PROTECTION OF CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00793R000100270010-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 24
• Document Creation Date: December 12, 2016
• Document Release Date: January 10, 2002
• Sequence Number: 10
• Publication Date: February 6, 1973
• Content Type: MF

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6 February 1973
MEMORANDUM FOR: Director of Central Intelligence
1. This memorandum is for your information.
Executive Regiriry
3. Like the head of any agency, you are also responsible
for protecting Agency information which is classified in accordance
with the terms of Executive Order 11652, which goes beyond the
pure source-and-method problem. Here again the traditional
statutes provide the only sanctions.
4. Experience has shown that existing law does not provide
a very effective enforcement tool. In the event of prosecution, the
two basic statutes require demonstration that the information
involved relates to the national defense and security. This is a
question for the jury and must be produced in open court. We,
thereby, authenticate the very information we are trying to protect.
These laws also require either proof of intent or reason to believe
that the information will be used to harm the U. S. or aid a foreign
power. Again this is a question for the jury and is one in which
proof is usually very difficult.
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5. There are several provisions for specialized situations.
Thus, the Atomic Energy Act makes the revelation of Restricted
Data a crime but only if it is done with intent to injure the U. S.
or secure an advantage from any foreign nation or with reason to
believe that either of these will happen. Again, a statute defines
Communications Intelligence as a category, and here all that is
needed is to prove that it was knowingly and willfully transmitted
to an unauthorized person. These two have never been fully tested
in court. There is also a provision known as the Scarbeck statute,
named after an individual who was prosecuted thereunder. This
makes the knowing revelation of classified information a crime but
applies only to Government employees who transmit such classified
information to an agent of a foreign power. The opinion in the
Scarbeck case provides that the prosecution must only prove that
the material was classified. The court further held that whether
the material was properly classified was not an issue to be con-
sidered by the court. For some years we have been advocating
an amendment to the Scarbeck statute which would make it apply
to any employee or former employee who gave classified informa-
tion to an unauthorized person. This, we believe, would be quite
an effective too], but our best judgment has been that this Agency
should not get out in front in seeking such authority.
6. A couple of years ago a Commission was set up to study
a complete revision of the Federal Criminal Code, and we started
to work with it in the areas pertaining to the protection of informa-
tion. The Commission's work, including some of our suggestions,
went to a Department of Justice Task Unit (established by direction
of the President), with which we have been working for the past
year. Its draft legislation, which was sent to OMB, was an improve-
ment but still fell short of what we felt was needed. On 1 February
we sent Mr. Rommel a letter accompanied by our suggested changes
to the Department of Justice's draft. The Department of Defense
independently made almost the same recommendations. I attach
our comments and the sections of law which are under consideration.
A new point is contained in section 1126 which provides for injunction
to restrain violations. This is similar to the injunction authority in
the Atomic Energy Act, but this as you may know has never been
properly tested in the courts. However, if this proposed legislation
passed in the form we recommend, it would be of very material
assistance to the enforcement of the Director's responsibility for
protection of information.
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7. Separate from this general legislation, we are
drafting legislation which would identify a category of "Intel-
ligence Data" somewhat similar to the categories of Communica-
tions Intelligence and Restricted Data. Again we are without the
guidance of court precedents, but we feel it could be another
useful tool. This would be by an amendment to the National
Security Act, which would place the bill with the two Armed
Services Committees.
8. The general legislation will probably be introduced
this spring but may become the subject of protracted debate.
Our own provision concerning "Intelligence Data" will have to
be discussed with our Subcommittee%val may be preferable to
combine it with the general legislation which will be before the
Judiciary Committees.
LAWRENCE R. HOUSTON
General Counsel
cc: Executive Director
OLC
D/Security
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I FEB 1973
Mr. Wilfred H. Rommel
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D. C. 20503
Dear Mr, Rommel:
This is in reply to your request of 17 January 1973 for
our views on the Department of Justice' a draft revision of
Title 18, United States Code.
