STATEMENT OF J. FRED BUZHARDT GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE TO THE SUBCOMMITTEE ON INTELLIGENCE OF THE HOUSE ARMED SERVICES COMMITTEE MARCH 8, 1972

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00823R000800120022-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 32
• Document Creation Date: December 9, 2016
• Document Release Date: March 5, 2001
• Sequence Number: 22
• Publication Date: March 8, 1972
• Content Type: SPEECH

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OSD Declassification/Release Instructions on File
STATEMENT OF J, FRED BUZHARDT
GENERAL COUNSEL OF THE DEPARTMENT OF DEFEN
TO THE
SUBCOMMITTEE ON INTELLIGENCE
OF THE
HOUSE ARMED SERVICES COMMITTEE
MARCH 8, 1972
Mr. Chairman, Distinguished Members of the Subcommittee:
The Department of Defense welcomes this opportunity to discuss
the security classification and declassification system as it applies to
national security information and material and to acquaint this Sub-
committee with the practical operating problems associated therewith.
Accompanying me this morning is Mr. David O. Cooke, Deputy
Assistant Secretary (Administration).
Major Changes in the Executive Order
The President has just issued a new Executive Order on Classifica-
tion and Declassification of National Security Information and Material
to be effective on June 1, 1972. It replaces Executive Order 10501,
which, although amended several times, has governed the security
classification program since it was issued in 1953.
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The new Executive Order departs from its predecessor Order in
a number of respects. The changes are based on the lessons learned
under Executive Order 10501. The most significant changes are the
constraints on initial classification and the changes in downgrading and
declassification. The principle changes are as follows:
(1) The number of Departments and Agencies authorized to classify
at any given level of classification is reduced;
(2) The authority of the heads of Departments and Agencies to
delegate classification authority within each Department or Agency is
more restricted;
(3) The class of persons to whom authority to declassify can be
delegated is specifically not limited to those who are eligible for a
delegation of authority to classify;
(4) The downgrading and declassification schedule is accelerated;
(5) Exceptions to the general downgrading and declassification
schedule are limited to. four specific categories of information;
(6) All classified information which is not automatically
declassified at the end of 10 years is made subject to a mandatory classi-
fication review upon request;
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(7) All classified information not sooner declassified is automatically
declassified at the end of 30 years unless the head of the Department
personally determines in writing at the time to continue protection'for
specified reasons;
(8) Information classified under previous executive orders and
more than 30 years old is to be systematically reviewed and declassified
by the Archivist;
(9) A mechanism is established to review departmental and agency
implementation of the system, and to consider and take action on
complaints;
(10) Administrative reprimands are authorized for employees
who overclassify information in flagrant cases; and
(11) The definitions of information which qualifies for classifica-
tion in each category is reworded in terms of "national security"
rather than "national defense.
These and the other changes made in the Executive Order resulted
from the president's decision to limit the quantity of material to be
classified and.the time it remains classified while,. providing more
protection to that which is classified.
Before summarizing the new Executive Order in more detail, I
will comment on the authority for the Executive Order.
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A(ithority for the Executive Order
The President's authority to issue Executive Orders is derived
from Article II of the Constitution. Section 1 of Article II provides that
the Executive power shall be vested in the President of the United States.
Section 2 provides that the President shall be Commander in Chief of the
Armed Forces. Section 3 provides that he shall execute the laws.
The President's authority to restrict the dissemination of info
rrn.att.on
Is expressly recognized by various statutes. For example, 18 U S.
Code 793 refers to information which the President has determined"
1
would be prejudicial to the national defense. 18 U. S. Code 795 m.'_Lkes it
a criminal offense to
photograph or graphically portray any military
installations or equipment defined by the President as "requiring
protection against the general dissemination of information relative
thereto. " 18 U. S. Code 798 refers to classified information which is
specifically designated for restricted dissemination for reasons of
national security. 50 U. S. Code 783 refers to information which
has
been classified by or with the approval of the President, because it
affects the security of the United States.
