SENSITIVE COMPARTMENTED INFORMATION (SCI) NONDISCLOSURE AGREEMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87T00623R000100070020-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 22
• Document Creation Date: December 27, 2016
• Document Release Date: July 18, 2011
• Sequence Number: 20
• Publication Date: August 25, 1983
• Content Type: MEMO

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STAT
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25 August 1983
OLL: 83-2059
MEMORANDUM FOR THE RECORD
SUBJECT: Sensitive Compartmented Information (SCI) Nondisclosure
Agreement
After being informed by Mr. Richard Willard, Deputy Assistant Attorney
General/DoJ, that he was going to have a press conference on the release
of the SCI Nondisclosure Agreement pursuant to National Security Decision
Directive (NSDD) 84 and upon agreement with OGC, STAT
I arranged to brief our Committees of the issuance. Consequently, I
informed Tom Latimer of the HPSCI and, in the absence of Rob Simmons and
Vicki Toensing, Gary Schmitt and Peter Sullivan of the SSCI and arranged
to have copies delivered to each Committee.
Deputy Director,
Attachment
Distribution:
STAT
Liaison
Office of Legislative
1-ICS
STAT
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STAT
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DD/OLL: (25 Aug 1983)
STAT
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U.S. Department qf Justice
Washington, D.C. 20530
August 25, 1983
Materials Concerning Prepublication Review
1) SCI Nondisclosure Agreement Form
2) Classified Information Nondisclosure Agreement Form
3) DOJ Letters on Enforceability of Agreements
4) DOJ Implementing Regulations
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SENSITIVE COMPARTMENTED INFORMATION NONDISCLOSURE AGREEMENT
An Agreement Between and the United States
(Name-Printed or Typed)
1 1. Intending to be legally bound, I hereby accept the obligations
2 contained in this Agreement in consideration of my being granted
3 access to information known as Sensitive Compartmented Information
4 (SCI). I have been advised and am aware that SCI involves or
5 derives from intelligence sources or methods and is classified or
6 classifiable under the standards of Executive Order 12356 or under
7 other Executive order or statute. I understand and accept that by
8 being granted access to SCI, special confidence and trust shall be
9 placed in me by the United States Government.
1 2. I hereby acknowledge that I have received a security indoctrination
2 concerning the nature and protection of SCI, including the procedures
3 to be followed in ascertaining whether other persons to whom I
4 contemplate disclosing this information have been approved for
5 access to it, and that I understand these procedures. I understand that
6 I may be required to sign subsequent agreements as a condition of
7 being granted access to different categories of SCI. I further
8 understand that all my obligations under this Agreement continue to
9 exist whether or not I am required to sign such subsequent agreements.
1 3. I have been advised and am aware that direct or indirect unauthorized
2 disclosure, unauthorized retention, or negligent handling of SCI by
3 me could cause irreparable injury to the United States or could be
4 used to advantage by a foreign nation. I hereby agree that I will
5 never divulge such information unless I have officially verified
6 that the recipient has been properly authorized by the United States
7 Government to receive it or I have been given prior written notice of
8 authorization from the United States Government Department or Agency
9 (hereinafter Department or Agency) last granting me either a security
10 clearance or an SCI access approval that such disclosure is permitted.
1 4. I further understand that I am obligated to comply with laws and
2 regulations that prohibit the unauthorized disclosure of classified
3 information. As used in this Agreement, classified information is
4 information that is classified under the standards of E.O. 12356, or
5 under any other Executive order or statute that prohibits the
6 unauthorized disclosure of information in the interest of national
7 security.
1 5. In consideration of being granted access to SCI and of being
2 assigned or retained in a position of special confidence and trust
3 requiring access to SCI and other classified information, I hereby
4 agree to submit for security review by the Department or Agency
5 last granting me either a security clearance or an SCI access
6 approval all materials, including works of fiction, that I contemplate
7 disclosOng to any person not authorized to have such information,
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work, 'VW
8 or that I have prepared for public disclosure, which contain or
9 purport to contain:
10 (a) any SCI, any description of activities that produce or
11 relate to SCI, or any information derived from SCI;
12 (b) any classified information from intelligence reports
13 or estimates; or
14 (c) any information concerning intelligence activities,
15 sources or methods.