Enclosed are specific recommendations for changes in
Chapter 2 entitled "Federal Criminal Jurisdiction," and in
Chapter 11 entitled "Offenses involving National Security. " We
are not 'commenting on the other Chapters of the draft revision,
believing that they are generally outside the purview of this
Agency's interest.
This Agency has been working for many years on the
issues dealt with in Chapter 11, first with the Brown Commission
and later with the Justice Department Task Unit. The focus of
.our work in this connection has been on those problems which
are of particular interest to this Agency and to the intelligence
community in general. The Brown Commission adopted a
number of our suggestions for improvement in the laws in this
respect. Further suggestions were incorporated by the Task
Unit in the instant draft revision.
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We believe that enactment of Chapter 11 with the changes
as we have suggested in the enclosure would constitute a most
significant improvement in the laws protecting national security
information. Consequently, we strongly recommend support of
the provisions of Chapter 11 with the changes we have suggested.
Sincerely,
John M. Maury
Legislative Counsel
Enclosure
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I February 1973
Central Intellence Agency Comments On
Justice Department Draft: Revision of Title 18, U. S. Code
Section 204, Extraterritorial Jursidiction of the United States.
We believe this section is too limited in that it fails to provide juris-
diction in cases of serious offenses against the United States if these
offenses are committed abroad. This is particularly true of offenses
against the national security. While subsection (b) provides extra-
territorial jursidiction in cases of treason, espionage and sabotage,
it does not completely cover such closely related offenses as disclosing and
mishandling of national security information (sections 1122 and 1123)
and disclosing or unlawfully obtaining classified information (sections
1124 and 1125). As a minimum we would want to see extraterritorial
jurisdiction extended to offenses under sections 1122 to 1125 and think
that it might be prudent to extend it to all offenses under Chapter 11.
Section 1121, Espionage.
We question the need for subsection
(b) (1) (B) and feel that the traditional distinction between wartime and
peacetime offenses is sufficient for the distinction between Class A
felonies and lesser offenses. We are also concerned with the language
of this subsection which in some places is vague and probably would
become more so with technological advances. Terms such as "major"
weapons systems or "major" element of defense strategy or "large
scale" enemy attack are incapable of precise definition and subject
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to argumentative interpretation in the case of prosecution. We also
feel that the listing of particular objects of espionage as being more
needful of protection through a higher grading of the felony invites
nitpicking and "favorite cause" additions in the legislative process.
Furthermore, it is our view that the more serious nature of the infor-
mation in its effect on the United States can more appropriately be
considered in connection with the sentencing process in the courts if
the individual has been found guilty. However, if this subsection is to
remain, we think there is a serious deficiency in the failure to include
intelligence sources and methods as being worthy of this greater
protection.
Section 1126, Definitions.
a. The offenses under sections 1121, 1122 and 1123 relate to
"National Security Information. " We would prefer to see these
offenses limited to classified national security information.
Classified information is specifically defined by Executive Order
or statute and is clearly recognizable as having been classified.'
We do not believe there has been a successful prosecution for
an offense involving national security information which was
not classified information. We feel that the possibility of the
need for prosecution of an offense involving unclassified national
security information is too remote, and the difficulties of
prosecution too great.
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b. We think the attempted definition of "information
relating to the national security" in section 1126(b)(8) is
questionable and subject to severe criticism, particularly
in its attempt to cover information, whether or not classi-
fied, which has not been officially disclosed to the public.
This definition may be interpreted as an attempt to create
an "Official Secrets Act" and will provide ammunition for
critics of the proposed legislation who certainly will argue
that it is a potential infringement on freedom of the press
and freedom of information in general. Limiting offenses to
those involving classified national security information would
,remove this difficulty in definition.
c. In addition, we think that the mere fact of nondis-
closure of information in an official manner whether by
Congress or by a public servant is much too broad since
there is a great deal of material which is unclassified but
which has simply not gone through the process of being
officially disclosed.
d. Consequently, we would recommend that section
1126(b)(8) read as follows:
"Information relating to the national security"
means classified information which relates to the
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national defense or to the conduct of foreign
relations, including:"
e. It is to be noted that we also have deleted the words
"involving the national defense" in the Department of Justice
draft after the words "conduct of foreign relations. it There
can be many foreign relations matters which require the
protection of classification and the laws which would not
necessarily involve the national defense.
