LETTER TO HONORABLE ROY L. ASH FROM W. VINCENT RAKESTRAW

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M01048A000300110011-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 16, 2016
• Document Release Date: April 19, 2005
• Sequence Number: 11
• Publication Date: April 5, 1974
• Content Type: LETTER

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Honorable Roy L. Ash
Director, Office of Management
and'Budget
Washington;-D. C. 20503?.
. The Central Intelligence Agency proposes to add a new subsection,
(g'), to section 102 of the National .Security Act of 1947, as amended;
(50 U.S.C: 403), to furnish additional protection for intelligence-
information., The amendment would create anew criminal offense for
unauthorized disclosure, and would provide for an injunction action to
prevent such disclosures. The Department of Justice recommends against
submission of this legislation to Congress.
Subsection (g) would contain six subdivisions on which we
comment seriatim as follows:
I.. The Offense.
Subdivision (1) would create an offense, punishable by
imprisonment for ten years, a fine-of $10,000, or both, for the com-
munication of "information relating to intelligence sources and methods"
to an unauthorized person by anyone who acquired such information by
virtue of his service in the government or employment by a government
contractor.
We oppose the creation of a new criminal offense basically
because the subject matter is already substantially protected by.
existing law. In addition, as will be shown, the CIA here seeks
harsher penalties against a larger class of persons at a lesser burden
of proof than required by existing law.
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Under present law, the Director of Central Intelligence is
authorized under Executive Order 11652 to classify "national security
information" as "top secret," "secret," or "confidential.". He is.
further authorized by the implementing National Security Council
Directive of May 17, 1972,.37.F.R. 10053,. to mark material specially
as involving "sensitive _intelligence sources and methods." If this
authority is properly exercised the material a fortiori would relate
to the "national defense" within the meaning of current 18 U.S.C. 793,-
794, except insofar as sensitive information regarding foreign relations
is arguably not "national defense information". Transmission of
"information relating to the national defense" to~an enemy in wartime,
or to a foreign power at any time, with:intent to injure the United
States or secure an advantage to-a foreign power, is already a capital
offense. 18 U.S.C. 794..-Communication of such information simply to
an unauthorized person by one who has been lawfully "entrusted with it
is a ten-year offense. 18 U:S.C. 793(d).. However, under these -
statutes the government has to prove to a.jury,that the information
was" in,fact-related to,the national defense, Gorin'v. United'States,
312 U.S. 19 (1941), a requirement often-necessitating either self-.
defeating public disclosure,"or abstention from prosecution.
The proposal seeks to avoid this heavy burden-of proof and
the dilemma by pivoting the offense on the fact of "classification"
or "designation," rather than the actual relationship with national
defense, as. in present 50 U.S.C. 783(b). That statute, which provides
a ten-year penalty for employees of the United States-who disclose -
classified information of any description to either-comi,m nists or-
foreign agents, was upheld in Scarbeck v. United States, 317 F.2d
546 (D.C. Cir. 1962), cert. denied, 347-U.S. 856 1963. However,
we observe that the CIA proposal would go far beyond.the coverage of
that statute by.adding former employees of the United States and
present and former employees of contractors with the United States
as potential offenders, and would expand the forbidden class of.-
recipients to all the world.
The proposal is apparently patterned after 42.U.S.C..2277'
_'
which prohibits a similar class of present and former employees of-
the United States and its contractors from disclosing "restricted
data" to unauthorized persons. But the penalty provided,by that
provision of the Atomic Energy Act for simple unauthorized disclosure
is only a $2,500 fine without any jail sentence. The penalty rises
to the ten-year and $10,000 fine level of the proposal only when the
communication is made "with reason to believe such data will be
utilized to injure the United States or to'secure an advantage to
any foreign nation." 42 U.S.C. 2274(b).
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Subdivision (2) broadly defines "information relating to
intelligence sources and methods" as material which, "for reasons of
national security or in the interest of the foreign relations of
the United States," has been so "designated pursuant to rules and
regulations prescribed by the Director of Central Intelligence."
In this regard, we point out that it is true that 18 U.S.C.