16 I understand and agree that my obligation to submit such information
17 and materials for review applies during the course of my access to
18 SCI and at all times thereafter. However, I am not required to
19 submit for review any such materials that exclusively contain
20 information lawfully obtained by me at a time when I have no employment,
21 contract or other relationship with the United States Government,
22 and which are to be published at such time.
1 6. I agree to make the submissions described in paragraph 5 prior
2 to discussing the information or materials with, or showing them to
3 anyone who is not authorized to have access to such information. I
4 further agree that I will not disclose such information or materials
5 unless I have officially verified that the recipient has been
6 properly authorized by the United States Government to receive it or
7 I have been given written authorization from the Department or
8 Agency last granting me either a security clearance or an SCI
9 access approval that such disclosure is permitted.
1 7. I understand that the purpose of the review described in paragraph 5
2 is to give the United States a reasonable opportunity to determine
3 whether the information or materials submitted pursuant to paragraph 5
4 set forth any SCI or other information that is subject to classification
5 under E.O. 12356 or under any other Executive order or statute that
6 prohibits the unauthorized disclosure of information in the interest
7 of national security. I further understand that the Department or
8 Agency to which I have submitted materials will act upon them,
9 coordinating with the Intelligence Community or other agencies when
10 appropriate, and substantively respond to me within 30 working days
11 from date of receipt.
1 8. I have been advised and am aware that any breach of this Agreement
2 may result in the termination of any security clearances and SCI
3 access approvals that I may hold; removal from any position of
4 special confidence and trust requiring such clearances or access
5 approvals; and the termination of my employment or other relationships
6 with the Departments or Agencies that granted my security clearances
7 or SCI access approvals. In addition, I have been advised and am
8 aware that any unauthorized disclosure of SCI or other classified
9 information by me may constitute a violation or violations of United
10 States criminal laws, including the provisions of Sections 641, 793,
11 794, 79, and 952, Title 18, United States Code, the provisions
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12 of Section 783(b), Title 50, United States Code, and the provisions
13 of the Intelligence Identities Protection Act of 1982. I recognize
14 that nothing in this Agreement constitutes a waiver by the United
15 States of the right to prosecute me for any statutory violation.
1 9. I hereby assign to the United States Government all royalties,
2 remunerations, and emoluments that have resulted, will result, or
3 may result from any disclosure, publication, or revelation not
4 consistent with the terms of this Agreement.
1 10. I understand that the United States Government may seek any
2 remedy available to it to enforce this Agreement including, but not
3 limited to, application for a court order prohibiting disclosure of
4 information in breach of this Agreement.
1 11. I understand that all information to which I may obtain access
2 by signing this Agreement is now and will forever remain the property
3 of the United States Government. I do not now, nor will I ever,
4 possess any right, interest, title, or claim whatsoever to such
5 information. I agree that I shall return all materials which have
6 or may come into my possession or for which I am responsible
7 because of such access, upon demand by an authorized representative
8 of the United States Government or upon the conclusion of my employment
9 or other relationship with the Department or Agency that last
10 granted me either a security clearance or an SCI access approval.
11 If I do not return such materials upon request, I understand that
12 this may be a violation of Section 793, Title 18, United States
13 Code, a United States criminal law.
1 12. Unless and until I am released in writing by an authorized
2 representative of the United States Government, I understand that
3 all conditions and obligations imposed upon me by this Agreement
4 apply during the time I am granted access to SCI and at all times
5 thereafter.
1 13. Each provision of this Agreement is severable. If a court should
2 find any provision of this Agreement to be unenforceable, all other
3 provisions of this Agreement shall remain in full force and effect.
