ISSUES AND PROBLEMS WITH EXECUTIVE ORDER 11652

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82M00591R000500040004-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 19, 2016
• Sequence Number: 4
• Content Type: MEMORANDUM FOR

Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
OGC 76-1150
9 March 1976
MEMORANDUM FOR: NSSM-229 Members
SUBJECT : Issues and Problems with Executive Order 11652
Herewith a memorandum from me to the interagency NSSM-229
subgroup which derives from the meeting of that group on 23 February and,
I believe, is self-explanatory. We are arranging a meeting as soon as
possible of the Agency NSSM-229 group at which I will report on the
23 February meeting, including the attached paper.
Associate General Counsel
Chief, General Law Division.
CDF
Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
 Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
CENTRAL INTELLIGENCE AGENCY
OGC 76-1148
9 March 1976
MEMORANDUM FOR: Mrs. Jeanne W. Davis, NSC Staff
Mr. Mark Grunewald, Department of Justice
Mr. Barry Roth, White House
Mr. Don Gessaman, Office of Management and Budget
Mr. Mark B. Feldman, Department of State
Mr. Jack Griffin, Energy Research and
Development Administration
Mr. James E. O'Neill, National Archives and
Records Service
Mr. Arthur F. Van Cook, Department of Defense
SUBJECT: Issues and problems with Executive Order 11652
In response to the action of the Davis group under NSSM-229 at its
meeting of 23 February, we are forwarding herewith a memorandum listing
problems and issues under Executive Order 11652. It was suggested at that
meeting that the list forwarded by members of the group need not and indeed
perhaps should not represent the coordinated formal positions of the agencies
represented. The CIA paper is within that guideline. Our list represents the
serious and thoughtful views of various CIA officials and components with
background, experience and responsibilities in areas affected by Executive
Order 11652. I have no doubt that not all of these items and comments would
be agreed to by all responsible components of CIA, and I am sure that other
issues and problems could be suggested and indeed we may forward an
additional list at a later date. This is however our effort to suggest for
Davis group consideration a number of problems and issues as seen by'
responsible CIA officials.
Attachment
Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
 Approved For Release 2006/10/14: CIA-RDP82M005~9,1~R000500040004-0
OGC 76-1149
1. As a preliminary, we agree with the consensus at the NSSM-229
meeting of 23 February that the objectives and purposes of E.O. 11652 are
sound. Those are (a) to protect that information which, if disclosed, would
damage national security, but (b) also to avoid protecting information for
any other reason or for any period of time greater than that needed in order
to avoid damage to national security.
2. We agree also that the Order is not working satisfactorily for
various reasons, some of which may be beyond the control of the executive
branch and the agencies. For example, several statutory requirements of
the FOI Act, as applicable in the area of national security information (as
well as other areas), realistically cannot be complied with. Other reasons
are inherent in the nature and complexity of the subject matter and undoubtedly
are not susceptible to ready or simple solution. Others are unnecessarily
self-imposed, i. e . , the Order creates administrative, managerial and other
problems and burdens which are costly or otherwise undesirable.
3. As a specific item, we believe the Order does not adequately provide
for the intelligence functions and needs of the Government. The potential
for both duplicative and contradictory protection and controls, and therefore
decontrols, stemming from the Executive Order, on the one hand, and the
statutory responsibility of the Director of Central Intelligence to protect
intelligence sources and methods information, on the other, is an example.
The "mosaic" nature of intelligence information is another. This goes to the
matter of definitions and concepts. Quite possibly information in a given.
document or information indicating that a document is in CIA or intelligence
channels alone would not damage national security, but when pieced together
with other information would be highly informative in ways which would damage
national security. Still another, perhaps the most important, is that the
authority and ability of the intelligence agencies to protect information, in
particular, the identity of sources, as perceived by foreign intelligence
sources and by sources (and potential sources), both foreign and domestic.
Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
 Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
4. It is recognized also that legislation in the area of national security
information could be enacted. Such legislation of course could create
additional or different administrative problems. Alternatively, legislation
might provide so little or such inadequate protection that it would be
necessary to continue a classification system by Executive order, based on
the constitutional powers of the President, which would be additional to,
and to some degree duplicative of, the statutory system.
5. Some specific items:
a. Every piece of paper created by the departments
involved requires an individual classification decision. Thus
numerous decisions are made every day, undoubtedly many
are inconsistent with others, are not known to other persons
and are modified, supported or abandoned without reference
to other decisions.
b. The Order requires that classification decisions
(including exemption decisions) be made only by higher
level people. Given the importance and volume of the work
of high level people, they simply cannot, on an informed
basis, make these decisions. The result is a fairly
apparent pattern of unavoidable non-compliance (i . e . ,
those who decide simply accept whatever is recommended
or put before them, and many documents originating
with such people are not in compliance). The integrity
of the classification system therefore is highly suspect.
c. Related to the foregoing, undue significance
is given to the matter of the number of employees who are
authorized to classify. With millions of pieces of paper
being created throughout the Government and at installations
around the world which require a classification decision, the
few thousand people authorized to classify obviously cannot
and do not make all the decisions which in fact are made.
The result is that a system of de facto derivative authority
is used, a practice which the Order seeks to prevent. Again
this is a forced pattern of non-compliance.
d. ? ICRC is charged with duties it cannot perform, given
the size of the staff and the volume of non-ICRC duties of its
Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
 Approved For Release 2006/10/14: CIA-RDP82M00591 R000500040004-0
members. Realistically, it is not possible to allocate
sufficient resources (money and people) to provide the
necessary expertise and support services. Further concep-
tually a Committee of departmental employees cannot
monitor and regulate the policies and practices of the heads
of their own departments.
e. The data index system has almost no value for the
purposes of the Executive Order and in any event far less value
than the millions of dollars required to establish and operate
them.
f. Is it defensible to put one in jeopardy because the
jeopardy is not immediate? Is jeopardy a matter of jeopardy
to life, or to economic well-being or career or reputation?
Whether disclosure would place in "immediate jeopardy"
in almost all cases can only be a guess, particularly if
the decision is made in Washington and without inquiry
to field personnel. And inquiries are expensive and time-
consuming and create still more classified paper.
g. Contrary to section 6 of the Order, the implementing
directive required by that section was issued not "by the
President acting through the National Security Council" but
by the Assistant to the President for National Security Affairs.
Moreover, the directive is far broader than section 6 or
indeed of Executive Order 11652.
h. The Order and directive require such specific markings
and processing of documents and other administrative details
that non-compliance effectively cannot be avoided.
i. Information and reports of little or no value are
required.
j. The protection afforded "classified information
furnished by a foreign government" by sections 4(c) and
5(B) (1) may be inadequate as to information furnished by
a foreign intelligence service or by a representative of a
foreign government or a foreign intelligence service.
Approved For Release 2006/10/14: CIA-RDP82M00591R000500040004-0
 Approved For Release 2006/10/14: CIA-RDP82M00591-8000500040004-0
Some furnished information may not have been classified
by the source or the foreign government. A court might
hold that a representative of the Government is not the
Government.
Approved For Release 2006/10/14: CIA-RDP82M00591R000500040004-0
 1_i USE
U LU151t1Uk1*11A1.
Approved For Relea
1-...
SUBJECT: (Optional)
issues
and Problems with Executive Order '11652:
associate Generai Counsel
7D-Q7 Hqs.
TO: (Officer designation, room number? and
building)
EXTENSION N
9 March 1.976
OFFICER'S COMMENTS (Number each comment to show from whom
INITIALS to whom Draw a line across column after each comrnLrgk 1
-2 5X
as 61 U uSEDITIO s F] SECRET [] CONFIDENTIAL ^ USEE ONLY ^ UNCLASSIFIED
Approved For Release 2006/10/14: CIA-R?P82M005.91R0005000400Q4-0.. .
U SECRET