STATEMENT OF STANSFIELD TURNER DIRECTOR OF CENTRAL INTELLIGENCE 1 MARCH 1978 BEFORE THE SUBCOMMITTEE ON SECRECY AND DISCLOSURE SENATE SELECT COMMITTEE ON INTELLIGENCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R002100080089-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 15, 2016
• Document Release Date: August 9, 2004
• Sequence Number: 89
• Publication Date: March 1, 1978
• Content Type: STATEMENT

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STATEMENT OF
STANSFIELD TURNER
DIRECTOR OF CENTRAL INTELLIGENCE
I MARCH 1978
BEFORE
SUBCOMMITTEE ON SECRECY AND DISCLOSURE
SENATE SELECT COMMITTEE ON INTELLIGENCE
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Mr. Chairman and Members of the Committee, it is a pleasure to appear
this morning to discuss the use of national security information in criminal
proceedings and the related concerns expressed in your letter to me of last
December 8.
The subject is many-sided, complex, and I believe not well understood.
At the heart of it, however, what we arc dealing with is a tension between
two vitally important governmental interests which arc often difficult and
sometime impossible to serve together, so that service to the one may involve
a sacrifice of the other. One interest has to do with the effective and impartial
administration of criminal justice, with its associated requirement that relevant
evidence be available for use by both the prosecution and the defense. On the
other side is the interest in the successful administration of foreign and national
defense policies of the United States, together with the supporting intelligence
functions for which I am responsible and the associated requirements that
certain information be protected against disclosure. These interests can and
do pull against each other whenever the disclosure demands imposed by the
judicial process are met by the contrary imperatives of the intelligence process.
The resulting dilemmas can be very painful, and they are not infrequent.
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What must be settled at the outset is whether the dilemmas that I perceive
are real. If on the scale of national values every law enforcement interest is
always superior to any intelligence interest, there could never be much of a
problem. Under this view intelligence information would simply be brought
forward as needed, either by the prosecution or the defense, no matter ;.,hat
the consequences that might flow from the disclosure of that information at a
public trial. If the opposite view were taken, so that law enforcement interests
were always seen as subordinate to intelligence interests, there likewise would
be little to decide in any given case. It would simply be a matter of terminating
any criminal proceeding in whole or in part should any intelligence information
be threatened with disclosure.
In my judgment the correct view is neither of the above. The values are
so variable that they cannot be abstractly and neatly ordered in advance, and
the reality is that there are no easy formulas for decision. What that means in
practice is that each case must be separately judged on its own facts, and that
intelligence interests must be taken into account, along with other pertinent
considerations, in reaching decisions as to whether and on what basis to
proceed with prosecution. Indeed this sort of accounting may have to be
repeated several times or at several stages in the same case.
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Ultimately, assuming in felony situations that a grand jury is disposed to
indict, it is the Attorney General who has the discretion to exercise, the
power to act, and therefore the authority to decide whether a prosecution is
warranted and on what basis to go forward. That is not to say, however, that
I have no role in the making of that decision where intelligence interests are
concerned. On the contrary, I think I have a necessary role. In the first
place, I consider it my responsibility to see that no relevant information is
withheld from the Attorney General -- that is, that he has access to all information,
without regard to classification, that may fairly be thought to bear on the issue
of whether a crime may have been committed and under what circumstances it
may have been committed. I want to stress this aspect of the subject so as to
avoid any possible misunderstanding. Access to relevant information should
not be a point of dispute, because the Attorney General has a clear right and
need to review all such information so that his decisions may be taken with the
fullest factual perspective. Second, I see it as my responsibility to make known
to the Attorney General my estimate of the importance of intelligence information
that may be identified as relevant to a criminal prosecution, and the potential
impacts of the public disclosure of that information. Again, I think that kind
of estimate is something the Attorney General must have before him if he is to
make informed decisions and properly weigh the consequences of those decisions.
If I were to conclude in some particular context that the Attorney General had
struck the incorrect balance, my recourse would he to approach the President
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so that he could determine as appropriate whether the net best interests of
the United States favored prosecution, and so that he would at least be aware
of my forecast as to the likely consequences of that course of action. Similarly
with respect to the declassification of documents said by the Attorney General
to be needed in order to support a prosecution, it seems to me that I should
react positively so far as I can do so without endangering vital intelligence
interests. But so far as I conclude that the declassification of specific documents
would lead to truly damaging national security effects, it seems to me that
declassification would be an irresponsible and possibly unauthorized act on my
part, except as it might be directed by the President. I should add in this
connection that I know of nothing that precludes the use of a classified document
as evidence in a judicial proceeding . Indeed the use of a document in that
form, assuming it is properly classified to begin with, merely recognizes the
situation for what it is, namely one in which a national security risk is being
taken to achieve a law enforcement purpose that cannot be achieved in a
risk-free way. In short, I cannot accept it as my responsibility to make a real
conflict disappear by an act of declassification that pretends that effects of
disclosing particular documents will be benign, when I believe the opposite
to be true.
