REPORT OF THE INTERDEPARTMENTAL GROUP ON UNAUTHORIZED DISCLOSURES OF CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84B00049R001102740032-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 64
• Document Creation Date: December 20, 2016
• Document Release Date: August 6, 2007
• Sequence Number: 32
• Publication Date: March 31, 1982
• Content Type: MEMO

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March 31,-1982
MEMORANDUM FOR THE PRESIDENT
SUBJECT: Report of.the Interdepartmental
Group on Unauthorized Disclosures
of Classified Informa :ion
At the request of William P. Clark, I convened an
interdepartmental group to study the effectiveness of
existing statutes and Executive orders prohibiting unau-
thorized disclosure of classified information. This group
was chaired by Deputy Assistant Attorney General Richard K.
Willard and included representatives of the Secretaries of
State, the Treasury, Defense, and Energy, and the Director
of Central Intelligence. Attached is the report of this
group. _
Unauthorized disclosure of classified information
constitutes. a serious threat to our national security.
It is a complex problem that cannot be solved easily or
quickly. However, the effectiveness of our enforcement
effort can be improved by adopting the recommendations of
this report, which I. endorse.
Attorney General
Attachment
William Frerich"Smith- .
DOJ Review
cc: The Secretary of State
The Secretary of the Treasury
The Secretary of Defense
TI),ee Secretary of Energy
jfhe Director of Central Intelligence
The Assistant to the President for-
National Security Affairs
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REPORT OF THE
INTERDEPARTMENTAL GROUP
ON UNAUTHORIZED DISCLOSURES
OF CLASSIFIED INFORMATION
March 31, 1982
Chairman:
Richard K. Willard.
Deputy Assistant Attorney General
Department of Justice
Members:.
Daniel W. McGovern
Deputy Legal Adviser
Department of State
Jordan Luke
Assistant General Counsel
Department of the Treasury
Kathleen A. Buck
Assistant General Counsel
L. Britt Snider
Director for Counterintelligence
and Security Policy
Department of Defense
James W. Culpepper
Deputy Assistant Secretary
for Security Affairs
Department of Energy
Deputy General Counsel
Central Intelligence Agency
STAT
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Introduction
This interdepartmental group was convened by Attorney General
William French Smith at the request of William P. Clark,.the
Assistant to the President for National Security Affairs. Members
of the group were designated by the heads of participating depart-
ments and agencies. The group met throughout February and March
of 1982, and this report generally reflects the consensus of the
individual participants. However, the report and its recommenda-
tions have not received the approval of the participating
departments and agencies. We anticipate that the proposed
National Security Decision Directive would be circulated for
formal agency comment before being approved.
RICHARD K. WILLARD
Deputy Assistant Attorney General
Department of Justice
Chairman
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Table of Contents
A. Executive Summary
B. Nature of the Problem and Scope of Report
C. Laws Pertaining to Unauthorized Disclosures
D. Protective Security Programs
E. Past Experience with Leak Investigations
F. Proposed New Approach to Leak Investigations
G. Draft National Security Decision Directive
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Tab A
EXECUTIVE SUMMARY
Unauthorized disclosure of classified information is *a long-
standing problem that has increased in severity over the past
decade.. This problem has resisted efforts at solution under, a
number of Administrations. Yet the protection of national
security information remains a fundamental constitutional duty of
the President. The continuing large number of unauthorized
disclosures has damaged the national security interests of the'
United States and has raised serious questions about the
government's ability to protect its most sensitive secrets from
disclosure in the media. We must seek more effective means to
prevent, deter, and punish unauthorized disclosures. At the same
time, we must recognize that this.complex problem is unlikely to
be solved easily-or quickly.
The scope of this report is limited to unauthorized disclo-
sures of classified information where there is no apparent
involvement of a foreign power. Such disclosures primarily occur
through media "leaks" by anonymous government employees, or in
publications and statements by former employees. Beyond the scope
of this report are the following kinds of disclosures:
--clandestine disclosures of classified information
to foreign powers or their agents, which is espionage
in the classic sense;
--authorized disclosures of classified information
by government officials who are not publicly
identified;
--leaks of unclassified information; and
--compromise of classified information through
negligence.
Although the foregoing kinds of disclosures also present serious
problems, we have limited the scope of this report in order to
produce a more comprehensible set of recommendations.
It should be noted that some high ranking officials
erroneously believe they have the authority to leak classified
information in furtherance of government policy. Such disclosures
may only be made by persons with declassification authority under
Executive order 12065 or otherwise from the President. Without
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such authority, "friendly" leaks are just as unlawful as any other
unauthorized disclosure of classified information.
Laws Pertaining to Unauthorized Disclosures
The unauthorized disclosure of classified information has
been specifically prohibited by a series of Executive orders
dating back at' least to 1951. Such disclosures also violate
numerous more general standards of conduct for government
employees based on statutes and regulations. It is clear that any
government employee may be discharged or otherwise disciplined for
making unauthorized disclosures of classified information.
Moreover, in virtually all cases the unauthorized disclosure of
classified information potentially violates one or more federal
criminal statutes.
However, there is no single statute that makes it a crime as
such for a government employee to disclose classified. information
without authorization. With the exception of certain specialized
categories of information, the government must ordinarily seek to
prosecute unauthorized disclosures as violations of the Espionage
Act or as the theft of government property. Such prosecutions
have not been undertaken because of a-variety of legal and
practical. problems.
Therefore, it would be helpful if Congress enacted a law-
providing criminal penalties for government employees who, without
authorization, disclose information that is properly classified
pursuant to statute or Executive order. Such a law would be
appropriate in view of the substantial body of criminal statutes
punishing unauthorized disclosure of other kinds of sensitive
information by government employees, such as banking, agricultural
and census data. Classified national security information
deserves at least the same degree of protection.
A promising development in recent years has been the judicial
recognition that the government-may enforce secrecy agreements
through civil litigation. Many government employees sign secrecy
agreements as a condition of employment with intelligence agencies
or to obtain access to classified information. In a series of
cases culminating in the Supreme Court'-3 1980 decision in United
States v. Sne o, the Justice Department has obtained injunctions
and monetary remedies from individuals who seek to publish
classified information in violation of their secrecy obligations.
Such civil litigation avoids many of the procedural problems that
would be encountered in criminal prosecutions. The effectiveness
of this program would be increased by greater use of properly
drafted secrecy agreements.
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Protective Security Programs
The overall effectiveness of the government's programs for
safeguarding classified information undoubtedly affects the
frequency of leaks. Tight security measures--including limiting
access to classified information to those with a real "need to
know"--reduce the opportunities for unauthorized disclosure. By
contrast, lax security measures may encourage leaks. by causing
employees to believe that classified information does not really
require protection.
As a general rule, protective security programs serve a
.number of objectives besides prevention of unauthorized
disclosures, and therefore this report does not consider these
programs in great detail. The following observations are made:
Greater emphasis should be given to security
education programs for senior officials.
Better controls on copying and circulation of
classified documents would reduce dissemination
and aid the task of investigating leaks.
The federal personnel security program under
E.O. 10450 and implementing regulations should
be revised and updated.
We also considered whether there should be a government-wide
program to regulate contacts with media representatives by govern-
ment officials with access to classified information. Such
contacts, especially when they occur on a frequent and informal
basis, may give rise to deliberate as well as negligent
disclosures of classified information. However, the operational
considerations among the agencies vary greatly.. Therefore, each
agency should be required to develop its own policy regarding
contacts between journalists and employees who have access to
classified information.
