JUSTICE DEPARTMENT HANDLING OF CASES INVOLVING CLASSIFIED DATA AND CLAIMS OF NATIONAL SECURITY SECOND REPORT BY THE COMMITTEE ON GOVERNMENT OPERATIONS TOGETHER WITH ADDITIONAL VIEWS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100010025-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 32
• Document Creation Date: December 21, 2016
• Document Release Date: October 23, 2008
• Sequence Number: 25
• Publication Date: June 18, 1979
• Content Type: REPORT

F^
JUSTICE DEPARTMENT HANDLING OF CASES
INVOLVING CLASSIFIED DATA AND
CLAIMS OF NATIONAL SECURITY
SECOND REPORT
BY TSE
COMMITTEE ON GOVERNMENT
OPERATIONS
together with
ADDITIONAL VIEWS
JUNE 18, 1979.-Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
39-008 O WASHINGTON : 1979
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Union Calendar No. 163
96th Congress, 1st Session - - - - - - - - - House Report No. 96-280
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COMMITTEE ON GOVERNMENT OPERATIONS
JACK BROOKS, Texas, Chairman
L. H. FOUNTAIN, North Carolina FRANK HORTON, New York
DANTE B. FASCELL, Florida JOHN N. ERLENBORN, Illinois
WILLIAM S. MOORHEAD, Pennsylvania JOHN W. WYDLER, New York
BENJAMIN S. ROSENTHAL, New York CLARENCE J. BROWN, Ohio
FERNAND J. ST GERMAIN, Rhode Island PAUL N. McCLOSKEY, JR., California
DON FUQUA, Florida THOMAS N. KINDNESS, Ohio
JOHN CONYERS, JR., Michigan ROBERT S. WALKER, Pennsylvania
CARDISS COLLINS, Illinois ARLAN STANGELAND, Minnesota
JOHN L. BURTON, California M. CALDWELL BUTLER, Virginia
RICHARDSON PREYER, North Carolina LYLE WILLIAMS, Ohio
ROBERT F. DRINAN, Massachusetts JIM JEFFRIES, Kansas
GLENN ENGLISH, Oklahoma OLYMPIA J. SNOWE, Maine
ELLIOTT H. LEVITAS, Georgia WAYNE GRISHAM, California
DAVID W. EVANS, Indiana JOEL DECKARD, Indiana
TOBY MOFFETT, Connecticut
ANDREW MAGUIRE, New Jersey
LES ASPIN, Wisconsin
HENRY A. WAXMAN, California
FLOYD J. FITHIAN, Indiana
PETER H. KOSTMAYER, Pennsylvania
TED WEISS, New York
MIKE SYNAR, Oklahoma
ROBERT T. MATSUI, California
EUGENE V. ATKINSON, Pennsylvania
WH.uAII M. JONES, General Counsel
JoHN E. MooRE, Staff Administrator
WILLIAM H. CoPENHAVER, Associate Counsel
JOHN M. DVNc&N, Minority Staff Director
GOVERNMENT INFORMATION AND INDIVIDUAL RIGHTS SUBCOMMITTEE
RICHARDSON PREYER, North Carolina, Chairman
ROBERT F. DRINAN, Massachusetts THOMAS N. KINDNESS, Ohio
GLENN ENGLISH, Oklahoma M. CALDWELL BUTLER, Virginia
DAVID W. EVANS, Indiana JOHN N. ERLENBORN, Illinois
PETER H. KOSTMAYER, Pennsylvania
TED WEISS, New York
EX OFFICIO
FRANK HORTON, New York
TIMOTHY H. INGRAM, Staff Director
(II)
?
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6
HOUSE OF REPRESENTATIVES,
Washington, D.C., June 18, 1979.
Hon. TIOMAS P. O'NEILL, Jr.,
Speaker of the House of Representatives,
Washington, D.C.
DEAR MR. SPEAKER: By direction of the Committee on Govern-
ment Operations, I submit herewith the committee's second
report to the 96th Congress. The committee's report is based on a
study made by its Government Information and Individual Rights
JACK BROOKS,
Chairman.
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CONTENTS
page
1. Introduction--------------------------------------------------
1
II. CIA reporting of offenses to Department of Justice------------ ---
4
A. Title 28, United States Code, ? 535(b)---------------------
4
B. The 1954 agreement------------------------------------
4
C. The 1978 agreement------------------------------------
8
III. Department of Justice access for internal use to information held by
CIA-------------------------------------------------------
9
A. The Khramkhruan and Helms cases----------------------
9
1. Inadequate access: The Puttaporn Khramkhruan case-
10
2. Fuller access: The Richard Helms case--------------
11
B. Present practice----------------------------------------
12
IV. Deciding whether conducting an investigation or disclosing informa-
tion in court proceedings will damage national security - - - ------
12
A. Factors to balance--------------------------------------
12
1. Nature of risks----------------------------------
12
2. Nature of benefits-------------------------------
13
3. Chances of success-------------------------------
13
4. Extent of informal disclosure----------------------
13
5. Extent of disclosure in court proceedings -----------
13
B: Role of. CIA-------------------------------------------
13
C. Role of Department of Justice---------------------------
14
D. Role of President--------------------------------------
15
E. Past examples-----------------------------------------
15
1. The Helms case-- -- -- -- -- ----------------------
15
2. The Khramkhruan case---------------------------
16
V. Procedures to minimize 'disclosure while permitting court proceedings
to ggo forward-----------------------------------------------
17
A. Defendant's rights--------------------------------------
17
1. Public trial-------------------------------------
17
2. Elements of a crime------------------------------
18
3. The Jencks Act----------------------------------
18
4. Brady v. Maryland-------------------------------
18
5. Federal Rules of .Criminal Procedure---------------
18
6. Federal Rules of Civil Procedure------------------
18
B. Judicial determinations---------------------------------
19
C. Protective orders---------------------------------------
20
VI. Recommendations---------------------------------------------
22
APPENDIX
Department of Justice decision on prosecution of CIA mail-opening,
January 14,1977------------------------------------------------
24
VIEWS
Additional views of Hon. Paul N. McCloskey, Jr----------------------
27
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Union Calendar. No. 1 63
96TH CONGRESS HOUSE' OF REPRESENTATIVES REroRz
18t Session } No. 96-280
JUSTICE DEPARTMENT HANDLING OF CASES INVOLVING
CLASSIFIED DATA AND CLAIMS OF NATIONAL SECURITY
JUNE 18, 1979.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. BROOKS, from the Committee on Government Operations,
submitted the following
SECOND REPORT
together with
ADDITIONAL VIEWS
BASED ON A STUDY BY THE GOVERNMENT INFORMATION AND
INDIVIDUAL RIGHTS SUBCOMMITTEE
On June 12, 1979, the Committee on Government Operations ap-
proved and adopted a report entitled "Justice Department Handling
of Cases Involving Classified Data and Claims of National Security."
The chairman was directed to transmit a copy to the Speaker of the .
House.
1. INTRODUCTION
Equal enforcement of our criminal statutes has at times been
thwarted by claims of national security. The question is when does the
Government's interest in protecting national security data from
needless exposure outweigh its interest in prosecuting crimes, particu-
larly. those crimes committed by Government employees engaged in
intelligence work. In a recent address to Central Intelligence Agency
employees the Attorney General underscored the problem :
"Graymail" has become, shorthand for the ability of
a defense lawyer to use current legal procedures to gain
leverage by seeking a court ruling compelling Government
disclosure of, national security information. The.. Govern-
ment is then forced into the position of sustaining the damage
of the disclosure or conceding a critical point or dropping
the case altogether.
In cases involving classified information, there is an in-
evitable tension between the responsibility of the Director
of Central Intelligence to prevent the compromise of intelli-
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gence sources and methods and the responsibility of the
Attorney General for vigorous enforcement of the criminal
laws. That tension is exacerbated by "graymail" problems.
It is ironic and unfortunate that espionage prosecutions
brought to maintain necessary secrecy often pose risks of
disclosing our secrets' under the current system
Although the same procedural problems exist in non-
espionage prosecutions, the most serious consequences for
the CIA and Justice occur when,criminal law enforcement
efforts yield to security concerns. Inevitably, there are
claims that a prosecution was dropped at the urging of the
intelligence community to avoid embarrassing revelations
of misconduct. Even more importantly there is the danger
that those associated with intelligence activities are treated
or perceived as above the law * * *.l
The problem had been made even more vexing by the disclosure in
1975 of a 20-year-old understanding between Justice and CIA, that
the Intelligence Agency felt exempted it from'- having to inform
Federal prosecutors about criminal activity by CIA personnel.
Obviously, without full disclosure to Justice and the prompt forwarding
of cases of legal. propriety, much of the intelligence community's
activities and that of its employees would remain. effectively closed to
investigation and possible prosecution.
The. Subcommittee on Government Information and Individual
Rights examined these questions in two stages.
In 1975, the subcommittee conducted hearings concerning the report-
ing of intelligence employee criminal violations and the 1954 Justice-
CIA agreement. Under the arrangement, CIA officials testified. that
if they considered the risk of exposure of intelligence secrets at open
trial excessive, they would close the file and.. not notify the Justice
Department of the case. The CIA identified ,nine cases that "had
been handled in this fashion. Federal law, however, specifically charges
each agency head to expeditiously report evidence of criminal wrong-
'doing, and places responsibility for the prosecutorial decision with the
Attorney. General Title 28, United States Code, ?-535(b) requires
that:
(b) Any information, allegation, or complaint received
in a department or agency of the executive branch of the
Government relating to violations of title 18 involving
Government officers and employees shall be expeditiously.
reported to the Attorney General by the head of the depart-
ment or agency, unless-
(1) the responsibility to perform an investigation
with respect thereto is specifically assigned otherwise
by another provision of ,law; or
(2) as to any department or agency of the Govern-
ment, the Attorney General directs otherwise with
respect to a specified class of information, allegation,
or complaint.
