REPORT OF THE SELECT COMMITTEE ON INTELLIGENCE SUBCOMMITTEE ON SECRET AND DISCLOSURE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R002800010045-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 53
• Document Creation Date: December 15, 2016
• Document Release Date: April 1, 2004
• Sequence Number: 45
• Publication Date: August 11, 1978
• Content Type: REPORT

Approved For Release 2004/04/13 : CIA-RDP81M00980R00280001004e q39q
47' ? ?
L9LC #;30,5-3
c6C-
REPORT OF
DRAFT
THE
SELECT COMMITTEE ON INTELLIGENCE
SUBCOMMITTEE ON SECRECY AND DISCLOSURE
NATIONAL SECURITY SECRETS: THEIR PROPER
PLACE IN THE LAW
ett,
,i4L(
et" etk.
August 11, 1978
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
?
TABLE OF. CONTENTS
PAGE
I. PREFACE 1
II._ SUMMARY 4
III. BACKGROUND OF SECRECY AND DISCLOSURE
SUBCOMMITTEE INQUIRY 7
IV. "LEAK" AND CLASSICAL ESPIONAGE INVESTIGATIONS 11
A. "Leak" Investigations 11
B. Classical Espionage Investigations 14
C. Damage by Confirmation Versus Augmentation-, 15
D. Augmentation of the Damage in Criminal
Cases
E. "Gray Mail": The Price of Failing to
Resolve the Dilemma
V. "TO KILL. ..TO LIE, CHEAT AND SPY"
A. A Case of Bribery
16
19
21
22
VI.
PAST LEGISLATIVE AND ADMINISTRATIVE PROPOSALS
IN RESPONSE TO THE "GRAY MAIL" PHENOMENA
32
A.
Legislative Initiatives: Abortive Efforts
to Enact An Official Secrets Act
32
B.
Administrative Initiatives
36
VII.
NEW INITIATIVES
40
t:
A.
Leaks and Espionage Generally
40
B.
Facilitating Enforcement of Existing
Statutes and the Charters
45
VIII.
RECOMMENDATIONS
55
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
I.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
I. PREFACE
The President learned of the new horror.
Bletchley (the site in England where British
intelligence was decoding German military com?
munications) was discovering ahead of time which
civilian targets Hitler planned to strike next.
Churchill and his War Cabinet had to decide
which was more important: to warn the families
marked for punishment or protect the secrets of
Bletchley's growing apparatus for divining Nazi
intentions.
A Man Called Intrepid by William Stevenson.
The secrecy necessary for effective intelligence activities
often forces upon government officials difficult moral dilemmas
A Man Called Intrepid is the story of the secret extralegal
British and American intelligence apparatus established by
Churchill and Roosevelt to combat the German war machine. The
book is rife with anecdotes about difficult decisions by the
President and the Prime Minister involving the need to protect
the ULTRA secret (the fact that the allies had cracked the German
code). Certainly the most famous of these was the foreknowledge
allegedly provided Churchill through ULTRA of the German plans to
firebomb Coventry.
According to Stevenson, Churchill decided not to evacuate
Coventry out of fear that the Germans would realize the British
had broken their code.* When confronted with Churchill's
decision on Coventry and similar questions, Roosevelt is said to
have remarked, "War is forcing us more and more to play God."
*, Critics of Stevenson's book contend that this anecdote is
inaccurate. Nonetheless, there is little doubt that Churchill
had to face many agonizing decisions in which he decided not to
forewarn citizens for fear of jeopardizing the ULTRA secret.
Approved For Release 2004/04/13: CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-2-
Since World War II, intelligence activities and concomitant
secrecy have increased rather than subsided. The moral dilemmas
have increased. Certainly most officials of British and American
intelligence would agree with Sir William Stephenson, the man
code-named "Intrepid":
We live in a world of undeclared hostilities
in which such weapons (the weapons of secrecy) are
constantly used against us and could, unless
countered, leave us unprepared again, this time
for an onslaught of magnitude that staggers the
imagination.
Stephenson concludes his discussion of the need for secrecy with
S?
the following insight:
So there is the conundrum: how can we wield
the weapons of secrecy without damage to ourselves?
How can we preserve secrecy without endangering
constitutional law and individual guarantees of
freedom?
Stephenson expresses the conventional concern that secrecy
could undermine democratic principles, and no one who has lived
through the past few years can deny the price that we have
sometimes paid for secrecy in intelligence and government.