Past Experiences with Leak Investigations
Leaks are extremely'difficult to investigate because they
involve a consensual transaction. Both the leaking official and
the receiving journalist have a strong incentive to conceal the
source of the information.
Leak investigations do not focus on the receiving journalist
for a variety of reasons. Rarely is there sufficient probable
cause to justify a search or electronic surveillance of the
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journalist. The use of. some kinds of investigative techniques
may raise First Amendment concerns to which we should be
sensitive. Finally, journalists are unlikely to divulge their
sources in response to a subpoena for documents or testimony
before a grand jury, and contempt sanctions against journalists in
other types of cases have not.been effective.
Therefore, leak investigations generally focus on government
employees who have had access to the information that-is leaked.
In most situations, hundreds or thousands of employees. have had
access to the information, and there is no practical way to narrow
the focus of the inquiry. Also, the leaking official is unlikely
.to confess-his offense in response to a simple inquiry. The
polygraph can be an effective tool in eliciting confessions, but
existing regulations do not permit compulsory use of the-polygraph
for many employees.
Leaks of classified information constitute a potential viola-
tion of the espionage laws and other statutes that fall within the
FBI's investigative jurisdiction. (By contrast, many agencies
that originate classified information are not authorized to go
beyond their own employees in investigating leaks.) However, FBI
has been reluctant to devote its resources to leak investigations.
The burden. of such investigations falls almost entirely on the
Washington Field Office. Such investigations frequently involve
high ranking government officials, who may be uncooperative.
Sometimes a time-consuming investigation is undertaken, only to
reveal that the source of the leak was .a White House or Cabinet
official who was authorized to disclose the information. Finally,
it is very rare for an investigation to identify the leaking
official, and even rarer that a prosecutable case is developed or
that administrative action is taken against a leaker.
The Criminal Division of the Justice Department has developed
the practice of screening leak cases before referral to FBI, for
the purpose of eliminating those that are unlikely to lead to
criminal prosecution. This practice involves the frequently
criticized "eleven questions" that agencies are expected to answer
when they report leaks to the Criminal Division and that include
an advance commitment to provide and declassify such classified
information as may be required to support a prosecution.
In summary, the past approach to leak investigations has been
almost totally unsuccessful and frustrating to all concerned.
There have been frequent disputes between the Justice Department
and agencies complaining about leaks. This ineffectual system has
led to the belief that nothing can be done to stop leaks of_class-
ified information.
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Proposed New A
Unless new criminal legislation is enacted, we should
recognize that leak investigations are unlikely to lead to
successful criminal prosecutions. However, the present system
would be greatly improved if employees who leak classified
information could be identified and fired from their jobs..
Therefore, we should recognize that the likely result of a
successful leak investigation will be the imposition of
administrative sanctions except for cases in which exacerbating
f actors suggest that criminal prosecution should be considered.
We should also recognize that resources are available to
investigate only a small fraction of leaks. All leaks should be
evaluated in light of criteria developed through consultation
between the Justice Department and affected agencies. These
criteria would include:
--the level of classified-information disclosed;
the resulting damage to national security;
--the extent to which the information had been
disseminated at the time it was leaked; and
--the presence of specific "leads" to narrow the
focus of investigation.
Agencies should be encouraged to conduct more extensive
preliminary investigations before referring leaks to the
Department of Justice for investigation. Affected agencies should
be consulted by the Department of justice in determining which
leak cases warrant investigative priority. A decision to
undertake criminal prosecution would not be required as a
prerequisite to FBI investigation. FBI should be specifically
authorized to investigate unauthorized disclosures that
potentially violate federal criminal law, even though
administrative sanctions may be sought instead of criminal
prosecution.
The polygraph is an investigative technique occasionally used
in leak investigations. By regulation, most federal agencies are
not permitted to take adverse actions against employees who refuse
to be polygraphed. However, there is no constitutional or
statutory bar to requiring federal employees to take a polygraph
examination as part of an investigation of unauthorized
disclosures of classified information. We recommend that existing
roach to Leak Investigations
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regulations be changed to permit greater use of the polygraph in
leak investigations.
Use of the polygraph is a controversial technique, but secur-
ity specialists believe it can be effective in situations where a
leak investigation turns up a limited number of suspects. Under
this approach the polygraph is used sparingly and as a last
resort. Such polygraph examinations can be limited to the circum-
stances of the disclosure indnot involve
questions of.a personal nature
offensive.
Finally, when investigations identify employees who have
disclosed classified information without authority, they should
not be let off with a slap on the wrist. The full range of
administrative .sanctions --including discharge--is available. Most
employees have certain procedural rights, including notice,
haveHowever,
hearing and administrative
difficulty na.a head who
shouldappeal.
follows proper procedures
disciplining or discharging leakers. it would be helpful for the
Merit Systems Protection Board and other administrative bodies to
adopt "graymail"-type procedures to protect classified information
that maybe involved in such situations.
Summary of Recommendations
1. The Administration should support new legislation to
criminal statutes that
strengthen existing
information.t the
unauthorized disclosure 2. All persons with authorized access to classified
information should-be required to sign secrecy agreements in a
form enforceable in civil actions brought by the United States.
For persons with access to eshmost ouldsalsotincludedprovisions=f ord
information, these agreements
prepublication review.
3. Agencies should adopt appropriate policies to govern
contacts between media representatives and government officials,
so as to reduce the opportunity for negligent or deliberate
disclosures of classified information.
4. Each agency that originates or stores
information should adopt internal procedures are eff unauthorized disclosures of classifi impo' _edtfor violationslvely
investigated and appropriate
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5. The Department of Justice, in consultation with affected
agencies, should continue to determine whether FBI investigation
of an unauthorized disclosure is warranted. The FBI should be
permitted to investigate unauthorized disclosure of.cla3sified
information under circumstances where the likely result of a
successful investigation will be imposition of administrative
sanctions rather than criminal prosecution.
6. Existing agency regulations should be modified to permit
the use of polygraph examinations for government employees-under
carefully defined circumstances.
7. All agencies should be encouraged to place greater:
emphasis on protective security programs. 'Authorities for the
federal personnel security program should be revised and updated.
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NATURE OF THE PROBLEM AND SCOPE OF REPORT
Unauthorized disclosure of classified information has become
an increasingly common occurrence. It is not a new phenomenon,
but its severity, has increased greatly over the past decade. The.
theft of the "Pentagon Papers" and their publication by the New
York Times in 1971 ushered in an era of heightened media interest
in the exposure of classified information. Many of these
disclosures occurred in the context of revealing improper
government activities. After a time, however, disclosures
continued while revealing no wrongdoing. Indeed, a few
journalists seem to believe that quoting from "highly classified"
documents is an appropriate means of entertaining, as-well as
informing, the public. Today the unauthorized publication of
classified information is a routine daily occurrence in the United
States.
The harm caused by these frequent unauthorized disclosures is
manifold.
--Particular items of information appearing in
the press provide valuable intelligence for
our adversaries concerning the capabilities
and plans of the United States.for national
defense and foreign relations.
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--Unauthorized disclosures interfere with the
ability of our government effectively to carry
out its policies. This "veto by leak"
phenomenon permits a single bureaucrat to
thwart the ability of our democratic system of
government to function properly.