Excerpt from address.by. Attorney General Griffin B. Bell on "Foreign Intelligence and the Legal
System" delivered'Tuesday, May 8, 1979, at the Central Intelligence Agency,. Langley, Va., Department
of Justice transceipt 6t 7-9.
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The hearing did raise the need to clarify the code section to narrow
the apparent broad discretion given the Attorney General under
? 535()(2) to exempt agencies from reporting to Justice whole
categories of crimes not otherwise assigned by law.
The subcommittee also examined in its 1975 iearings the circum-
stances behind the dropping of a Federal indictment against a Thai
citizen on the CIA payroll allegedly involved in the shipment to
Chicago of 25 kilos of raw opium-the largest drug bust of its kind
in the city's history. Principal issues involved the inability of the
prosecutors to gain access to needed CIA materials and the failure
of high Justice Department officials to insist on examining such
materials before deciding whether to dismiss the indictment.
The conflicting values in handling such cases, were publicly high-
lighted by the Justice Department in early 1977 when it announced
its reasons for declining to prosecute present and former Govern-
ment officials involved in the CIA's 1953-73 mail opening programs.
Under these programs, certain mail received by citizens from foreign
countries or sent overseas, had been routinely opened and photo-
graphed. The mail opening case was notable because the Depart-
ment broke with long-standing tradition and published its reasons
for deciding not to prosecute.2
In 1978, the subcommittee reexamined the reporting and informa-
tion access relationships between the Department and the CIA,
particularly changes that had taken place since the 1975 hearings.
The CIA and the Justice. Department had earlier agreed that con-
tinued reliance on the 1954 agreement between them was inappro-
priate, and at the subcommittee's urging, the two executed a new
written agreement in January 1978, since modified..twice. It provides
a system for the referral in every instance of evidence of criminal
violation by a CIA employee, and assures the Department of Justice
access in such case to all information in the possession of CIA it
determines necessary to investigate and prosecute the violation.
Although it is impossible for any written procedure to guarantee
that it will always be followed, the current agreement and operating
procedures between the Department of Justice and the Central In-
telligence Agency appear to provide sufficiently for access and referral.
The end of the so-called 1954 understanding and the establishment of
these reporting procedures represent a significant reform in oversight
of the intelligence community and rightfully return the decision to
prosecute to the prosecutor.
The subcommittee's 1978 hearings also considered in a broader
context the problems of defendant's rights versus national security
which are posed where highly classified information is relevant to a
criminal case. An increasing number of cases with such considerations,
including espionage cases, are reaching the courts. Comparable diffi-
culties also can occur in civil proceedings.
Questions of information access by Justice and referral of criminal
allegations by Government agencies are far easier to resolve than the
national security conflicts which can arise in legal proceedings.. Na-
tional security problems seem always to come down to a case-by-case
weighing of the detriments that may arise from disclosure of security
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information versus the detriments that may result from nondisclosure.
Most often the question is whether a particular prosecution is worth
the potential ? dangers resulting from revealing information that is
necessary for the prosecution. En route to this decision there are
frequently procedural debates over whether particular information is
relevant to the proceeding or whether it can be used in the proceeding
in some restricted manner that both preserves an individual's rights
and minimizes security disclosures.
Although CIA was the. only intelligence organization with which
the subcommittee dealt, similar problems can occur with other such
components. The relationships approved or recommended in this
report for the Justice Department and CIA should apply in principle
to the working relationship between the Justice Department and other
intelligence agencies.
Hearings were held on July 22, 23, 29, 31 and August 1, 1975, at
which present and former officials of the Department of Justice and
Central Intelligence Agency, and officials of the Customs Service
testified. Representatives of the Department of Justice and the CIA
testified at hearings on September 18, 1978.
II. CIA REPORTING OF OFFENSES TO DEPARTMENT OF JUSTICE
A. TITLE-28, UNITED STATES CODE, SECTION 635.(B)
Congress passed section 535(b) -in 1954-a to require agency offi cials,
with certain exceptions, to report to the Attorney General criminal
violations involving Government employees. At least twice thereafter,
Attorneys General called the requirement to the attention of agency
heads in memoranda. Attorney General Herbert Brownell, Jr., sent
such a memo in 1956 and Attorney General John N. Mitchell sent one
in 1971.4 These memoranda emphasize prompt reporting- of any in-
formation, even where there is doubt that the offense occurred. Whether
the Attorney General will prosecute such referrals, however, is within
his traditional scope of discretion.5 President Carter's Executive order
on intelligence activities also requires senior officials of the intelligence
community to report to the Attorney General evidence of possible
violations of Federal criminal law by an employee of their department
or agency.?
?
In 1954, several months before the reporting statute cited above
became law, CIA General Counsel Lawrence Houston met with
Deputy Attorney General William P. Rogers to discuss problems the
CIA occasionally encountered involving criminal prosecution of CIA
personnel and the danger of the revelations of sensitive information
which could occur.during an open trial on such a matter. On March 1,
168 Stat. 998. The text of the statute appears in the introduction of this report at p. 2.
, See "Justice Department Treatment of Criminal Cases Involving CIA Personnel and Claims of National
Security," hearings before a subcommittee of the Committee on Government Operations, Horse of !19_75
sentatives, 94th Congress, let session, July 22, 23, 29, 31, and Aug. 1, 1975 [hereinafter referred to hearings) at 8-0 for text of memos.
' See, e.g., Powell v. Katzenbach, 359 F. 2d 234 (D.C. Mr.), cert. denied 384 U.S. 967 (1965).
See Executive Order No. 12036, 43 Fed. Reg. 3675 Q 1-706 (1978). The order also requires inspectors
general and general counsels of agencies in the intelligence community to timely report to the Intelligence
OversJght Board any intelligence activities that come to their attention that raise questions of ty or
propriety. Id. at 13-201.
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1954, Houston sent Rogers the following memorandum which in turn
enclosed a memorandum to the CIA director concerning the earlier
Houston-Rogers discussion. These memoranda constitute the so-called
1954 agreement :
MARCH 1, 1954.
Memorandum for: Deputy Attorney General, Department of Justice,
Washington 25, D.C.
Subject: Reports of criminal violations to the De artment of Justice.
Attached is a memorandum for the record, addressed to the Direc-
tor, of my understanding of our conversation regarding the investiga-
tion of possible criminal activities arising out of our activities. If you
find no objection to this statement, please return and we will retain it
in our files for future guidance.
LAWRENCE R. HOUSTON,
General Counsel.
FEBRUARY 23, 1954.
Memorandum for: Director of Central Intelligence.
Subject: Reports of criminal violations to the Department of Justice.
1. From time to time information is developed within the Agency
indicating the actual or probable violation of criminal statutes. Nor-
mally all such information would be turned over to the Department of
Justice for investigation and decision as to prosecution. Occasionally,
however, the apparent criminal activities are involved in highly classi-
fied and complex covert operations. Under these circumstances in-
vestigation by an outside agency could not hope for success without
revealing to that agency the full scope of the covert operation involved
as well as this Agency's authorities and manner of handling the opera-
tion. Even then, the investigation could not succeed without the full
assistance of all interested branches of this Agency. In addition, if
investigation developed a prima-facie case of a criminal violation, in
many cases it would be readily apparent that prosecution would be
impossible without revealing highly classified matters to public
scrutiny.
2. The law is well settled that a 'criminal prosecution cannot proceed
in camera or on production of only part of the information. The
Government must be willing to expose its entire information if it
desires to prosecute. In those cases involving covert operations, there-
fore, there appears to be a balancing of interest between the duty to
enforce the law which is in the proper jurisdiction of the Department
of Justice and the Director's responsibility for protecting intelligence
sources and methods. This is further affected by practical
considerations.
3. 1 have recently had two conversations with the Department of
Justice, the latter on February 18, being with the Deputy Attorney
General, Mr. William P.. Rogers. To illustrate the problem I took
with me the complete investigation, with conclusions and recom-
mendations, of a case which indicated a variety of violations of the
various criminal statutes relating to the handling of official funds. This
case arose during the review of a highly complex clandestine opera-
tion. The information was developed by the Inspection and Review
Staff, Deputy Director (Plans), and even in its completed form would
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be almost unintelligible to a person not thoroughly familiar with the
Agency and its operations due to the use of pseudonyms and cover
companies and to. various circumstances arising out of operational
conditions.
4. I pointed out to the Deputy Attorney General that review by
my office indicated that the individual was almost certainly guilty of
violations of criminal statutes, but that we had been able to devise
no charge under which he could be prosecuted which would not require
revelation of highly classified information. Mr. Rogers'said that under
these circumstances he saw no purpose in referring the matter to the
Department of Justice as we were as well or, in the 11 lit of the peculiar
circumstances, perhaps better equipped to pass on the possibilities for
prosecution. Therefore, if we could come to a firm determination in
this respect, we should make the record of that determination as clear
as possible and retain it in our files.
5. If, however, any information arising out of our investigation re-
vealed the possibilities of prosecution, then we would have an obli-
gation to bring the pertinent facts to the attention of the Department
of Justice. I agreed that any doubt, should be resolved in favor of
referring the matter to the Department of Justice. I also pointed
out that even in cases where we felt prosecution was impossible; if
a shortage of funds were involved we took whatever collection action
was feasible and, in spite of the problems arising out of the covert
nature of our operations, were frequently successful in recovering
the funds, at least in part. I also mentioned that our investigation
sometimes indicated possible tax evasion or fraud which did not in-
volve operations, and that we worked with the Internal Revenue
Service in such situations.
6. Mr. Rogers asked that we follow through carefully on any such
case with any appropriate Government agency. He stated that an
understanding on these matters could be reduced to a formal exchange
of letters, if it becomes necessary, but that he saw no reason why
present practices could not be continued without further documenta-
tion. I said it had been my recommendation not to formalize the
situation unless the matter were brought to an issue either by passage
of legislation and a need for clarification thereof or by discussion on
specific cases with the Criminal Division of the Department of Justice.