Perhaps the clearest Congressional acknowledgement of the
flcesident's authority to restrict the dissemination of information 1:,
found in 5 U. S. Code 552, sornetines referred to as the Freeclo:ni of
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!",formation Act. Section 552 directs each a,,e
the public stated agency to make available
categories of information. However,
~thereof provides Subsection. (b)
that the act shall not apply to matters that are re luired by executive order 11 ?~pvcifically
to be kept secret in the interest of national
~~ Tense or foreign policy,
The Supreme Court has also acknowledbed the president's power of
classification. For example, the authority of the Presidnt y 01n this area
recognized in the concurring opinion of justice
Stewart i.
n. iV~;NS ;~r,r.14
';': i me5 v. United St_ ates and United States
Washins~ton Post
et ai 91 S. Ct. 2 Co:ni,r}`
140 (1971). In Justice
~;
tewar t, , s words, ->;
clear to me that it is it is
the constitutional duty of the Executive as
matter of sovereign prerogative and not as
a matter of law as the courts
know law -- through the promulgation and e
nforcement of Executive
regulations
to protect the confidentiality necessary to carr its
in the fields of inter national .re y out i,,s
defense. ? latxans and national
In his separate concurring opinion, Justice
"In this case Marshall declared,
there is no problem
concerning the president's power
to classify information as 'Secret' or To
1~
pecificall Secret'. Congress has
Y recognized Pros idential authorit
exercised y which has been formally
in Executive Order 105.01 to classify documents and inf?or.mation,1,
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Chief Justice Burger, in his dissenting opinion, also readily
.acknowledged the inherent power of the Chief Executive to classify papers,
records and documents as secret.
In considering the President's power to designate information as
subject to restricted dissemination, the distinctions between classified
information; Congressional access, and Executive Privilege must be
kept in mind.
First, information which is classified because its unauthorized
disclosure could damage national security is not the only category of
information the dissemination of which is lawfully restricted by the
Government.
Second, the fact that information is classified is not determinative
of the right of access by the Congress to the information.
Third, the doctrine of Executive Privilege by which the President
may decline to disclose information to the courts or to Congress is
separate and independent from the power to classify, and neither power
is contingent upon the other.
Development of the New Executive Order
The new Order is a result of an in-depth review of the security
classification and safeguarding procedures in the Executive Branch.
In January 1971, at the direction of the President, a National
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low
Security Council memorandum directed a comprehensive study of Executive
Order 10501. On March 2, 1971., an Ad Hoc Group met to prepare
responses to specific questions contained in the National Security Council
merxzorandum. The Ad Hoc Group was chaired by an Assistant Attorney
General and was comprised of representatives from the Departments of
Defense and State, the Central Intelligence Agency, the Atomic Energy
Commission and the National Security Council.
In the succeeding months, the Ad :Hoc Group prepared a series of
recommendations and a draft Executive Order. Subsequently, each of
the concerned Departments and Agencies reviewed the draft proposal
exhaustively and provided detailed comments and suggestions. Con-
sequently, the whole spectrum of factors bearing on the subject matter,
as well as a wide variety of viewpoints, were available to the President
and his staff as the new Executive Order was drafted.
The Executive Order
At this point, I would like to provide a somewhat more detailed
comment on the new Executive Order and the reasons which underlie
its provisions.
(1) Classification criteria and categories.
Classified information is defined in terms of whether the
information, if disclosed to unauthorized persons, could reasonably
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be expected to cause damage to the national security ? The term "national
security, " as used in the Executive Order, includes both national defense
and foreign relations .matters. tonal. 4Clrense
The use of the term "national security, I,
rather than ''national defense..'' recognizes that the category
re
requiring ~r
protection is broader of i"f Orrnation
than military information alone, and is
also more consistent with the
provisions of the Freedom of Information
Act (5 U. S. C. 552) which exempts from public disclosure "specifically required by e matters that
Executive Order to be kept secret in the
interest of the national defense or foreign polic. if
y
The three categories of classified information - Top Confidentialp Secret, Secret
prescribed in Executive Order 10501 are retained in
the new Executive Order. The distinctions among the three categories
still turn on the degrees of damage to national security that
from Y at could result
failure to protect the information from disclosure. ?t _
`~o.me criticism of the ,
multiple categories of classification has been
made. Whatever advantages might result from a single classification
category are far outweighed by the adverse consequencies
the de Historically,
gree of protection afforded to classified information has be
dependent u en
pon the degree of damage to the national security involved
in the ride of disclosure. The reasons for varying the 'section afforded are also g e degree of prr~_
practical ones. Each element of protection
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