--Disclosures about U.S. intelligence programs
are particularly damaging, because they may
cause sources to dry up. Lives of human
agents are endangered and expensive technical
systems become subject to countermeasures.
--In particular, foreign governments-are
reluctant to cooperate with the United States V
because we are unable to protect confidential
information or relationships.
This report has been kept unclassified, and as a result specific
examples of harmful. unauthorized disclosures have not-been
included. Such examples can be provided separately.
The scope of this report is limited to unauthorized
disclosures of classified information where there is no apparent.
involvement of a foreign power. Such disclosures primarily occur
through "leaks".by anonymous government officials to the media, or
in publications or statements of former officials.
Officials who make unauthorized disclosures may persuade
themselves.that they are serving the larger national interest by
disclosing information that the public has a right to know. Such
officials may seek to advance their personal policy objectives by
leaks of classified information, on the assumption that there will
be no serious harm to national security. Because leaks are so
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prevalent and leakers rarely caught, some officials may believe
there is nothing wrong with leaking classified information and
that everyone does it.
Similarly, many journalists appear to believe they have a
duty to divulge virtually any newsworthy secret- information that
can be acquired.-by whatever means they choose to employ. To their
way of thinking, leaks are part of a game.in which the government
tries to keep information secret and the media tries to find it
out. Some journalists are unwilling to assume responsibility for
damage to the national security in 'ituations where they win this
"game. "
Under these circumstances, only a fundamental change in
prevailing attitudes will alleviate the problem of unauthorized
disclosures. We must seek to develop a sense of discipline and
self-restraint by those who work with or obtain classified
information. This goal will not be achieved easily or quickly.
But without a change in attitudes, no program to deal with
unauthorized disclosures can possibly be effective.
Certain kinds of disclosures are beyond the scope of-this
report, but should be described briefly for purposes of
comparison.
(1). Classic Espionage. Clandestine disclosures of
classified information to foreign powers or their agents is
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espionage in the classic sense. Investigating such matters is
primarily the responsibility of FBI's foreign counterintelligence.
program. The threat in this area is increasing because of the
increasing number of known or suspected hostile intelligence
agents in the United States. President Reagan's recent Executive
Order 12333 and'new implementing guidelines will strengthen FBI's
ability to deal with this serious problem.
(2) Authorized disclosures. High ranking officials often
believe they are authorized to disclose otherwise classified
information to the press in furtherance of government policies.
Since the classification system is established on the authority of
the President, he certainly has the power to authorize disclosures
that amount to a de facto declassification of such information..
However, only the President can authorize the declassification of
information other than as provided in Executive Order 12065. A
high ranking official who discloses classified information without
authorization under the Executive order or otherwise from the
President violates the.law. Such'disclosures should be
investigated and penalized in the same manner as other
unauthorized disclosures of classified information. Applying a
double standard that overlooks "friendly" leaks of classified
information breeds disrespect for the law and can undermine the
effectiveness of any enforcement program.
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(3) Unclassified leaks. Some of the most embarrassing leaks
do not involve classified information at all. We believe that
leaks of classified information cause more serious and long-
lasting damage, and thus warrant separate. treatment as provided in
this report. That is not to say that nothing can or should be
done about leaks of unclassified information. The government is:
entitled to protect a variety of information from disclosure,
including law enforcement investigatory information, proprietary
data, predecisional memoranda and other information pertaining to
internal government deliberations. Depending upon the
circumstances, disclosure of such information may be unlawful,
unethical, or a violation of applicable standards of conduct for
government employees.
(4) Negligent disclosures. The compromise of classified
information through negligence violates regulations and, depending
upon the circumstances, may constitute a criminal offense. Such
disclosures involve sufficiently different causes and consid-
erations as to fall beyond the scope of this report. It is worth
noting, however, that many of the apparent media leaks involve
inadvertent disclosures. High ranking officials are particularly
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susceptible to such disclosures because they have access to a
large volume of sensitive classified information and are required
deal with the press on a frequent.basis. The compromise of
classified information.would be reduced if officials would
exercise greater care in their dealings with media repre-
sentatives.
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Tab C
LAWS PERTAINING TO UNAUTHORIZED DISCLOSURES
1. Executive Orders
The protection of national security information is a
fundamental constitutional responsibility of the President.
This responsibility is derived from the President's powers as
Chief Executive, Commander-in-Chief, and the principal
instrument of United States foreign policy. The courts-have
recognized the constitutional dimension of this responsi-
bility. Chicago & Southern Air Lines, Inc. v. Waterman
Steamship Corp., 333 U.S. 103, 111 (19481; United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); United
States v. Marchetti, 466 F.2d 1309, 1315 (4th Cir.), cert.
denied, 409 U.S.-1063 (1972).
In a number of civil and criminal statutes, Congress has
also recognized the President's authority to safeguard
national security information by adopting Executive orders
providing for a system of classification. E.g., 5 U.S.C.
552(b)(1) (Freedom of Information Act); 5 U.S.C. 552b(c)(1)
(Government in the Sunshine Act); 5 U.S.C. 2302(b)(8)(A)
(Whistleblower Statute); 18 U.S.C. 798; 50 U.S.C. 783(b).
In a series of Executive Orders datin back at least to
1951, Presidents have provided for a system of classification
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to safeguard national security information. Since these
Executive orders are issued in fulfillment of the President's
constitutional responsibilities, they have the force and
effect of law.
The present Executive order on National. Security
Information, Executive order 12065, prohibits the
unauthorized disclosure of classified information. It
provides that officers and employees of the government shall
be subject to appropriate administrative sanctions if they
knowingly, willfully and without authorization disclose
properly classified information or compromise such.
information through negligence. Sanctions may include
termination of classification authority, reprimand,
suspension and removal.
The new draft executive order on national security
information provides for similar prohibitions and sanctions
and applies to government contractors, licensees and grantees
as well as government officers and employees.
2. Criminal Statutes
In analyzing whether an unauthorized disclosure of
classified information constitutes a criminal violation, it
is necessary to consider three categories of criminal
statutes: (a) those explicitly prohibiting the disclosure of
"classified information"; (b) the so-called "espionage" laws,
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which prohibit the disclosure of "national defense"
information; and (c) the statute prohibiting theft of
government property.
a. Classified Information Statutes.
There is no general criminal penalty for the unauthor-
ized disclosure of "classified information" as such; however,
several criminal statutes prohibit unauthorized disclosure of
classified information in particular situations. Section
783(b) of Title 50 prohibits government employees from
disclosing any classified information to agents of foreign
governments or members of communist organizations. It is
unlikely that this statute would be construed to apply to
unauthorized disclosures of classified information to the
media, even though the information could find its way into
the hands of an agent of a foreign government or a member of
a communist organization as a consequence of its
publication.
Section 2277 of Title 42 prohibits government employees
and contractors from knowingly communicating "Restricted
Data" to any person not authorized to receive such informa-
tion. "Restricted Data" constitutes classified information
concerning atomic weapons and nuclear material. Section 2274
of Title 42 prohibits anyone having possession, access or
control over Restricted Data from disclosing it with the
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intent or reason to believe it will be used to injure the
United States or secure an advantage to a foreign nation..
In addition to these provisions, 18 U.S.C. 798 prohibits
any person from disclosing to any unauthorized person
"classified information" concerning communications intelli-
gence and cryptographic activities.