LAWRENCE R. HOUSTON,
General Counsel.
A former Justice Department official testified that the Department
considered there was no signed agreement between it and the CIA,
only a pattern of understanding.7 The record indicates that even
knowledge of any such pattern of understanding soon became non-
existent. The subcommittee questioned, by staff interviews and letters,
many of the Attorneys General and Criminal Division and Internal
Security Division department heads who held office since 1954; none
was familiar with any arrangement with the CIA such as that de-
scribed in the Houston memorandum. Houston testified that briefings
were not given to Attorneys General about the arrangement after
1954.8 Houston believed that once Justice Department approval was
i
r Bee 1975 hearings at 409 (deposition of lames Wilderotter).
'Id.at20.
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received, the agreement could be followed indefinitely 9 and that there
was no need to raise the question since the Agency continued to work.
"in close cooperation" with Justice.1?
The language of 28 U.S.C. ? 535(b)(2), which was passed a few
months after the 1954 agreement, does not appear to contemplate
any such informal delegation of the Department of Justice's powers.
In any event, 535(b) (2) covers. only the delegation of investigation
responsibility, not the power to decide whether or not prosecution is
feasible."
In December 1974, CIA Director William Colby informed Acting
Attorney General Laurence Silberman of the 1954 agreement in
connection with the referral of a case from the CIA to the Justice
Department involving former CIA Director Richard Helms' testimony
before a Senate committee. Silberman did not know of the agreement.
He and Colby agreed that it was inappropriate. As an outcome of their
meeting, the agreement was therea?ter considered inoperative.12
W hether the 1954 agreemenby bsolved -CIA from reporting only
illegal activities not .authhorized the Intelligence Agency or whether
it extended also to so-called authorized activities is disputed. Embez-
zlement of agency funds by an employee is an example of an unauthor-
ized illegal activity. An employee's intercepting and opening sealed
mail on direction from his superiors may be an authorized illegal
activity. Former Associate Deputy Attorney General James Wilderot-
ter testified that the agreement covered both situations.13 Former CIA
General Counsel. Lawrence Houston and General Counsel John
Warner testified that the agreement was designed only to cover
unauthorized illegal activities.l4
? The CIA justified its use of the agreement on the basis of its statu-
tory responsibility to protect intelligence sources and methods.15 It told
the subcommittee that it had considered 30 cases between 1954 and
1974 involving possible Federal crimes by CIA personnel, all involving
acts either not authorized by CIA or committed outside the line of
duty. None involved the CIA's domestic mail intercept or wiretap
programs. Of these, 20 reached the Department of Justice, 14 on
referral from CIA and 6 on referral from other sources or agencies."
Two cases were referred to other agencies.17 CIA decided on its own
in nine cases that prosecution was not feasible, and hence did not
bring these to Justice's attention. These nine involved three misuses.
' Id. at 20-21.
10 Id. at 21.
H There appears to be need to clarify the statute on this point, although the Justice Department says
it knows of no other agreements between itself and other Federal agencies delegating prosecutorial discretion
in such circumstances. Id. at 405. Thee Department does, however, have agreements with other agencies
concerning investigation of allegations against their employees. See, for example, Justice Department
Handling of Cases Involving Classified Data' and Claims of National Security, hearings before a subcom-
mittee. of the House Committee on Government Operations, 95th Congress, 2d session at app. 1 (1978)
[hereinafter cited'as 1978 hearings).
It 1975 Hearings at 76-77, 403-08; See Central Intelligence Agency Exemption in the Privacy Act of 1974,
hearings before a subcommittee of the. Committee on Government Operations, House of Representatives,
94th Congress, 1st session, Mar. 5 and June 25, 1975, at 203, 210 (testimony of CIA Director Colby).
o Id. at 405-06.
14.1d. at 18, 103.. .
Is Id. at 5; See 50 U.S.C. ? 403(d). CIA General Counsel Lapham testified however, that it is his opinion
that a disclosure of any sort to the Department of Justice in the course of the performance of its duties would
be an authorized disclosure, not restricted by 50 U.S.C. 403(d). See 1978 hearings at 64.
15 See 1975 hearings at 388-89 (letter from Department of Justice).
57 See Central Intelligence Agency Exemption in the Privacy Act of 1974, hearings before.a subcommittee
of the Committee on Government Operations House of Representatives, 94th Congress, 1st session, Mar. 5
and June 25, 1975 at 205 (letter from CIA to Department of Justice).
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of hinds, two thefts, and one each black marketeering,. extortion,
fraud and theft of services.18
Regardless of whether the agreement was sound policy when reached
in 1954, it seems clear that it did not rise to the level of formality
necessary to satisfy the requirements of 28 U.S.C. ? 535(b). From a
policy standpoint, the committee believes as did Director Colby and
Acting Attorney General Silberman in 1974, that the arrangement
was not proper. Except as might be expressly provided by statute, the
Department should not delegate to another agency its statutorily
conferred powers of prosecutorial discretion.
C. THE 1978 AGREEMENT
After the Department of Justice became aware of and abrogated the
1954 agreement, the Department and the CIA began in 1975 to work
out a memorandum of understanding for carrying out the requirements
of 28 U.S.C. ? 535. The Director of Central Intelligence signed such
a memorandum in January 1978; however, it was revised slightly in
September 1978 as a result of Executive Order 12036 governing intel-
ligence operations.1? -
This memorandum provided in essence that :
CIA conducts a preliminary mi uily; upon receiving information
that its officers or employees may have violated a Federal criminal
statute.
Except where the preliminary inquiry establishes in a reasonable
a crime was
time that there is no reasonable basis to believe that
committed, the CIA is to refer the matter to the Justice Depart-
ment.20
If, in the CIA's view, further investigation would not, publicly
disclose classified information, intelligence sources and methods
or jeopardize security of ongoing intelligence operations, such
referral is to the FBI, U.S. attorney or other appropriate investi-
gative agency.
If such disclosures or jeopardy is feared,.the CIA is to refer the
matter in writing to the Criminal Division of the Justice Depart-
ment, after which decisions will be made by the Department on
further investigation or prosecution.21
The memorandum, however, also provided that the nature, scope,
and format of the written reports could vary on a case-by-case basis
depending on an assessment by CIA and the Criminal Division of the
matters reported.22 Further, the memorandum permitted the Director
of Central Intelligence to directly refer matters to the Attorney
General with no requirement that this referral be in writing.22 The
subcommittee expressed concern at the 1978 hearing that these two
latter provisions could be used as loopholes to minimize or eliminate
a Id. at 204-05, 1975 hearings at 392. The statute of limitations appeared to have run on at least five and
ment, however, asked the CIA to provide informatiioonao became known to the nine. ee 1975 hearings a~tt508nt. The Depaet-
10 See 1978 hearings at 6.
m The statute does not provide for such a preliminary inquiry, and other agencies generally have been
urged to report promptly to the Justice Department any allegations against their employees. See note 4
and accompanying text.
21 See 1978 hearings at 9.
".Id. at 10.
33 Id.
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the written records which ought to be maintained concerning such
case referrals.24
The Department of Justice and CIA responded to the subcom-
mittee's concerns by redrafting these two portions of the agreement to
require that any reference from CIA would be in such written detail
as the Department of Justice component receiving the report shall
determine, and that any reference directly from the Director of
Central Intelligence to the Attorney General shall be in ~ writing.25
The memorandum also was modified to provide that interpretation
of. its provisions shall be by the Department of Justice and consistent
with 28 U.S.C. ? 535 and Executive Order 12036.26
As modified, the memorandum of understanding provides a basis
for implementing CIA's reporting responsibilities to the Department
of Justice under 28 U.S.C. ? 535. The right of the Department to have
access to all information it requires is contained in the provision of the
memorandum which provides for written reports from CIA "in such
detail as the Department of Justice component receiving the report
shall determine." 27 It is the practice that CIA will in some instances
use "John Doe" ~ ppseudonyms for the names of individuals in initial
reports to the ?Department.21 This is not objectionable since the
memorandum assures the Department the right to obtain names as it
deems necessary.
III. DEPARTMENT OF JUSTICE ACCESS FOR INTERNAL USE TO
INFORMATION HELD BY CIA
If the Department of Justice is to successfully prosecute or make an
informed decision not to prosecute cases involving national security
personnel or information, it must have reasonable access to infor-
mation which is.in the possession of the intelligence agencies concern-
ing those cases. This issue is -broader in application than that of an
agency's reporting criminal activity to the Department. It also may
encompass cases which come to the Department's attention by means
other than an agency's report, and cases where agency personnel or
operations are involved but. no agency employee is a suspect. Not
only must initial reports from the agency provide information, but
the Department, in building a case, must be able to utilize information
in the hands of the agency., This implies the need for agency coopera-
tion, since the Department may not always know precisely what to
ask for.29
A. THE KHRAMKHRUAN AND HELMS CASES
Two relatively recent cases illustrate the range of access to informa-
tion that the CIA has offered to the Department of Justice in its .
pursuit of criminal investigations, and the range of the Department's
efforts or lack of efforts to obtain such information.
f{ Id. at 32-37.
75 Id. at 57 (note from Robert L. Keuch, Deputy Assistant Attorney General, to subcommittee of Sept. 29, Vi1.
d. at 57, app. 5.
V Id. at 6.
"Id.at9.
fY See 1978 hearings at 67. The Department may encounter a problem if one agency holds classified infor-
mation originated. by another agency. Under, the so-called "third agency" rule, the originating agency
must consent to the disclosure of the information.' See Subcommittee on International Organizations of
House Committee on International Relations; 94th Congress, 2d session, Investigation of Korean-American
Relations at 130, 157 (o'ct. 31, 1978).
