LAW AND NATIONAL SECURITY INTELLIGENCE REPORT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00806R000100080016-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 22, 2016
• Document Release Date: September 13, 2010
• Sequence Number: 16
• Publication Date: November 1, 1981
• Content Type: OPEN SOURCE

STAT
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/ I~ AMERICAN BAR ASSOCIATION
STANDING COMMITTEE Law and National Security
INTELLIGENCE REPORT
Volume z, Number I I Morris I. Leibman, Chairman
Presidential Medal of Freedom
Awarded to Chairman Leibman
In a ceremony in the White House on October 9,
the Presidential Medal of Freedom was awarded to
Morris 1. Leibman, chairman of the Standing Com-
mittee on Law and National Security of theABA. The
citation which accompanied the award read:
Attorney, teacher, scholar and philanthropist,
Morris Leibman is living proof that a full career in the
private sector can flourish hand in hand with civic and
humanitarian duties. As a generous patron of the arts
and charities, as a legal scholar as well as practitioner,
as a founding member of the Georgetown University
Center for Strategic and International Studies and as
chairman of the American Bar Association's Standing
Committee on Law and National Security, Morris
Leibman has served selflessly to make America a just,
healthy society within and a strong, secure nation
without.
In responding to the president, Mr. Leibman said:
In the shadow of the assassination of recent hours,
we thank the Lord that you, Mr. President, are here
with us today. We continue to be inspired by your
courage and total commitment.
I and the other awardees, I feel certain, are humbled
by the privilege of participating in this ceremony. We
understand that on this occasion we represent mil-
lions of citizens dedicated to our free society.
This is an occasion of remembrance and rededica-
tion. Remembrance of America's uniqueness, the
noble experiment of government by a melting pot of
free people. Rededication under your guidance to
meaningful patriotism, to national purpose, to na-
tional will and strength and credibility.
Our great American ideals and goals lose vitality
without vibrant expression. You, Mr. President, have
established yourself as the great communicator-a
most important aspect of leadership in this world of
competing and conflicting ideologies.
A number of us present here today have struggled
with the problem of improving the systems, forums
and structures for communicating American foreign
policy, nationally and internationally. Under your
presidency, we eagerly renew our dedication to this
effort and look forward to working with you in your
great responsibility for continuing the dialogue of
western civilization and preserving the free world.
Justice Submits Bill
to Amend FOIA
In a hearing before the Senate Judiciary Subcom-
mittee on the Constitution, the Justice Department on
October 15 made public its proposed legislation
amending the Freedom of Information Act. Called
"The Freedom of Information Improvements Act of
1981," the bill was formally introduced in the Senate
on October 20 by Sen. Orrin Hatch of Utah, chairman
of the subcommittee, and given the number S.175 /.
The bill was accompanied by a 74-page section by
section analysis of the proposed changes. Apart from
the fact that this analysis would be too long to print,
your editor felt that it would be appropriate to limit
ourselves to the several portions of the bill specifically
related to intelligence and national security. The ex-
cerpts from the section by section analysis below have
been selected with this in mind.
However, to provide our readers with a birdseye
view of the other changes that are proposed by the bill,
we are also reproducing the brief introduction to the
section by section analysis.
The Justice Department's proposed bill did not, as
had been anticipated, call for complete or substantial
Continued on page 2
Editor: William C. Mott. Associate Editor: DaMarlrin, StsIin Committee on Law and National Security,
ABA , t 15 .. -.
Copyright t91)$1 American Assoation
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Bill to Amend FOIA
Continued from page I
relief for the intelligence agencies from the disclosure
provisions of FOIA. It is reported, however, that the
Department plans to submit a second bill at an early
date dealing with this matter.