798 similarly provides a ten-year penalty for anyone who "knowingly-
and willfully . . . communicates to an. unauthorized-person
classified information -0) concerning . . . any code, cipher,-or
cryptographic system . . .; (2).apparatus . . . used : . for
cryptographic or communication intelligence purposes; (3)'.con-
cerning . . . communication intelligence activities; or (4).obtained
by the processes of communication intelligence," Although this provision
has-never-been-tested in court, its definitional maternal, like that
in the Atomic Energy Act, is more specific, detailed and concrete
than that in proposed subdivision (2).
Apparently as a concession to the questionable validity
of.eliminating the relationship of the material to-national defense
-as a. principal issue in the case and as an issue for decision-by a
jury, subdivision (3) would preclude punishment of a recipient as an
accomplice, accessory or co-conspirator, unless he himself obtained
the information by virtue of his employment by the government or a
contractor.' In an appropriate case, of course, he would remain
subject*to prosecution under other statutes. The Department does
not object to this subdivision in principle, but believes it is
awkwardly phrased.
Subdivision:(4)'-tracks 18 U.S.C. 798(c) and provides that
designation of the material does not preclude delivery to Congress
in response to a proper demand. We have no specific objection to
this' subdivision.
II. In Camera Proceedings.
Subdivision (5) provides that "[i]n any proceeding" the court
may review the designation "in camera" and may invalidate it-,if it is
found "arbitrary and capricious." By "any proceeding" presumably both
criminal prosecutions under subdivision (1) and injunctive proceedings
under subdivision (6) are intended.
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There is ample precedent that in a prosecution initiated to
punish conduct violative of administrative action the court may decline
to do so without a showing that the action was not arbitrary and
capricious. Indeed in Estep v. United States, 327 U.S. 114 (1946),
a selective service case, the Court explicitly stated that if judicial
review were precluded by Congress , relief would be available after
conviction by habeas corpus. Id.at 123-124.. Selective service law
further suggests that it is both permissible and appropriate for the
propriety of-the designation action to be decided by the court as a
matter of law to the exclusion of'the jury,'to set the invalidation
standard at arbitrary and capricious, and to'place the burden of
proving invalidity on the defendant.. Cox v. United States, 332'.U.S.
4421-452-453,' 448-449 (1947).-
But, it is not at all clear that in camera proceedings will
be tolerated. Subdivision (5) does not define in camera..Even if
nothing more is intended than the exclusion of the public (which is
doubtful), a very serious'issue is raised, United States v. Lopez,:
.328 F. Supp. 1077,'1087 (E.D. N.Y. 1971), which, though more easily
justified than exclusion-of defendant or his counsel, United States.v.
Bell, 464 F.2d667,.670 (2nd Cir. 1972), may nevertheless be "an
error of constitutional magnitude." United States v.-Clark, 475 F.2d
240,.247.(2nd Cir. 1973)'; United States v. Ruiz-Estrella, 481 F.2d
723 .(2nd Cir. l973,)..'The foregoing cases involved pretrial suppression
hearings involving-testimony concerning the use.of anti-skyjacking
profiles at which defense couns.el'was present. Even though such
proceedings are collateral to issues of guilt or innocence, cf.
McCray v. Illinois, 386 U.S. 300, 305 (1966), the Sixth Amendment
right to public trial and confrontation was held to attach.. Where
validity of the designation is the heart of the case, exclusion of
the public and of the defendant raises clear constitutional problems.
If it is intended by "in camera" to further exclude defense
counsel, the provision is almost certain Ty invalid.- In Alderman v.
United States, 394.U.S. 165 (1969), of the seven justices that addressed
themselves to-the issue, five, of whom four are still sitting, insisted
that an adversary proceeding was necessary to determine whether the
four trials had been tainted by evidence from illegal electronic.
surveillance. Id. at 180-185, 187.' Two justices, neither of whom
still sits, would have allowed in camera proceedings-in two com-'
panion espionage cases, United States v. Ivanov and United States v.
Butenko, but 'only one of the latter would have allowed in camera
review in national security cases not involving foreign espionage.
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Id. at 197-200, 209, 211. Even they would have required a turnover of
the material on pain of dismissal if the judge found it "relevant."
In United States v. United States District 'Court, 407 U.S. 297.(1972),
eight justices, without dissent, reaffirmed the turnover requirement
of Alderman even though the Attorney General had certified that "it
would prejudice the national interest to disclose the particular
facts concerning these survei 11 ances other than to the court in
camera." Ibid. at 335. fn. 1.