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1. Inadequate acce.88: The Puttaporn Khramkhruan case 30
In January, 1973, a shipment of 25 kilos of raw opium was detected
by Customs Service detector dogs in New York. It was forwarded to
Chicago and seized at the point of delivery. An envelope identifying
one Puttaporn Khramkhruan was found in the contents. In May,
1973, the Customs Service asked its Bangkok representative to find
of the
Khramkhruan at Chiang Mai, Thailand, the point of origin
seized shipment. The customs agent learned that Khramkhruan was
normally a CIA operative in Southeast Asia but was then, at his own
initiative, attending a program in the United States sponsored by the
Agency for International Development. A CIA officer introduced
customs investigators to Khramkhruan at Syracuse University where
he was studying. On June 14, 1973, the Customs Service advised the
CIA that it had discovered additional evidence that Khramkhruan
was directly involved in the smuggling.
The Government initially sought to use Khramkhruan as a witness
against one Bruce Hoeft. Khramkhruan subsequently decided not to
cooperate as a Government witness and announced he was leaving
the country 31 He was indicted for narcotics smuggling along with six
Americans, including Hoeft, on August 3, 1973, by a Chicago Federal
grand jurryy 32
Khramkhruan' publicly claimed by spring 1974 that part of his
defense would be that the CIA knew- about his opium smuggling. John
K. Greaney, CIA Associate General Counsel, dealt with the federal
prosecutors in Chicago. The prosecutors believed he.initially promised
them full cooperation, and that this meant that any necessary CIA
documents would be made available for court inspection and that CIA
would provide a witness. to rebut any claim of Khramkhruan's that the ?
CIA had advance knowledge of the opium shipment as Greaney testi-
fied that he was confident he could "work with them" 34
Shortly before the case was to go to trial, Greaney notified the
pprosecutors that no CIA documents would be turned over to them 35
He told the U.S. attorney that the CIA would not produce.documents
for discovery under rule 16 of the Federal Rules of Criminal Procedure
or Brady v. Maryland 3s if Khramkhruan were to stand trial, nor would
the CIA provide a witness to rebut any Khramkhruan defense that
the. CIA knew of the smuggling in advance. The CIA also said it would
not provide prior statements made by Khramkhruan to CIA officials
w See generally 1975 hearings at 64-74, 118-386.
J' Id. at 226.
m Id. at 147-78, 153.
is Id. at 125-30, 219-20.
U Id. at 325.
m In a letter summarising the case to the ranking minority member of the Senate Permanent Subcom-
mittee on Investigations, Committee on Government Operations, dated July 7, 1975, Deputy Assistant
Attorney General John 0. Keeney stated that CIA attorney Greaney"advised the prosecutors that under
no circumstances would the CIA turn over either to them or to the district court judge for in camera
'inspection, any of Mr. Khremkhruan's reports made to his superiors in Thailand or In the United States e o 0
The' Criminal Division of the Department of Justice accepted the position of the CIA with reference to
its evaluation of the injury to the interests of the United States that might result if the Agency were to
accede to requests made by the prosecutors and no attempt was made to force disclosure of reports and or
production, of witnesses by seeking the intervention of the White House." 1975 hearings at 154. In an early
response dated June 26 1975 to the ranking minority member of the Senate Permanent Subcommittee on
Investigations, acting ~IA ISirector Carl E. Duckett failed to distinguish between the CIA's initial coop-
erativeness with the Customs investigators and Chicago prosecutors and CIA's later refusals. Duckett
wrote brbadly: "There wee no lack of cooperation between CIA and the Department of Justice, but rather
there was complete disclosure to the Department of Justice of Khramkhruan's activities on behalf of the
Agency and discussions of the problems associated with prosecution. This resulted in s decision by the
Department that it would have been impossible to prosecute successfully "
5 373 U.8.83 (1983): See discussion at p.18 infra.
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as required by 18 U.S.C. ? 3500 37 if Khramkhruan were used as a
witness aainst Hoeft 38 He later testified that risks to the Agency had
changed."' Greaney refused also to allow a Federal judge to examine
the documents to determine whether they were relevant to the prose-
cution or would jeopardize national security if exposed, testifying to
the subcommittee: "We have made clear that the judges in litigation
are not always in a position for that." 40
Witnesses from the Department and the CIA disagreed on whether
access to particular documents was refused or not asked. Jeffrey
Cole, an assistant U.S. attorney who worked for several months on
the Khramkhruan case, said the CIA refused to provide the materials
and that it also never told him that one document which was provided
had been sanitized." A Department of Justice document also
referred to CIA refusal to provide documents.42 Greaney testified,
however, that the Department never specifically asked to see the
documents at issue." He said the CIA would have allowed Department
attorneys to see the materials, although it refused to permit them to
be submitted to a judge or to defense counsel in the case.44
By not seeing the documents at issue, the Department had no basis
to confirm or rebut the CIA contention that their disclosure would
endanger intelligence sources and methods. The U.S. attorney's
office in Chicago, after not succeeding in obtaining access to the
materials, referred the matter to the Department in Washington, but
there is no indication, that the Department sought access; rather, it
apparently accepted' the failure of the U.S. attorney's office in Chicago
to obtain the materials as determinative. Thus, it was without seeing
these documents that the Department reached its conclusions on what
to do about the Khramkhruan case.45
2. Fuller access: The Richard Helms case
On October 31, 1977, the Department of Justice and former CIA
Director Richard Helms entered into a plea bargain agreement under
which Helms pleaded guilty to failing to testify fully to a Senate
committee. The Department's decision to enter into this agreement
was controversial.48 However, unlike the Khramkhruan case, it
appears to have been based on complete access to relevant materials
rather than on inability to get such access.
CIA initially made the Department aware of questions concerning
Helms' testimony, 47 and Department attorneys subsequently examined
thousands of classified documents bearing on the questions raised by
Helms' testimony and his possible defense to contemplated charges of
~ierjury.48 The Department considered that it had no access problems
in the case.49
V See discussion at p. 18 infra.
n See 1975 hearings at 127-28.
" Id. at 325.
44 Id. at 335.
u Id. at 126.
42 Id. at 430.
'5 Id. at 304, 317.
" Id. at 304.
1' See pp. 12-17 infra for discussion of decisionmaking process in Khramkhruan and other cases dependent
on intelligence information.
4E See p. 15 infra.
47 See 1978 hearings at 38.
'? See press conference of Attorney Generall Bell and Assistant Attorney General Civiletti, Nov. 1, 1977;'
Department of Justice transcript at 25.
40 See 1978 hearings at 67; staff interview with Deputy Assistant Attorney General Keuch.
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B. PRESENT PRACTICE
The Department of Justice and CIA testified.to the subcommittee
that for the past several years, or since the Khramkhruan case came
to congressional attention, their procedures now assure the Depart-
ment full access to intelligence information. Tensions still exist
between the interests represented by each agency, but Department
Assistant Attorney General Keuch testified that after negotiations,
the Justice Department has had no ultimate problem with access.51
CIA General Counsel Anthony Lapham testified that CIA Director
Stansfield Turner has said access should not be an issue between the
agencies. If any dispute came to a question of access denial,. said
Lapham, only the Director could refuse the access request.51 Lapham
said he would never on his own authority deny access.52 However, the
agencies have negotiated over the scope of access in cases where CIA
considered a Department request to be framed more broadly than
required for the particular case.53 It must be emphasized that this
level of discussions concerns only Justice Department access to
materials, not the question of whether the materials could safely be
made public at a trial or released to defense counsel b4
In the Khramkhruan case, significant negotiations with the CIA
were carried on by assistant U.S. attorneys who had no prior el-
perience in dealing with CIA matters .5' The subcommittee expressed
concern that persons inexperienced in security matters could be
overwhelmed by the incantation of "national security," with the
result that cases would be closed prematurely. Department Assistant
Attorney General Keuch testified that current notification procedures
in the Department and a memorandum from the Deputy Attorney ?
General should prevent such an occurrence, because no investigation
would be stopped based on another agency's national security claim
without the approval of at least an Assistant Attorney General .56
IV. DECIDING WHETHER CONDUCTING AN INVESTIGATION OR DIS-
CLOSING INFORMATION IN COURT PROCEEDINGS WILL DAMAGE
NATIONAL SECURITY
Obtaining access to national security information in the course of
an investigation is only the first and easier step for the Justice De-
partment. The frequently difficult decisions concern the extent, if any,
to which the information can be used for further investigation, prosecu-
tion or other court proceeding. These decisions inevitably come down
to a case-by-case balancing of risks against benefits."'
1. Nature of risks
The Director of Central Intelligence is charged by law with re-
sponsibility for protecting intelligence sources and methods from un-
m See 1978 hearings at 67.
it Id. at 63.
? Id.
m Id. at 63-64.
54 See section IV infra for discussion of decisions on making materials public.
as see 1975 hearings at 133. The U.S. Attorney's manual furnished little or no guidance for such situations.
Id. at 61-64.
56 See 1978'hearings at 69-71.
q See 1978 hearings at 12.
?
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authorized disclosure.' Such disclosures at their worst could subject
undercover operatives to extreme personal danger or destroy covert
operations in progress. Other information might permit a foreign in-
telligence agency to counteract a type of surveillance or detect future
applications of some particular CIA method of operation. Disclosure'
of some information might pose no physical risk but would perhaps
force a foreign government to react negatively against the United
States, for the activities of U.S. agents in that country.
#'. Nature of benefits
The benefits of moving ahead with an investigation, prosecution or
court proceeding are essentially no different in national security cases
from other kinds of cases: learning what happened, punishment of an
offender, the deterrent effect on potential offenders, recovery for the
Government.
3. Chances of success
The probability that an investigation or court case will succeed
obviously must be considered. An example of the worst outcome would
be disclosing legitimately sensitive material for the 'purpose of winning
an important prosecution and then losing the case, with no benefit.
4. Extent of informal disclosure
In some cases, sensitive information may already have been made
public by leak or other means. In some situations this may reduce the
concern about making the same information public at trial, since
damage has already been done. In other situations, however, making
the information public at trial could confirm the accuracy of the leaked
data, whose significance may have been underestimated by adversaries.
