PRM/NSC-29: REVISION OF EXECUTIVE ORDER 11652

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M00772A000100010038-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 15, 2016
• Document Release Date: August 18, 2004
• Sequence Number: 38
• Publication Date: January 10, 1978
• Content Type: MF

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DCI/IC 78-1801
10 January 1978
MEMORANDUM FOR: General Counsel
STAT ATTENTION:
STAT FROM:
Acting Deputy to e OCI for the
Intelligence Community
SUBJECT: PRM/NSC-29: Revision of Executive Order 11652
REFERENCE: OGC Memorandum, OGC 78-0016, dated
3 January 1978
1. In response to reference, Intelligence Community Staff comments
on the draft Executive Order on security classification are set forth
below and in the attachment hereto.
2. The most serious problem with the order as drafted pertains
to policy on declassification. Section 4(a) of the draft specifies
a requirement for a balancing test, weighing public interest in access
against national security needs to protect information, to be made at
time of declassification review. The DCI recommended a balancing test in
commenting on the earlier draft of the Order, but did so in the expec-
tation that it should and would be worded in such a manner to insure
retention of control of the balancing process in the Executive Branch.
The passive voice construction in the present draft--"...it can be
demonstrated...."--would not so retain that control. The draft's
language would place any parties, e.g., Morton Halperin vs. the DCI in
Freedom of Information Act litigation, to a dispute over extension of
classification on an equal plane in arguing what "demonstrates" that
balance. In such circumstances, the courts would be called on to decide.
But the courts lack the expertise to make national security judgments.
We therefore recommend that the fourth sentence of section 4(a) of the
draft be changed to read: "Whenever information is reviewed, it shall
be declassified unless 4t-ean-be-demonstrated an official authorized to
extend classifications determines or approves a determination that:
(1 disclosure...." This would retain explicit control of the balancing
test in the head of the agency authorized to extend classifications.
The "or approves a determination" language above is designed to relieve
agency heads of the onerous duty of personally reviewing and adjudicating
items of classified information.
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SUBJECT: PRM/NSC-29: Revision of Executive Order 11652
3. A second problem with the draft order is that it does not
explicitly or implicitly provide for any "catch-up" period during which
information now marked for declassification review after 30 years can be
screened on an orderly basis. Without some provision for such, the
draft order would appear not to permit classifications to extend beyond
30 years without review except for foreign-originated information. This
problem was recognized during PRM-29 discussions, and agreement was
reached that a ten-year "catch-up" period should be provided during which
old records could be screened and 20-year currency be attained for all
systematic reviews. We do not view it as adequate that this concept be
stated only in the implementing directive, as some involved in the draft-
ing process argue. We therefore recommend that the first sentence of
section 4(h)(l) of the draft order have the following language added at
the end thereof: ", except that information classified under prior
Orders and marked for declassification or review for such in more than
20 years from date of origin, may retain its classification for a period
not to exceed 30 years or January 1, 1988, whichever cones first, pending
accelerated systematic review in accordance with the directive implementing
this Order."
4. Other corrections or changes which should be made to the draft
Order are stated in the attachment.
Attachment:
ICS Comments on Draft E.O.
on Security Classification
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IC STAFF RECOMMENDED CHANGES TO DRAFT EXECUTIVE ORDER
ON "NATIONAL SECURITY INFORMATION"
References to sections are to sections of the draft Order as
circulated by the Office of Management and Budget on December 27, 1977.
1. Sections 1(d) and 1(e). The definitions given therein for
"intelligence method" and "intelligence source" are too complex and
include tests which are no longer appropriate given changes elsewhere
in the draft Order. The test of suffering "reduced effectiveness if
exposed" for each was originally included in the expectation that
sources and methods so defined would be automatically classified without
the need to make a separate determination of at least significant damage
to national security if the information was disclosed. Since that expec-
tation was not realized, the test should be dropped. Further, the defi-
nitions should not use the terms defined in the definitions themselves.
Lastly, the future availability of sources. or methods which need security
protection should be expressed in reasonably definite terms, i.e., "planned
to be" instead of "may be" used. Recommend that sections 1(d) and 1(e)
be changed to read:
"(d) 'Intelligence method' is any means used or planned
to be used in the collection or analysis of foreign intelligence
or foreign counterintelligence."
"(e) 'Intelligence source' is any person, thing, condition,
or event from which foreign intelligence or foreign counter-
intelligence has been, is, or is planned to be derived."
2. Section 2(e)(1). The prohibition here against classification
for the purpose of concealing violations of law or other improper acts
is a political necessity, but should be expressed to ensure that the
purpose is clear. As drafted, the prohibition would cloud the validity
of a classification which incidentally described a violation of law,
etc., but which was primarily and properly based on valid national
security considerations. Recommend that section 2(e)(1) be changed to
read: "No information may be classified in order to conceal violations
of law, inefficiency,...."