-4-
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i
Extraterritorial Jurisdiction the United States.
Except as otherwise expressly provided by statute or treaty,
the circumstances under which the United States has extraterritorial
jurisdiction over an offense described in this title include the
following:
(a) the offense is a crime of violence and the victim or
intended victim is a United States official;
(b) the offense is treason, espionage, or sabotage against
the United States;
(c) the offense consists of a forgery or counterfeiting;
uttering of forged copies or counterfeits; issuing
without authority, seals, currency, instruments of
credit, stamps, passports, or public documents issued
by the United States; perjury--or a false statement
in an official proceeding of the United States; a
false statement in a matter within the jurisdiction
of the government of the United States; bribery or
graft involving a public servant of the United States;
or other fraud against the United States, or theft of
property in which the United States has an interest;
or, if committed by a national or resident of the
United States, any other obstruction of or interference
with a United States government function;
(d) the offense is committed in whole or in part within the
United States and the accused participates outside the
United SL-.ates, or the offense constitutes an attempt,
conspiracy, or solicitation to commit an offense within
the United States;
(e) the.offense involves entry of persons or property into
the United States;
(f) the offense is committed by a federal public servant who
is outside the territory of the United States because of
his official duties or by a member of his household residing
abroad or by a person accompanying the military forces of
the United States;
l/l0/73
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. Espion,:,re,
is guilty of an offense, if, with'intent.
(a) Offense. A person be used,
that information relating to the national secur'ed
or With knowledge that it may be used, to t,he prejudice "
the safety or interest of the United States, or to the
advantage of a foreign power, he knowingly:
(1) communicates such information to a foreign power;
(2) obtains or collects
utfln~oi~amaYnheocommunicated
power or with knowledge
to a foreign power; or
(3) enters a restricted area with intent to obtainror
collect such information for a foreign power
with knowledge that it may be communicated to a
foreign power.
(b) Grading. An offense under this section is:
(1) a Class A felony:
d of
(A) if committed during wartime or during aperioesifent
national defense emergency declared by the
or the Congress; or
(B) if the information directly once ens ;nuclear weaponry;
military space vessl_
early warning systems or other means of defense or
retaliation against large scale enemy attack; war
plans; communications intelligence or crvotoarauhir:
information; or any other major weapons system or
major element of defense strategy;
(2) a Class B felony in any other case.
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Disclosing Nationals ty Information.
Offense. A person is guilty of an offense if he knowingly
communicates information relating to the national security
to a person not authorized to receive it.
(b) Grading. An offense under this section is:
(1) a Class C felony if co-iimitted during wartime or
during a period of national defense emergency declared
by the President or the Congress; or
(2) a Class D felony in any other case.
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Mishandle ~lation,iecurity Information.
(a) Offense. A person is guilty of an Offense if:
(1) being in possession or control of information relating
to the national security, he recklessly permits its
loss, destruction, theft, or communication to a person
not authorized to receive it;
(2) being in authorized possession or control of information
relating to the national security:
.(A) he intentionally fails to deliver it on demand
to a public servant of the United States authorized
to demand it;
(B) he knowingly fails to report promptly, to the agency
authorizing him to possess or control such information,
its loss, destruction, theft, or communication to a
person not authorized to receive it; or
(C) he recklessly violates a duty imposed upon him by
a statute or executive order, or by a regulation
or a rule of the agency authorizing him to possess
or control such information, which statute, order,
regulation, or rule is designed to safeguard such
information; or
(3) being in possession or control of information relating
to the national security which he is not authorized to
possess or retain, he knowingly fails to deliver it
promptly to a public servant of the United States entitled
to receive it.
(b) Grading. An offense under this section is:
(1) a Class E felony under the circumstances set forth
in subsection (a)(2)(C);
(2) a Class D felony in any other case.