5. Extent of disclosure in court proceedings
If disclosure of sensitive materials can be minimized by court order
or other procedure, then in some cases, the risk factor is reduced and
it becomes easier to move ahead with an investigation or court-pro-
ceedings. Such limitations on disclosure may not be appropriate in
some situations. However, development of procedures that would per-
mit the continuation of proceedings which otherwise would be stopped
altogether is desirable. Examples and feasibility of such procedures are
discussed. more fully in section V.
B. ROLE OF CIA
The CIA does not have the function of deciding whether or not a
prosecution or other court proceeding should be carried out. The
agency agrees that the 1954 memorandum which it took to give
it such authority in some cases was not proper.8? Its role, ,therefore,
is. not to attempt to strike final balances between risks and-benefits
in national security information cases. Rather, it: should provide to
the Justice Department its appraisal of the possible risks which could
.m See 50. U.B.C. 4.403(d). The intelligence' community -offers this definition for sensitive intelligence
sources and methods: "A collective term for those persons, organizations, things, :conditions, or events -
that provide intelligence information and those means used in the collection, processing, and-production
of such. inform at ion which, if compromised; would be vulnerable to-counteraction that:couidz ortably
be expected to reduce their ability to support U.B. intelligence activities."--See Glossary of Integce
Terms and Definitions, June 15, 1978, reprinted in R. Rept. No. 95-1795, 95th Congress, :2d session (1978),
at49.
is See pp. 7-8 supra.
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result from disclosure of relevant materials. Quoting Director Turner,
CIA General Counsel Lapham agreed, with this role.80 The CIA tes-
timony emphasized both its desire to cooperate with the Department
and its ultimate option to take to the President any conclusion that
a Department decision to disclose materials would have truly damag-
ing national security effects.81
The Department's task is to balance the risks, benefits and other
factors discussed above in order to reach a decision on whether to
continue an investigation or initiate a court proceeding. Where
information is classified, however, the Department cannot on its
own release the material without its being declassified by the agency
that originated the material .112 Where the Department and the agency.
cannot reach agreement, then the decision must go to the President.
The Department considers each case on an ad hoc basis because,
in the words of Deputy Assistant Attorney General Keuch, "the
permutations of possibilities are so great." 83
The Department's decisionmaking procedure is governed in part by
a memorandum from then Assistant Attorney General Civiletti of
October 4, 1977.84 His memorandum notes that agencies will at times
contend to the Department that a particular investigation or prosecu=
tion would jeopardize national security. The memo then declares:
Under no circumstances will this Department accept such
an assertion as the basis for declining to institute further in-
vestigation or prosecution in a case which would otherwise be
vigorously pursued but for the national security claim. The
true nature and scope of any such claim must be thoroughly
and objectively evaluated and documented in all cases where
declination is based solely upon national security grounds.
Where a combination of factors exists, to include the existence
of a national security claim, which provides a basis for decli-
nation either independently of or in conjunction with that
claim,the action of this Department must be fully documented.
so that the record will reflect all those factors which bore on
our final prosecutive determination."
Similar language is contained in the United States Attorneys' Man=
ual.86
A decision not to prosecute based on national security grounds. is
made by at least an Assistant Attorney General .61 Reflecting the ad hoc
policy testified to by Mr. Keuch, the policy declaration in the U.S.
Attorneys' Manual lists no criteria or even points to check in determin-
ing when national security requires abandoning an investigation, for-
going litigation or dismissing a case. Only "the most careful consider-
90 See 1978 hearings at 28.
a! Id. at 29. The CIA also at times provides a witness to testify that a defendant has not been an employee
or.operative of the"agency. Typically this witness is from the Office of Personnel and has had various records
systems:checked 16 confirm the negative finding. Not all courts, however, have accepted this as sufficient
due to-the witness' lack of personal knowledge about some records. Id. at 78-77.
09:Id. at 64; Executive Order No. 12065.
?'Id..at65.
61-1d. at 43-44.
1 Id. et,44.
a-See U.S. Attorneys' Manual, 19-2.103, reprinted in 1978 hearings at 53.
erSee 1978.hearings at 70.
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ation" and " ersonal approval" of an assistant attorney general are
mandated .68 In some cases, however, although national security
information is involved, the decision not to prosecute may be based
on other prosecutorial guidelines-for example, not prosecuting minor
marijuana cases 89
If the Attorney General and Director of Central Intelligence cannot
resolve their differences over use of information, either-presumably,
the one trying to stop the other from doing something-can take his
case to the President.70 If the President wanted a third opinion, he
presumably could refer the question to the Intelligence Oversight
Board, a White House entity with oversight responsibilities in
the intelligence community 71 or the Information Security Oversight
Office, an entity with oversight responsibilities for information classifi-
cation.72
The Helms and Khramkhruan cases 73 illustrate the decisionmaking
process at work, aside from the merit or lack of merit of the final out-
comes.
1. The Helms case
A decision that prosecution was possible despite national security
considerations was made by the Attorney General and discussed with
the President, who authorized pursuit of plea bargaining.74
Plea bargaining with Helms' attorney was carried on by the Attorney
General and Assistant Attorney General Civiletti, who had themselves
? reviewed some of the national security materials relevant to the case.75
Attorney General Bell said the Department believed it had a case it
could prosecute but that it also recognized the possibility that a judge
might order some particular classified document admitted into evi-
dence,76 possibly forcing the Department to "the position where we
had to dismiss in the middle of the trial." 77 -
The committee approves of the fact that the highest levels of the
Department involved themselves in the decision in the Helms case and
then made efforts to explain the decision publicly. The subcommittee
did not examine the documents at issue in the case, however, and the
committee takes no position on whether the decision was proper from
either a national security or policy standpoint. .
W See U.S. Attorneys' Manual, ? 9-2.163, reprinted in 1978 hearings at 53.
?' See 1978 hearings at 38. In these cases, an Assistant Attorney General need not, of course, make the
decision.
70 Id. at 29. In the remote event the Attorney General receives specific information that a violation of
Federal criminal law has been committed by the President or the Director of Central Intelligence, or certain
other top officials, a procedure is spelled out in the Ethics in Government Act of 1978 (Public Law 95-521)
for the preliminary investigation and application to Federal court for the appointment of a special prosecutor.
The special prosecutor is given the authority under the statute to review all documentary evidence from
any source; receive appropriate national security clearances; and, if necessary, contest In court. any claim of
privilege or attempt to withhold evidence on grounds of national security. (28 U.S.C. 594(a) (4) and (6)).
7' See Executive Order 12036, 43 Fed. Reg. 3875 (1978) ? 3.1.
n See Executive Order 12085, 43 Fed. Reg. 28949 (1978) ? 5-2.
IS See pp. 10-11 supra.
It See press conference of Attorney General Bell and Assistant Attorney General Civlletti, Nov. 1,,1977,
Department of Justice transcript at 2-3.
" See p. 11 supra.
' The committee was not in a position to evaluate the likelihood of that possibility
n See press conference of Attorney General Bell and Assistant Attorney General iviletti, Nov. 1, 1977,
Department of Justice transcript at 11.
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2. The Khramkhruan case
The Khramkhruan case preceded the Department's current pro-
cedures. Its inept handling illustrated the need for the improved
method for dealing with such cases which has since come about.
As discussed above,78 the Department had little access to informa-
tion which was arguably relevant to the case. Instead, it principally
had only the declarations of the CIA that certain materials could not
be provided for trial. By not seeing the materials, Department at-
torneys had no basis to evaluate the CIA contention.
Extensive testimony in 1975 left unanswered the question of who
authorized the dismissal of the narcotics indictment against the CIA
operative Khramkhruan.
The U.S. attorney's office in Chicago, unable to obtain information
from the CIA, prepared a Form 900, Request and Authorization to
Dismiss Criminal Case.79 The form very briefly outlined the CIA's
refusal to provide information and quoted the CIA as saying a trial
"could prove embarrassing " It said the prosecution could not be
continued unless the Department could persuade the CIA to turn
over the requested material.80
Department procedure required that a senior official of the criminal
division, not a U.S. attorney, approve any dismissal of particular
indictments, including that in this case.81 Although the form 900
implicitly requested the Department's help in getting the materials
from the CIA, no further effort in that direction was made. Although
Assistant Attorney General Henry Petersen had initially referred the
CIA to. the Chicago prosecutors for discussion of the case,82 according,
to Petersen,. the dismissal document never returned to him. The
papers, instead, apparently, never went beyond the criminal division's
narcotics section chief, William E. Ryan. Ryan's assistant, Morton
Sitver examined the papers and signed Ryan's name to the dismissal
form.83 Sitver testified that he received a call from one of Petersen's
deputies-either Kevin Maroney or John Keeney-requesting that
dismissal be expedited.84 Sitver therefore believed that Petersen's
office had considered the dismissal and approved it.85 Petersen testified
that he did not know of any phone call to expedite the dismissal."
He said that the number of dismissal forms reaching his office, how-
ever, was "infinitesimal." "I would doubt that there are four a year
that come up there," Petersen stated.87 Petersen's deputy, Kevin
Maroney, testified that he could not remember calling Sitver re-
regarding the dismissal." The committee was unable to determine
whether Maroney or Petersen's other deputy, John Keeney, or some-
one else, had made such a call.
Neither Ryan nor Petersen ever asked to see the materials which
were the basis for the CIA assertion that a trial would endanger
national security.89 The record does not show that anyone in the
?
ra See pp. 10-11 supra.
va See 1975 hearing8 at 430-31.
ao Id.
e1 Id. at 60-64.
u Id. at 239
as Id. at 270.
841d. at 273-74, 284-85.
as Id. at 284-85.
w Id. at 242-43, 25.
V Id. at 265.
" Id, at 88,.68.
as Id. at 242, 277.
?
