment
such as the intelligence. data proposal, which is going to be worth the price.
L
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