The bill proposes amendments to the Freedom of
Information Act, 5 U.S.C. ? 552, in order to improve
the administration of the Act, remedy unforeseen
problems that have arisen under the Act, correct ju-
dicial constructions of the Act which do not comport
with the original intent of Congress, and generally bal-
ance the public interest in disclosure of government
information with the public interest in effective gov-
ernment. The proposed amendments would improve
the Act in several respects:
First, they would clarify several of the Act's ex-
emptions and procedures in order to strengthen the
protection given to information where disclosure
would result in an unwarranted invasion of privacy,
harm to the public interest in effective law enforce-
ment, or harm to the legitimate commercial interests
of private parties who have submitted information to
the government, or where the threat of disclosure
would harm the public interest in the effective col-
lection of intelligence.
Second, the amendments would preclude the use of
the Freedom of Information Act as a means to circum-
vent discovery rules by parties in litigation.
Third, the amendments would establish realistic
time requirements for agencies to respond to requests
and decide appeals, while assuring prompt responses
to limited requests and requests which primarily bene-
fit the general public.
Fourth, the amendments would establish proce-
dures enabling submitters of confidential commercial
or financial information to object to the government's
release of such information.
Fifth, the amendments would permit the govern-
ment to charge requesters fees that more closely re-
flect the actual costs of the government's search for
and review of documents.
Sixth, the amendments would add two new exemp-
tions relating to records generated in legal settlements
and technical information the export of which is con-
trolled by law.
Standard for Judicial Review of Exemptions
The bill would relocate the second sentence in the
existing subsection (a)(4)(B) of the Act, which sets
forth the standards for judicial review of agency de-
nials of requests under the Act, into new subsection
(a)(4)(l). Subsection (a)(4)(I) would modify the cur-
rent standard of de novo review where the requested
information is withheld by an agency pursuant to ex-
emption (b)(1). In such cases, the court could order
disclosure of such classified information only if it finds
that the agency decision to withhold the material was
arbitrary or capricious. With respect to all other ex-
emptions, however, the bill would not affect the de
novo standard of review.
This recommended change in the applicable stand-
ard of judicial review in cases where an agency with-
holds information pursuant to exemption (b)(1) re-
flects the particularly sensitive nature of documents
relating to national security and foreign policy and the
need to give substantial deference to an agency's clas-
sification decisions. In the Conference Report on the
1974 amendments to the Act, Congress made clear
that even with a de novo standard of review, the court
should give "substantial weight" to an agency's ex-
planation of its classification actions. In construing
the Act's present provisions for de novo review of na-
tional security exemptions under exemption (b)(1), the
United States Court of Appeals for the District of
Columbia Circuit has noted that "[flew judges have
the skill or experience to weigh the repercussions of
disclosure of intelligence information," and that "this
is precisely the sort of situation where Congress in-
tended the reviewing courts to respect the expertise
of an agency."
Indeed, that same court has determined that sum-
mary judgment on the basis of the agency's affidavit
alone should be granted in cases involving classified
information where the affidavit shows merely the
"plausibility" of the alleged harm of disclosure in a
"reasonably detailed manner." While the Act provides
that a reviewing court may, in cases where it is neces-
sary and appropriate, review such documents in
camera to evaluate the agency's classification deci-
sion, the court should not be called upon, in effect, to
make the initial classification decision. A change to the
traditional Administrative Procedure Act standard of
review for arbitrary or capricious action from the
present de novo standard would be more consistent
with the courts' need to give "substantial weight" to
an agency's "expertise."
Additional Procedural Changes in Suits
Under the Freedom of Information Act
Section 5(b) of the bill would also provide, in pro-
posed subsection (a)(4)(I) of the Act, two procedural
rules for litigation under the Act.
First, this revision would contain new language to
clarify the requirement that the court maintain under
seal the records and affidavits submitted in camera to
the court in support of an exemption from disclosure.
In camera review of confidential documents or ex-
planatory affidavits may be appropirate in particular
cases where the court determines that it cannot dis-
charge its reviewing function based on information in
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the public record. However, because in camera affi-
davits explain the significance of the disputed docu-
ments and put them into a broader context, the affida-
vits submitted by agencies are frequently as sensitive
or even more sensitive than the records themselves.
