JUSTIFICATION FOR STATUTORY AUTHORITY TO PROTECT SOURCES AND METHODS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R001800050123-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 16, 2016
• Document Release Date: September 21, 2004
• Sequence Number: 123
• Publication Date: February 2, 1978
• Content Type: MF

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OGC 78-0669
2 February 1978
O'C- _ L-
MEMORANDUM FOR:
FROM
SUBJECT : Justification for Statutory Authority to Protect Sources
and Methods
Attached is a self-explanatory draft of a letter which I propose to
send to the staff of the House Permanent Select Committee on Intelligence,
with a copy to the staff of the Senate Select Committee on Intelligence, for
consideration in the development of intelligence charter legislation. I
have not attached copies of the attachments because the relevant provisions
are cited in the letter. However, you may have copies if you feel that will
be necessary for a fair assessment of the letter itself. Please let me have
your comments, and those of anyone else in your areas you believe should
see this, before 10 February 1978.
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
Mr. William F. Funk
Professional Staff Member of the
Subcommittee on Legislation
House Permanent Select Committee
on Intelligence
Capitol
Washington, D.C. .. 20515
In the context of our 11 January 1978 discussion of the authorities and
responsibilities provided to the Director of National Intelligence by the, pro-
posed Title I of the intelligence "charter legislation" package prepared by
the staff of the Senate Select Committee on Intelligence, you requested our
views concerning the necessity for continued independent statutory authority
to protect "unclassified" intelligence sources and methods from disclosure.
Endless debate could be generated regarding whether or not various
examples we might produce could or should be classified, for instance,
documents produced for and provided to a defector to establish a new identity
in the U.S. The more precise question is, however, whether there exists an
identifiable body of information, documentary or otherwise, relating to intel-
ligence sources and methods which is of such central importance to the effec-
tive conduct of the national foreign intelligence programs of the United States
and the operations of this Agency as to warrant statutory protection indepen-
dent of the vagaries of the classification system established and subject to
change by Executive Order. Not whether such information may or should be
classified according to the hierarchical standards of that system, but whether
it should be protected as a category of information requiring protection in its
own right.
It is obvious that this Agency cannot perform its major general functions
of collecting, analyzing, correlating, producing, and disseminating national
foreign intelligence without sources of intelligence information and other
methods of obtaining, verifying, and supplementing such information. It is
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inherent in the nature of these sources and methods that their disclosure
substantially and adversely affects their availability, productivity, and
potential. In the case of human sources, or methods requiring human partici-
pation to one extent or another, even the absence of sufficient assurances of
nondisclosure may serve to lessen the degree of cooperation which would
otherwise be available, and, in some cases, may even eliminate the willing-
ness to cooperate at all.
To the extent that reasonable men may differ concerning whether the
exposure of a single relationship or operation, or the identification of a
single employee, source or contact, will in and of itself result in damage of
any degree to the imposing and amorphous concept which is "the national
security" of the United States, there can be no long-term assurances based
upon the classification system... Frequently, concluding such damage will
occur requires a willingness to make a "leap of faith" to the effect that the
exposure of a source, technique or relationship not only affects the source or
method involved, but also deters others from entering such relationships or
allows countermeasures. which may reduce the effectiveness of alternative
methods. On the other hand, it is generally a simple matter to determine
that.someone or something is an intelligence source or method. Thus, the
authority to protect such information independent of the judgments required
under classification standards is a much more stable and dependable mechanism
for the prevention of its unauthorized disclosure.
This protection should extend, as it does now, to the identities of CIA
agents, contacts, sources, the organization, functions, names, official titles,
salaries and numbers of CIA personnel, and information concerning technical
means and devices for collecting, analyzing and producing intelligence. The
courts have had little difficulty applying this authority, and the existence and
justification for the authority to protect sources and methods information, have
been accepted by the judiciary historically, see, e.g., Totten v. United States,
92 U.S. 105(1875); United States v. Reynolds, 345 U . S . 1(1952), and in
numerous recent instances in the context of the Freedom of Information Act.
In every instance the courts have approved the invocation of the Agency's
statutory authority to withhold from disclosure information which might other-
wise have to be disclosed in the absence of.a statutory. provision. The value
of the authority in this context is demonstrated by the following illustrative
citations.