1 14. I have read this Agreement carefully and my questions, if any,
2 have been answered to my satisfaction. I acknowledge that the
3 briefing officer has made available to me Sections 641, 793, 794,
4 798, and 952 of Title 18, United States Code, Section 783(b) of
5 Title 50, United States Code, the Intelligence Identities Protection
6 Act of 1982, and Executive Order 12356 so that 'I may read them at
7 this time, if I so choose.
1 15. I make this Agreement without mental reservation or purpose of
2 evasion.
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SIGNATURE DATE
SOCIAL SECURITY NUMBER ORGANIZATION
(SEE NOTICE BELOW)
1 The execution of this Agreement was witnessed by the undersigned,
2 who, on behalf of the United States Government, agreed to its terms
3 and accepted it as a prior condition of authorizing access to
4 Sensitive Compartmented Information.
WITNESS and ACCEPTANCE:
SIGNATURE DATE
ORGANIZATION
SECURITY BRIEFING ACKNOWLEDGEMENT
I hereby acknowledge that I was briefed on the following SCI Special
Access Program(s):
(Special Access Programs by Initials Only)
Signature of Individual Briefed Date Briefed
Printed or Typed Name
Social Security Number (See Notice Organization (Name and Address)
Below)
I certify that the above SCI access(es) were approved in accordance
with relevant SCI procedures and that the briefing presented by me on the
above date was also in accordance therewith.
Signature of Briefing Officer
Printed or Typed Name Organization (Name and Address)
;
Social Security Number (See Notice
Below)
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SECURITY DEBRIEFING ACKNOWLEDGEMENT
Having been reminded of my continuing obligation to comply with the
terms of this Agreement, I hereby acknowledge that I was debriefed on the
following SCI Special Access Program(s):
(Special Access Programs by Initials Only)
Signature of Individual Debriefed Date Debriefed
Printed or Typed Name
Social Security Number (See Notice Organization (Name and Address)
Below)
I certify that the debriefing presented by me on the above date was
in accordance with relevant SCI procedures.
Signature of Debriefing Officer
Printed or Typed Name Organization (Name and Address)
Social Security Number (See Notice
Below)
1 NOTICE: The Privacy Act, 5 U.S.C. 552a, requires that federal
2 agencies inform individuals, at the time information is solicited
3 from them, whether the disclosure is mandatory or voluntary, by
4 what authority such information is solicited, and what uses will
5 be made of the information. You are hereby advised that authority
6 for soliciting your Social Security Account Number (SSN) is Executive
7 Order 9397. Your SSN will be used to identify you precisely when
8 it is necessary to 1) certify that you have access to the information
9 indicated above, 2) determine that your access to the information
10 indicated has terminated, or 3) certify that you have witnessed
11 a briefing or debriefing. Although disclosure of your SSN is not
12 mandatory, your failure to do so may impede the processing of such
13 certifications or determinations.
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CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT
An Agreement Between and the United States
(Name-Printed or-Typed)
1 1. Intending to be legally bound, I hereby accept the obligations
2 contained in this Agreement in consideration of my being granted
3 access to classified information. As used in this Agreement, classified
4 information is information that is either classified or classifiable
5 under the standards of Executive Order 12356, or under any other Executive
6 order or statute that prohibits the unauthorized disclosure of information
7 in the interest of national security. I understand and accept that
8 by being granted access to classified information, special confidence
9 and trust shall be placed in me by the United States Government.
1 2. I hereby acknowledge that I have received a security indoctrination
2 concerning the nature and protection of classified information,
3 including the procedures to be followed in ascertaining whether
4 other persons to whom I contemplate disclosing this information have
5 been approved for access to it, and that I understand these procedures.
1 3. I have been advised and am aware that direct or indirect unauthorized
2 disclosure, unauthorized retention, or negligent handling of classified
3 information by me could cause irreparable injury to the United States
4 or could be used to advantage by a foreign nation. I hereby agree
5 that I will never divulge such information unless I have officially
6 verified that the recipient has been properly authorized by the
7 United States Government to receive it or I have been given prior
8 written notice of authorization from the United States Government
9 Department or Agency (hereinafter Department or Agency) last granting
10 me a security clearance that such disclosure is permitted. I
11 further understand that I am obligated to comply with laws and
12 regulations that prohibit the unauthorized disclosure of classified
13 information.