3. Section 2(f)(5). The first sentence, changed in the draft to
broaden its application, needs to be revised to make it grammatical.
Recommend it be changed to read: "No Executive Branch employee without
spee4f4ea14y-granted original classification authority specifically granted
pursuant hereto herein may originally classify information under this
Order...."
4. Section 4(b)(3). The first sentence needs to be revised to
show that there are alternative, not additive, functions assigned herein.
Recommend it be changed to read: "The Director of the Information
Security Oversight Office may declassify or downgrade information when the
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Director determines that its classification violates this Order-L aid-4n-the
or when he exercises e? his appellate function pursuant to Section 4(g)(2)."
5. Section 4(e). This section, which speaks to how previously clas-
sified information shall be routinely declassified or reviewed for declassi-
fication, refers to other provisions of the Order for review procedures
in the case of information which does not bear certain markings. One of
the references, to mandatory reviews under the Freedom of Information Act,
etc., is in error, since the presence or absence of the specified marking
has no bearing on the susceptibility of information to mandatory review.
Recommend that the second sentence of this section be changed to read:
"Information not so marked shall be reviewed for declassification in
accordance with subsections-{g)-and. (h) below."
6. Section 4(g)(4). This section, enjoining refusal to acknowledge
the existence of a document in response to a Freedom of Information Act
request unless the fact of existence is classified, needs to show that it
pertains to information classified under prior Orders as well as the draft
one. Recommend change to read: "No Agency in possession of a document
classified under the provisions of this or prior Orders may,...."
7. Section 6(c)(3). The last sentence of this section was added at
the suggestion of one of the PRM-29 ad hoc committee members for the purpo.se
of trying to ensure that Cabinet officers, comparable officials, and the
.Director of the new Oversight Office would be made aware of all of one
another's compartmented programs. The stated rationale--to try to avoid
the potential for another Pearl Harbor--was not supported by any examples
since the end of World War II. Lacking a compelling argument for such an
information exchange (e.g., the DCI would have to give the Administrator
of the General Services Administration access to his (DCI's) list of all
intelligence compartments), the minimum requirements of need-to-know argue
strongly against having the Order state such a requirement. Recommend
therefore that the last sentence of this section be deleted.
8. Section 7(a)(1)(vii). This, listing some of the responsibilities
assigned to the Director of the new Oversight Office, does not reference
the section of the draft Order which governs the first of the two powers
assigned by this section. Recommend that it be changed to read: "exercise
case-by-case classification authority in accordance with section 2(g), and
review requests...."
9. Section 7(a)(2). This section, listing officials who shall appoint
representatives to sit on a committee to advise the Director of the new
Oversight Office, needs to be corrected so as to state correct titles.
Recommend the first sentence be changed to read: "There is also estab-
lished an Interagency Information Security Committee which.. .shall be
comprised of representatives of the Secretaries of..., the Director of
Central Intelligence, the Assistant to the President for National Security
Affairs Geune4l-Staff, the Assistant to the President for Domestic Affairs
and Policy Staff,...."
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10. Section 7(b)(1). The requirement herein for agencies to submit
to the new Oversight Office, in advance of the effective date of the
Order, copies of regulations they adopt to implement the Order, incorrectly
requires submission of guidelines for systematic declassification review.
Section 4(h)(2) of the draft Order explicitly says such guidelines are to
be submitted within 180 days after the effective date of the Order.
Further, section 7(b)(8) of the Order states all necessary requirements
for the initial submission of such guidelines. Recommend therefore that
the words "and systematic review guidelines" in the first sentence be
deleted.
11. Section 8(a). The sanctions directed herein against those who
consciously disclose properly classified information should apply both
to information classified under this and prior Orders. Recommend there-
fore that the first sentence be changed to read: "Any officer or employee
of the United States who...knowi.ngfully and willfully, and without authori-
zation, discloses information properly classified under this or prior
Orders...."
12. Section 8(b). The listing of authorized sanctions should be
expanded to include the option of revoking access to classified information.
Recommend therefore that the section be changed to read: "Sanctions may
include... termination of classification authority or access to classified
information,...."
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 Approved F ase 2004/08 30I: CIA- RDP80LM00T1~A''0100010038-8
SUBJECT: PRM/NSC-29: Revision of Executive Order 11652
Distribution:
DCI/IC 78-1801/1
Original
OGC Watt.
A/D/DCI/IC w/att
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1 -
D/OPP/ICS w/att.
1
IC Reg w/att.
1 - SECOM Subj. File w/att.
1 - SECOM Chrono w/att.
DCI/IC/SECOM
FOR OFFICIAL USE ~1' LY
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