However, in the course of our study of secrecy we found that
there is a part of the present-day dilemma which Stephenson does
not mention. Indeed it is not unlike the problem of
foreknowledge faced by Churchill and Roosevelt in "Coventry-type"
situations. Secrecy and-a desire on the part of the intelligence
community to preserve secrets has at times, posed certain threats
tO the national security itself. This report demonstrates the
fact that the more sensitive the information compromised, the
more difficult it becomes to enforce the laws that guard our
national secrets. This occurs principally because the legal
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
steps necessary to pursue a breach entail, almost inevitably,
some further compromise of sensitive material. This is not a
problem which is likely to be corrected by a revision of our
substantive espionage statutes.
This impasse may not only adversely affect national security
but also threatens the administration of justice. Intelligence
agencies through the last several decades have, in the name of
"protecting sources and methods", attempted to hold themselves
apart from the rest of the Executive branch and the Congress.
This phenomenon fostered the belief
among some intelligence
officials that they were subject to a different standard of law
Certainly secrecy and that estrangement were important causes of
recent crises concerning the intelligence agencies.
Therefore, the real dimensions of the problem that the
has discovered are broader than the conundrum posed by
staff
Stephenson. The basic dilemma facing the intelligence community,
ILLEGIB
the Executive branch and this Committee is not just whether
secrecy and democracy are compatible, but whether maintaining
secrecy at any cost can undermine the national security,
enforcement of the espionage statutes, and the general
administration of justice. In the words of one Justice
the
Department official official who testified before the Subcommittee, "To
what extent must we harm the national security in order to
protect the national security?"
Joseph R. Biden, Jr., Chairman
James Pearson, Vice Chairman
Subcommittee on Secrecy
and Disclosure
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
II. SUMMARY
The Committee's inquiry has led it to the following
conclusions:
(A) There is a major breakdown in the administration of
the criminal espionage statutes in leak cases. To date, we have
been unable to identify a single successful prosecution of an
individual who leaked classified information to a publication.
This record was found despite the nearly unanimous assessment
that at least some leaks violate existing statutes and cause
serious harm to our national security.
The breakdown results in part from an impasse between the
Department of Justice and the intelligence community on how to
deal with the further use of classified information necessary for
investigation and prosecution of these cases. Briefly stated, /t7
4
(414 keu4
there is no formal mechanism to weigh the risks of additionaleg
disclosures against the benefits of prosecution.
-
(B) Congressional efforts to remedy this breakdown shlou
first be directed at improving the administration of current
statutes; Congress should defer consideration of new criminal
sanctions until enforcement problems are eliminated or
substantially reduced.
6,444
(C) Disagreements over the use of classified information
also impede classical espionage prosecutions.
(1) The Committee reviewed some classical espionage
cases which have not proceeded to either investigation or
prosecution for the same reason that leak cases cannot
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
proceed -- concern about the disclosure of intelligence
information in the course of investigation or prosecution.
Furthermore, certain cases engendered such intense
disagreements between the intelligence community and the
Department of Justice that Presidential intervention to
resolve the disagreement was almost required.
(2) However, a resolution of the disagreement over
the use of classified information in espionage prosecutions
is likely for the following reasons:
(a) Classical espionage cases are generally
t?
considered more serious than leak cases.
(b) The federal espionage statutes are more
clearly drawn to cover classical espionage than most
leaks.
(c) Many classical espionage cases are in
effect out of the control of the intelligence
community because the law enforcement machinery has
been engaged by an arrest, or because the public or
officials outside the intelligence community know of
the crime and, therefore, pressure the intelligence
community to provide information necessary for
prosecution.
(d) Usually the constitutional problems
(primarily First Amendment problems) are much less
severe in classical espionage cases than in leak
cases.
(D) The impasse over the use of classified information
occurs in other types of criminal cases and at times defendants
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-6?
may have placed the Department of Justice at a marked
disadvantage because of this dilemma in perjury, narcotics, and
even murder cases.
The Committee has formulated a series of recommendations
designed to alleviate the problems faced by the government in
maintaining the secrecy of legitimate national security
information. These recommendations can be found on pages
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
III. BACKGROUND OF SECRECY AND DISCLOSURE
SUBCOMMITTEE INQUIRY
On April 26, 1977, the Subcommittee asked the staff to
undertake (1) a review of unauthorized disclosures of
intelligence information and (2) an inquiry into the use of
compartmentation -- a procedure to place special limitations on
access to information that is especially sensitive. Although
some progress has been made on the second inquiry, most of the
Subcommittee's work has concentrated on the first question which
will serve as the focus of this report.