1 4. I have been advised and am aware that any breach of this Agreement
2 may result in the termination of any security clearances I hold; removal
3 from any position of special confidence and trust requiring such
4 clearances; and the termination of my employment or other relationships
5 with the Departments or Agencies that granted my security clearance or
6 clearances. In addition, I have been advised and am aware that any
7 unauthorized disclosure of classified information by me may constitute
8 a violation or violations of United States criminal laws, including
9 the provisions of Sections 641, 793, 794, 798, and 952, Title 18,
10 United States Code, the provisions of Section 783(b), Title 50,
11 United States Code, and the provisions of the Intelligence Identities
12 Protection Act of 1982. I recognize that nothing in this Agreement
13 constitutes a waiver by the United States of the right to prosecute
14 me for any statutory violation.
1 5. I hereby assign to the United States Government all royalties,
2 remunerkions, and emoluments that have resulted, will result or may
3 result from any disclosure, publication, or revelation not consistent
4 with the terms of this Agreement.
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1 6. I understand that the United States Government may seek any
2 remedy available to it to enforce this Agreement including, but
3 not limited to, application for a court order prohibiting disclosure
4 of information in breach of this Agreement.
1 7. I understand that all information to which I may obtain access
2 by signing this Agreement is now and will forever remain the property
3 of the United States Government. I do not now, nor will I ever,
4 possess any right, interest, title, or claim whatsoever to such
5 information. I agree that I shall return all materials, which have,
6 or may have, come into my possession or for which I am responsible
7 because of such access, upon demand by an authorized representative
8 of the United States Government or upon the conclusion of my employment
9 or other relationship with the Department or Agency that last
10 granted me a security clearance. If I do not return such materials
11 upon request, I understand that this may be a violation of Section 793,
12 Title 18, United States Code, a United States criminal law.
1 8. Unless and until I am released in writing by an authorized
2 representative of the United States Government, I understand that
3 all conditions and obligations imposed upon me by this Agreement
4 apply during the time I am granted access to classified information,
5 and at all times thereafter.
1 9. Each provision of this Agreement is severable. If a court
2 should find any provision of this Agreement to be unenforceable, all
3 other provisions of this Agreement shall remain in full force and
4 effect.
1 10. I have read this Agreement carefully and my questions, if
2 any, have been answered to my satisfaction. I acknowledge that
3 the briefing officer has made available to me Sections 641, 793,
4 794, 798, and 952 of Title 18, United States Code, Section 783(b) of
5 Title 50, United States Code, the Intelligence Identities Protection
6 Act of 1982, and Executive Order 12356, so that I may read them
7 at this time, if I so choose.
1 11. I make this Agreement without mental reservation or purpose
2 of evasion.
SIGNATURE DATE
SOCIAL SECURITY NUMBER ORGANIZATION
(SEE NOTICE BELOW)
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1 The execution of this Agreement was witnessed by the undersigned,
2 who, on behalf of the United States Government, agreed to its terms
3 and accepted it as a prior condition of authorizing access to
4 classified information.
WITNESS and ACCEPTANCE:
SIGNATURE DATE
ORGANIZATION
1 NOTICE: The Privacy Act, 5 U.S.C. 552a, requires that federal
2 agencies inform individuals, at the time information is solicited
3 from them, whether the disclosure is mandatory or voluntary, by what
4 authority such information is solicited, and what uses will be made
5 of the information. You are hereby advised that authority for
6 soliciting your Social Security Account Number (SSN) is Executive
7 Order 9397. Your SSN will be used to identify you precisely when it
8 is necessary to 1) certify that you have access to the information
9 indicated above or 2) determine that your access to the information
10 indicated has terminated. Although disclosure of your SSN is not
11 mandatory, your failure to do so may impede the processing of such
12 certifications or determinations.
