NOTE TO JMM FROM LLM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R001100170010-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 16, 2016
• Document Release Date: June 21, 2005
• Sequence Number: 10
• Publication Date: November 3, 1972
• Content Type: NOTES

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Attached are copies of memos commenting on the so called
Hiss Act Amendment to CIARD's:
DDP -- Raises some questions but endorses and commends effort.
DDS -- Opposes - adverse reaction may jeopordize other CIARD
amendments/doesn't cover Civil Service retirees/6 cases
under Hiss Act all won by retiree.
Security -- Would be major deterrent but --
limited application
Provoke anit- CIA sentiment.
Would support something on grounds
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10 October 1972
1. You asked me to look into and bring up at a staff meeting
John Warner's proposal to amend CIARDS concerning the forfeiture
of annuities for violation of a secrecy agreement.
2. There are valid arguments on both sides of the proposition
and I've put some of them down in the attached for your consideration.
3. On balance, I think the arguments against the proposition outweigh
those for the proposition but I am sure the ultimate decision will be based
upon how much movement the Director and others want to see made on this
subject.
4. In line with your interest for a staff discussion, I will raise
this at our staff meeting tomorrow if we have time.
k-1
LLM
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N S AT ti~ .-iir E At USE ONLY
MEMORANDUM FOR THE RECORD
SUBJECT: 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: 5USCA 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.
iu i Yl4. tit J* Lli11? ` U L y.
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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 o&the objectivity and integrity
of CIA employees, etc.
2. History. 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
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 ApplicabilIII. 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.
U"-_ UHU
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INITILIRMISAL USE ONLY
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.
Assistant Legislative Counsel
Distribution:
Orig - File
1 - Mr. Warner
1 - Chrn
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OGC 72-1487
10 October 1972
MEMORANDUM FOR: Director of Central Intelligence
SUBJECT: Protection of Classified Inform
1. This memorandum is for information only.
2. This is a status report on our efforts to improve
protection of classified information. This has been a matter
of. continuing study over the years, and at the present time we
are concentrating on three possible courses of action.
3. The first is administrative in nature and needs no
legislation.I This would add a new condition to the contract of
employment by which an agent or employee would assign to the
Agency all royalties, fees, or other income derived from books
,speeches, or other publications on the subiect of intelligence.
In the event of a publication which had not been cleared by the
Agency, we would pursue any such income on a contract basis
if the publication contained any classified materialJ. If the publica-
tion had been cleared or if we in our sole judgment decide that it
does not contain any classified information, we would release the
assignment as to that particular publication to the author. Hope-
fully, this would discourage the current willingness to divulge
Government secrets for financial gain. This was proposed by
OGC several years back but on review at the Deputies' level was
thought to be undesirable as a matter of policy. On review in the
light of current events, we are actually writing such a provision
in new contracts of I I although we may have
to make some revisions as we study further the rather complex
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legal implicaions. We are considering requiring such an assignment
by most other employees and agents. We have also been considering
the assignment of the actual property rights of published material, but
at the moment I am of the opinion that this runs straight into the First
Amendment. We will discuss this further with the Department of
Justice.
4. The second is also administrative in nature but would
require legislation. This would be a provision that any retiree
who violated his secrecy agreement would thereby forfeit any
further retirement pension, subject only to refund of his 'contri-
bution to the retirement fund. There is a precedent for this which
you may recall in connection with the Alger Hiss case. He finally
took his case to court and it was held that the suspension of his
retirement rights was not applicable to him on the grounds that the
statute was ex post facto, but the courts did not invalidate the
statute itself. It would, of course, be preferable to have such a
penalty apply to retirees under either the Civil Service or the CIA
retirement systems, but we may find it feasible only to seek such
legislation for the CIA system. This is a new idea and will take
considerable co.,t74_n_?fin, t executive branch be are ny`Iormal
why we
presentation to the Congress. T se.ct~, however,
should not disQu _a. at an -early opportunity with our own congres-
sional subcommittees.
5. The third course of action has to do with revisions and
amendments of the Federal Criminal Code. Here the situation is
more complicated as there has been underway for some time a
study for the over-all revision of the entire Criminal Code. The
National Commission on Reform of Federal Criminal Laws, which
was created by statute, has finished its work and submitted it to
the President. We did considerable work with this group in the
drafting stages. The President has now directed the Department
of Justice to set up a task unit to consider the report and come up
with a final legislative proposal. We are continuing to work with
the Justice officials on this task unit, There are two aspects of
this effort:
a. The first is to make sure that nothing in
the revision will weaken or lose any of the criminal
sanctions in the existing legislation. (As an example,
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TENDER WILL CHECK CLASS[ FICA"f ION TOP AND BOTTOM
~irr C LAS5IEI3 I- Ct>N .i3~ t^+'HAL 5I CR ET
OFFICIAL ROUTING SLIP
T O
NAME AND ADDRESS
DATE
INITIALS
l
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I
Legislative Counse
q
6
ACTION
DIRECT REPLY
PUPARE REPLY
APPROVAL
UI5?ATC}i A
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
RATION
SIGNATURE
Remarks :
Attached is a proposal for amending CIARDS
to provide for forfeiture of annuity if the
Director determines a participant has violated
his Secrecy Agreement by discussing classified
information. You will note that there are some
precedents for this. As you know, we are going
forward with other amendments to CIARDS. It
would be helpful to have your views on whether
this should be pushed seriously. .
John arner(I
FOLD HERE TO RETURN TO SENDER--
FROM: NAME, ADDRESS AND PHONE NO.
DATE
Acting General Counsel 7D0l Hqs
9/22/72
UNCLASSIFIED COPIEII)ENT'iAi.
SECRET
F017-M67'ID. 237 Use previous editions (40)
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