LRH 10 OCT. 1972 MEMORANDUM TO DCI REGARDING PROTECTION OF CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R001100170014-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 16, 2016
• Document Release Date: June 21, 2005
• Sequence Number: 14
• Content Type: REPORT

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PRECIS AND COMMENT
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.
b. 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, "Intelligenee Data"- orr Scarbeck legislation. NOTE: Ed
Braswell sees due process problems.
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UISE GINLY
10 October 1972
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 proposa], 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.
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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 oRkthe 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
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.
Assistant Legislative Counsel
Distribution:
Orig File
1 - Mr. Warner
Chrn
STAT
I Mr.
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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 ;,classified information to air unauthorized person such
as a newspaper man and the recipient himself on the basis of this crime
could be subject to Lrosecuti n u aa r i ~f
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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 classified information to any unauthorized person such
as a newspaper man and the recipient himself on the basis of this crime
could be subject to prosecution under misprision of felony or conspiracy
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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 Hous'es 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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OGC 72-1487
10 October 1972
MEMORANDUM FOR:. Director of Central Intelligence
SUBJECT: Protection of Classified Information
. 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. 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 subject 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 material. 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 although we may have,
to make some revisions as we study further the rather complex
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.amenamen;. we w11i discuss this further with the Department of.
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
by most other employees and agents. We have also been considering
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legal implications. We are considering requiring such an assignment
Justice.
4. ' The second is also administrative in nature but would
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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you may recall in connection with the Alger Hiss case. He finally
bution to the retirement fund. There is a precedent for this which
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-
took his case to court and it was held that the suspension of his
legislation for the CIA system. This is a new idea and will take.
retirement systems, but we may find it feasible only to seek such
penalty apply to retirees under either the Civil Service or the CIA
statute itself. It would, of.course, be preferable to have such a,
statute was ex post facto, but the courts did not invalidate the
retirement rights was not applicable to him on the grounds that the
sional subcommittees.
should not discuss it at an early opportunity with our own congress
presentation to the Congress. see no reason, however,'why we
considerable coordination in the executive branch before any formal
the Justice officials on t4is r* unit. , There, are two aspects of.
with a final. legislative proposal. We are continuing to work with .
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
National Commission on Reform of Federal Criminal Laws, which:,'
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
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