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 Disclosinq Classified Information,
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(a)'Offense. A person is guilty of an offense if, bein`or having
been in authorized possession or control of classified
information, or having obtained such information as a
result of his being or having been a public servant, he
knowingly communicates such information to a person not
authorized to receive it.
(b) Exceptions to Liability as an Accomplice or Conspirator. A
person not authorized to receive classified information is
not subject to prosecution as an accomplice within the meaning
of section 101 for an offense under this section, and is not
subject to prosecution for conspiracy to commit an offense
under this section.
(c) Defense. I t is a defense to a prosecution under this section
that the information was communicated only to a regularly
constituted committee of the Senate or the House of Representatives
of the United States, or a joint committee thereof, pursuant to
lawful demand.
(d) Defense Precluded. It is not a defense to U prosecution under
this section that the classified information was improperly
classified.
(e) Grading. An offense under this section is:
(1) a Class D felony if the person to whom the-information
is communicated is an agent of a foreign power;
(2) a Class E felony in any other case.
V1(i/ 3
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. Unlawfully Obtaininq Classified Information,
Offense. A person is guilty of an offense if, being an
agent of a foreign power, he knowingly obtains or collects
classified information which, in fact, he is not authorized
to receive.
(b) Defense Precluded. It is not. a defense to a prosecution
under this section that the classified information was
improperly classified.
(c) Grading. An offense under this section is a Class D*felory,
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 26. General Provisions for Sections 1121 through 1125.
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,(a) Injunctions to Restrain Violations. Upon evidence satisfactory
to'the Attorney General that any person is engaged, or abnut
to be engaged, in any act or practice which constitutes or
could constitute a violation of section 11'2.1, 1122, 1123, 1124
or 1125, the Attorney General may bring an action in any
district. court of the United States to enjoin such act or
practice, and, upon a proper showing, a permanent or temporary
injunction or restraining order shall be granted by the court
together with such other equitable relief as may be appropriate.
Any action under this subsection shall be given precedence on
the docket over all other causes, shall be heard at the earliest
practicable date, and shall otherwise be expedited. Any appeal
from the grant or denial of a permanent or temporary injunction
or restraining order under this section shall be disposed of as
soon as possible, but under any circumstances not later than
30 days from the filing of such appeal.
(b) Definitions. As used in sections 1121 through 1125:
(1) "agent" includes, in the case of a nation, a citizen
or subject thereof;
(2) "authorized," when used in relation to the receipt,
possession, or control of classified information
or information relating to the national security,
means with authority to have access to, to receive,
to possess, or to control such information as a result
of the provisions of a statute or executive order, or
a regulation or rule thereunder, or as a result of
position as a public servant;
(3) "classified information" means any information, regardless
of its origin, which is marked or designated pursuant to
the provisions of a statute or executive order, or a
regulation or rule thereunder, as information requiring
a specific degree of protection against unauthorized
disclosure for reasons of national security;
(4) "communicate" means to impart information, to transfer
information, or otherwise to make information available
by any means, to a person or to the general public;
(5) com unications intelligence information" means information:
(A) req_rrdi nq any procedures and ^ ethods used by the
United Sta (:es or any fore i on pcl,-;~:r in the interception
of communications and the obtaining of information
from such communications by other than the intended
roc
;pi~r, s;
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) regarding the use, design, construction, maintenance,
or repair of any device or apparatus used, or prepared
or planned for use, by the United States or any
foreign por?;er in the interception of communications
and the obtaining of information from such communications
by other than the intended recipients; or
(C) obtained by use of the procedures or methods
d
o -scribed ir? rrr,zgrai h (5)(!l), or by a device or
a
pparatus described in paragraph
() "cryptographic information" means information:
(A) regarding the nature, preparation, use or
interpretation of any code, cipher, cryptographic
system, or any other method of any nature used