The Subcommittee .conducted its inquiry through both
interviews and file searches at the intelligence agencies. We
have conducted over thirty interviews and briefings with
officials of the Departments of Justice and State and the major
intelligence agencies (CIA, NSA and DIA). In the course of these
briefings we asked each agency to provide us with ten cases in
which intelligence information had been covertly passed to
foreign powers -- classical espionage cases -- or in which
intelligence found its way into the public media -- intentional
or accidental leak cases. We have reviewed over forty case files
or summaries of case files provided by these agencies. These
files have served as a valuable data base for our survey.
Indeed, we believe that they represent the most comprehensive
compilation of such, information in either the Executive branch or
Congress. Each file contains information on an intelligence
compromise which has occurred in the last few years, the action
taken -- or not taken, as is frequently the case -- by the
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M0098 ; 00E94
-8-- 4AfJ;
relevant agency or the FBI, and any disciplinary action taken
against the individuals responsible.
In June of last year, after reviewing a summary of the
results of its survey, and based on a number of surprising
findings, the Subcommittee redirected its inquiry. The
Subcommittee began on the assumption that the major issue to be
addressed would be evaluating the desirability of additional
criminal sanctions for unauthorized disclosure of information
that jeopardized sensitive foreign intelligence "sources and
methods". However, as the work proceeded, the Subcommittee was
soon driven to the conclusion that no present statute can be
effectively enforced against "leaks" and that it would be a
difficult task to draft a constitutional criminal statute which
would solve the enforcement problems. In fact, the nation's
strictest statutory safeguard against unauthorized disclosure,
Section 798 of Title 18, the U.S. espionage statute which
protects communications intelligence "sources and methods" in a
manner similar to that of the British Official Secrets Act, does
little to deter either classical espionage or leaks. The files
which the Subcommittee has studied reveal several cases in which
violations of even this statute were neither investigated nor
prosecuted.
At the heart of thi's failure of enforcement is a very deep-
seated conflict betWeen the interests of the intelligence
cbmmunity on the one hand, and the Department of Justice on the
other over the enforcement of the espionage statutes. The
conflict arises over whether the intelligence community and
Defense Department, which are charged with protecting the
Approved For Release 2004/04/13 : 1M 98 2
cr\)?--
otso
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-9-
national security, or the Department of Justice, which is charged
with enforcing the law, should prevail in controlling the use of
classified information necessary to conduct the investigation and
to proceed with the prosecution.* Indeed this question of
whether or which classified information is to be used in a
particular judicial proceeding is a pervasive problem that goes
well beyond enforcement of the espionage statutes. Problems
created by classified information have also hampered many other
prosecutions, including Perjury, extortion, bribery, narcotics
violations and possibly even one murder case.
On March 1st, 2nd and 6th, the Subcommittee on Secrecy and
Disclosure conducted public hearings on the matters raised by our
inquiry. The Subcommittee heard from Admiral Stansfield Turner,
the Director of Central Intelligence; Benjamin Civiletti, the
Acting Deputy Attorney General; Philip Lacovara, formerly of the
Watergate Special Prosecutor's Office; Judge Fletcher, Chief
Judge of the Court of Military Appeals; William Colby, former
Director of Central Intelligence; Lawrence Houston, former CIA
General Counsel; and Morton Halperin, representing the American
Civil Liberties Union. The purpose of this report is to
summarize the Committee's findings based on these hearings and
its year-long inquiry, and to report its recommendations for
It is common khowledge that the FBI and other counter-
intelligence agencies do from time to time decide not to
ptosecute espionage cases for other reasons such as the
desirability of monitoring a particular spy in order to
understand the full dimensions of a spy network. This report
-does not address these kinds of cases hut only those where
investigation and prosecution is the preferred approach.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-10-
legislative and administrative actions to facilitate
administration of certain statutes related to the national
security.
?
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
IV. "LEAK" AND CLASSICAL ESPIONAGE INVESTIGATIONS
A. "Leak" Investigations
The Subcommittee examined thirty recent cases submitted by
the CIA, NSA and DIA. These cases consisted primarily of
instances of leaks of intelligence information to the newspapers.
