LETTER TO HONORABLE THOMAS E. KAUPER FROM JOHN S. WARNER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01495R000400050017-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 19, 2016
• Document Release Date: November 16, 2005
• Sequence Number: 17
• Publication Date: October 8, 1974
• Content Type: LETTER

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Honorable Thomas E. Kauper
Assistant Attorney General
Antitrust Division
Department of Justice
Washington, D. C. 20530
8 OCT 1974
Re: United States v International Business Machines Cor oration,
69 Civ. 200 (S. D. N. Y. )
Dear Mr. Kauper:
This is to express my deep concern that in connection with
the discovery activities being conducted in the referent case, certain
classified Agency materials have been released by the Department
of Commerce to representatives of the International Business
Machines Corporation (IBM) without this Agency's consent.
The documents to which I refer are:
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It is my understanding that these documents were released by the
Department of Commerce despite a member of my staff specifically
asking both the Department of Commerce and the Antitrust Division
that such action not be taken without Agency approval.
The reasons for my concern over this development are
several. It constitutes a violation of The Third Agency Rule which
proscribes one department from disseminating classified material
originating in another without the consent of the originating depart-
ment (3A CFR 1972 Comp. at page 237), and a possible infringement
of the statutory responsibility to protect intelligence sources and
methods from unauthorized disclosure as vested in the Director of
Central Intelligence by the National Security Act of 1947, as amended,
(50 U. S. C. A. 403(d)(3)). In addition, it is contrary to the previous
understanding between our respective agencies and IBM regarding
the matter of IBM's inspection of classified Agency materials.
Under the terms of that understanding, classified Agency
materials were inspected by IBM only under Agency supervision,
and while IBM was permitted to examine all relevant materials,
copies of the materials it desired were made available to it
only after sensitive intelligence information had been excised
from the documents. I consider it extremely unfortunate that
no attempt was made by the Department of Justice to impose the
same restrictions on inspection of Agency documents in the pos-
session of the Department of Commerce, as were agreed to among
the Agency, IBM, and the Department of Justice for the previous
inspections of Agency documents in the possession of the Agency.
It is for the above reasons that I find it necessary to
bring this matter to your personal attention. While I recognize
that in releasing these documents the Government was seeking
to comply with a court order, the fact remains that the release
was effected in a manner contrary to regulations of the Executive
Branch. Should future IBM discovery requirements call for the
release of classified Agency material, it would be appreciated
if you would ensure that the release occurs only in accordance
with the conditions previously agreed upon.
Sincerely,
s/ Jo&tfl S. Warner
JOHN S. WARNER
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WASHINGTON, D.C. 20505 OGC 74-1652
Bernard V. Parrette, Esq.
Deputy General Counsel
Department of Commerce
Washington, D. C. 20230
Re: United States v. International Business Machines Corporation,
69 Civ. 200 (S.'D. N.Y.)
This is in regard to your letter of August 26, which enclosed a
list of 26 classified Agency documents that the Department of Commerce
has disclosed to International Business Machines Corporation (IBM).
In my letter to Mr. Bakke, dated 8 October 1974, I have pre-
viously expressed my concern that this Agency's classified materials
should have been disseminated to IBM without prior Agency consent.
The incident to which I refer involved those documents on your list
numbered 23 through 26. In my opinion, this latest unilateral dis-
closure involving documents numbered 1 through 22 is likewise a
violation of The Third Agency Rule. While we stand ready to assist
the Department of Commerce in complying with orders of the Court,
I ask your cooperation in ensuring that our classified materials
are disseminated only in accordance with Executive Branch procedures.
With specific reference to the first 22 documents listed, this
Agency consents to the Department of Commerce making copies
available to representatives of IBM. It should be expressly under-
stood, however, that these documents may be released only to
personnel possessing the requisite security clearances, and they
must be handled in accordance with the Protective Order as issued
by the Court in the referent case.
HN S.t WARNNER
eneral Counsel
cc: The, Honorable Thomas E. Kauper