LETTER TO JUDGE CLARK RE NSDD 84

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87T00623R000100070033-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 27, 2016
• Document Release Date: July 18, 2011
• Sequence Number: 33
• Publication Date: July 15, 1983
• Content Type: MEMO

Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Letter to Judge Clark re NSDD 84
FROM:
ICS
Director
EXTENSION
NO. ICS-83-0812
.
DATE
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
1.
C/SECON'
71331 Hqs
STAT
2.
STAT
3.
4.
STAT
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
FOR
1-79M 610 USE DITIO PREVIOUSNS
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
ICS-83-0812
1 5 JUL 1983
MEMORANDUM FOR: Director of Central Intelligence
VIA: Deputy Director of Central Intelligence
FROM:
Director, Intelligence Community Staff
SUBJECT: Letter to Judge Clark re NSDD 84
1. Action Requested: That you sign the attached letter to Judge Clark,
expressing concern that the DCI's authority for SCI security policy is being
eroded through efforts of the NSDD 84 working group on standardized nondis-
closure agreement forms, and proposing that the DCI continue to be the
authority for SCI nondisclosure forms and procedures.:
2. Background: After a discussion of NSDD 84 implementation at the
5 July 1983 I to f meeting, the DDCI directed that steps be taken to
safeguard the position of the DCI regarding security policy for SCI.
3. The implementation of NSDD 84 raises concerns about the role of the
Director of Central Intelligence in setting standards for the protection of
intelligence data, sources and methods.
4. Although the DCI Security Committee enthusiastically supported
adoption of the Willard Report, the manner in which the document was to be
implemented could not have been foreseen. The final draft of NSDD 84 did not
contain two provisions which were in the published version. These were the
requirement to include a prepublication review clause for collateral material
in the SCI nondisclosure a reement and the assignment to the Information
Security Oversight Office agreement
of the responsibility for formulating
standardized nondisclosure agreement forms.
5. For many years, the DCI or specific SCI program managers prescribed
the secrecy agreements covering access to SCI. In 1981, the DCI promulgated
a nondisclosure agreement, Form 4193, deemed by the Justice Department to be
"legally sufficient" and including an explicit prepublication review clause.
It has since been in use throughout the Intelligence Community and has been
signed by thousands of SCI-approved individuals. The National Security Agency
found it necessary to combine the SCI agreement with an Agency secrecy
agreement, but incorporated the essentials of Form 4193 into its form.
STAT
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
6. Immediately after issuance of NSDD 84, the Chairman, SECOM, advised
the Director of ISOO that the DCI considered Form 4193 the appropriate form
for SCI agreements. Mr. Garfinkel advised that he saw no reason why Form 4193
should not be the "standardized form" for SCI.
7. The inclusion of a prepublication review requirement for collateral
material in the SCI nondisclosure agreement is the wedge that has permitted
the proposed insertion of, inter alia, a specific provision, "However, I am
not required to submit for review any such materials that exclusively contain
information lawfully obtained by me, and to be published, at a time when I
have no employment, contract or other relationship with the United States
Government." The purpose of the clause ostensibly is to avoid problems for
journalists who are appointed to Federal positions and then return to their
former trade.
8. The leadership of the ad hoc group for secrecy agreements indicate
that a compromise has been reached with State Department representatives to
ease the prepublication review clause. They also express concern that too
strong an agreement will bring an avalanche of manuscripts for review that
will be impossible to handle.
9. They point out that any agency wishing to use a more stringent
agreement may apply to the Director, ISOO, for a waiver. The implication
of this is that the DCI, who heretofore has made the rules for SCI for the
Intelligence Community and the U.S. Government, will not do so in this par-
ticular area. In fact, if he wishes to impose more stringent rules on his
own agency, he will first have to get permission of the Director, IS00.
This seems to transfer from the DCI to the ISOO a substantial portion of
his statutory responsibility for the protection of intelligence sources and
methods.
10. On balance, the draft SCI nondisclosure agreement at this stage
appears to be weaker than Form 4193, but not unacceptably so. The principal
problems are the perception of the DCI's role in protecting sources and
methods and the reduction of that role by the manner in which NSDD 84 is
implemented.
11. The attached proposed letter to the Assistant to the President for
National Security Affairs is intended to explain DCI opposition to relin-
quishing any authority for SCI security to the Director, ISOO, or to the NSDD
working group-on standardized forms. It expresses your intention to retain
the authority for the SCI nondisclosure agreement and the current mechanism
for revising it.
