PROPOSED REVISION OF E.O. 12065

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B01034R000200050047-8
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 5
• Document Creation Date: December 16, 2016
• Document Release Date: July 26, 2005
• Sequence Number: 47
• Publication Date: October 29, 1981
• Content Type: MFR

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MEMORANDUM FOR THE RECORD
Policy and Plans Group
Office of Security
LBV@E
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SUBJECT: Proposed Revision of E.O. 12065
REFERENCE: Memo of 10 October 1981 to DCI from D/ISSO
1. On 22 October 1981, the C/PPG and the undersigned
met with of OGC to discuss provisions of
Subject in terms of objection/clarification. The specific
provisions discussed and the results of discussion are
identified and presented below.
a. 1-204(b) contains an addition that gives the
D/OIS and his counterparts in other agencies the
authority to delegate Top Secret classification
authority. Delegation, within CIA, is a line func-
tion and it was not considered appropriate that the
official charged with implementation and internal
oversight of the pro osed order should have the
cited authority. I lopined that the author-
ity, if granted, WOUICL e a pro forma function;
i.e., listing of those given authority by others.
b. 1-401 calls for setting a specific date or
event for declassification when the information is
originally classified. No provision is made for a
date for review to determine if declassification is
appropriate. I I advised that the Agency is
not precluded rom con inued use of an established
date for review.
c. 1-402 provides that declassification deter-
minations under predecessor orders will remain valid
unless extended by an authorized official of the
originating agency. This raised the question as
to whether the Agency can extend some or all cate-
gories of information. r -1 stated that the order
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permits extension of all categories. This, of
course, permits the discretion to change any pre-
viously assigned dates for declassification or
review.
d. 1-5 appeared to simplify the justification
for original classification and to eliminate the
need to mark portions. I Iconfirmed that
both interpretations were correc .
e. Section 1-602 is a new provision that
permits reclassification of information upon a
determination it requires protection in the interest
of national security and if "the information may
reasonably be recovered." The latter condition
was not believed to make sense in terms of the
likelihood that information released into the
public domain can be recovered. However, as
explained by reclassification can
be accomplishe wi ou positive assurance of
recovery; all that is needed is a "reasonable"
assumption released information can be recovered.
This may cause problems but, as a legal determi
nation, is not ours to criticize.
f. Section 2-201 gives a definition of
derivative classification as "the determination
that information is in substance the same as
information currently classified, and the appli-
cation of the same classification markings."
This is confusing in that new information may
be related but is seldom the same as that on
hand either in content or substance.
agreed with this approach and stated the passage
should be reworded. A revision will figure in
OS comments/suggestions on Subject.
g. Section 2-201 was changed to state clas-
sification guides "shall" be instead of "may" be
prepared. Use of the imperative appears to be
inconsistent with a new Section 2-203 that permits
agency heads, "for good cause, to grant or revoke
waivers of the requirement to prepare classification
guides for specified classes of documents or
information." did not perceive any
obvious inconsistency, presumably on an application
of logic that a qualified mandate is still a mandate.
h. Section 3-301 deals with guidelines intended
to establish when systematic review is permissive.
Clarification by I established that review
is permissive except when classified records have
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been accessioned by the Archivist. In the latter
situation there is a measure of agency-head control
through submission of systematic review guidelines
or, in the case of foreign government information,
consultation with the D/ISSO in preparation of
guidelines. The significant provision of the sec-
tion involves the authority of the DCI to establish
"special procedures" for systematic review for
declassification, which translates into authority
to effectively eliminate any restriction on the
duration of classification. This is not an inno-
vation, the same provision was included in the
final draft of the interagency working group's
proposed revision of E.O. 12065.
i. Section 4-102 drops the sentence "Originating
agencies may place restrictions on the reproduction
of classified documents and establish other account-
ability controls in conformity with this policy of
protecting". Presumably, deletion represented an
attempt to simplify the order by dropping mention
or reference to markings that limit distribution or
reproduction. This issue was not raised with Mr.
because it is of primary concern to the DO,
as t e component that limits dissemination,and.NFAC,
responsible for ensuring the DO restrictions.
Further, it was not discussed because the implement-
ing directive is the vehicle for providing detailed
guidance on matters considered implicit to the broad
provisions of an Executive Order. PPG interest
concerns a probable revision of
j. Section 4-201 was revised to add provisions
that (1) special access programs pertaining to
cryptology may be created and continued only at the
written direction of the Secretary of Defense and
(2) special access programs pertaining to intelli-
gence activities (including special activities), or
intelligence sources and methods may be created and
approved by the DCI. The question was directed to
if this would permit NSA to consider
WMINT as 'pertaining to cryptology," and the answer
was in the affirmative.
In the PPG view, the above additions limited
the authority of the DCI and removed him from a role
in COMINT compartmentation. This approach is supported
by deletion of the sentence "For special access programs
pertaining to intelligence activities (including special
activities), or intelligence sources and methods, this
function will be exercised by the Director of Central
Intelligence, who shall ensure the establishment of
common security, access, dissemination and control
standards for such programs."
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It was pointed out to that
COMINT information most certainly involved
intelligence sources and methods and to permit
any interpretation to the contrary could be in
conflict with the National Security Act of 1947,
especially the provision that "the Director of
Central Intelligence shall be responsible for
protectin intelligence sources and methods."
was noncommittal on this point and
left the impression that Subject was a fait
accompli. He also was noncommittal regarding
an expressed opinion that Agency acceptance of
denegration of the DCI's authority was ill-advised.
k. Section 4-202, an addition, states that
each agency head has accounting responsibility
for special access programs and that the D/ISSO
will have non-delegatable access to all such
accountings. The meaning of this was not apparent
to PPG and to the undersigned it could be inter-
preted as a substitute for the deletion in Section
4-201 mentioned above. To "accounting"
involved control to ensure justification of a
special access program. This may have been the
intent, but such intent is not expressed in the
language. Another interpretation of "accounting"
could involve "common security, access, dissemina-
tion and control standards," in which case the new
Section would transfer the DCI responsibility to
protect intelligence sources and methods to the
D/ISSO.
1. Section 5-404 contains an addition that
each agency head shall ensure that the D/ISSO is
promptly notified whenever (1) officers and
employees of the U.S. Government "knowingly,
willfully or negligently disclose without authori-
zation properly classified under this Order or
predecessor orders," and (2) "knowingly and
willfully classify or continue the classification
of information in violation of this Order or any
implementing directive." There is no objection
to the second reporting requirement, however, OS
cannot accept the first. Many or most instances
of unauthorized disclosure are developed during
polygraph examinations and it is not considered
appropriate that an extraordinary security tool
should figure in a reporting requirement not
specified in the ISSO charter (Section 5-2).
There are legal considerations associated with
polygraph derived information and, as written,
a. possible cover problem, if the D/ISSO wants
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offenders identified and intends to get into the
act regarding imposition of an appropriate penalty.
Finally, handling violations is an internal matter
governed by internal policy and regulations. This
is the business of OS and Agency line management
and it is enough that we observe prescribed sanc-
tions set forth in the Order. agreed
with this position and it will e presented in the
OS response.
2. During discussion, it was determined that the Agency,
in setting up a derivative classification system that includes
classification guides, is authorized to limit the basis for
classification to the same categories applicable to original
classification. Such a system is favored by the C/PPG.
I I advised any such logical approach will have to
e presen ed "when we can get to it" and not within the
tasking of the instant exercise.
3. ' The O r.es" is e. t 3IS,w 11 be ]m' d to' die two
areas eeir
1 ::1 eed ch _ge was Ali erd x:'" -C?
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