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Justice Department ever verified the facts that supported the CIA
claim. Ryan testified that "there was acceptance of the assertion by
CIA that they could not disclose the documents." 90
At the 1978 hearings, the subcommittee pressed Deputy Assistant
Attorney General Keuch on whether the Department had ever re-
solved the question of responsibility." The Department subsequently
responded that upon further investigation and review of its files,
it was unable to 'shed any new light on who had finally ordered the
dismissal.92 The Department said, however, it had since then instituted
stricter controls on such dismissals and also now prohibits a subor-
dinate from signing a superior's name without a notation showing
who has actually a xed the signature.93
The committee, after investigation, concludes that the Department
had no basis for dismissing the indictment of Khramkhruan other
than the national security assertion of the CIA. It should not on that
basis have dismissed the indictment. After the dismissal, there was
speculation that what the CIA really feared was a revelation that it
was involved in promoting Asian drug trafficking. No such proof
emerged, and the Agency denied the allegation. "CIA Counsel Greaney
testified that embarrassment to the United States and exposure of
intelligence sources and methods were both reasons the agency did
not want Khramkhruan prosecuted. 15 Classified documents subse-
quently made available for subcommittee inspection indicated that
intelligence sources and methods could have been put at risk by a trial
at which Khramkhruan was either a defendant or a witness. The
subcommittee was not in a position, however, to evaluate the extent
of the risk. When the indictment was dismissed, Khramkhruan had
already spent 11 months in jail, a time commensurate with the sen-
tences received by others who were eventually convicted in the case."
The indictment of Hoeft, against whom the Department wanted
Khramkhruan to testify, was dropped at the same time as that of
Khramkhruan.97
V. PROCEDURES To MINIMIZE DISCLOSURE WHILE PERMITTING
COURT PROCEEDINGS To Go FORWARD
The extent of potential exposure for national security material
connected to a court proceeding is affected variously by the provisions
of the Constitution, statutes, Federal court rules, past judicial de-
cisions and the orders of a judge in the particular case.
1. Public trial
The sixth amendment to the Constitution guarantees criminal de-
fendants a public trial.. Thus, unlike a military court-martial, ma-
9D Id. at 277.
oa Bee 1978 hearings at 40-49.
" Id. at 49.
w Id. at 47-49.
w See 1975 hearings at 321-224330
" Id. at 322-23. The most evident "source and method" at risk was the name of the CIA case officer super-
vising Khramkhruan. The potential embarrassment concerned ongoing uprisings in Thailand by students
who, Greaney testified,"were looking for ways to embarrass the U.B. Government, the military programs,
and other things which were going on." Id. at 322.
" Id. at 152.,
or Id.
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terials cannot always be kept secret simply by closing the doors to the
proceeding.98
2. Elements of a crime
In order to prove the elements of the crime at issue, such as es-
pionage, it is necessary to introduce at trial at least some of the classi-
fied material which was the subject of the espionage.99
3. The Jencks Act
The Jencks Act 100 requires that upon a defendant's motion, the
court must order the Government to produce any statements made by
a witness which relate to his testimony and which are in the Govern-
ment's possession. These do not have to be produced until after-the
witness has testified. At issue in the Khramkhruan case 101 were state-
ments that Khramkhruan had made to the CIA and which arguably
might have had to have been produced if he were used as a witness
against another person accused in an opium smuggling scheme.
4. Brady v. Maryland
The Supreme Court in Brady v. Maryland 102 ruled that if the de-
fendant requests exculpatory evidence material to his guilt or punish-
ment, the failure of the prosecutor to produce such material is a denial
of due process. The Court has since expanded this requirement for
disclosure even when the defense makes no request or only a general'
request for exculpatory material.103 Problems arise here when a de-
fendant claims some sort of security agency rationale for his act.l94
5. Federal Rules of Criminal Procedure S
A defendant can discover any of his written or recorded statement)
that are in the hands of the Government under rule 16 of the Feder a
Rules of Criminal Procedure. Upon request the defendant also may
inspect such items as books, papers, documents, and photographs held
by the Government if they are material to the preparation of his
defense or are intended for use by the Government as evidence at
trial. However, the scope of such discovery is within the discretion of
the trial judge. In some instances the Government has been successfu 1
in protecting national defense information through such discretion.105
6. Federal Rules of Civil Procedure
Discovery in civil cases is potentially wide-ranging with much dis-
cretion in the hands of the trial judge where the parties cannot reach
agreement.lo6 Comparable security questions are currently at issue
in the Socialist Workers Party civil damages suit against the Govern-
09 See 1978 hearings at 4.
99 Id. at 3.
118 U.S.C. ? 3500.
101 See pp 10-11 supra.
103373 U.S. 83 (1963).
103 See United States v. Agura, 427 U.S. 97 (1976).
104 For example: Defendant is charged with illegal break-in, but claims break-in was directed by an
intelligence agency. Agency denies allegation. Defendant then moves to discover documents which show
his previous ties to agency on unrelated matters, claiming these will support his account of dealings with
agency. If aterialdo .t to provide s are not rovided, however, defendant als because the would should win dismissal if judge (finds insufficient
compliance with Brady.
109 See 1978 hearings at 4.
100 See Federal.Rules of Civil Procedure 26(c), 37.
?
?
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0
ment, where Attorney General Bell has declined to reveal the names
of certain informers despite an order by the trial judge.107
In some situations, the Department of Justice may conclude that
particular materials cannot be released at trial, but also may consider
that the materials are not sufficiently relevant that the judge would
order them produced. In such situations, then, the prosecution or
other proceeding can be preserved by submitting the materials to the
judge provided he then rules them not sufficiently relevant. If the
CIA or other agency refuses to make the materials available even
for scrutiny by the judge, however, then the judge may be forced to
assume they are relevant, with the result that the case cannot be
maintained.
In the Khramkhruan case, although the CIA argued that certain ma-
terials would not have to be provided to the defense,108 the Agency
said it would refuse to make them available for examination by the
trial judge to make that determination. Thus the Department of
Justice concluded it could not, in accordance with law and legal ethics,
pursue the prosecution.109 CIA General Counsel Lapham and Deputy
Assistant Attorney General Keuch testified, however, that for at least
the two most recent years, no case has been dropped because of a refusal
to provide information for a judge's in camera review on the question
of its relevancy.110 Although the material may be highly sensitive and
the Government may be unwilling to proceed if the judge rules that
? it must be disclosed to the defense, the judge is not subjected to a
security clearance." However, other courtroom personnel such as a
stenographer transcribing an in camera proceeding may be given a
security clearance by CIA based on a background check by the FBI."2
Somewhat analogous in camera proceedings are provided for the
evaluation of citizen requested national security material under the
Freedom of Information Act.113 In these cases, the judge is empowered
to examine a contested document in camera and to determine on de
novo review whether the item is properly classified and thus with-
holdable by an agency. These determinations frequently are made
without presence of the party requesting the information, a procedure
criticized by some litigants in this field who contend that plaintiffs'
arguments could be made without compromising the information in
advance of the judge's determination."' In an FOIA case, of course, a
determination that material was not properly classified normally
leads to its release to the requester and thus to the general public.
107 See Socialist Workers Party v. Attorney General, No. 73-3160 (S.D.N.Y.). The district court's citing
of Attorney General Bell for contempt of court in refusing to divulge informant identities has been recently
overturned by the Court of Appeals. In re the Attorney General of the United States, Nos. 78-6114, 6179, 305Q
(2d Cir. Mar. 19, 1979).
109 See 1975 hearings at 333-35.
107 Id. at 124-27.
110 See 1978 hearings at 65-fib.
"I Id. at 76.
115 Id.
3135 U.S.C. I552(a)(4)(B), 552(b)(1). Exemption (b)(1) of the Freedom of Information Act permits
withholding of matters that are "(A) specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order".
u? see generally hearing on security classification exemption to the Freedom of Information Act before
a subcommittee of the House Committee on Government Operations, 95th Congress, 1st session, transcript
at.70-101 (Sept. 20, 1977).
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If the material is properly classified, then it may be withheld from
release. Proper classification would normally not be an issue in a rele-
vancy proceeding, although a judge's view of the propriety of classi-
fication could affect the nature of the protective order he might issue
if the material were relevant and the government proceeded with its
case.
Propriety of classification is an issue in certain criminal prosecu-
tions, for example, where the criminal act 's knowing and willful
disclosure of classified cryptographic information to the detriment
of the United States.115 Both the classification and harm issues have
been considered to be fact determinations for a jury, leading in some
cases to a reluctance to prosecute. It can be argued on the basis of the
FOIA experience, however, that the propriety of classification should
be considered a legal question for decision by a judge. Revision of the
criminal disclosure statute could also make the question of harm a legal
question for the judge, leaving to the jury the question of the de-
fendant's intent and whether he in fact disclosed the material. This
would reduce the need' to present classified information at a public
trial and thus the reticence to prosecute in security cases. At the same
time, such a procedure would be far less drastic than proposals to make
disclosure of classified information a strict liability crime in which the
fact of classification need not be shown to be proper.
Apart from the question of determining the propriety of the classi-
fication of a record sought as evidence at trial, the committee agrees
with the view expressed by the CIA General Counsel that. a disclosure
of any sort to the Department of Justice in the course of the erform-
ance of the Department's duties would be an authorized disclosure
not restricted by 50 U.S.C. 403(d).111
In some circumstances, material which must be presented at trial
or to the defense may be at a sensitivity level such that the Govern-
ment does not want it made fully public but is willing to release it on,
a limited basis so that the proceeding can continue. In some of these
cases, judges have issued protective orders sufficient to protect a
defendant's rights while also curbing the risk of adverse disclosure.
A recent court of appeals opinion in a civil case said that in issuing
a protective order, which would prohibit a party from revealing dis-
covered information, the trial court must consider three elements:
Nature of the harm posed by dissemination of the material at issue,
the precision of the proposed restriction on dissemination, and whether
less intrusive alternatives are available.117
For example: In the case of a former U.S. Government employee
who was arrested after throwing classified documents onto the lawn of
a Soviet office in Washington, the court issued a protective order
governing the documents and others seized at the suspect's home. The
order permitted the defense to have access to the documents, but
118 See 18 U.S.C. ? 798. The Justice Department emphasizes that the mere fact that information is classified
does not satisfy the requirements of the espionage statutes that the disclosed information relate to national
security. See 1978 hearings at 82.