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U.S. Departmeni f Justice
Civil Division
Deputy Assistant Attorney General Washington, D.C. 20530
August 16, 1983
Mr. Robert M. Kimmitt
Executive Secretary
National Security Council
The White House
Washington, D. C. 20506
Re: NSDD-84 Nondisclosure Agreement Forms
Dear Mr. Kimmitt:
In my letter of July 19, 1983, a copy of which is attached, I
advised Steven Garfinkel that two draft nondisclosure agreements
had been determined by the Department of Justice to be enforceable
in civil litigation brought by the United States. Since then, the
nondisclosure agreements have been revised, and copies of the
final versions are attached to this letter. None of the revisions
affect any of the legal analysis contained in my July 19 letter.
Therefore, we have concluded that each of the final nondisclosure
agreements would be enforceable in accordance with its terms in
civil litigation initiated by the United States.
Sincerely,
(Signed)
Richard K. Ward
Richard K. Willard
Deputy Assistant Attorney General
Attachments
cc: Steven Garfinkel
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U.S. Departmen' f Justice
Civil Division
Deputy Assistant Attorney General Washington, D.C. 20530
July 19, 1983
Mr. Steven Garfinkel
Director, Information Security Oversight Office
General Services Administration
Washington, D.C. 20403
Dear Mr. Garfinkel:
Your letter to the Attorney General dated July 1, 1983,
requests that the Department of Justice review two nondisclosure
agreements drafted pursuant to National Security Decision
Directive 84, entitled "Safeguarding National Security
Information" (referred to herein as NSDD-84), which was signed by
the President on March 11, 1983.
Paragraph 1.a. of NSDD-84 requires all persons with
authorized access to classified information to sign a
nondisclosure agreement as a condition of access. Paragraph 1.b.
imposes the same requirement on persons with authorized access to
Sensitive Compartmented Information (SCI) and requires, in
addition, that such nondisclosure agreements "include a provision
for prepublication review to assure deletion of SCI and other
classified information." Paragraph 1.c. provides that the
agreements required in paragraphs 1.a. and 1.b. must be in a form
determined by the Department of Justice to be enforceable in a
civil action brought by the United States.
We understand that the draft agreements transmitted with your
letter were prepared pursuant to the provision in paragraph 1.c.
of NSDD-84 that your office develop standardized forms to satisfy
the requirements of the directive. We also understand that use of
these forms will be mandatory for each agency of the Executive
Branch that originates or handles classified information, unless
the National Security Council grants permission to use an
alternative form of agreement that has been approved by your
office and the Justice Department.
Classified Information Nondisclosure Agreement
The essence of the proposed Classified Information
NondisclosUre Agreement is an undertaking by the person receiving
access to classified information never to disclose such
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information in an unauthorized manner. This undertaking is
consistent with the provisions of Executive Order 12356, as well
as various statutes and other regulations that prohibit the
unauthorized disclosure of classified information. In addition,
government employees and others who are entrusted with classified
information have a fiduciary obligation to protect it from
unauthorized disclosure. See Snepp v. United States, 444 U.S.
507, 511 n.6, 515 n.11 (1980).
The protection of national security information is a primary
and fundamental constitutional responsibility of the President
that derives from his responsibilities as Chief Executive,
Commander-in-Chief, and the principal instrument of United States
foreign policy. Agreements to preserve the secrecy of classified
information are an appropriate method for the President to
discharge these constitutional responsibilities. United States v.
Marchetti, 466 F.2d 1309, 1315-16 (4th Cir.), cert. denied, 409
U.S. 1063 (1972); cf. Snepp v. United States, supra, 444 U.S. at
509 n.3 (agreement serves "compelling interest" of Government in
safeguarding national security information). These same cases
also rely upon the statutory authority of the Director of Central
Intelligence to protect "intelligence sources and methods from
unauthorized disclosure." 50 U.S.C. S 403(d)(3). However, the
agreements sustained in Marchetti and Snepp were not limited to
information concerning intelligence sources and methods but
included promises never to disclose any classified information.
Therefore, we believe that the President may require the signing
of such agreements as a condition of access to classified
information.