Without the assurance that such affidavits will not be
disclosed, the agency may be faced with a serious
dilemma in attempting to justify a withholding. The
agency may risk summary judgment against it if it
does not provide the court with confidential informa-
tion justifying its position, yet risk greater disclosure
of confidential information in the course of providing
the court with an explanation justifying the withhold-
ing. Although almost all courts have respected the
confidentiality of materials submitted in camera, there
have been a few instances when this has not been
done. This amendment would provide that all mate-
rials submitted in camera would be maintained under
seal.
Second, proposed subsection (a)(4)(I) would re-
quire the court to stay any order to release records
pursuant to the Freedom of Information Act pending
final determination of any appeal. Because disclosure
of disputed documents prior to the decision on appeal
would effectively moot the government's position, a
provision that would provide for the stay of such dis-
closure orders is essential to preserve the govern-
ment's rights of appeal. See Providence Journal Co. v.
Federal Bureau of Investigation, 595 F.2d 889 (1st
Cir. 1979).2 The amended provision would make the
stay mandatory, not discretionary as under present
law.
Disclosure of Information
Relating to Terrorism, Organized Crime
Or Foreign Counterintelligence Investigations
Section 7(d)(4) of the bill would add a new subpara-
graph (G) to exemption (b)(7) that would enable the
attorney general to exempt by regulation or order in-
formation relating to investigations of terrorism, or-
ganized crime or foreign counterintelligence. A num-
ber of law enforcement agencies have found that or-
ganized criminal elements, hostile foreign govern-
ment intelligence agencies, and extremist political
groups have attempted to use the Freedom of Infor-
mation Act to uncover government informants in their
midst or to discover information concerning govern-
ment investigations. Such organizations have the in-
centive and the resources to use the Act systematic-
ally to gather, analyze, and piece together segregated
pieces of information obtained from government files.
The current application of the Act to such files neces-
sarily presents a significant risk of inadvertent or un-
knowing disclosure of extremely harmful information.
Indeed, acknowledgment of the very existence or
non-existence of records relating to particular inves-
tigatory activities or designated individuals can pro-
vide valuable information to criminal organizations
and harm law enforcement and national security in-
terests. The bill would permit the attorney general to
exempt from the Act investigations of organized
crime, foreign counterintelligence and terrorism.
Those categories of organized crime, foreign coun-
terintelligence and terrorism investigations to be ex-
empted and the periods of time for which they would
be exempted would be defined by regulations or orders
promulgated by the attorney general. This procedure
would allow the attorney general to continue to permit
access to such files, for example those of a historical
nature, where disclosure would not endanger personal
safety or impair law enforcement. The attorney gen-
eral's authority to exempt such records would extend
not only to the law enforcement components of the
Department of Justice, but also to other government
law enforcement agencies.
State Department Documents
Soviet Disinformation and Forgeries
The following paper was prepared by the Depart-
ment of State in response to requests for information
from a number of individuals, private groups, and
foreign governments.
In late 1979, agents of the Soviet Union spread a
false rumor that the United States was responsible for
the seizure of the Grand Mosque of Mecca.
In 1980, a French journalist was convicted by a
French court of law for acting as a Soviet agent of
influence since 1959.
In August 1981, the Soviet news agency TASS al-
leged that the United States was behind the death of
Panamanian leader Omar Torrijos.
These are three examples of a stream of Soviet
Continued on page 4
'In a still-pending case, the district court ordered dis-
closure of an in camera affidavit but, after a petition for re-
hearing by the agency, that disclosure order was vacated.
Baez, v. National Security Agency, Civ. No. 76-1921
(D.D.C. Nov. 2, 1978; July 17, 1980)....
2 In one case, for example, the district court initially or-
dered disclosure of classified information but, after reversal
by the court of appeals, ultimately determined the informa-
tion to be exempt. Had the district court not stayed the dis-
closure order, the government would have been foreclosed
from pursuing its ultimately successful appeal. Weberman v.
