APEX - NONDISCLOSURE AGREEMENT (NDA)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85T00788R000100100020-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 15, 2016
• Document Release Date: December 9, 2003
• Sequence Number: 20
• Publication Date: July 22, 1980
• Content Type: MF

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22 July 1980
MEMORANDUM FOR: Director of Central Intelligence
THROUGH : Deputy Director of Central Intelligence 0 LLl
STAT FROM
I SA to the DCI for Compartmentation
SUBJECT : APEX - Nondisclosure Agreement (NdA)
REFERENCE : Para 5 of your 17 July 1980 MFR Concerning
16 July Conversation with Secretary of State
1. Mr. Silver, et al, will respond to the specific questions
and action in your memorandum. Paragraph 4. contains options.
Paragraph 5 makes a recommendation.
2. When I received your note on your 16 July conversation
with the Secretary of State, I thought perhaps that we had awakened
some sleeping dogs. The State objection to the Nondisclosure
Agreement.(NdA) might actually be an objection to the prohibitions
in the old Form 4066. That is, I thought perhaps that State was
objecting to the existing obligation to protect SCI forever, or,
as paragraph 10 of 4066 states, "at all times thereafter." In
order to test this thesis, I talked to several people in State
about whether or not the Secretary would go along with continued
use of the old form. The answers (of uncertain correctness) were
that he would agree to continue use of Form 4066. Subsequent conversation
suggests
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very strongly that the State objections are more emotional than
logical and are based significantly, in part, on the fact that
State neither has nor wishes to create a mechanism to review
manuscripts prior to their being presented to the the public.
Further, State objects to the concept that prepublication review
could ever be required by any senior State official. In my view,
the problem with the NdA is not that it can be interpreted as
requiring a rather broad group of things be submitted for review,
but that anything must be submitted for review.
3. OGC's effort in composing the NdA had several objectives.
In addition to protecting SCI, the language also was aimed at
protecting the individual who must sign the NdA in the light of the Snepp
case. The NdA unlike the-existing Form 4066, provides a way for an
individual who had had access to SCI to write or speak without being
subject to jeopardy from US-instituted action like that used
against Snepp. The device providing that protection is contained
in the paragraphs to which State objects. Those paragraphs allow
the person who wishes to write to transfer to the Government the
responsibility for determining if his or her material impinges on
SCI. The Government obligates itself to act quickly to either bless
or. suggest modifications in the writing. By this assition of
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work and responsibility, the Government, again, takes away what is now
Snepp-like jeopardy for anyone who writes or speaks about his or her
work or career and who had access to SCI. Again, as I understand it,
State does not feel the need to provide that protection to the individual
who wishes to write and even more strongly objects to providing the
mechanism that would provide that protection. I do not hold the State
view to be a logical one. The existing Form 4066 says: "Unless I am
released in writing by an authorized representative of the United States
Government. . .", I won't publish. I do not understand how State can
believe that one can get a "release in writing" without a prepublication
review, but State, nevertheless, feels that Form 4066 does not require a
prepublication review and will, again, continue to accept it.
4. All of the above notwithstanding, we need to proceed if APEX is
ever to get off the ground. I still see the same options that were
discussed with you and the DDCI two weeks ago:
a. Promulgate the existing Nondisclosure Agreement, which I
think would be accepted by the rest of 'FIB and the contractor
world. This would leave State with three options:
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(1) Fall in line:
(2) Appeal to NSC per PD/NSC-55;
(3) Refuse to sign. You would then presumably
cut-off State access to SCI and we would wind up as
if they had appealed--in the White House;
b. Explain the problem to the President or the
White House staff and ask for guidance;
c. Reissue Form 4066 with minor modification in
paragraph 1 to make explicit the existence of APEX and
to remove specific access listings from the form. This
..option would not be well regarded by 0GC because:
(1) the document may not be "legally
sufficient;
(2) the signer of the` new 4066 would not
receive adequate guidance on how to protect
him or herself from Snepp-like jeopardy;
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(3) The document is not well written in
d. Exempt State, in whole or in part, from the APEX requirement.
I vehemently oppose such a decision.
?5. Again, the proposed NdA does not, in my view increase the
obligations imposed on the signer of the existing 4066, but it does make
his or her obligation more clear and it does provide direction for his
or her safety not contained in Form 4066. The clarity and protection
points have been effectively sold to the APEX Steering Group and to many
of the Community's lawyers by 0GC people, especiallyl and would
need be unsold if Option c. is selected. Option d., to me, is unthinkable.
I see little realistic difference between Option a. and Option b.
Option a. permits State to back off. State, under Option a., has to
create the confrontation at the White House level. Under Option b., you
would create that confrontation. PD/NSC-5S is quite explicit: "Uniform
security standards established by the Director of Central Intelligence
will govern access to, distribution of, and protection of intelligence
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sources and methods. . ." The APEX security policy manuals that you
have approved specify signing of a single Community-wide NdA as a
major part of your standards. I have hope, albeit small, that OGC will
be able to bring State along with the Nondisclosure Agreement. If,
however, OGC is unable to persuade State, I recommend that you direct
me to promulgate the NdA (Option a.)..
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