SENATE SELECT COMMITTEE ON INTELLIGENCE REPORT ENTITLED 'NATIONAL SECURITY SECRETS AND THE ADMINISTRATION OF JUSTICE'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R002800030042-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 15, 2016
• Document Release Date: March 26, 2004
• Sequence Number: 42
• Publication Date: October 16, 1978
• Content Type: MF

s. .~ -
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OLC 78-5327/1
OCT 1 6 1978
MEMORANDUM FOR: Director of Central Intelligence
FROM : Frederick P. Hitz
Legislative Counsel
SUBJECT : Senate Select Committee on Intelligence Report
Entitled "National Security Secrets and the
Administration of Justice"
1. Action Requested: None, for information only.
2. Background: The following is a summary of the major points
of the Select oommmittee report discussing the use of classified information
in potential criminal prosecutions. The report is a result of a year and
a half study by the Subcommittee on Secrecy and Disclosure, chaired by
Senator Joseph Biden (D., Del. ). The report is principally the product
of three staff members, Mark Gitenstein, David Bushong and Keith. Raffel.
The report has been in preparation since you presented testimony before
Senator Biden in open session on 1 March of this year.
3. The Committee's principal conclusions are as follows:
a. "There has been a major failure on the part of the
Government to take action in leak cases. "
The report points out that there has not been
a single successful prosecution of an individual for
leaking information toa publication, and attributes
this partially to an impasse between the Intelligence
Community and Department of Justice on the use of
classified information in the prosecution of these
cases. The original report concluded "there is a
major breakdown in the administration of the
criminal espionage statutes in leak cases" but
this conclusion was altered because of Tony Lapham's
position that leak cases are not punishable under
espionage statutes.
b. "Several immediate steps maybe taken to facilitate the
administration of existing laws, while Congress determines
the need for major revision of the espionage statutes.
Furthermore, it is possible that improvements in the
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administration of existing statutes might affect ultimate
decisions on statutory revision. "
While there is a wide divergence of opinion within the
Committee on what changes are needed in the espionage
laws, "a narrowly drawn provision that would punish
disclosure o e identity of American intelligence agents
appears to a necessary. This is t o first time the full
SSCI has endorsed such a provision of law. The Committee
recommends immediate steps which include:
--Development of administrative procedures for
disciplining employees responsible for violations of
security or other laws. The Committee's point here
is that such proceedings would not confront the problems
involved in using classified information in court.
--Centralizing Intelligence Community responsi-
bilities, perhaps in the IOB, of investigations of
security breaches which do not constitute crimes.
--FBI should continue to have exclusive responsi-
bility for investigating leaks which may amount to
a criminal violation and should initiate an investi-
gation without advance commitment by the Intelligence
Community that material can be used in court (a
present stumbling block).
--The Attorney General should issue guidelines
on the responsibility of the Intelligence Community to
report crimes to the Department of Justice and issue
procedure$,under which intelligence agencies are
to provide neces'sary information to DOJ attorneys
in connection with criminal investigations or
prosecutions.
--Congress should consider enactment of a
special omnibus pre-trial proceeding to be used in
cases where national secrets are likely to arise
in the course of a criminal prosecution. This
procedure would require the defendant to alert the
prosecution and court to all motions, defenses or
arguments planned requiring discovery and disclosure
of intelligence information or the use of intelligence
witnesses. The judge would be required to rule in
advance on the admissibility of the intelligence
information, on the scope of the witness's testimony,
as well as the relevancy of the defendant's motion or
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defense prior to granting discovery of any intelli-
gence information to the defendant.
This recommendation was also modified signifi-
cantly because of Tony's recommendation. It originally
deferred any revision of the espionage statutes until
these administrative problems were resolved.
c. "Disagreements over use of classified information in prose-
cutions also impede espionage prosecutions and have placed the
DOJ at a marked disadvantage in perjury, narcotics and possibly
even one murder case. 11
The bulk of the report is devoted to a discussion
of the difficulties of using classified information
in prosecutions. The report dwells at length on the
"gray mail" phenomenon whereby a defendant can
escape prosecution or conviction by threatening
discovery or use in court of extremely sensitive
national security information.
4. Senator Biden is apparently seriously interested in contributing
to a solution to these problems. He also serves as Chairman of the
Subcommittee on Criminal Laws and Procedures, Senate Judiciary
Committee, and his staff director, Mark Gitenstein, who is largely
responsible for this report, has said this will be that Subcommittee's
first order of business in the new Congress. Hearings are planned,
probably for January, on the special omnibus pre-trial procedure and
on new legislation to protect intelligence employee identities.
Si+6d + Frederick P. Hitz
FREDERICK P. HITZ
Distribution:
Original - Addressee
1 - DDCI 1 - ER .
l - Tony Lapham
STAT
- OLC Chrono
ul-u Subject
OLC:DFM:hms (13 October 1978)
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