National Security Agency, 490 F. Supp. 9 (S.D.N.Y. 1980)
(ordering disclosure), rev'd, No. 80-6155 (2d Cir. Dec. 18,
1980) (unpublished), on remand, No. 77 Civ. 5058 (CLB)
(S.D.N.Y. June 5, 1981) (denying disclosure); see also 507
F. Supp. 117 (S.D.N.Y. 1981) (on remand).
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Soviet Disinformation and Forgeries
Continued from page 3
"active measures" that seek to discredit and weaken
the United States and other nations. The Soviets use
the bland term "active measures" (aktivnyye mero-
privatiya) to refer to operations intended to affect
other nations' policies, as distinct from espionage and
counterintelligence. Soviet "active measures" include:
? Written or spoken disinformation;
? Efforts to control media in foreign countries;
? Use of Communist parties and front organiza-
tions;
? Clandestine radio broadcasting;
? Blackmail, personal and economic; and
? Political influence operations.
None of this is to be mistaken for the open, accepted
public diplomacy in which virtually all nations engage
extensively. Public diplomacy includes providing press
releases and other information to journalists, open
public broadcasting, and a wide variety of official, aca-
demic, and cultural exchange programs. By contrast,
Soviet "active measures" are frequently undertaken
secretly, sometimes violate the laws of other nations,
and often involve threats, blackmail, bribes, and ex-
ploitation of individuals and groups.
Soviet "active measures" do not always achieve
Moscow's objectives. In some cases, Soviet opera-
tions have failed because of ineptitude or because tar-
geted individuals or governments have responded ef-
fectively. However, Soviet "active measures" have
had some success, and they remain a major, if little
understood, element of Soviet foreign policy.
The approaches used by Moscow include control of
the press in foreign countries; outright and partial
forgery of documents; use of rumors, insinuation, al-
tered facts, and lies; use of international and local front
organizations; clandestine operation of radio stations;
exploitation of a nation's academic, political, eco-
nomic, and media figures as collaborators to influence
policies of the nation.
Specific cases of Soviet "active measures" included
here are: the Soviet anti-theater nuclear force (TN F)
campaign in Europe, the Soviet anti- "neutron bomb"
campaign; Soviet activities in support of the leftists in
El Salvador; the Soviet campaign against the U. S,
Egypt relationship and the Camp David process.
"Active measures" are closely integrated with le-
gitimate activities and Soviet foreign policy. Deci-
sions on "active measures" in foreign countries are
made at the highest level of authority in the U.S.S.R.-
in the Politburo of the Communist Party Central Com-
mittee-as are all other important decisions of Soviet
foreign policy.
The activities are designed and executed by a large
and complex bureaucracy in which the KGB and the
International Department of the Communist Party of
the Soviet Union (CPSU) Central Committee are
major elements. The International Information De-
partment of the CPSU Central Committee is also
deeply engaged in such activities. Actual operations
abroad are carried out by official and quasi-official
Soviet representatives, including scholars, students,
and journalists, whose official Soviet links are not al-
ways apparent. The highly centralized structure of the
Soviet state and the state's pervasive control and di-
rection of all elements of society give Soviet leaders
impressive free use of party, government, and private
citizens in orchestrating "active measures."
The open societies of the industrial democracies
and many developing nations, and the ease of access
to their news media, often give Soviets open season
for "active measures." Many Western and developing
countries ignore or downplay Soviet "active measures"
until Soviet blunders lead to well-publicized expul-
sions of diplomats, journalists, or others involved in
these activities. The Soviets are adept at making their
policies appear to be compatible or parallel with the
interests of peace, environmental and other groups ac-
tive in Western and developing societies.
By contrast, the Soviet Union denies access to its
mass media for foreigners who might criticize Soviet
society or the foreign policies of the U.S.S.R.