SCI Nondisclosure Agreement
The proposed SCI Nondisclosure Agreement has the same basic
terms as the Classified Information Nondisclosure Agreement
discussed above. SCI is a category of classified information that
is subject to special access and handling requirements because it
involves or derives from particularly sensitive intelligence
sources and methods. The power to require signing such an
agreement as a condition of access to SCI is thus supported by the
statutory authority of the Director of Central Intelligence to
protect intelligence sources and methods, 50 U.S.C. S 403(d)(3),
as well as the more fundamental constitutional responsibilities of
the President regarding national security.
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The proposed SCI Nondisclosure Agreement includes provisions
for the Government to conduct prepublication review of certain
writings by persons who have signed the agreement. The
prepublication review provisions of the proposed agreement are
similar to the agreement found by the Supreme Court to be
enforceable in Snepp v. United States, supra.. See also Alfred A.
Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421
U.S. 992 (1975); United States v. Marchetti, supra; Agee v. CIA,
500 F. Supp. 506 (D.D.C. 1980).
The rationale of the above-cited cases supports the inclusion
of prepublication review provisions in agreements that extend
beyond CIA to include other persons with authorized access to SCI.
Neither the statutory authority of the Director of Central
Intelligence nor the constitutional responsibilities of the
President are limited to CIA and its employees. Moreover, a high
degree of trust, which creates a fiduciary obligation on the part
of CIA employees, would also be involved for government officials
outside CIA who are entrusted with equally sensitive information
such as SCI.
Paragraph 5 of the proposed SCI Nondisclosure Agreement
defines the scope of materials required to be submitted for
prepublication review. In certain respects, this provision is
narrower than the agreement at issue in Snepp. As in the Snepp
agreement, however, certain materials must be submitted for review
even if they are not thought to contain classified information.
The Supreme Court in Snepp upheld the validity of such a
requirement. 444 U.S. at 511-13.
Among the categories of materials required in paragraph 5 to
be submitted for prepublication review is "(c) any information
concerning intelligence activities, sources or methods." This
category is not limited to classified information as such, but
includes any information that is required to be considered for
classification pursuant to Executive Order 12356, S 1.3(a)(4). We
believe that agencies using the proposed SCI Nondisclosure
Agreement should include in their implementing instructions some
definition of the term "intelligence activities," to include at
least a reference to the definition contained in Executive Order
12333, S 3.4(e).
Once material is submitted for prepublication review, there
is no authority in the proposed agreement for the Government to
delete unclassified information. However, any information that is
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subject to classification may be deleted pursuant to paragraph 7,
even if it does not pertain to SCI or other intelligence matters.
See Alfred A. Knopf, Inc. v. Colby, supra, 509 F.2d at 1368-69.
Conclusion
We have reviewed the specific provisions of the two draft
agreements transmitted with your letter and have concluded that
each would be enforceable in accordance with its terms in civil
litigation initiated by the United States.
Sincerely,
AgrmM
Richard K. Willard
Richard K. Willard
Deputy Assistant Attorney General
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DEPARTMENT
OF JUSTICE
rder
r-- DOJ 2620.8
EMPLOYEE OBLIGATIONS TO PROTECT CLASSIFIED INFORMATION
Subject: AND SUBMIT TO PREPUBLICATION REVIEW
1. PURPOSE. The purpose of this order is to explain and clarify
Department of Justice (DOJ) policies concerning implementation
of the prepublication review program.
2. SCOPE. This order applies to all persons granted access to
classified information in the course of their employment at the
DOJ and DOJ contractors granted such access.
3. AUTHORITY.
a. Executive Order 12356, "National Security Information."
b. National Security Decision Directive-84 entitled
"Safeguarding National Security Information."
c. 28 C.F.R. 0.75(p).
4. POLICY. All persons granted access to classified information
in the course of their employment at the DOJ are required to
safeguard that information from unauthorized disclosure. This
nondisclosure obligation is imposed by statutes, regulations,
access agreements, and the fiduciary relationships of the
persons who are entrusted with classified information in the
performance of their duties. The nondisclosure obligation
continues after DOJ employment terminates.