These three sets of provisions are the only criminal
statutes that punish the unauthorized disclosure of
"classified information" as such.
b. Espionage Laws.
Certain provisions of the espionage laws may also be
violated by unauthorized disclosures of sensitive informa-
tion. The two provisions that would most likely be violated
by an unauthorized disclosure of classified information to
the media would be 18 U.S.C. 793(d) and (e). Section 793(d)
prohibits any person having authorized possession of
materials such as documents or photographs "relating to the
national defense" or "information" relating to the national
defense, if there is "reason to believe" that this informa-
tion can be used "to the injury of the United States or to.
the advantage of any foreign nation," from transmitting such
materials or information to "any person not entitled to
receive it." Similarly, section 793(e) prohibits any person
having unauthorized possession or access to such materials or
information from transmitting them to other unauthorized
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persons or failing to deliver them to an authorized
government officer or employee.
These provisions have not been used in the past to
prosecute unauthorized disclosures of classified information,
and their application to such cases is not entirely clear.
However, the Department of Justice has taken the position
that these statutes would be violated by the unauthorized
disclosure to a member of the media of classified documents
or information relating to the national defense, although
intent to injure the United States or benefit a foreign
nation would have to be present where the disclosure is of
"information" rather than documents or other tangible
materials. These laws could, also be used to prosecute a
journalist who knowingly receives and publishes classified
documents or information.
One category of classified information that would
probably not be covered by these provisions is information
that could not fairly be characterized as "relating to the
national defense." In Gorin v. United States, 312 U.S. 19,
28 (1940), the Supreme Court stated that in the context of
this statute "national defense" is "a generic concept of
broad connotations, referring to the military and naval
establishments and the related activities of national
preparedness." Currently information may be classified under
Executive Order 12065 if it relates either to "the national
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defense" or to "the foreign relations" of the United States.
Because the term "national defense" was so broadly defined in
Gorin, it is likely to cover most information relating to
"foreign relations" that is properly classified. However, it
is possible that the two terms do not overlap completely, and
if so, only the disclosure of information relating to the-
national defense would be covered by sections 793(d) or (e).
c. Theft of Government Property.
18 U.S.C. 641 provides criminal penalties for the
unauthorized sale or disposal of "any record, voucher, money,
or thing of value of the United States," or the knowing
receipt of the same "with intent to convert it to his use or
gain." Convictions under this statute have been upheld
in cases where government documents or information have been
taken. United States v. Friedman, 445 F.2d 1076 (9th Cir.),
cert. denied, 404 U.S. 958 (1971) (conviction for receipt of
copy of secret grand jury transcript); United States v.
Lambert, 601 F.2d 69 (2d Cir. 1979), cert. denied, 444 U.S.
871 (1979) (convictions for selling information derived from
Drug Enforcement Administration computer).
There has been no definitive court test of the
applicability of section 641 to unauthorized disclosures of
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* The Department of Justice
classified information.*
has taken the position that prosecution under this statute
would be warranted in cases of unauthorized disclosure of
classified information. Of course, the substantive
applicability of this statute remains to be established. In
addition, many-of the procedural barriers to successful.
criminal prosecution would remain.
d. Practical Barriers to Successful Prosecution
Although there are numerous unresolved questions about
the substantive applicability of the foregoing criminal
statutes, it is clear that most unauthorized disclosures
potentially violate one or more of these statutes. Yet the
fact remains that no criminal prosecution has been attempted
since Daniel Ellsberg and Anthony Russo were indicted for
leaking the "Pentagon Papers." (Prosecution.in that instance
was dropped because of governmental misconduct in investi-
gating the case.)
One problem is that leak cases are hard to solve. But
even when a suspect is identified, there are numerous
practical barriers to criminal prosecution. These barriers
may be summarized as follows.
Compare United States v. Truong, 629 F.2d 908, 927 (4th
Cir. 1980) with id. at 932; see United States v. Boyce, 594
F.2d 1246, 1252 (9th Cir.), cert. denied, 444 U.S. 855
(1979).
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First, criminal prosecution serves to confirm the
accuracy and sensitivity of the information that has been
disclosed. For this reason, many agencies do not want cases
prosecuted, in order to maintain doubt as to the accuracy of
the disclosed information.
Second, criminal prosecution generally requires the
Government to prove that the disclosures in question were
damaging to national security, which may require further
public disclosures of classified information. Such proof is
often required under the espionage statutes and, as a
practical matter, is extremely helpful in giving any
prosecution jury appeal.
Third, criminal trials are normally conducted before a
jury and open to the public. Defendants can threaten to
require disclosures of sensitive information in the course of
trial -- the so-called "graymail" problem. The Classified
Information Procedures Act of 1980 alleviates this problem to
some extent but does not solve it entirely.
In summary, the costs of criminal prosecution in terms
of harm to national security are likely in many cases to
outweigh the benefits of deterrence and respect for the law.
Of course, the availability of criminal sanctions is
important and should be considered in appropriate cases. New
legislation could reduce the practical barriers to successful
prosecution. But the primary focus of the effort to enforce
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the laws against unauthorized disclosure should involve
administrative and other civil remedies.
3. Civil Remedies.
There is'no general statute providing for civil penal-
ties or injunctive relief in cases of disclosure of classi-
fied information. The absence of such an authorizing statute
was noted by several members of the Supreme Court in the
"Pentagon Papers" case. However, it appears that a majority
of the Court in-that case would have permitted the Govern-
ment, even absent a statute, to enjoin the disclosure by the
media of classified information that threatened "direct,
immediate; and irreparable damage to.our Nation or its
people." New York Times Co. v. United States, 403 U.S. 713,
730 (1971) (Stewart, J., concurring). -As applied in the
Pentagon Papers case, this is an extremely difficult standard
to meet. It is not clear that, as a practical. matter, the
First Amendment would permit a statute authorizing
injunctions against the media under a significantly lower
standard.
There are specific statutes providing civil remedies for
unauthorized disclosure of atomic energy information. 42
U.S.C. 2167, 2168, and 2280. The latter statute was
successfully relied upon in obtaining a district court
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injunction against disclosure of H-bomb information. United
States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis.
1979), appeal dismissed, 610 F.2d 819 (7.th Cir. 1979).
Government employees who engage in unauthorized disclo-
sures of classified information are subject to discipline or
discharge for."misconduct pursuant to 5 U.S.C. 7513 or equiva-
lent statutes governing specialized employment systems.
Applicable standards of conduct are found in Executive order
12605 and implementing agency regulations prohibiting
unauthorized disclosure of classified information, as well as
the criminal statutes discussed previously. In addition,
unauthorized disclosure of classified information would
violate a number of general standards of conduct for govern-
ment employees. See, e.g., 5 C.F.R. 735.201a(c) (impeding
government efficiency); id. 735.201a(e) (making a government
decision outside official channels); id. 735.201a(f)
(affecting adversely the confidence of the. public in the
integrity of the government); id. 735.206 (misuse of
information not made available to the general public) ; id.
735.209 (conduct prejudicial to the government).
In addition to the normal administrative sanctions for
misconduct, 5 U.S.C. 7532 provides for suspension or removal
of certain employees if such action is found to be "necessary
in the interest of national security." This statute is
implemented in Executive Order 10450 and various agency
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regulations. These authorities are part of the federal
personnel security program and are designed to ensure that
persons who are "security risks" do not serve in sensitive
positions.
