COMMENTS ON ISOO DRAFT REVISION OF EXECUTIVE ORDER 12065

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85B00552R001000070045-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 20, 2016
• Document Release Date: July 6, 2007
• Sequence Number: 45
• Content Type: REGULATION

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COMMENTS ON ISGO DRAFT REVISION
OF EXECUTIVE,?ORDER 12065
A. Page 7, Section 1-302
Change to read "Information that is determined to concern one
or more of the.categories in Section 1-301 shall be
classified when an original classification authority also
determines that its unauthorized disclosure, either by itself
or in the context of other information, reasonably could be
expected to cause.damage to. the national security."
As presently-drafted, the consideration of information in the
context of other related information is limited to fitting
that information into a classification category under Section
1-301 rather than satisfying the damage or harm standard of
Section 1-302 itself. The importance of permitting agencies
to consider this "aggregate" effect in classifying
information is to enable agencies to realistically assess the
potential damage.of disclosure. As amended, this section now
authorizes agencies to consider the disclosure of related
.information in making this damage determination.
B. Page 8, Section 1-303
Change to read "Unauthorized disclosure of 'foreign government
information, the identity of a confidential foreign source,
. or information relating to. intelligence activities (including
special activities), or intelligence sources or methods, is
presumed.to cause damage to the national security."
The addition of "intelligence activities (including special
activities)" is consistent with similar constructions
throughout the draft.
C. Page 9, Section.1-501
Move the parenthetical provision in 1-501(a) and 1-501(b) to
the main paragraph of.1-501, where it appeared in a previous
draft.
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This marking exclusion must appear in the main paragraph in
order to cover all markings. There are circumstances in
which any type of U.S. marking would reveal a confidential
D. Page 16, Section 3-301
:The last sentence of-Section 3-301 should be separated and
made into a new Section 3-303. Additionally, the last five
words of this sentence should be deleted.
This.provision for establishing special Secretary of Defense
and DCI review procedures should be separate to make clear
that the procedures may apply to all agencies, not just the
National Archives. In establishing these procedures,
mandatory consultation with affected agencies should not be
required (even though such consultation normally occurs).
-declassify such information in the possession and control of
,counsel, to a President or acting on behalf of a President is
exempted from the provision of Section 3-401. The Archivist
of, the United States shall have authority to review and
President, or others specifically providing advice and
originated by a -President',the White House Staff,-by
committees, commissions, or boards appointed by the
Restructure the first two sentences to read: "Information
E. Page 18, Section 3-402
the Administrator of General Services pursuant to Sections
..210:7, 2107:'note, or 2203 of Title 44 U.S.C."
This. is consistent with the coverage of Archivist authority
':only that information. in GSA.custody.
:.provided elsewhere in the draft, which authority includes
F. Page 19, Section 3-404
The-fourth sentence of Section 3-404 should be separated and
numbered Section 3-405.- The present Section 3-405 should be.
.,renumbered, 3-406.
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As with Section 3-301 (comment D. above),., the provision:
covering special Secretary of Defense and DCI review
procedures should be. separated to indicate that these
procedures have general effect. The addition of the new
authority for Archivist review in Section 3-402 (comment E
above) also requires that this provision be separated to make
clear that it is not tied solely to the "mandatory review"
provision of Section 3-404.
G. Page 2
Section 4-202
.,section.
Delete entire
This requirement is unclear, unnecessary, burdensome and has
failed to work in present Executive Order 12065.
H. Page 28, Section 5-402
Change the introductory clause of Section 5-402 to read
"Appropriate sanctions may be applied to any person who..."
Under the present draft, the application of sanctions is
limited to "officers or employees of the United States
Government" who commit any of the enumerated acts.
.Appropriate sanctions should. also be authorized against non-
.-employees who are provided access to classified information
and violate the terms of the Order. This would explicitly
authorize agencies to take any action "in accordance with
applicable law and'agency regulation" as provided in Section
5-403, including the termination of present and denial or
future access to such classified information by non-
.employees.
Add the following language: "Sanctions may include
reprimand,-suspension without pay, removal, termination of
classification authority, loss or denial of access to -
classified information, or other sanction..."
I. Page'28, Section 5-403
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The Order should explicitly state that a loss of current
.access to. classified information, or a-denial of requested
access at some future date are appropriate sanctions for
violations of the order. This is particularly true in the
case of contractor personnel and other individuals who are
not "employees" and thus not subject to many of the other
Change the last sentence to read "Either shall ensure that
the Director of the Information Security Oversight Office is
informed periodically of "violations under Section 5-402(a)
or (b) ."
J. Page 29, Section 5-404
Notifying D/ISOO on each occasion when there is an improper
disclosure of classified information could adversely impact
the Agency's polygraph program. Periodic notification of
such violations will permit ISCO to fully perform its
oversight function in this area.
K. Page 31, add Section 6-108
cryptography and communications security.
6-108. "Cryptology," for the purposes of this.Order, means
This-definition.reflects the current Intelligence Community
understanding that the Director of Central Intelligence is
-responsible for the portion of intelligence sources and
.methods known as signals intelligence (SIGINT) and the
.:Secretary of Defense is responsible for communications
..security (COMS.EC) matters. Without this definition, Section:
..4-201 of the ISOO draft is in direct contravention to the
statutory authority of the DCI. Furthermore, NSCID 6
specifically makes the DCI responsible for SIGINT security
policy. According to the official, current, Intelligence
Community Glossary of Intelligence terms, "cryptology"
includes both SIGINT and COMSEC. As.an alternative to the
addition of a definition for "cryptology," the word
"cryptography" or "cryptographic" might be substituted for
"cryptology" or "cryptologic" throughout the ISOO draft.
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L. In addition to the above comments, we support the ISOO
wording changes in Sections 1-101(a),'1-103, 1-204(e), 1-205,
1-303, 1-501,.2-102(b), 3-401(b), 3-404, 5-202(d), 5-202(g),
5-301(b), 5-402(a), and 6-106. Further, we do not object to
the changes in Sections 1-301(j), 1-401,
1-402,
1-501(c),
3-203, 3-401(a),'3-403, 3-405(b), 4-101,
5-102,
5-301(c), and
6-107. Also, there are two typographical
errors
in the last
sentence of Section 3-301. There is an extra comma' preceding
the parenthesis in this sentence, and "sources and methods"
should read "sources or methods." Additionally, the "could
reasonably" in Section 6-106 should read "reasonably could."
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