As an additional means of preventing unlawful disclosures of
classified information, the President has directed that all
persons with authorized access to Sensitive Compartmented
Information (SCI) be required to sign nondisclosure agree-
ments containing a provision for prepublication review to
assure deletion of SCI and other classified information.
SCI is information that not only is classified for national
security reasons as Top Secret, Secret, or Confidential, but
also is subject to special access and handling requirements
Distribution: BUR/H-1
Initiated By: Security Staff
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because it involves or derives from particularly sensitive
intelligence sources and methods.
5. RESPONSIBILITIES.
a. The prepublication review provision requires that DOJ
employees granted access to SCI submit certain material
to the Department, whether prepared during or subsequent
to DOJ employment, prior to its publication to provide an
opportunity for determining whether an unauthorized
disclosure of SCI or other classified information would
occur as a consequence of its publication.
The obligations not to disclose classified information and
to comply with agreements requiring prepublication review
have been held by the Supreme Court to be enforceable in
civil litigation. Snepp v. United States, 444 U.S. 507
(1980).
b. It must be recognized at the outset that it is not possible
to anticipate each and every question that may arise. The
Department will endeavor to respond, however, as quickly
as possible to specific inquiries by present and former
employees concerning whether specific materials require
prepublication review. Present and former employees are
invited to discuss their plans for public disclosures of
information that may be subject to these obligations with
authorized Department representatives at an early stage,
or as soon as circumstances indicate these policies must
be considered. All questions concerning these obligations
should be addressed to the Counsel for Intelligence Policy,
Office of Intelligence Policy and Review, Room 6325, U.S.
Department of Justice, 10th & Constitution Avenue, N.W.,
Washington, D.C. 20530. The official views of the
Department on whether specific materials require prepubli-
cation review may only be expressed by the Counsel for
Intelligence Policy and persons should not act in reliance
upon the views of other Department personnel.
c. Employees with access to SCI will be required to sign
agreements providing for prepublication review. Prepubli-
cation review is required only as expressly provided for in
an agreement. However, all persons who have had access to
classified information have an obligation to avoid unauth-
orized disclosures of such information and are subject to
enforcement actions if they disclose classified information
in an unauthorized manner. Therefore, present or former
employes are encouraged voluntarily to submit material for
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prepublication review if they believe that such material
may contain classified. information even if such submission
is not required by a prepublication review agreement. Where
there is any doubt, present and former employees are urged
to err on the side of prepublication review to avoid
unauthorized disclosures and for their own protection.
d. Present or former employees who have signed agreements
providing for prepublication review are required to submit
any material prepared for disclosure to others that
contains or purports to contain:
(1) any SCI, any description of activities that
produce or relate to SCI, or any information
derived from SCI;
(2) any classified information from intelligence
reports or estimates; or
(3) any information concerning intelligence
activities, sources or methods.
The term "intelligence activities" in paragraph 5.d.(3)
means all activities that agencies within the Intelligence
Community are authorized to conduct pursuant to Executive
Order 12333. However, there is no requirement to submit
for review any materials that exclusively contain infor-
mation lawfully obtained at a time when the author has no
employment, contract, or other relationship with the
United States Government and which are to be published at
such time.
e. A person's obligation to submit material for prepublication
review remains identical whether such person actually
prepares the material or causes or assists another person,
such as a ghost writer, spouse or friend, or editor in
preparing the material. Material described in paragraph 5.d
must be submitted for prepublication review prior to dis-
cussing it with or showing it to a publisher, co-author, or
any other person who is not authorized to have access to it.
In this regard, it should be noted that a failure to submit
such material for prepublication review constitutes a breach
of the obligation and exposes the author to remedial action
even in cases where the published material does not actually
contain SCI or classified information. See Snepp v. United
States, supra.
