RECOMMENDATIONS FOR CHANGES TO EXECUTIVE ORDER 12065, 'NATIONAL SECURITY INFORMATION'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B01034R000200060025-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 20, 2016
• Document Release Date: November 1, 2007
• Sequence Number: 25
• Publication Date: March 9, 1981
• Content Type: MF

Approved For Release 2007/11/01: CIA-RDP87B01034R000200060025-1 General Counsel
NATIONAL SECURITY AGENCY
CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755
NSA review completed
Serial: GC/156/81
9 March 1981
~1-oI 9u1
MEMORANDUM FOR THE GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY
SUBJECT: Recommendations for Changes to Executive Order 12065,
"National Security Information"
1. This memorandum is in response to your request,
based
on the 13 February 1981 memorandum from the Counsellor to
the
President, for proposed changes to Executive Order
12065.
We
have conducted a comprehensive review of Executive
Order
12065
to include a comparison with the previous executive
order
on
classification of national security information, E.O. 11652, and
recommendations for changes. A copy of that review is attached.
2. Executive Order 12065 which replaced Executive Order 11652
contained significant changes in the policy and procedures used to
classify information. In general, Executive Order 11652 provided a
stronger basis for maintaining the classification of information
that required protection in the interests of national security and
for defending such classification when it was challenged administra-
tively or judicially. E.O. 11652 provided specific protections and
exemptions for cryptologic and communications intelligence informa-
tion that enhanced our ability to properly protect such information.
E.O. 12065 did not contain specific protections for such information.
It is our recommendation that those specific protections contained
in E.O. 11652 be restored. Several issues deserve special attention
and are summarized here.
3. E.O. 12065, although entitled "National Security Informa-
tion," is perceived as a weak basis for the classification of
information requiring protection in the interest of national
security because of an over-emphasis on limitations to classifica-
tion of information, negatively worded authorizations, and frequent
mention of policy related to the Freedom of Information Act that
weakens protections available under that Act. It would be very
useful to reword the order to provide a more positive emphasis on
the need to protect information in the interest of national security.
For example, paragraph 1-101 should be rewritten to eliminate
the limitation in the first sentence that the Order provides the
only basis for classification of information, and to replace the
second sentence to provide that where there is reasonable doubt as
to the need for classification, the information should be protected
at the higher classification or should be classified until a
determination is made as to the appropriate level of classification
or the need for any classification. Likewise, paragraph-1-104
should be modified to delete the term "identifiable". The follow-
ing is a suggested rewording of paragraph 1-101:
OS 1 OGG0
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"1-101. Information or material that requires
protection against unauthorized disclosure in the
interest of national security shall be classified
in one of the three categories listed below. Informa-
tion and material should be protected at an appropriate
level of classification until a final determination is
made as to the need for protection and the level of
required protection. No other categories of classi-
fication shall be used to identify information or
material as requiring protection in the interest of
national security, except as otherwise provided by
statute."
4. Paragraph 1-301 contains a list of the categories of
information that may be considered for classification and an
exclusion for information other than that related to the national
security as designated by the President ora person designated by
the President. Although we would prefer to have the list deleted,
if the list is retained, the category of "cryptologic activities,
sources, methods, and materials" should be added to it. E.O.
11652 specifically provided for the classification of this category
of information. Although E.O. 12065 provides for protection of
intelligence activities, sources and methods, no specific protection
is provided for cryptographic and communications security matters.
It is especially important, if such categories are listed, to
include this category because of the need to prove authorization for
such a classification in FOIA and other litigation.
5. Paragraph 1-607 provides that classification may not be
restored to documents already declassified and released to the
public. This paragraph has raised significant concerns particularly
as to inadvertent declassification actions, or cases involving
mistakes or failure to classify. The Progressive case illustrates
the problem raised by this paragraph. Department of Defense
procedures permitted the recall and reclassification or classifi-
cation of documents, provided public exposure could be minimized.
The paragraph should be deleted.
6. Paragraph 3-303 contains the so-called balancing test for
classified information that is the subject of a Freedom of Informa-
tion Act request. We strongly endorse the earlier comments of the
CIA General Counsel that this paragraph be deleted. In addition,
we believe that paragraph 3-505, which precludes the use of a non-
confirmation response to an FOIA request with certain exceptions,
should be reworded to provide an affirmative authorization to use
such responses where warranted. The following is a suggested re-
wording of paragraph 3-505:
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"3-505. An agency in possession of classified
information or materal may, in response to a request
for records under the Freedom of Information Act or
this order's Mandatory Review provision, refuse to
confirm or deny the existence or non-existence of the
information or material, when the fact of its existence
or non-existence would itself be classifiable or would
reveal an intelligence activity or source."
7. Section 3-4 contains a requirement for systematic review
of classified information after twenty years. There is ample
evidence that this requirement is ill-founded and represents a
costly administrative burden that provides no benefit to the public.
A recent General Accounting Office report has provided further
evidence of the high cost and lack of benefit relative to this
provision and contains a recommendation that the requirement be
changed. Our recommendation is that the twenty year review period
be replaced with a thirty year review period and that intelligence
agency heads be permitted to extend classification of intelligence
and cryptologic information beyond thirty years on an information
category basis vice a document-by-document basis for a flexible
further review period dependent upon the category of information
to be protected.
8. Section 4-2, which deals with special access programs,
should be replaced with language identical to that contained in
section 9 of E.O. 11652 suitably modified to include appropriate
categories of Defense military information. The following is a
suggested rewording of section 4.2:
"Section 4.2. The originating Department or other
appropriate authority may establish, consistent with the
provisions of this Order, special requirements with respect
to access, control, distribution, and protection of classi-
fied information and material, including those which pre-
sently relate to signals intelligence, intelligence sources
and methods, cryptography, and defense plans."
9. Section 4-4, which establishes strict reproduction and
dissemination controls for specified categories of classified
paper documents, should be modified to, at a minimum, exclude
categories of classified information subject to special access
controls. Much of this information, such as signals intelligence,
is handled in automated systems, both through the intelligence
production and dissemination cycle, and in permanent records
systems available to the Intelligence Community and intelligence
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customers. The imposition of traditional registry, reproduction,
and inventory controls on such information is both impractical
and very costly.
10. A new section should be added to the modified order to
provide for the continued protection of classified information
provided to the Judicial Branch in connection with litigation
or introduced into evidence in a protected status. Section 8
of the Classified Information Procedures Act, Public Law 96-456,
provides a model for such a provision. The following is a suggested
wording for such a section:
"Section Information and materials provided
to courts in connection with litigation shall be provided
continued protection. Information and materials required
by a court to be introduced into evidence with appropriate
protections may retain their classification status."
11. Finally, there remains concern that it is presently
impossible to determine whether a public disclosure of sensitive
information was officially authorized and measures taken to assure
the proper protection of intelligence sources and methods. It
would be useful to consider the addition to the modified order of
a provision that would require consultation with the agency that
originated the information proposed for disclosure prior to the
disclosure of the information.
DANIEL C. SCHWARTZ
General Counsel
Encl:
a/s
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