While the United States remains the primary target,
Moscow is devoting increasing resources to "active
measures" against the governments of other indus-
trialized countries and countries in the developing
world. Moscow seeks to disrupt relations between
states, discredit opponents of the U.S.S.R., and under-
mine foreign leaders, institutions, and values. Soviet
tactics adjust to changes in international situations but
continue, and in some cases intensify, during periods
of reduced tensions.
"Active Measures" Techniques
The tactics and emphasis of Soviet "active meas-
ures" change to meet changed situations. For instance,
Soviet use of Marxist-Leninist ideology to appeal to
foreign groups often turns out to be an obstacle to the
promotion of Soviet goals in some areas; it is now be-
ing deemphasized though not completely abandoned.
At the same time, some religious themes - notably the
Soviet assertion that the Islamic religion occupies a
favorable position in the U.S.S.R.-have assumed
greater significance, as Moscow courts Islamic coun-
tries in Africa and the Middle East.
Similarly, while Soviet-dominated international
front groups still are important in Soviet "active meas-
ures" abroad, Moscow is broadening its base of sup-
port by using more single-interest groups and fronts
formed for particular purposes to promote its goals.
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Soviet "active measures" involve a mix of ingenious
and crude techniques. A brief sample of types of activ-
ities includes the following.
Efforts to Manipulate the Press in Foreign Countries.
Soviet agents frequently insert falsely attributed press
material into the media of foreign countries. In one
developing country, Soviets used more than two dozen
local journalists to plant media items favorable to the
U.S.S.R. Soviets have also used the Indian news
weekly Blitz to publish forgeries, falsely accuse Amer-
icans of being CIA personnel or agents, and dissem-
inate Soviet-inspired documents. In another country,
the Soviets used local journalists to exercise substan-
tial control over the contents of two major daily
newspapers.
Forgeries. Soviet forgeries -completely fabricated
or altered versions of actual documents -are produced
and circulated to mislead foreign governments, media,
and public opinion. Recent Soviet forgeries are better
and appear more frequently than in the past. Among
forgeries that Soviet agents have produced and dis-
tributed are bogus U. S. military manuals and fabri-
cated war plans designed to create tensions between
the United States and other countries. In some cases,
the Soviets used actual documents passed to the KGB
by U. S. Army Sergeant Robert Lee Johnson (who
was eventually arrested and convicted as a Soviet
agent) as models for style and format in Soviet for-
geries. In one case, Soviet agents, seeking to disrupt
NATO theater nuclear force modernization, circu-
lated a forged "top secret" letter from Secretary of
State Cyrus Vance to another Western foreign minister.
Disinformation. Soviet agents use rumor, insinua-
tion, and distortion of facts to discredit foreign govern-
ments and leaders. In late 1979, Soviet agents spread
a false rumor that the United States was behind the
seizure of the Grand Mosque of Mecca. In another
case, Soviet officials "warned" officials of a West
European country that the CIA had increased its ac-
tivities in the country and that a coup was being
planned. Sometimes these disinformation campaigns
appear in foreign media suborned by the Soviets, en-
abling Moscow to cite foreign sources for some of the
distortions and misstatements that often appear in the
Soviet media. A recent and particularly egregious ex-
ample was the August 1981 TASS allegation that the
United States was behind the death of Panamanian
General Omar Torrijos.
Control of International and Local Front Organiza-
tions. Moscow controls pro-Soviet international front
organizations through the International Organizations
Section of the International Department of the CPSU
Central Committee. Front organizations are more ef-
fective than openly pro-Soviet groups because they
can attract members from a broad political spectrum.
Prominent among these fronts are the World Peace
Council, the World Federation of Trade Unions, the
World Federation of Democratic Youth, and the
Women's International Democratic Federation. Mos-
cow's agents use Soviet "friendship" and cultural
societies in many countries to contact people who
would not participate in avowedly pro-Soviet or Com-
munist organizations. The function of front, "friend-
ship," and cultural groups is to support Soviet goals
and to oppose policies and leaders whose activities do
not serve Soviet interests.