for the purpose of disguising or concealing the
contents or significance or means of communications,
whether of the United States or a foreign power;
(b) regarding the use, design, construction,
mai
t
n
n
e
ance, or repair of any device or apparatus
.used, or prepared or planned for use, for
cryptographic purposes, by the United States or
by. a foreign pourer; or
(C) obtained by Intorpretirig an original communication
th
U
I:
e
i
nited I:e s or" by ra for ei c;n rower which
was in the form of a code or cipher or which was
trt,nsmi i:t
d I
e
;y moans of a cryptographic system or
any other method of any nature used for the,purnose,
of disguising or concealing the contents or
significance or means of communications;
(7) "infor,,ra'tion? includes any property from which information
may be obtained;
() inform Lion r?elati ng to the national security" means
irrfor~ration, regardless of its origin, which has not
been Officially c,
of iscloscc! to the public by authority
Corr'Vss or by the lawful act of a Public servant
and t-hich relates to the national defense or to the
contact of foreign relations involving the national
defens;.; including:
(A) tlr Military capability of the United States or
of a nation at war with a nation with which the
.United States is at war;
(U) military planning or operations of the United
States;
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of_ the L'I
tell
(D) military installations of the United States;
(E) military Weaponry, 4;;capons devel o;Jmnnt, or weapons
research of the Uni (.. -rl States;
(F) restricted data as defined in section 11 of the
Atomic Energy Act of 1954, as amended (42 U.S.C.
2014);
(G) intelligence of the United States, and information
relating to intelligence operaticns, activities,
plans, estimates, analyses, sourc;:S, and methods,
of the United States;
(11) conmunications intellic;once info; nation or
cr;f:~4c r'ahic
information as Wink in subsection (b)(5) or (b) (C ),
or
(9)
(I) in time of war, any other matter involving the
security of the United States which might be
useful to the en^r~y;
"restricted area" n.eai't'; any area of 1::p' l'ife'r'', sir'.
or space, which In':In;e
rii 4
Staten, or of a contractor- or Cr
for Lhe United States, L 1o which t a, :. .> I access is s 1
eC1 }}rC-`~a(.r'1(.~.a,'t`,
pur'.~u; nt. to a sta. Lu u Or executive order, or a
regulation or rule thereunder, for reasons o ' national
security.
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6 February 1973
MEMORANDUM FOR: Director of Central Intelligence
SUBJECT: Protection of Classified Information
1. This memorandum is for your information.
3. Like the head of any agency, you are also responsible
for protecting Agency information which is classified in accordance
with the terms of Executive Order 11652, which goes beyond the
pure source-and-method problem. Here again the traditional
statutes provide the only sanctions.
4. Experience has shown that existing law does not provide
a very effective enforcement tool. In the event of prosecution, the
two basic statutes require demonstration that the information
involved relates to the national defense and security. This is a
question for the jury and must be produced in open court. We,
thereby, authenticate the very information we are trying to protect.
These laws also require either proof of intent or reason to believe
that the information will be used to harm the U. S. or aid a foreign
power. Again this is a question for the jury and is one in which
proof is usually very difficult.
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5. There are several provisions for specialized situations.
Thus, the Atomic Energy Act makes the revelation of Restricted
Data a crime but only if it is done with intent to injure the U. S.
or secure an advantage from any foreign nation or with reason to
believe that either of these will happen. Again, a statute defines
Communications Intelligence as a category, and here all that is
needed is to prove that it was knowingly and willfully transmitted
to an unauthorized person. These two have never been fully tested
in court. There is also a provision known as the Scarbeck statute,
named after an individual who was prosecuted thereunder. This
makes the knowing revelation of classified information a crime but
applies only to Government employees who transmit such classified
information to an agent of a foreign power. The opinion in the
Scarbeck case provides that the prosecution must only prove that
the material was classified. The court further held that whether
the material was properly classified was not an issue to be con-
sidered by. the court. For some years we have been advocating
an amendment to the Scarbeck statute which would make it apply
to any employee. or former employee who gave classified informa-
tion to an unauthorized person. This, we believe, would be quite
an effective too, but our best judgment has been that this Agency
should not get out in front in seeking such authority.