Executive Order 10450 was promulgated. in 1953 and
seriously needs revision to take into account subsequent
court decisions and changes in government organization.
These shortcomings do not prevent'the government from-
disciplining or discharging employees for unauthorized
disclosure of classified information, since such disclosures
constitute misconduct for which normal administrative
sanctions are available. However, revision of Executive
Order 10450 would be helpful in streamlining the authority of
agencies to revoke security clearances and take other
personnel actions in the interest of national security.-
In addition to standards imposed by regulation; many
present and former government employees are bound by
contractual or fiduciary obligations not to disclose
classified information in an unauthorized manner. The
Department of Justice has had considerable success in
enforcing such obligations in civil litigation against former
government employees. Since such persons no longer work for
the government, the possibility of administrative sanctions
is not a deterrent to their making unauthorized disclosures.
Nondisclosure agreements typically have one or both of
the following key provisions. First, the employee agrees
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never to disclose classified information to an unauthorized
person. Second,'the employee promises not to publish any
material related to classified activities without the express
prior approval of the agency. This second provision is"
implemented through a mechanism for prepublication review of
manuscripts submitted by present or former employees for
deletion of classified information.
Key judicial decisions have held that the government is
entitled to an injunction against former employees who seek
to publish without obtaining clearance pursuant to their
obligations to comply with prepublication review programs.
Once an agency conducts such prepublication review, it is
entitled to delete classified information, subject to
judicial review under the same general standards as applied
in litigation under the Freedom of Information Act. Finally,
a person who publishes in violation of-his prepublication
review obligations forfeits the right to any profits from his
publication, which can be impressed with a constructive trust
for the benefit of the Government. United States v. Snepp,
444 U.S. 507 (1980); Knopf v. Colby, 509 F.2d 1362 (4th
Cir.), cert. denied. 421 U.S. 992 (1975); United States v.
Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S.
1063 (1972). In addition, persons who violate injunctions to
comply with nondisclosure obligations risk sanctions for
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contempt of court, which can include both civil and criminal
penalties.
The present policy of the Justice Department, as stated
by Attorney General Smith on September 3, 1981, is vigorous
and even-handed enforcement of nondisclosure obligations
under the Snepp guidelines. This policy statement revoked
guidelines issued under the Carter Administration-that
.suggested the Snepp doctrine would be*invoked only under
limited circumstances.
The availability of civil.remedies under the Snepp
doctrine suggests that greater attention should be paid to
the use of nondisclosure agreements for persons with
authorized access to classified information. At a minimum,
all such persons should be required to agree never to
disclose classified information without authorization. In
addition, persons with access to the most sensitive kinds of
classified information should be required to agree to a
system of prepublication review.. At present, nondisclosure
agreements are used only in certain agencies, and only State,
CIA and NSA have prepublication review programs.
4. Recommendations for New Legislation
As indicated above, criminal sanctions for unauthorized
disclosure of classified information as such apply only in
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limited. situations involving information concerning the
national defense, nuclear weapons and materials, and
communications and crytographic intelligence. v.:reover,
there are a number.of substantive and procedural barriers to
successful criminal prosecution in most. cases of unauthorized
disclosures to members of the media.
To close the gaps in the present law, we recommend the
introduction of legislation imposing a criminal penalty for
all unauthorized disclosures of classified information by
government employees. Such a statute should be simple and
general in order to cover all situations, and might provide
as follows:
Whoever, being an officer or
employee of the United States or a person
with authorized access to classified
information, willfully discloses, or
attempts to disclose, any classified
information to a person who is not an
officer or employee of the United
States and who is not authorized to
receive it shall be fined not more than
$10,000, or imprisoned not more than
three years, or both.
In addition, there should be appropriate definitions of the
terms employed. It would be helpful to have a specific
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procedure for establishing that information forming the basis
for, prosecution was in fact properly classified, which does
not require public disclosure of additional classified
information. A similar statutory provision could be drawn to
apply to former employees who disclose classified
information.
An alternative approach to filling the legislative gap
would be to amend 18 U.S.C. 641 to make it clear that
classified information is a "thing of value" subject. to the
penalties of that statute.
Enactment of these or similar provisions would clarify
current criminal prohibitions, close the loopholes in these
statutes, and give notice that all unauthorized disclosures
of classified information are sufficiently serious to warrant
criminal sanctions. They would also alleviate -- but not
solve entirely -- certain of the practical problems likely to
be presented in criminal prosecutions.
Present civil statutes and regulations permitting
disciplinary action for unauthorized disclosures by
government employees are generally adequate, except that they
apply only to persons who disclose classified information,
not to those who receive it. A person who solicits and
receives classified information may be no less responsible
for an unauthorized disclosure of such information than the
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government employee who transmits it, but his conduct is not
prohibited by any civil statute. Although we make no
recommendation with respect to introduction of legislation
providing for civil penalties or other remedies against
persons who receive classified information, we believe-the
subject meritsfurther study as an effective., though probably
controversial, method of deterring unauthorized disclosures.
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Tab D
PROTECTIVE SECURITY PROGRAMS
Careful attention to the fundamental elements of a sound
security program will undoubtedly discourage leaks -- and have a
number of other beneficial effects on the safeguarding of national
security information. Among these elements are the following:
--Security clearances should be given only to
individuals who have been determined to be
trustworthy on the basis of adequate background
information.
--National security information should be clearly
identified with the proper classification'and
stored in a physically secure manner.
--Access to classified information should
be given only to persons with the proper
clearances and requisite "need to-know."
These principles seem obvious -- and yet they are frequently
ignored in many government agencies. Violation of these rules is
often most common at the highest levels of government.
To be sure, adherence to these security principles will not
stop the deliberate leaker. But disregard for these principles
may encourage leaks by causing employees to believe that it is
not really important to protect classified information. Good
security practices constantly remind people who handle classified
information of their obligation for its safekeeping.
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Protective security programs are generally outside the scope
of this report. The Security Committee (SECOM) established by the
Director of Central Intelligence in DCID 1/11 has responsibility
for security programs involving intelligence and intelligence
sources and methods. SECOM is composed of the directors of
security for all agencies represented on.the National-Foreign
Intelligence Council. In addition, the Information Security
Oversight Office (ISOO) of the General Services Administration has
responsibility for the government-wide program. of safeguarding
national security information under Executive Order 12065.
Finally, the Office of Personnel Management is responsible for
implementing the federal personnel security program. These
organizations deserve support in their efforts to strengthen the
government's protective security programs.
Two particular aspects of protective security deserve
emphasis because of their impact on the problem of unauthorized
disclosures. First, security education programs for senior
officials deserve greater emphasis. Such officials are often too
busy to receive detailed briefings on proper security procedures,
yet they generally have access to the most sensitive kinds of
information. In particular, senior officials need to be aware of
potential pitfalls of dealing with journalists in areas where
classified information is involved. SECOM has produced a security.
orientation especially designed for senior officials, who should
be encouraged to avail themselves of this briefing.
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Second, better controls on the copying and circulation of
classified documents would reduce unauthorized disclosures by
restricting dissemination of classified information. Such
controls can also assist in leak investigations by identifying
persons who had access to the information that was disclosed.' A
recent study t"APEX") demonstrated that there are insufficient
resources to permit better controls on the tremendous volume of
classified information that must. be circulated within the
government. This problem should be reconsidered in the context of
implementing the successor to Executive Order 12065.