Of those thirty cases only three were actually referred to the
Department of Justice for investigation and none of those was
formally investigated. All were recent cases. Almost half of
0g
the cases involved disclosure of communications intelligence,
0/1-7-4
tv-r&i41
which could have been prosecuted under Section 798 of Title 18 of
.4tt
the United States Code (see Appendix). As noted earlier,
798
-
798 is the only espionage provision presently on the books that
approaches the strict liability criminal standard used by the
British in the Official Secrets Act, the model for recent
proposals to create new criminal sanctions for "leaks".
Many of these "leak" cases are not investigated by the FBI
because the Department of Justice has developed a policy of
refusing to investigate unless the intelligence community is
willing to declassify all information related to the case. This
policy grew out of frustration by the Department over the years
with intelligence community reluctance to provide necessary
evidence to prosecute major leak cases after the FBI had invested
considerable time and effort in investigation.
The response to those leaks which are subject to internal
intelligence agency investigations, such as they are, begins with
an employee of an intelligence agency who is familiar with the
intelligence and who identifies the possible leak when it is
Published. In other words, if the intelligence relates to
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
information gleaned from communications intelligence, an
employee of the unit which processes that intelligence would
probably recognize the sensitivity of the published information
and report it to the office of security of his agency. The
office of security then would notify the office of public
affairs. Upon receipt of the published article containing the
leak, the office of security of the concerned intelligence agency
would next attempt to determine the individuals or offices who
had access to the information.
This type of investigation is often fruitless because the
11.
leaked information has been disseminated broadly in such inter?
agency classified materials as certain CIA intelligence cables,
the National Intelligence Daily or the Weapons Intelligence
Summary (some of which have circulation in the thousands). The
very information which must be disseminated to policymakers is
frequently the information which requires the greatest protection
from unauthorized disclosure. At-the same time that the security
office is attempting to determine the scope of dissemination and
the possible recipients of the information, it is working closely
with the office within the intelligence agency where the
information originated in the preparation of a damage
assessment.*
Most of the damage assessments that were reviewed were quite
perfunctory in nature and provide no specific information on the
-actual and specific damage caused by the leak.
In fairness to those preparing the damage assessment at such
an early date in the process, it is difficult to assess the
damage because it is not yet clear whether or not a hostile power
has actually responded to the information in the article.
However, damage assessments were rarely updated in the cases
which were reviewed.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
After the damage assessment is completed and a cursory
review of the number of people who might have had access is
finished, the information is forwarded to one of three organi-
zations: to the Security Committee of the Intelligence Community
Staff, to another agency if it is clear that the information must
have been leaked by a publication or office or individuals of
that agency, or (in a small fraction of the cases) to the
Department of Justice.
If reference to the Department of Justice is indicated, the
Department's response is pro forma. The Department of Justice
does not usually initiate an investigation. It normally responds
with a letter back to the agency containing what is called "the
eleven auestions" (see Appendix). Neither the Department of
Justice nor the FBI will normally proceed further until the
eleven questions are answered. Some of the eleven questions are
uncontroversial -- such as whether the compromised information
was properly dlassified in the first place and whether the
article disclosing it was accurate. In most cases, particularly
those of extreme sensitivity, however, the whole process reaches
an impasse at Question 9, which reads as follows:
Whether the data can be declassified for
the purpose of Prosecution and, if so, the name
of the person competent to testify concerning
the declassification.
The intelligenge agencies view this as a requirement that
they agree to declassify any and all information in question
before the Department of Justice will agree to investigate the
case. Since the agencies rarely agree to this "up front"
commitment, few cases, if any, are ever actually investigated by
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
?14--
the Department of Justice. Indeed, of the 30 cases provided by
the intelligence agencies, none was investigated by the
Department of Justice.
B. Classical Espionage Investigations
Classical espionage cases secretly passing classified
information to a hostile power are taken much more seriously
than leaks by both the Justice Department and the intelligence
community. (See discussion on page ) Despite the fact that
classical espionage cases and "leaks" may both be prosecuted
under the same criminal statutes, the eleven question leak
questionnaire is not used in espionage cases. Indeed in
classical espionage cases a resolution is almost always reached
between the intelligence community and the Justice Department on a ,
C6-1) )1)4 AT
how to proceed with investigationA_Although the government is
capable of resolving its differences in classical espionage pdi
cases, the decision is often made not to prosecute Therefore
the initial impasse that prevents the opening of investigations
in leak cases does not occur. Nevertheless, even if the decision
is to proceed to trial, it is often a painful and hotly contested
matter causing friction between the Justice Department and the
intelligence community from the grand jury proceedings through
sentencing. The Subcommittee examined cases that did proceed to
prosecution and one case which was subsequently dropped with no
punitive action taken against an individual who admitted to
espionage.