Mr. Chairman, there is an impression in some quarters that the relations
between CIA and the Department of Justice in this entire field are characterized
by hostility and lack of cooperation. I am sure that Mr. Civiletti will offer
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his own appraisal. on this score when he testifies later this morning, but I
would like to give you my own appreciation, which is that relations between
CIA and the Department are not at all strained or hostile and indeed are marked
by mutual good faith and shared understandings about the dilemmas I am now
discussing. Certainly it is true that there is continuing dialogue and debate,
and sometimes adversary exchanges, but that is hardly surprising in light of
the divergent interests being represented. Usually there is an accommodation.
But where there is disagreement, it stems not from poor relations but rather
from the intrinsic difficulty of the issues that we confront.
Let me turn now to some of the more fundamental reasons which explain
why the issues present such difficulty . Without wanting to stray too far into
the legal territory that is more familiar to Mr. Civiletti and other witnesses
who will follow me, my own sense is that the reasons are traceable to the nature
of the judicial process, procedural safeguards available to an accused in the
criminal case, and to some of the criminal laws with which we have to work.
A criminal trial in this country is a public event, and there are constitutional
guarantees that make it so. I have no quarrel with those guarantees, but at the
same time I cannot ignore the extent to which they contribute to the problem
when it comes to making evidentiary uses of intelligence information. When
the election is made to use such information, it is on its way into the public domain,
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and there are few if any ways to avoid that outcome or to limit the exposure
of the information to the actual participants in the trial. Other constitutional
provisions secure to an accused broad rights of cross-examination, and the
applicable rules of procedure confer on the accused rights of wide-ranging
pretrial discovery to look behind the prosecution's case and develop his own
defenses. There are not many legal tools available to regulate and control
this flow of events just because the information in question happens to be
sensitive from a national security standpoint. In addition, these same features
make the judicial process almost as uncertain as it is open. For example,
what lines of defense will be followed, and what scope of discovery and
cross-examination will be allowed, are not matters that lend. themselves to
precise advance measurement. They are heavily unpredictable, and what
that means is that the decision to prosecute is that much more difficult for those
who must gauge as best they can, before the course is set, where it all might
lead. Again, I am not complaining about any of this, or suggesting any radical
reforms that would strip away rights of the accused, all of which exist to assure
the fairness of criminal proceedings. I am only trying to describe how things
look from where I sit and to put into their true settings the hard choices that
have to be made.
What I have said takes on greater force when you consider the necessities
of proof under some of the basic criminal statutes that are of special concern
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to intelligence agencies. Let us suppose, just as an illustration, that a
government employee were to be arrested in the course of delivering a CIA
document to a foreign agent, and that the arrest prevented the delivery from
being completed, and let us suppose further that the document summarized
the Agency's liaison relationships with the intelligence service of another
foreign country and that it included a roster of CIA employees in that country.
A crime under the espionage laws certainly would have been committed, and
that crime must certainly rank high in terms of compelling governmental
interests in prosecution. Yet such a prosecution would exact an extraordinary
price. As I understand it, the government would be required to show that the
information in the document, in the words of the relevant statutes, related to
the national defense, meaning presumably in this context that it was of enough
significance to materially injure the national security had it fallen into the
hands of the foreign agent. That burden of proof would almost surely require
that the document itself be offered in evidence, that its accuracy be confirmed
by a knowledgeable Agency witness, and that its value be explained. In result,
the trial proceedings would have succeeded in doing just what the defendant
himself was being tried for having attempted but failed to do, that is to transmit
and disclose the information. And the accuracy of that information would have
been verified in the bargain. I am sure you will agree that a spectacle of that
sort would not be pleasant to contemplate for those who had to struggle with
a decision to prosecute.
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 AUnattpbr~tati FPea s 0 ;0; 11 8~1Rc9& njMggg8R4 9~ 4,4 4? ~u ;h
attributed publications raise separate but no less troubling problems. On
this front there is no statute that is generally applicable, at least none that is
clearly applicable, and the lack of clarity in the law is in itself a genuine
concern, if for no reason other than that it leaves people in doubt as to their
liabilities and may even tend to deter legitimate expression. All of us recognize
the policy arguments pro and con on the question of criminalizing leaks, but
we must also recognize the situation in which we now find ourselves as a
country. As matters stand, national secrets can be leaked with impunity. It
may be that any cure would be worse than the disease, but the present
arrangements can hardly he called satisfactory.
Mr. Chairman, I cannot offer you much comfort, and I have not come here
with any magic answers. I know that the Committee is now considering the
National. Intelligence Reorganization and Reform Act of 1978, S. 2525, and that
as introduced that legislation would place criminal sanctions behind some of
the intended prohibitions and restrictions. I am also aware that the Committee
is seeking assurances that those criminal sanctions will be fully effective if
any are enacted. However, I cannot say to you that the dilemmas I have
discussed would never arise in regard to the enforcement of those provisions.
I can only pledge to you my best efforts to deal with those issues seriously
and responsibly if they do arise.
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