Another problem that deserves attention is the federal
personnel security program. This program is governed by Executive
Order 10450, which was adopted in 1953. The order has not been
revised to take into account subsequent court decisions and
changes in government organization. The FBI no longer collects
?information about subversive organizations so as to provide a data
base for this program because of uncertainty regarding legal
constraints and Attorney-General guidelines. Because of these
and other shortcomings, the federal personnel security program is
largely defunct. It is unlikely that improvements in this program
would reveal persons who are likely to leak classified information
to the media, but a better effort would.reduce our vulnerability
to clandestine infiltration of sensitive positions.
Finally, consideration should be given to rules concerning
contacts between media representatives and government officials
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who have access to classified information.. Such contacts.--
especially when they occur frequently and on an informal basis -
may lead to negligent or deliberate disclosures. Therefore,
programs to regulate media contacts could serve to reduce
unauthorized disclosures. Possible approaches would include one
or more of the following elements:
--requiring prior approval of a senior official
before discussing official matters with a
journalist;
--requiring all media contacts to. be arranged
through the agency's public affairs office;
--requiring a record to be kept of all media
contacts;
--requiring reports to be prepared describing
all matters discussed with journalists; and
--restricting access of journalists to areas
where classified documents are stored and
used.
It would be difficult to develop a program in this area to
apply throughout the government. Each agency. has its own
particular organizational and functional characteristics.
However, each agency should be required to consider this problem
and develop a specific program to reduce the opportunities for
negligent and deliberate disclosures to the media. We recommend
that each agency be directed to promulgate appropriate regulations
(if it does not already have them) and ensure that its policy is
communicated to all employees with access to classified
information.
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Tab E
PAST EXPERIENCES WITH LEAK INVESTIGATIONS
Leaks of classified information to the media over the past
twenty years have been so numerous that only a small fraction
could be investigated. These investigations have rarely been
successful in identifying the sources of such disclosures. In a
number of the cases that were solved, no adverse action was taken
against the government employee found to have leaked classified
information. There has never been a successful criminal
prosecution for leaking classified information.
The Government's dismal record in leak investigations has a
number of explanations. By their nature, leaks to the media are
difficult to investigate. Leaks are consensual transactions in
which both parties--the leaking official and the receiving
journalist--have a strong incentive to conceal the source of the
information. Self-imposed limitations on the use of certain
investigative techniques have made the task even more difficult.
The development of more productive approaches to leak.investiga-
tions has been hampered by misunderstandings between the Justice
Department and agencies whose information is leaked. We cannot
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E-2
expect to do better in the future without understanding these
problems encountered in the past.
Agencies whose classified information is leaked have limited
powers to conduct investigations. Since most leaks.of classified
information potentially violate criminal. statutes, leak investiga-
tions are viewed as involving a law enforcement function. The
National Security Act of 1947 provides that the CIA "shall have no
police, subpoena, law-enforcement powers, or internal security
functions."-!/ Similar limitations apply to the military
services and the Department of Energy.**-/ Executive Order
12333, ?1.7(d), requires agencies in the intelligence community to
report crimes such as leaks of classified information to the
Justice Department. Implementing procedures for this provision
limit agency authority to conduct preliminary investigations of
such matters generally to interviews of current employees and
examination of agency premises. And, as a practical matter, most
government agencies do not have the capability to conduct
investigations outside their own areas of programmatic
responsibility.
* 50 U.S.C. 403(d)(3). However, the Director of Central
Intelligence is given specific responsibility for protecting
intelligence, sources and methods. Id. Therefore, the DCI is
appropriately concerned with leaks that endanger intelligence
sources and methods.
**/ 18 U.S.C. 1385 (Posse Comitatus Act); 42 U'.S.C. 2271(b).
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Current Department of Justice Policy
These legal and practical limitations have caused-the burden
of leak investigations to fall on the FBI. Current Justice
Department policy in this regard dates back to. the early 1960's.
At that time, the FBI was inundated with numerous requests for
investigation regarding possible violations of the espionage laws
as.they relate to "media leaks" and other. mishandling of
classified information.
Espionage investigations that have no apparent foreign
connection are investigated as "Espionage-X"- matters*by the FBI.
Those investigations-regarding the mishandling of classified
information, loss of classified information through negligence, or
other violations unrelated to media disclosures, are investigated
upon receipt by the FBI. In these types of investigations, the
subject is generally known and the scope of investigation limited..
Although the Criminal Division is notified at the inception of
these investigations and is kept advised of their status, it does
not initiate these investigations.
Media leaks, however, pose different problems, require more
investigation, and are far more numerous. Current policy regard-
ing media leaks requires that prior to any investigation by the
FBI, eleven questions must be answered by the injured agency.
These questions are utilized to the Criminal Division to determine
which cases should be investigated by the FBI. Such screening is
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necessary due to the vast amount of media leak investigation
requests and the often large number of interviews to be conducted
in this type of case. The responses to the eleven questions are
also crucial in targeting the early stages of any investigation
that is undertaken. These questions can be dissected into three
categories.
Questions 1 through 3 pertain to the identification of the
article(s) contained in the media and the nature of the classified
information contained therein. These questions are:
1. The date and identity of the article or articles
disclosing the classified information.
2. Specific statements in the article which are considered
classified and whether the data was properly
classified.
3. Whether the classified data disclosed is accurate.
This information is necessary to determine whether a violation
has occurred and to assist the FBI in the investigation, if a
violation has occurred.
Responses to questions 4 through 8 serve to identify the
sources of the classified information disclosed. These questions
are:
4. Whether the data came from a specific document and, if
so, the original of the document and the name of the
individual responsible for the security of the
classified data disclosed.
5. The extent of official dissemination of the data.
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6. Whether the data-has been the subject of prior official
releases.
7. Whether prior clearance for publication or release of
the information was sought from proper authorities.
8. Whether the material or portions thereof, or enough
background data has been published officially or in the
press.to make an educated speculation on the matter
possible.
Responses to these questions are a prerequisite for FBI investi-
gations in that they furnish initial leads and may give direction
toward the person or persons responsible for the disclosure. Some
of these questions further assist in determining if a violation
has occurred or if the information could have been obtained from
some unclassified source or prior publication.
Questions 9 through 11 pertain to the prosecutive future of
the investigation. These questions are:
9. Whether the data can be declassified for the
purpose of prosecution and, if so, the name of
the person competent to testify concerning the
classification.
10. Whether declassification.had been decided upon
prior to the publication or release of the data.
11. What effect the disclosure of the classified data
could have on the national defense.
The responses to these questions are used by the Criminal
Division to determine if a successful prosecution can be made,
should the perpetrator be identified.
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If the responses to the "eleven questions" indicate it is not
likely that the perpetrator will be identified due to extensive
dissemination of the material and/or that successful prosecution
cannot be mounted, the Criminal Division will not request that the
.FBI conduct an investigation. There is, however, an-exception to
this policy. The Criminal Division will request an FBI investiga-
tion, if, in spite of the responses to the above questions, it can
be demonstrated that: (a) the disclosure constitutes a very
serious compromise of classified information and it is imperative-
that the person responsible be identified so as to preclude
further disclosures; (b) there is a real possibility that the
investigation will be fruitful, e.g., the information had very
limited distribution; and (c) the originating agency has not
finally decided against declassification for prosecutive
purposes.