6. A couple of years ago a Commission was set up to study
a complete revision of the Federal Criminal Code, and we started
to work with it in the areas pertaining to the protection of informa-
tion. The Commission's work, including some of our suggestions,
went to a Department.of Justice Task Unit (established by direction
of the President), with which we have been working for the past
year. Its draft legislation, which was sent to OMB, was an improve-
ment but still fell short of what we felt was needed. On 1 February
we sent Mr. Rommel a letter accompanied by our suggested changes
to the Department of Justice's draft. The Department of Defense
independently made almost the same recommendations. I attach
our comments and the sections of law which are under consideration.
A new point is contained in section 1126 which provides for injunction
to restrain violations. This is similar to the injunction authority in
the Atomic Energy Act, but this as you may know has never been
properly tested in the courts. However, if this proposed legislation
passed in the form we recommend, it would be of very material
assistance to the enforcement of the Director's responsibility for
protection of information.
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7. Separate from this general legislation, we are
drafting legislation which would identify a category of "Intel-
ligence Data" somewhat similar to the categories of Communica-
tions Intelligence and Restricted Data. Again we are without the
guidance of court precedents, but we feel it could be another
useful tool. This would be by an amendment to the National
Security Act, which would place the bill with the two Armed
Services Committees.
Judiciary Committees.
8. The general legislation will probably be introduced
this spring but may become the subject of protracted debate.
Our own provision concerning "Intelligence Data" will have to
be discussed with our Subcommittees as it may be preferable to
combine it with the general legislation which will be before the
LAWRENCE R. HOUSTON
General Counsel
Attachment
OGC:LRH:jeb
cc: Executive Director
OLC
D/Security
OGC chrono
/subject CIA Acts and Statutes
Attachment - 1 February 1973 letter from Legislative
Counsel to OMB re Department of Justice's draft
revision of Title 18
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Excerpt from Morning Meeting Minutes
5 February 1973
In response to the Director's question, Maury, Thuermer, and
the Executive Director highlighted our concerns and action taken
to date with respect to an article New York Times correspondent
Seymour Hersh is working on that is apt to expose sensitive
intelligence operations. Houston noted that the DCI has a statutory
responsibility to protect sources and methods, and efforts are
under way to enhance enforcement by rewriting portions of the
Criminal Code. Our suggested revisions to the Code are with
OMB. The Director suggested that Brigadier General Scowcroft
be briefed on this matter. (ACTION: General Counsel to prepare
briefing paper)
Approved For Release 2002/05/17 : CIA-RDP75-00793R000100270010-9
 ash -
Al Lg 2002/05/17 Y"Cl&-RPp75-00 10-9
YSENDER WILL CHECK CLASSIk .ATION TOP AND BOTTOM
UNCLASSIFIED CONFIDENTIAL SECRET
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
1
Executive Director
2
The Director
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FIILE
RETURN
CONCURRENCE
_
INFORMATION
SIGNATURE
Remarks :
Attached is an attempt to describe in
nontechnical language the current status of the
law pertaining to protection of classified
information.
Lawrence R. Houston
FOLD HERE TO RETURN TO SENDER
FROM: NAME. ADDRESS AND PHONE NO.
DATE
General Counsel
2/6/73
UNCLASSIFIED CONFIDENTIAL
SECRET
FORM d0. 237 Use previous editions
1-67 237
(40)
'NOTE ATTACHED TO MEMORANDUM DATED 6 FEBRUARY 1973
Approved For Release 2002105/17 : CIA-RDP75-00793R000100270010-9
 I ] -. ,UNCLASSIFIED C DENTITAL SECRET
Approved For4klease 2002/05%17 : 0IAI( D J
D/DCI/IC
Asst/ DCI
EXECUTIVE SECRETARIAT
Routing Slip
NOTE ATTACHED TO MEMORANDUM DATED 6 FEBRUARY 1973
Approved For Release 2002f05/17 CIA-RDP75-00793R000100270010-9