1l' See footnote 15 supra.
111 See In re Halkin, No. 77-1313 (D.C. Cir. Jan. 19, 1979). In a civil proceeding, protective orders are
issued under the authority of rule 26(c) of the Federal Rules of Civil Procedure.
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21
prohibited their public disclosure and forbade the defense from
showing them to defense experts.118
In the case of two young men accused of making satellite secrets
available to the Soviets, a protective order named specific members of
the defense team who could inspect particular documents and required
court approval before anyone else could inspect the documents.
Limitations on note-taking and a prohibition on photocopying also
were imposed.119
In the case of a U.S. employee and Vietnamese accused of improperly
disclosing classified material, a protective order, among other things,
required the defense to maintain a log of persons to whom documents
at issue were shown, and very specifically described the type of secure
cabinet in which they must be kept.120
Provisions also have been made to permit a jury to see documents
when necessary to deliberations. But this disclosure has been con-
sidered by the CIA to be limited enough so that the documents have
retained their security classification.121
In prosecuting cases, however, the Department of Justice has not
always been able to win the agreement of judges to its view on what
protections should be imposed.
In the perjury trial of an International Telephone & Telegraph
Corp. executive, the judge refused to accept the Government's plan
to let prosecutors challenge potentially sensitive evidence before it
could be introduced by the defense at trial. The U.S. Court of Appeals
declined to require the trial judge to adopt such a procedure. The
Government then dismissed the prosecution. 122
Another Federal judge refused to approve the plea bargain settle-
ment of a corporate foreign bribery payment case when the settle-
ment document did not name the country or official implicated.123
This matter was resolved after the name of the country leaked out
anyhow.
Where a protective order is issued, its principal ingredients govern
who can see the material at issue and how it is to be protected physi-
cally. Because different judges issue the orders, these restrictions vary.
One order, for example, may permit defense counsel to keep copies
of materials in their safes. Another order may require counsel to
examine materials at a Justice Department secured reading room.
A standard form for such orders would provide greater consistency
of treatment and presumably ease the task of judges not routinely
used to dealing with classified information.
'u See 1978 hearings at 134-45.
1 Id. at 148-49.
uo Id. at 150-73.
121 Id. at 83-84. President Carter's 1978 Executive order on classification of national security information
does not speak directly to the issue of whether such information can be used at trial while retaining its
classification. See Executive Order No. 12065, 43 Fed. Reg. 28949 (July 3, 1978). Language in the order could
provide support for either side of an argument on this point. Section 3-303 on declassification policy provides
that "the need to protect such information may be outweighed by the public interest in disclosure of the
information, and in these cases the information should be declassified." Section 4-101 on Feneral restrictions
to access provides that no person should have access to classified information unless determined to be
trustworthy and unless access is necessary for the performance of official duties." Exceptions to this require-
ment are provided in 4-301 only for historical researchers and former presidential appointees. A Suror could
be considered to be performing official duties, but whether trustworthiness can be determined without a
security check is questionable.
~a See Washington Post, Oct. 31, 1978, p. A2; Jan. 27, 1979, p. A12; Feb. 9, 1979, p. Al; Mar. 8, 1979, p. A3.
For the Government's argument to the appellate court, see 1978 hearings at 176-211.
w See Washington Post, Oct. 25, 1978, pp. 1, 20.
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VI. RECOMMENDATIONS
The existence of the 1954 agreement between the Department of
Justice and the CIA, and the Department's handling of the dismissal
of an indictment against CIA operative Puttaporn Khramkhruan
clearly were unacceptable. In the several years since these activities
came to light, however, and in response to the subcommittee's con-
cerns expressed at hearings and elsewhere, the Department and the
CIA have both changed procedures. Therefore, some recommendations
which would have been appropriate at that time now have become
moot.
The memorandum of agreement between the Director of Central
Intelligence and the Attorney General, as revised following the sub-
committee's hearing of September 19, 1978, appears to be a suitable
basis for the CIA's carrying out its responsibilities under 28 U.S.C.
? 535. However, the committee believes that continued congressional
monitoring of the arrangement is necessary, and recommends further
oversight of the CIA's reporting of cases to Justice.
The committee recommends that the Justice Department review
its existing agreements with other agencies to confirm that they are
similarly suitable under the requirements of ? 535; special attention
should be given to such agreements with agencies having intelligence-
g~athering responsibilities. Following this review, the House Judiciary
Committee should amend ? 535 to eliminate or narrow the apparent
broad discretion given the Attorney General under ? 535(b)(2)
to exempt agencies from reporting to the Attorney General whole
categories of crimes not otherwise assigned by statute. It should be
further clarified that the section covers only the delegation of investi-
gative responsibility, not the power to decide whether prosecution
is feasible.
The committee believes that the memorandum of October 4, 1977,
from Assistant Attorney General Civiletti and the elaborating testi-
mony of Deputy Assistant Attorney General Keuch concerning re-
fusal to prosecute for national security reasons constitute a sufficient
procedure within the Department to avoid the lack of responsibility
that characterized the dismissal of the Khramkhruan indictment.
It now appears that the Justice Department is obtaining disclosure of
facts it seeks concerning alleged intelligence and law enforcement em-
ployee criminal violations. The Justice Department, not the affected
agencies, makes an evaluation on a case-by-case basis whether or not
to prosecute these violations. However, any procedure is subject to
the good faith of those persons carrying it out and any procedure may
be eroded over time as the reasons for the procedure fade in memory.
Therefore, the committee recommends:
The procedure concerning refusal to prosecute for national se-
curity reasons should be promulgated by the Attorney General
in a permanent fashion; and the Attorney General should spe-
cifically designate a departmental official or officials at the level of
Assistant Attorney General or higher to approve such a refusal.
Although each case is unique, the Department should attempt to
set out some general criteria against which to measure arguments
for and against prosecution. This would assure that considerations
?
?
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common to most cases-for example, public interest, propriety
of security classification, and age of the events or documents in
question-are always taken into account, not inadvertently for-
gotten because of emphasis on some other consideration.
In negotiating with agencies over the availability of national
security material, the Department should, where appropriate,
request that the agency conduct a formal declassification review
of the material at issue before the Department accepts an agency's
assertion that the material cannot be used. The Department
should consider it proper in the case of disputed material to re-
quest classification review by the Information Security Oversight
Office created under Executive Order 12065.
Copies of the written justification required by the policy for
a refusal to prosecute should be provided to the House and Sen-
ate Intelligence and Judiciary Committees on an informational
basis in cases where the charge not prosecuted is a felony.
The committee also recommends:
In cases which have attracted broad public attention but which
the Department declines to prosecute, the Department should
state its reasons publicly at least to the extent that rights of
putative defendants are not abrogated. The Department's state-
ment of January 1977, concerning its decision not to prosecute
CIA mail-openings in the United States is an, example of such a
public statement.
The Department should draft a proposal for the development
of a specific framework for consistent use of judicial protective
orders concerning national security matters at trial. This pro-
posal should include a model protective order or orders. The pro-
posal should then be presented to appropriate bodies such as the
advisory committees concerned with the Federal rules of evidence,
civil procedure and criminal procedure. The committee's ob-
jective in this recommendation is to promote the ability to prose-
cute, defend or litigate in such cases while lessening security risks.
The objective is not to give the Government additional grounds
for refusing to produce such material to defendants or litigants.
The President should consider amending Executive Order
12065, section 4-3, with appropriate security clearance mecha-
nisms, to provide for juror access to national security informa-
tion. This would permit the use of such information at trial with-
out raising the argument that such use results in declassification
of the information.
The Committee on Government Operations should hold hear-
ings in coming months to review legislative proposals to resolve or
alleviate many of the issues covered in this report.
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APPENDIX
DEPARTMENT OF JUSTICE DECISION ON PROSECUTION
OF CIA MAIL-OPENING, JANUARY 14, 1977
Report of the Department of Justice Concerning Its Investigation and
Prosecutorial Decisions With Respect to Central Intelligence
Agency Mail Opening Activities in the United States
The Department of Justice has decided, for reasons discussed in this
report, not to prosecute any individuals for their part in two programs
involving the opening of mail to and from foreign countries during the
years 1953 through 1973.
On June 11, 1975 the President transmitted to the Attorney General
the report of the Commission on CIA Activities within the United
States (the Rockefeller Commission). The President asked the Depart-
ment of Justice to review the materials collected by the Commission,
as well as other relevant evidence, and to take whatever prosecutorial
action it found warranted. At the direction of the Attorney General,
the Department's Criminal Division conducted an investigation to
determine whether any Government officer or employee responsible
for CIA programs described in chapter 9 of the Commission report,
involving the opening of mail taken from U.S. postal channels, or
responsible for, related or similar activities of the Federal Bureau of
Investigation, had committed prosecutable offenses against the
criminal laws of the United States. Such an investigation was im-
mediately begun by the staff of the Criminal Division and regular
reports on its status were made to the Attorney General.
On March 2, 1976, the Senate Select Committee to Study Govern-
mental Operations with Respect to Intelligence Activities acceded
to the Department's re quest that the Criminal Division be allowed
access to the documentary evidence in its possession concerning the
projects. In August 1976 the Criminal Division submitted to the
Attorney General a report summarizing the evidence it had acquired,
and analyzing the legal questions that potential prosecutions would
present. The report concluded that it was highly unlikely that prosecu-
tions would end in criminal convictions and recommend that no
indictments be sought.
Because of the importatice of this recommendation and its conclusion
that a prosecution would so likely fail, the Attorney General and the
Deputy Attorney General asked the Criminal Division to review its
analysis and findings, and in addition asked experienced criminal
lawyers in the Tax Division to undertake a review. As part of the
review process, three experienced U.S. attorneys, and two specially
appointed consultants, Professors Herbert Wechsler and Philip B.