In Richardson v. CIA, Civ. No. 75-298 (W.D. Pa. January 30, 1976)
(copy attached), the court considered whether CIA financial information
related to sources and methods, and concluded,
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Congress, in recognition of the close correlation between the
funding and actual operation of an intelligence network, hat; amply
guarded against the unauthorized disclosure of intelligence sources
and methods by exexapting from public scrutiny receipts and expen-
ditures relative to the CIA .... As is so clearly demonstrated by the
defendants' affidavits, disclosure of the information and records per-
taining to the expenditures and transfers of public monies relative to
the CIA would compromise and open up for inspection, the government's
intelligence network and capabilities thereby making it impossible for
anyone to protect intelligence sources and methods from unauthorized
disclosure.
In Bachrack v. CIA, No. CV 75-3727-WPC, (C.D. Cal May 13, 3,976) (copy
attached), the court agreed with CIA's refusal to confirm or deny any relation-
ship between the Agency and. P_ deceased individual and said,
Where, as here, a request is made for information relating to a covert
relationship, the CIA can respond only by refusing to confi:r m or deny
that such relationship exists. Any other response would have the
effect of divulging the very secret the CIA is directed to protect .... .
While there is a strong public interest in the public disclosure of the
functioning of governmental agencies, there is also a strong public
interest in the effective functioning of an intelligence service, which
could be greatly impaired by irresponsible disclosure.
The court in Hayden v. CIA, Civ. No. 76-284 (D.C.D.C. April 15, 1977)
(copy attached) , after examining numerous documents in camera concluded
that the sources and methods authority had been properly invoked and could
be relied upon to protect names of CIA employees, identities of CIA sources,
CIA organizational data, specific office assignments of CIA employees, and the
location of CIA stations. Baker v. CIA, 425 F. Supp. 633, 636 (D.C.D.C.
1977), involved whether CIA regulations concerning internal personnel
matters could be withheld from disclosure. The court concluded:
... Collectively the documents reflect management attitudes, tech-
niques, safeguards, and conditions of employment.... [T) he CIA may
determine that disclosure of personnel matter may by itself constitute
the danger -to security or intelligence sources and methods that the
statute expressly seeks to prevent. No preliminary showing should be
required of the CIA to prove that disclosure would in fact damage
intelligence activities or compromise intelligence sources and methods.
This determination already has been made by Congress, subject to
implementation- by the agency...
Finally, in Wood v. CIA, Civ. No. 75-366 T-K (M.D. Fla_January 6, 1977)
(copy attached), the court concluded that the Agency had not established the
proper classification of materials related to covert operations resulting in the
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foreign publication and dissemination of certain books and thus could not deny
the materials requested by the plaintiff on that ground. Nonetheless, the court
went on to deny the request and dismiss the action on the ground that to do so
would expose employment relationships and functions of CIA agents. These
are cases where sensitive sources and methods information would be required
to be disclosed but for the existence of protective authority independent of the
classification system. See also, Weismann v. CIA, Civ. No. 76.-1566 (D.C.
Cir 1977); Phillippi v. CIA 546 F. 2d 1009 (D.C. Cir 1976).
Furthermore, it would appear to be incongruous to refuse to provide pro-
tection for intelligence sources and methods, classified or not, when, federal law
now protects the following categories of official information for, various policy
reasons -- departmental reports to Congress (5 U .S .C . 1163, 10 U .S .C . 1582) ,
insecticide formr~ulae (7 U .S .C . 135a(c) (4), f (b), f(d)) , cotton statistics (7
U .S . C. 472), tobacco statistics. (7 U . S . C . 507), marketing agreements (t U . S ..C .
608d(2)), peanut statistics (7 U.S.C. 955), sugar production surveys (7 U.,S.C.
1159), crop reports (7 U.S.C. 1373(c)), visa data (8 U.S.C. 1202(1)), census
information (13 U.S.C. 9, 214), SEC information (15 U.S.C. 78x, 79v', 80-32(b),
80a-44, 80b-10), Commerce reports (15 U.S.C. 176a, 190), FPC information
(15 U . S .C . 717g, 825), unemployment compensation (18 U . S . C . 605), diplomatic
codes and correspondence (18 U.S.C. 952), crop information(18 U.S.C. 1901-03),
Reconstruction Finance Corp. (18 U . S . C . 1904) , proprietary information (1.8
U.S.C. 1905, 26 U.S.C. 7213(6)), bank loans (18 U.S.C. 1906), land bank
debtors (18 U .S .C . 1907), agricultural credits (18 U .S .C . 1108), civil service
examinations (18 U.S.C. 1917(4)), trade secrets (21 U.S.C. 331(j))., 11OF data
(22 U . S . C . 286f (c)) , foreign service officers (22 U. S . C . 937), exchange pro-
grams (22 U .S . C . 1436), income tax (26 U . S . C . 7213(a)(1), 7217), drug reports
(26 U.S.C. 7237(e)), sugar tax (26 U.S.C. 7240), collective bargaining (29
U.S.C; 181(x)), patents (35 U.S.C. 122, 181, 186), veteran's claims (38 U.S.C.