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
12. Recommendation: That you sign the attached letter.
STAT
Attachment
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
ICS-83-0812
SUBJECT: Letter to Judge Clark re NSDD 84
Distribution:
Orig - Addressee w/att
1 - DDCI w/att
1 - ER w/att
1 - OGC w/att
1 - OGC
w/att
F
1 - D/IWatt
1 - C/SECOM w/att
1 - ICS Registry w/att
C/SECOM~ ((7/12/83)
STAT
STAT
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
the Director of Central Intelligence
NhshU onac2OSOs
2 8 JUL 1983
The Honorable William P. Clark
Assistant to the President for
National Security Affairs
The White House
Washington, D. C. 20500
Dear Judge Clark:
Actions being taken to implement National Security Decision Directive
No. 84 (NSDD 84) have taken a turn which I did not anticipate when the Intel-
ligence Community urged the President to adopt the Willard Report. Current
plans to implement specific provisions of the NSDD will, I believe, signi-
ficantly conflict with the responsibilities of the Director of Central
Intelligence (DCI) under law.
At the time NSDD 84 was promulgated, the DCI was the unquestioned
arbiter of security standards and criteria relating to intelligence sources
and methods. An SCI nondisclosure agreement (Form 4193), issued in 1981 via
the SECOM mechanism, was accepted throughout the Intelligence Community and
was signed by thousands of persons. While the agreement was tailored to con-
sider the concerns of Intelligence Community members, the basis for requiring
such an agreement as a condition precedent to SCI access clearly flowed from
the DCI's statutory responsibility. The major impetus for Form 4193 was the
Supreme Court's having upheld in the Sne case a similar nondisclosure
agreement relating to CIA employment.Iaam now concerned, however, that
the NSDD implementation process may undermine the responsibility of the DCI
to protect SCI and other information relating to intelligence sources and
methods because the DCI would no longer retain the necessary control of
security standards and criteria.
The U. S. Government generally, and the Intelligence Community in parti-
cular, have long recognized the special responsibility of the DCI, set forth
in the National Security Act of 1947, to protect intelligence sources and
methods from unauthorized disclosure. This responsibility has been given
effect by the establishment of Sensitive Compartmented Information (SCI) as a
special category of intelligence data. Through Executive Orders 12333 and
12356 and a series of DCI Directives, DCI policy for SCI has been implemented
throughout the U. S. Government. The DCI Security Committee (SECOM) was
chartered to assist in carrying out these responsibilities. It did not occur
to me, nor do I believe it was the President's intent, that the NSDD would in
any way weaken or undermine the role of the DCI in such matters.
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
What has happened, however, is that a working group, chaired by the
General Services Administration's Information Security Oversight Office, has
revised the existing SCI nondisclosure agreement which I had promulgated. In
addition, I understand the working group intends to make any agency's use of a
more stringent agreement subject to ISOO approval. In effect, this transfers
the authority for this important aspect of SCI security from the DCI to the
Director of ISOO. It should be noted that the final draft of the NSDD
circulated for review did not create such a role for ISOO and I must say I
was surprised to find such language published in the NSDD.
I believe the implementation of the NSDD would be best accomplished by
the following steps: ISOO should develop standardized language relating only
to the prepublication review of collateral information. This language should
reflect any agreements reached by the working group concerning collateral
prepublication review. Once this language has been developed, it should be
presented to the SECOM for incorporation into a revised Form 4193, along with
any other suggestions that the working group believes might strengthen the
revised form. After due consideration, a revised Form 4193 will be promulgated
by the SECOM, at my direction, including the collateral prepublication language
developed by ISOO, as well as any other language adopted by the SECOM to
strengthen the revised form, consistent with the NSDD. This will avoid any
appearance of conflict between ISOO and the DCI's established authority to
make the rules for the protection of intelligence sources and methods.
I regret the necessity to bring this to your attention, but any reduction
of the DCI's security role would erode the DCI's ability to carry out his
statutory obligation to protect sources and methods and woul"be contrary
to the national interest. I hope this matter can be resolved quickly. In
the interim, I shall plan to continue Intelligence Community use of the
present nondisclosure agreement for SCI access.
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
 Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4
SUBJECT: Letter to Judge Clark (ICS-83-0812)
Distribution:
Orig - Addressee
1 - DCI
1 - DDCI
1 - ER
1 - OGC
1 - OGC
1 - D/ICS
1 - C/SECOM
1 - ICS Registry
C/SECOMI ((7/12/83)
STAT
STAT
Sanitized Copy Approved for Release 2011/07/18: CIA-RDP87T00623R000100070033-4