LETTER TO MR. DONALD G. SANDERS (Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00821R000100100008-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 14, 2016
• Document Release Date: December 27, 2002
• Sequence Number: 8
• Publication Date: September 28, 1978
• Content Type: LETTER

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78- 3037/a
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OGC Has Reviewed
Office of Legislative Counsel
Mr. Donald G. Sanders, Special Counsel
Select Committee on Ethics Subcommittee
United States Senate
Washington, D. C. 20510
Dear Don:
Your memorandum of 18 September concerning access to classified
material on the part of attorneys retained by an individual being- interviewed
by the Subcommittee staff raises difficult questions involving a potential
conflict between the disclosure demands of the Subcommittee's investigative
process and the DCI's statutory responsibility for the protection of intelligence
sources and methods. These ,questions are analogous to the dilemmas that
arise in criminal prosecutions when the disclosure demands of the judicial
process confront the secrecy imperatives of intelligence work.
Admiral Turner recently addressed this vexing problem in testimony
before the Senate Select Committee on Intelligence Subcommittee on Secrecy
and Disclosure. He declared that the serious adverse consequences flowing
from unauthorized disclosures of intelligence information give great cause
to support prosecution of perpetrators when violations of criminal. statutes
are involved, and that there is an incentive "to lean over backwards in
releasing information which is essential to such judicial proceedings. "
(Hearings on the use of Classified Information in Litigation, 1 March 1978,
p. 13). Admiral Turner also noted the important deterrent effect of such
prosecutions.
We believe these considerations also apply to the work being done
.by the Morgan-Schmitt Senate Select Committee on Ethics Subcommittee,
and it is our desire to be as cooperative with the Subcommittee's investigative
efforts as security considerations will allow. The Agency and the Subcommittee
have a common interest in making the Subcommittee an effective deterrent
against unauthorized disclosures.
As you know, several procedures aimed at allowing prosecutidnss to
proceed while mitigating somewhat the danger of exposing national security
information have, with the cooperation of the courts, been successfully
employed in connection with in camera pre-trial matters during some
recent criminal prosecutions: These procedures have included protective
orders with violations punishable by citation for contempt of court, the
execution of nondisclosure agreements by defense attorneys, and, in
some cases, the conduct of background investigations and the granting
of security clearances to defense counsel by the Department of Justice.
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Analogous procedures appear to he available under the Rules of
Procedure of the Select Committee on Ethics. We note that Rule 6(b)
provides for the receipt of testimony in executive session, and that
protective provisions regarding testimony so taken are contained in
Rules 1(i) and 6(k). We also note that other protective provisions are
contained in the Adjudicatory Hearing Procedures spelled out in Rule 6(j).
These include:
-- Provision for an "appropriate agreement limiting access
and disclosure" to information and documents provided by the
committee to a respondent. (Rule 6(j)(2)(A)).
-- Provision for discretionary recommendation by the Committee
to the Senate that an individual violating an agreement limiting
access and disclosure be cited for contempt of Congress.
(Rule 6(j)(2)(C)).
Without presuming to tell the Subcommittee how to conduct its business,
we would note that the right to counsel in committee proceedings appears
to arise in conjunction with an adjudicatory hearing (Rule 6(j)(4)), and that
Rule 6(c) provides that any executive hearing maybe designated as an
adjudicatory hearing.
While the protection that would be afforded by the use of executive
session and the above-mentioned provisions available in connection with
adjudicatory hearings are significant, it is also substantially less sure,
swift, and severe than the judicially imposed sanction of contempt in
a criminal prosecution. We believe, therefore, that fulfillment of the
DCI's statutory responsibilities would require that we also be given the
opportunity to issue appropriate temporary security clearances meeting
the standards set forth in DCID 1/14 to the attorneys involved.
Again, let me reiterate our desire to facilitate the Subcommittee's
investigation. In answer to the specific question raised in your
memorandum, then, we would be willing to consent to access by the
attorneys under the following conditions:
- - That access would follow the granting of an appropriate
security clearance. Such a clearance would be procured
in the same fashion as are clearances for Subcommittee
staff members.
That the attorneys would execute an "appropriate agreement
limiting access and disclosure as called for by Rule 6(j)(2)(A)
of the Select Committee on Ethics' Rules of Procedure. The
Nondisclosure Agreement between the Subcommittee and its staff
could be modified for this purpose. It would, of course, also
be necessary for the respondent to execute such an agreement.
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---- That it would be made clear to all parties that violation .
of the agreement limiting access and disclosure could
lead to a recommendation that the offender be cited
for contempt of Congress.
-- That proceedings involving classified material be~helci'in
executive session, and that the protective provisions in the
Rules of Procedure relating to executive session testimony
be strictly adhered to.
We believe these conditions would be appropriate both for the specific
matter now before the Subcommittee and in similar situations that may arise
in the future. The Subcommittee's agreement to these conditions would
serve to make paragraph 11 of the Memorandum of Understanding between the
Subcommittee and the DCI inapplicable. We believe that an exchange of
letters in which the Subcommittee proposes to follow the procedures
outlined above and the DCI concurs would be sufficient to constitute
official consent, but we would be amenable to a formal amendment to
the Memorandum of Understanding if this is the Subcommittee's preference.
I would be happy to have my staff discuss this matter further with you
at your convenience.
Deputy Legislative ounsel
STATINTL
Distribution:
Original -Addressee
1-Os
1-OG
1-OLC Subject
1-OLC Chrono
OLC:GMC:mlg (25 Sept 1978)
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