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f. The requirement to submit information or materials for
prepublication review is not limited to any particular type
of material or disclosure. Written materials include not
only books but all other forms of written materials intended
for public disclosure, such as (but not limited to) news-
paper columns, magazine articles, letters to the editor,
book reviews, pamphlets, and scholarly papers. Because
fictional treatment may convey factual information, fiction
is also covered if it is based upon or reflects information
described in paragraph 5.d.
Oral statements are also included when based upon written
materials, such as an outline of the remarks. There is no
requirement to prepare such material for prior review, how-
ever, unless there is reason to believe in advance that oral
statements may contain SCI or other classified information.
Thus, a person may participate in an oral presentation of
information where there is no opportunity for prior pre-
paration (e.g., news interview, panel discussion) unless
there is reason to believe in advance that such oral
expression may contain SCI or other classified information.
This recognition of the problems with oral representations
does not, of course, exempt present or former employees
from liability for any unauthorized disclosures of SCI or
classified information that may occur in the course of
even extemporaneous oral expressions.
h. Material that consists solely of personal views, opinions or
judgments and does not contain or imply any statement of
fact that would fall within the description in paragraph 5.d
is not subject to the prepublication review requirement.
For example, public speeches or publication of articles on
such topics as proposed legislation or foreign policy do not
require prepublication review as long as the material does
not directly or implicitly constitute a statement of an
informational nature that falls within paragraph 5.d. Of
course, in some circumstances the expression of "opinion"
may imply facts and thus be of such a character as to
require prior review.
i. Obviously, the purposes of prepublication review will be
frustrated where the material in question already has been
disseminated to unauthorized persons. Comparison of the
material before and after the review would reveal which
items of classified information, if any, had been deleted
at the Department's request. Consequently, the Department
will consider these obligations to have been breached in any
case, whether or not the written material is subsequently
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submitted to the Department for prepublication review, where
it already has been circulated to publishers or reviewers or
has otherwise been made available to unauthorized persons.
While the Department reserves the right to review such
material for purposes of mitigating damage that may result
from the disclosure, such action shall not prevent the
United States Government and the Department from pursuing
all appropriate remedies available under law as a conse-
quence of the failure to submit the materials for prior
review and/or any unauthorized disclosure of SCI or
classified information.
. Materials submitted for prepublication review will be
reviewed solely for the purpose of identifying and pre-
venting the disclosure of SCI and other classified infor-
mation. This review will be conducted in an impartial
manner without regard to whether the material is critical
or favorable to the Department. No effort will be made to
delete embarrassing or critical statements that are unclas-
sified. Materials submitted to the Office of Intelligence
Policy for review will be disseminated to other persons or
agencies only to the extent necessary to identify classified
information.
k. The Counsel for Intelligence Policy will respond substan-
tively to prepublication review requests within 30 working
days. Priority shall be given to reviewing speeches, news-
paper articles, and other materials that the author seeks to
publish on an expedited basis. The Counsel's decisions may
be appealed to the Deputy Attorney General, who will
process appeals within 15 working days. The Deputy Attorney
General's decision is final and not subject to further
administrative appeal. Authors who are dissatisfied with
the final administrative decision may obtain judicial review
either by filing an action for declaratory relief or by
giving the Department notice and a reasonable opportunity
(30 working days) to file a civil action seeking a court
order prohibiting disclosure. Of course, until any civil
action is resolved in court, employees remain under an obli-
gation not to disclose or publish information determined by
the Government to be classified.
1. Nothing in this order should be construed to alter or waive
the Department's authority to seek any remedy available to
it to prohibit or punish the unauthorized disclosure of
classified information.
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m. A former DOJ employee who subsequently receives a security
clearance or SCI access approval from another department or
agency is permitted to satisfy any obligation regarding
prepublication review by making submissions to the depart-
ment or agency that last granted the individual either a
security clearance or an SCI access approval.
n. The obligations described herein as applying to DOJ
employees also apply with equal force to contractors who
are authorized by the Department to have access to SCI or
other classified information.
cALAL_
WILLIAM D. VAN STAVOREN
Acting Assistant Attorney General
for Administration
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