3301), postal savings (39 U . S . C . 762), addict treatment (42 U S .C . 260(d)),
social security, excise and other tax information (42 U.S.C. 1306), confidential
official information (44 U.S.C. 3508), Railroad Retirement Bd. claims (45 U.S.C.
362(d), (m)), Coast Guard inspection and discharge information (46 U. S.C. 234,
643(f)), common carrier data (46 U.S.C.819, 49 U.S.C. 15(11), 320, 322, 913,.
917, 1021), FCC information (47 U.S. C. 154, 220), communications transmitted
(47 U.S.C. 605), handicapped voting (48 U.S.C. 55), shipping (49 U.S.C. 15(13)),
Bureau of Mines (50 U.S.C. 139), Selective Service (50 U.S.C. App. 327),
vessel procurement contracts (50 U.S.C. App. 11520), (5)), housing con-
struction insurance (50 U . S . C . App. 1896), Defense Production Act reports
(50 U.S.C. App. 2155), commodities (50-U.S.C. App. 2160(f)), and exports
(50 U.S.C. App. 2406(c), 22 U.S.C. 414(b)). It could be argued the espionage _
statutes (18 U.S.C. 793-798), exist as the counterparts to these provisions in
regard to intelligence sources and methods. However, many of these statutes
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create an affirmative authority to protect information in addition to
establishing a penalty for its disclosure. Furthermore, as you are aware,
the espionage laws are far from adequate, provide only an after-the--fact
remedy, and require in their own right a showing of damage to the national
defense which more often than not must be premised upon proper classifica-
tion of the information in question. A further important distinction is the fact
that the provisions of law cited above protect information which generally is
required by'law to be provided to the U.S. Government. Thus, the absence
of specific independent authority in the agency head to protect the information,
and even instances of unauthorized disclosure, whether criminally punishable
or not, do not risk interfering with the availability of the information itself
as is often the.case with intelligence sources and methods. Finally, it should
be kept in mind,, when considering the effects of weakening or omitting the
existing authority in any new legislation, that the courts are certain to inter-
pret any retreat from existing authority as a congressional signal that intelli-
gence sources and methods no longer merit the careful treatment accorded them
in the past. Neither this Agency nor the Director is interested in an offensive
authority to protect sources and methods. Our concern is solely defensive
in nature, i.e., the authority to withhold certain types of information from
disclosure regardless of the provisions of other laws, and without reliance
upon the judgments of individuals or organizations whose interests and
motives may differ or fluctuate over time. For these reasons, we would
suggest that Section 108(1) of Title I, relating to one of the authorities of
the proposed Director of National Intelligence, be revised as follows:
(1) The Director shall be responsible without regard for any
other provision of law, for protecting from disclosure information
relating to intelligence sources, methods and analytical procedures.
This authority shall be limited to the protection from publication or
disclosure of information or material. which would tend to reveal,
among other things, the identity of intelligence agents, sources or
contacts, the means or devices by which intelligence is collected,
analyzed, correlated, produced or disseminated, and the organiza-
tion, functions, names, official titles, salaries, or numbers of per-
sonnel employed by the Central Intelligence Agency. In furtherance
of this authority, the Director shall establish common security
standards for access to, management, and handling of information
and material relating to intelligence sources and methods.
(m) The Director shall establish standards designed to protect
against over clas sific ation and to provide for timely declassification. of
intelligence information and material, as appropriate, and consistent
with applicable law and executive order.
(Subparagraphs (m) through (p) would be relettered (n) through (q)..)
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This modification would grant the Director authority necessary to
protect sources and methods, and yet would not allow unfettered discretion
to act in the name of sources and methods. While there is always the possi-
bility that this limited authority could be used to withhold information for
other reasons, the harm which could result from the loss of the authority
outweighs the small risk of such an abuse. Further, this formulation would
meet the requirements of 5 U.S.C. 552(b)(3) that such an authority not be
discretionary or that it establish a particular criteria for withholding or refer
to particular types of matters to be withheld. If Title ITT continues to provide
for a separate Director of the Agency, or to list separate authorities for the
Agency, it would be desirable to repeat these provisions there to avoid the
problems which will be associated with attempting to gain the attention of a
Director of National Intelligence who is burdened with concerns other than
the day-to-day management of CIA.
I trust this letter will be useful to you and contains more information.
than you ever cared to know in this regard. Should you have furtli.er questions
or comments please do not hesitate to call on me.
Yours truly,
cc: Bill Miller/SSCI
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