Problems With the Current Policy
Although current Justice Department policy requests that
complaints concerning media leak matters be forwarded to the
Criminal Division for their review, often the complaint is
initially forwarded to the FBI. Also, agencies that report leaks
occasionally omit the responses to the eleven questions or furnish
incomplete. information. This practice causes delay while the
Criminal Division corresponds with the agency and requests
responses to the eleven questions or more detail regarding the
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responses that may have been furnished. When the initial
complaints are furnished in a complete package, FBI investigation
can generally be completed in a reasonable period of time
depending on the number of interviews to be conducted and other
investigative considerations.
The Criminal Division receives numerous complaints requesting
investigation in media leak matters which are never referred to
the FBI, based upon the above criteria. If all of these
complaints were fully investigated,-the manpower used would be
substantially higher. Leak investigations are manpower-intensive
and the burden falls primarily upon FBI's Washington Field Office.
Investigating a larger number of leak cases would necessarily
divert FBI's resources from other important priorities such as
foreign counterintelligence and terrorism investigations.
Moreover, a number of legal and policy restrictions limit the
ability of FBI to conduct effective leak investigations in cases
that are referred. In most cases,. the principal "lead" is the
published media account of the leaked information. But investiga-
tions are generally not permitted to focus on the journalist who
published the information. Rarely is there sufficient probable
cause to justify use of Fourth Amendment techniques, such as
searches or electronic surveillance. Current Department of
Justice regulations strictly limit the circumstances under which
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journalists can be questioned. or subpoenaed, and require express
prior approval by the Attorney General in each case. 45 Fed. Reg.
76436 (Nov. 19, 1980), to be codified at 28 CFR 50.10. Current
informal policies also preclude physical surveillance of journal-
ists or the use of informants directed at the media in leak
cases. Use of these and other investigative techniques is
appropriately limited because of First Amendment concerns.
Since FBI cannot investigate journalists who receive the
classified information, they must focus on government employees
who have had access to the information that has been leaked.
Often hundreds or thousands of employees have had access to the
information in question. Unless the information received more
limited distribution or there are other "leads" that permit
narrowing the scope of inquiry, there is no practical means to
conduct an investigation.
Even where the inquiry can be limited. to a manageable number
of employees, FBI has very little ability to conduct a successful
.investigation. The leaking official is unlikely to confess in
response to a simple inquiry. The polygraph can be an effective
investigatory technique, but most government employees can be
polygraphed only if they volunteer for the examination.
Present policy of the Office of Personnel Management (OPM)
sharply limits use of the polygraph for employees in the
competitive service. Federal Personnel Manual, chapter 736,
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appendix D; see memorandum from Llewellyn H. Fischer, Acting
Associate General Counsel of OPM, to Lawrence A. Wooby, Security
Appraisal Officer of DEA, September 30, 1981. This policy
requires, among other things, that employees must-voluntarily
consent to be polygraphed and that a refusal to consent cannot be
made part of their personnel file. Other agencies, including the
Department of Defense and Department of State, have similar
policies regarding some or all of their employees who would not
otherwise be covered by the OPM policy.
Certain intelligence agencies, including NSA (for civilian
employees) and CIA, regularly use the polygraph to screen
candidates for employment as well as in investigations of
employees. Department of Justice policy generally permits use of
the polygraph in investigating unauthorized disclosure cases, and
an adverse inference may be drawn from an employee's refusal to be
examined. FBI policy permits an employee to be discharged for
refusing an order from the Director to take a polygraph
examination; an adverse inference may be drawn if the employee
declines a request to be examined. See Memoranda from Attorney
General Civiletti to William H. Webster and Michael E. Shaheen,
dated May 14, 1980. See also Memorandum of John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, May 1, 1980.
In addition to limitations upon the techniques that can be
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employed, FBI often finds that high-ranking government officials
are uncooperative with leak investigations. FBI does not have the
authority to compel government employees'to give interviews, sign
affidavits, or -- even if agency regulations are not.a bar -- take
polygraph examinations. Such compulsion can only be exercised by
agency heads who may be reluctant to discipline high-ranking
officials who refuse to cooperate with leak investigations.
In summary, past experience with leak investigations has been
largely unsuccessful and uniformly frustrating for all concerned.
Agencies have been unable to conduct investigations outside their
own organizations, and yet Justice has been unwilling to permit
FBI to investigate most cases. FBI has been asked to investigate
a number of leaks without being permitted to use adequate tech-.
piques to solve cases. There have been frequent disputes and mis-
understandings. On the rare occasions that leaking officials are
identified, they often escape even administrative sanctions. This
whole system has been so ineffectual as to perpetuate the notion
that the government can do nothing to stop leaks of classified
information.
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PROPOSED NEW APPROACH TO LEAK INVESTIGATIONS
We should recognize that the threat of criminal prosecution
is so illusory as to constitute no real deterrent to the
prospective leaker. A more promising approach involves better
efforts to identify leakers and the resolve to impose
administrative sanctions. For most'governmen t employees, a
realistic prospect of being demoted or fired for leaking
classified information would serve as a deterrent. An effective
administrative enforcement program would-also reverse the common
percept-ion-that the Government is powerless to stop leaks of
classified information.
The authority and responsibility of agencies that originate
classified information should, be. clarified. All serious leaks
should be evaluated and investigated internally by the agency that
originated the information. Agencies should adopt procedures to
assure that these steps are taken in a timely manner.
Agencies whose classified information is the subject of an
unauthorized disclosure should assume greater responsibility for
conducting preliminary investigations. All agencies are author-
ized to conduct preliminary internal investigations of such
matters, including interviews with current employees and
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contractors and the examination of agency premises. Agencies are
also authorized to make inquiries of other agencies to which the.-,
information had been disseminated to determine the extent of
further dissemination and the present location of the documents in
question. Such preliminary investigations at recipient agencies
may be conducted either by the recipient agency or by the
originating agency with the recipient's consent.
The purposes of such preliminary investigations are: (1) to
gather sufficient information for the Justice Department to decide
whether FBI investigation is warranted, and (2) to provide the
originating agency with data necessary to assist in properly
safeguarding classified information. At any point that a
preliminary investigation develops information indicating that a
particular person is responsible for the unauthorized disclosure,
then the matter should be immediately referred to the Department
of Justice. Otherwise, unauthorized disclosures should be
reported to the Department of Justice only after the preliminary
investigation is completed, unless there are exigent
circumstances.
Current requirements for reporting unauthorized disclosures,
as reflected in the "eleven questions," should be revised so that
prosecutive potential is no longer a decisive factor. FBI's
authority should be clarified to include investigation of
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unauthorized disclosures of classified information under
circumstances where the likely result of a successful
investigation will be imposition of administrative sanctions
rather than criminal prosecution. As a consequence, agencies
would no longer be required to make a commitment to declassify
information at the. time of referral.
In consultation with affected agencies, the Department of
Justice should develop new standards for reporting and evaluation
of unauthorized disclosures for possible investigation by FBI.
There is a general consensus that the following basic criteria
must be considered:
--the level of classified information disclosed;
--the extent of resulting damage to national
security;
--the extent to which the information had been
disseminated at the time the disclosure
occurred; and
--the presence of specific "leads" to narrow the
focus of investigation.