It is therefore hardly.conceivable that so central an issue
as the validity of the designation can be determined in nonadversary
proceedings..- The traditional rule in criminal cases is that the govern-
ment may invoke its military secret or national security privileges
only at the-price-of letting the defendant go free.' United'States v.
Reynolds,,, 345.U.S. 1,12 ('1953), citing United States v. Andolschek;
4l 2.F.2d 503.(2nd Cir. 1944.)., and.United States v. Beekman, 155 F.2d
580 -(2nd Cir. 1946). See also Nixon v: Sirica, 487 F.2d 700,.765-
766 (D.C. Cir. 1973) (Wilkey,.C.J., dissenting).
It is doubtful that the government would fare better as
plaintiff in.the.civil injunction action proposed in subdivision (6).
There, too, the rule seems to be that the privilege is waived by
initiating the-action.,.-Bowles v. Ackerman, 4 F.R.D. 260 (S*.D. N.Y.
1945); United'States ex ref: Schlueter v. Watkins, 67 F. Supp.: 556,
560-561 S.D. N.Y.), aff'd, 158 F.2d 853 (1946 dictum); Bank
Line,, Ltd. v. United States, 76 F. Supp. 801, 803 (S.D. N.Y. 1948)
dictum ; but cf. United States v Marchetti, 466 F.2d 1309 '(4th Cir.),
cert. denied, 409 U.S.-1063 1972.). Only as the defendant in a civil
action has the government: had some success in asserting its privileges
without losing the case. Re nolds v. United States,'su ra; E:P:A.'-v.
Mink, 410 U.S. 73,,'.86 n.13 1973
III. Injunctive Proceedings.
Subdivision (6) provides that the Attorney General may, at
the instance of the Director of Central Intelligence, seek an injunction
to forestall violations. This is patterned after.42 U.S.C.2280,.a
statute which has never been tested.
The utility of this proposal is questionable. The government
recently, without benefit of a statute, successfully sought an -
injunction against a former employee of the CIA preventing him from
publishing a book in violation of a secrecy agreement he had executed
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on commencing his employment. United States v. Marchetti;-supra.
The court held that such agreement did not violate Narchetti.'s
constitutional rights to the extent that the prohibition was restricted
to classified matter which had not entered the "public domain" by prior
disclosure. Id. at 1317.' Though one member of the panel, concurring,
would have allowed the employee to prove "by clear'and convincing
evidence that a classification'was arbitrary and capricious," id.
at 1318, the majority held to the contrary, noting courts are ill
equipped to-review foreign intelligence matters.
Subdivision (5) of the proposal would allow review of the
scope suggested'by the concurring judge in Marchetti, but fails to-
take into consideration the constitutionally mandated "public domain"
exception.
In a proper case the courts might even allow an injunction
against persons not-parties to secrecy.. agreements if there is some,
showing of privity or acting in concert.. See Maas v:'United States,
371 F.2d 348, 351 (D..C. Cir. 1966). It is doubtful that a statute
could protect more information against more people than these cases.
.Although the'multiplicity ofdecisions in the case of The New York
Times Co. v. United States; 403 U.S. 713 (1971), makes'it difficult
to generalize, only Justices White and Marshall seemed concerned by
the absence of a statute. 'The principal adverse decisions rested more
on failure of the government to make a positive showing that serious
injury was to be *apprehended.
As violation of an injunction can no longer be summarily
punished without. notice and hearing, and, no more than six months'.
imprisonment may be imposed without jury trial, see Cheff v.
Schnackenberg, 384'U.S. 373 (1966)., and its progeny, subdivision (6),
in a sense, merely creates a lesser offense to that prescribed in
subdivision (1):
IV. Conclusion.
In the present atmosphere of detente abroad and suspicion
of government secrecy at home this proposal will arouse stiff
opposition. Its enactment would have only a marginally incremental
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,protective effect since the material it seeks to protect is substantially
covered by existing statutes, and the procedural devices it would
initiate are to some extent available under current law. Some of, i is
objectives are of highly doubtful validity. The Department believes
that in the long run it may be better to rely-on secrecy agreements
and our ability to demonstrate positive need in an appropriate case
than to seek a remedy which, given the temper of the times, may well
be refused and serve as a precedent against-us in our time of need.
Submission of the proposal to Congress is accordingly not recommended.
Sincerely,
(Signed) W. Vincent Rakest
raw
W. Vincent Rakestraw
Assistant Attorney General
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