Kurland, were asked to participate in an evaluation of the recom-
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25
mendations with the Attorney General, the Deputy Attorney General,
the Solicitor General, and the Assistant Attorney General for the
Criminal Division.'
The Department has now completed its investigation into the mail-
opening projects and has examined in detail the elements of the crimes
that may have been committed, the defenses that might be presented,
and the proof that would be required to establish the commission of
crimes and refute the expected defenses.
Although the Department is of the firm view that activities similar
in scope and authorization to those conducted by the CIA between
1953 and 1973 would be unlawful if undertaken today, the Depart-
ment has concluded that a prosecution of the potential defendants
for these activities would be unlikely to succeed because of the un-
availability of important evidence 2 and because of the state of the
law that prevailed (luring the course of the mail-openings program.
It would be mistaken to suppose that it was always clearly per-
ceived that the particular mail opening programs of the CIA were
obviously illegal. The Department believes that this opinion is a
serious misperception of our Nation's recent history, of the way the
law has evolved and the factors to which it responded-a substitution
of what we now believe is and must be in the case for what was.
It was until recent years by no means clear that the law and, ac-
cordingly, the Department's position, would evolve as they have.
A substantial portion of the period in which the conduct in question
occurred was marked by a high degree of public concern over the danger
/of foreign threats. The view both inside and, to some extent, outside
? #he Government was that, in response to exigencies of national
security, the President's constitutional power to authorize collection
of intelligence was of extremely broad scope. For a variety of reasons
judicial decisions touching on these problems were rare and of am-
biguous import. Applied to the present case, these circumstances
lead to reasonable claims that persons should not be prosecuted
when the governing rules of law have changed during and after the
conduct would give rise to the prosecution. They also would
support defenses, such as good faith mistake or reliance on the approval
of government officials with apparent authority to give approval.
Whether these arguments would be acceptable legal defenses is not
necessarily dispositive. As Judge Leventhal has reminded us: 3
Our system is structured to provide intervention points that
serve to mitigate the inequitable impact of general laws while
avoiding the massive step of reformulating the law's require-
ments to meet the special facts of one harsh case. Prosecu-
I In the course of these deliberations, it became clear that no decision to prosecute could responsibly be
made on one of the two mail-opening projects-the West Coast project which is described on pages 20-21,
Infra-within the 5-year statute of limitations set forth in 18 U.S.C. ? 3283. In any event, it was the unani-
mous view that, because the West Coast project was of relatively brief duration, small in scale, and directed.
only to incoming mail, any potential prosecution Inevitably would focus on the CIA's East Coast mail-
openings, described on pages 7-19. These openings ended in early 1973, and only the last year of the project
is within the statute of limitations. This is enough, however, to allow a prosecution to be commended with
respect to these acts and the entire agreement, dating to 1953, to open mail.
' Important evidence would be missing because of the great length of time between the commencement
of the mail openings and the holding of a potential trial. Many important participants in the process have
died, and because some of the events occurred a generation ago, the memories of other witnesses have
dimmed.
United States v. Barker, C.A.D.C. No. 74-1883, decided May 17, 1976 (dissenting, opinion), quoting
from United States v. Dotterwetch, 320 ill.s. i77,285 (1943).
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tors can choose not to prosecute, for they are expected to use
their "good sense * * * conscience and circumspection" to
ameliorate the hardship of rules of law. Juries can choose not
to convict if they feel conviction is unjustified, even though
they are not instructed that they possess such dispensing
power.
These factors would make difficult a showing of personal guilt.
The issue involved in these past programs, in the Department's
view, relates less to personal guilt than to official governmental
practices that extended over two decades. In a very real sense, this
case involves a general failure of the Government, including the
Department of Justice itself, over the period of the mail opening
programs, ever clearly to address and to resolve for its own internal
regulation the constitutional and legal restrictions on the relevant
aspects of the exercise of Presidential power. The actions of Presi-
dents, their advisors in such affairs, and the Department itself might
have been thought to support the notion that the governmental
power, in scope and manner of exercise, was not subject to restric-
tions that, through a very recent evolution of the law and the De-
partment's own thinking, are now considered essential. In such
circumstances, prosecution takes on an air of hypocrisy and may
appear to be the sacrifice of a scapegoat-which increases yet again
the likelihood of acquittal. And in this case, an acquittal would have
its own costs-it could create the impression that these activities
are legal, or that juries are unwilling to apply legal principles rig-
orously in cases similar to this.
Where a prosecution, whether successful or not, raises questions of
essential fairness, and if unsuccessful could defeat the establishment
of rules for the future, the Department's primary concern must be the
proper operation of the Government for the present and in the future.
The Department of Justice has concluded, therefore, that prosecution
should be declined. At the same time, however, the need of eliminating
legal ambiguities and of guiding future conduct in this field demands
a precise public statement of the Department's position on the law-
namely, that any similar conduct undertaken today or in the future
would be considered unlawful. Ordinarily public announcements of
reasons for declining prosecution are not made, for they may invade
the privacy of the potential defendants and charge them with mis-
conduct while denying them an opportunity to respond in court. The
circumstances of this case justify an exception to that rule. Publication
of the Rockefeller Commission and Senate Select Committee reports,
with their extensive descriptions of the mail opening programs, sub-
stantially diminishes any harm to the potential defendants' reputa-
tions that could be caused by public explanation of the Department's
position. The harm is further diminished by the description of the
circumstances and the considerations of fairness on which the Depart-
ment's decision not to prosecute ultimately rests.
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6
ADDITIONAL VIEWS OF HON. PAUL N. McCLOSKEY, JR.
In 12 years in the House of Representatives, I have not been privi-
leged to see a more important report issued by this committee. Included
in its 26 pages of discussion are several points of such significance to
our constitutional evolution as to merit special comment.
(1) For 20 years, between 1954 and 1973, the Attorney General of the
United States effectively declined to prosecute crimes committed by
CIA employees.
(2) He did so under a law which this report recommends now be
amended-section 535 (b) (2) of title 28, U.S. Code, a law enacted in
1954 which gave the Attorney General discretion to waive investiga-
tion of crimes by an agency if he chose to do so.
(3) During the same 20-year period, 1954 to 1973, it was the view of
Presidents and their advisors that national security justified the com-
mission of crimes by CIA personnel.
(4) Pursuant to this view, the Attorney General agreed with the
Director of the CIA in 1954, that the CIA need not disclose criminal
acts by CIA employees to Justice for prosecution. This agreement
lasted until the Watergate disclosures of 1974, and but for this com-
mittee's oversight. hearings, would probably still be in effect.
In recommending that all CIA criminal activity be required to be
fully disclosed to the Justice Department, and in obtaining both CIA
and Justice's assent thereto, at least for the present, the committee
has done far more than force mere disclosure of hitherto-hidden in-
formation. The requirement of disclosure should have the practical
effect of inhibiting CIA criminal conduct itself. Certainly CIA man-
agers will be inhibited from authorizing such conduct on grounds of
national security.
This new standard of conduct for intelligence operations should be
understood for what it is-a radical change of a policy which existed
for 20 years. As the landmark Justice Department decision of Jan-
uary 14,1977; appended to this report, states :
* * * The actions of Presidents, their advisors in such
affairs, and the Department itself might have been thought
to support the notion that the Government power, in scope
and manner of exercise, was not subject to restrictions that,
through a very recent evolution of the law and the Depart-
ment's own thinking, are now considered essential
* * * * * * *
* * * The view both inside and, to some extent, outside
the Government was that, in response to exigencies of na-
tional security, the President's constitutional power to author-
ize collection of intelligence was of extremely broad
scope***
"was of extremely broad scope" was polite language for "included ap-
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28
As late as November, 1973, the President and most of the. Congress
felt that the national security justified ordinary criminal conduct such
as burglary, or in the words of the trade, "surreptitious entry."
In November, 1973, however, a significant event occurred. White
House assistant Egil Krogh, facing trial for the, burglary of a doc-
tor's office (in order to obtain potentially embarrassing records on
Viet Nam War opponent Daniel Ellsberg) placed the national security
issue in a different perspective.
Pleading guilty, Krogh stated to the Court :
The sole basis for my defense was to have been that I acted
in the interest of national security. However, upon serious
and lengthy reflection, I now feel that the sincerity of my
motivation cannot justify what was done, and that I cannot
in conscience assert national security as a defense. I am there-
fore pleading guilty because I have no defense to this charge.
My decision is based upon what I think and feel is right
and what I consider to be the best interests of the nation.
Subsequently, the convictions of Attorney General Mitchell and top
Presidential aides Haldeman and Ehrlichman formalized the demise
of national security as a defense to crime.
That national security is no longer 'a defense to criminal conduct,
however, imposes an even greater burden on the Office of the Attorney
General, since as the committee report recognizes, there are some cases
of criminal conduct which should not be prosecuted because the na-
tional security may require that the facts of either the crime or the
defense not be publicly disclosed.
If the decision to prosecute is to be made solely by the Attorney
General, and if public faith in the integrity of the process is to be
restored, it seems clear the public must have faith that the Attorney
General is wholly immune from the political influence which tradition-
ally accompanied the Cabinet Office of the Attorney General. Elliot
Richardson's resigning as Attorney General rather than discharging
Special Prosecutor Archibald Cox set the historical example. No longer
can a President appoint his brother, as did Jack Kennedy. No longer
will an Attorney General serve as a President's campaign manager as
John Mitchell served Richard Nixon.
I think Gerry Ford's greatest contribution to the Nation may per-
haps turn out to be his appointment of the nonpolitician, Edward Levi,
as Attorney General-and the preserving of the Attorney General's
independence from Presidential influence in matters of political con-
cern such as the Boston School case and the charges against the Presi-
dent himself by the Maritime Unions which were ultimately dis-
credited.
It would seem that President Carter, in the appointment of Attorney
General Griffin Bell, has continued the tradition of independence set
by Richardson and Levi, and hopefully the tradition will become a
permanent one.
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