For example, it would ordinarily be an inappropriate use of
FBI's resources to investigate the leak of a "confidential" level
document of which thousands of copies had been disseminated
throughout the government. Timeliness is also an important
factor, as leak investigations are more difficult to conduct when
the trail is cold.
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Even if properly evaluated and screened, there are likely to
be too many leaks for FBI to investigate each one. Again in
consultation with affected agencies, the Department of Justice
must decide on priorities for the use of available FBI resources..
Even if cases.cannot be investigated, however, the process of
reporting and analyzing them can provide a useful data base for
developing protective security-measures and investigating future..
leaks.
The foregoing proposals requiring consultations between the
Department of Justice and affected agencies should be implemented
through an interagency advisory panel. One possibility is to use
an existing group such as the Security Committee (SECOM), estab-
lished by the Director of Central Intelligence. However, the
authority of SECOM is limited to the protection of intelligence
and intelligence sources and methods. Therefore, a new advisory
panel should be established, although SECOM could certainly be
included in the new group.
FBI's approach to investigating unauthorized disclosure cases
should be reviewed by the Department of Justice in order to remove
unnecessary restrictions on the use of certain techniques.
The polygraph can. be a useful tool in leak investigations
under certain circumstances. It should be used selectively and
its results considered within the context of a complete
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investigatI.cn. The polygraph should not be used for dragnet-type
screening of a large number of suspects or as a substitute for
logical investigation by conventional means. It is most. helpful
when conventional investigative approaches have identified a small
number of individuals, one of whom is fairly certain to be
culpable, but there is no other way to.resolve the case. A
polygraph examination in this situation can be limited to the
unauthorized disclosure that is being investigated and should not
include questions about life style that many employees would find
offensive. Moreover, polygraph results should not be relied upon
to the exclusion of other information obtained during an
investigation.
There is no constitutional or statutory prohibition on use of
the polygraph to investigate unauthorized disclosure of classified
information by government employees. An employee may be
discharged for refusal to cooperate with an investigation of his
fitness for continued employment. See, e.g., 5 C.F.R.
735.201a(c), 735.201a(f) and 735.209; Lefkowitz v. Turley, 414
U.S. 70, 84 (1974). Statements that an employee is compelled to
make in this fashion cannot be used as evidence in a criminal
prosecution. Garrity v. New Jersey, 385 U.S. 493 (1967).
However, such statements may be used in an administrative
proceeding to discipline or discharge the employee. Lefkowitz V.
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Turley, saga. This authority also supports requiring government
employees to submit to polygraph examinations in connection with
investigations of unauthorized disclosures. See Memorandum of
Larry A. Hammond, Acting Assistant Attorney General, Office of
Legal Counsel, February 22, 1980.
OPM and other agencies with more restrictive policies on use
of the polygraph should be directed to amend their regulations if.
necessary to permit adverse consequences to follow an employee's
refusal to cooperate with polygraph examinations used to
investigate unauthorized disclosures of classified information.
Such polygraph examinations could be limited to the circumstances
of the unauthorized disclosure being investigated, and would not
include unrelated questions. The employing agency would be
permitted to deny security clearances, to draw adverse evidentiary
inferences, or to take other administrative action, as appro-
priate, against an employee who refuses to cooperate with such a
polygraph examination.
Finally, agency heads should be directed to impose
appropriate administrative sanctions in situations where employees
fail to cooperate with investigations or are found to have
disclosed classified information without authorization. This will
provide assurance to all involved in the investigatory process
that their efforts will be worthwhile. There is clear authority
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to discipline or discharge employees for the unauthorized
disclosures of classified information or for failure to cooperate
with an investigation. What is required is the determination to
use this authority in appropriate cases.
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Tab. G
DRAFT NATIONAL SECURITY DECISION DIRECTIVE
1. Each agency of the Executive Branch that originates or
stores classified information shall adopt internal procedures to
safeguard against unauthorized disclosures of classified informaa
tion. Such procedures shall at a minimum provide as follows:
a. All persons with authorized access to classified
information shall be required to sign anondisclosure
agreement as a condition of access. All such agreements
must be in a form determined by the Department of
Justice to be enforceable in a civil action brought by
the United States. This requirement may be implemented
prospectively by agencies for which the administrative
burden of compliance would otherwise be excessive.
b. All persons with authorized access to Sensitive
Compartmented Information (SCI) shall be required to
sign a nondisclosure agreement as a condition of access
to SCI and collateral classified information. All such
agreements must include a provision for prepublication
review to assure deletion of SCI and collateral
classified information and, in addition, must be in a
form determined by the Department of Justice to be
enforceable in a civil action brought by the United
States.
c. Appropriate policies shall be adopted to govern
contacts between media representatives and agency
officials, so as to reduce the opportunity for negligent
or deliberate disclosures of classified information.
All persons with authorized access to classified
information shall be clearly apprised of the agency's
policies in this regard.
2. Each agency of the Executive Branch that originates or
stores classified information shall adopt internal procedures to
govern the reporting and investigation of unauthorized disclosures
of such information. Such procedures shall at a minimum provide
that:
a. All such disclosures that the agency considers to be
seriously damaging to its mission and responsibilities
shall be evaluated to ascertain the nature of the
information disclosed and the extent to which it had
been disseminated. .
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b. The agency shall conduct a preliminary internal
investigation prior to or concurrently with seeking
investigative assistance from other agencies.
c. The agency shall maintain records of disclosures so
evaluated and investigated.
d. Agencies in the possession of classified information
originating with another agency shall cooperate with the
originating agency by conducting internal investigations
of the unauthorized disclosure of such information.
e. Employees determined by the agency to have refused
cooperation with investigations of such unauthorized
disclosures or to have made such disclosures will be
denied further access to classified information-and
subjected to other administrative sanctions as
appropriate.
3. The Department of Justice shall continue to review
reported unauthorized disclosures of classified information to
determine whether FBI investigation is warranted. Interested
departments and agencies shall be consulted in developing criteria
for evaluating such matters and in determining which cases should
receive investigative priority. The FBI is' authorized to
investigate such matters as constitute potential violations of
federal criminal law, even though administrative sanctions may be
sought instead of criminal prosecution.
4. Nothing is this directive is intended to modify or
preclude interagency agreements between FBI and other criminal
investigative agencies regarding their responsibility for
conducting investigations within their own agencies or
departments.
5. The Office of Personnel Management and all departments
and agencies with employees having access to classified
information are directed to revise existing regulations and
policies, as necessary, so that employees may be required to.
submit to polygraph examinations, when appropriate, in the course
of investigations of unauthorized disclosures of classified
information. As a minimum, such regulations shall permit an
agency to decide that appropriate adverse consequences will follow
an employee's refusal to cooperate with a polygraph examination
that is limited in scope to the circumstances of the unauthorized
disclosure under investigation. Agency regulations may provide
that only the head of the agency, or his delegate, is empowered to
order an employee to submit to a polygraph examination. Results
of polygraph examinations should not be relied upon to the
exclusion of other information obtained during investigations.
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6. The Attorney General, in consultation with the Director,
Office of Personnel Management, is requested to establish an
interdepartmental group to study the federal personnel security
program and recommend appropriate revisions in existing Executive
orders, regulations and guidelines.
7. The Assistant to the President for National Security
Affairs will monitor the development of agency regulations that
implement this Directive and will supervise its implementation
within the White House Office.
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