To complement organizations known for pro-Soviet
bias, the Soviets sometimes help establish and fund
ad hoc front groups that do not have histories of close
association with the Soviet Union and can attract
members from a wide political spectrum.
Clandestine Radio Stations. The Soviet Union oper-
ates two clandestine radio stations: the National Voice
of Iran (NVOI) and Radio Ba Yi, which broadcast
regularly from the Soviet Union to Iran and China.
Moscow has never publicly acknowledged that it
sponsors the stations, which represent themselves as
organs of authentic local "progressive" forces. The
broadcasts of both of these Soviet stations illustrate
the use of "active measures" in support of Soviet for-
eign policy goals. For instance, NVOI broadcasts to
Iran in 1979-80 consistently urged that the American
diplomatic hostages not be released, while Soviet offi-
cial statements supported the hostages' claim to diplo-
matic immunity.
Economic Manipulation. The Soviet Union also uses
a variety of covert economic maneuvers in "active
measures" operations. For example, a Soviet ambas-
sador in a West European country warned a local busi-
nessman that his sales to the U.S.S.R. would suffer if
he went ahead with plans to provide technical assist-
ance to China. In another industrialized country, So-
viet agents sought to increase local concern over the
stability of the dollar by driving up the price of gold.
This was to be accomplished by manipulating a flow
of both true and false information to local business-
men and government leaders. The gambit failed be-
cause the Soviet officials who attempted to carry it out
did not fully understand the financial aspects of the
operation.
Political Influence Operations. Political influence op-
erations are the most important but least understood
aspect of Soviet "active measures" activities. These
operations seek to exploit contacts with political, eco-
nomic, and media figures in target countries to secure
active collaboration with Moscow. In return for this
collaboration, Soviet officials offer inducements tail-
ored to the specific requirements or vulnerabilities of
the individual involved. In 1980, Pierre-Charles
Continued on back page
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Soviet Disinformation and Forgeries
Continued f rom page 5
Pathe, a French journalist, was convicted for acting as
a Soviet agent of influence since 1959. His articles-
all subtly pushing the Soviet line on a wide range of in-
ternational issues -were published in a number of im-
portant newspapers and journals, sometimes under the
pseudonym of Charles Morand. The journalist also
published a private newsletter which was regularly
sent to many newspapers, members of parliament, and
a number of foreign embassies. The Soviets used
Pathe over a number of years to try to influence the
attitudes of the prominent subscribers to his news-
letter and to exploit his broad personal contacts.
In other cases, Soviet officials establish close rela-
tionships with political figures in foreign countries and
seek to use these contacts in "active measures" opera-
tions. Capitalizing on the host government official's
ambition, his Soviet contact claims to be a private
channel to the Soviet leadership. To play upon his
sense of self-importance and to enhance his credibility
within his own government, the host government
official may be invited to meetings with high-level So-
viet leaders. The Soviets then exploit the local official
to pass a mixture of true, distorted, and false informa-
tion-all calculated to serve Soviet objectives-to the
host government.
Use of Academicians and Journalists. Soviet aca-
demicians, who often are accepted abroad as legiti-
mate counterparts of their non-Soviet colleagues, fre-
quently engage in "active measures." Unlike their free
world counterparts, they must play two roles-their
legitimate academic pursuit of knowledge for its own
sake and their political activities on behalf of the
Kremlin. Soviet academicians are obliged to obey in-
structions from bodies which plan and control Soviet
"active measures" activities. Similarly, Soviet jour-
nalists often engage in "active measures" operations
in addition to serving as representatives of Soviet
news agencies. One KGB officer in an industrialized
country used his journalistic cover to pass forgeries,
as well as to publish numerous propaganda articles
aimed at influencing the media of the host country.
To be continued next month
For further information contact: William C. Mott, Suite 709,
1730 Rhode Island Avenue N.W., Washington, D. C. 20036.
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