United States v. Moore was the successful prosecution last
year of a former CIA official who tossed classified documents
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R0
-15-
onto the Russian Embassy lawn here in Washingt
010045-2
United States
v. Boyce and Lee, also successfully prosecuted last year,
involves an employee of TRW, a large defense contractor
California, who passed photographs of documents describing
extremely sensitive intelligence systems to the Russians. Both ILLEGIB
cases were the subject of considerable tension between the CIA
and the Department of Justice._Both required protracted
negotiations on whether to use individual documents and witnesses
CZ-117-urv-P--41
in the trial. rIn one case friction over those sorts of issues-7--
became so intense that the lawyer assigned responsibility i
CIA's Office of General Counsel refused to participate any
further:1 In the Moore case disagre- ents between DCI George Bush(
and Attorney General Levi almost required President Ford's
intervention on his last day in office.
C. Damage by Confirmation Versus Augmentation
The intelligence agencies' concern about the effect of
investigation or prosecution of a leak or classical espionage
upon the national security falls into two basic categories:
(1) The investigation or prosecution of an espionage
violation can further damage the national security by confirming
the validity of the information disclosed. For example, in
either a covert transmission case or a leak case a hostile power
which discovers information very sensitive to the national
?
security may discount the information because of questions about
the reliability of the source, whether it be a spy or a
newspaper. However, if an indictment is filed against the
subject or the existence of an investigation is disclosed, the
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-16-
hostile intelligence service tends to interpret that indictment
or investigation as confirmation of the accuracy of the
information provided. This particular form of damage to the
national security is practically impossible to remedy because of
the constitutional requirement of a "public" trial -- the
defendant has a right to a public adjudication of the charges
against him. This is one reason why criminal sanctions for even
the most serious "leaks" to newspapers would be a particularly
counter-productive remedy.
(2) Investigation or prosecution may augment the
damage to the national security by disclosing either to the
defendant or other interested parties further information
necessary either to investigate the case or to prove the case.
For example, it frequently becomes necessary in the course of
investigation to discuss the facts of the case with a variety of
witnesses who may be associates of the defendant. In a criminal
case there is_a plethora of procedures which involve public
discussion of evidence related to the crime. This may be
particularly risky in espionage cases where prosecution may
disclose sophisticated counter-espionage techniques.
D. Augmentation of the Damage in Criminal Cases
This latter problem, augmentation of the damage, may be
easier to resolve than the former. Where the Justice Department
has determined to proceed, for example as in the Rosenberg or
Ellsberg case, or in the two major espionage prosecutions last
year, the prosecutors and judges have fashioned ad hoc procedures
to protect the nation -1 security
and at the same time ensure the
Irt2db001M45-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-17--
administration of justice. These ad hoc procedures form the
focus of the Committee's present efforts.
In a criminal prosecution involving perjury, narcotics
smuggling, organized crime offenses such as extortion, or
espionage, there are a variety of circumstances in the course of
pre-trial or trial procedures in which government attorneys fear
a judge will require disclosure of classified information.
(1) As part of the case against the defendant. In a
typical espionage prosecution, classified information may be
directly relevant in proving the case against the defendant. For
example, in a prosecution under Section 793 of Title 18, it is
necessary to prove that the information passed will actually
damage the national security or be of aid to a foreign
government. Of course, in some cases the information passed is
not of obvious significance to a foreign government and there is
always the likelihood the foreign government does not understand
the impact of. the information passed. In such a criminal trial
it becomes necessary to explain to the jury, and therefore to the' ri)
public, the significance of the information passed. For example
in the Moore case the government had to publicly disclose the ql1/161
names of individuals in the CIA telephone directory (among the
documents tossed onto the Embassy lawn, but which in fact was
never examined by the Russians).*
*, In this case the Federal judge took the extraordinary step
Of sealing a public trial exhibit (consisting of the directory
and other sensitive documents) permitting only limited access by
the jury and the public.
qi fb b
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-18--
The Boyce and Lee prosecution earlier this year was one off
the very few prosecutions under Section 798 of Title 18 for the
unauthorized dissemination of communications intelligence.
However, even though that statute does not ,r_pguire pro df of harm,
it was necessary to prove that the information was appropriately
classified and in the course of such a procedure it was necessary
to offer evidence that indicates the significance of the
information passed.
(2) As a part of the defendant's affirmative
defense. In the course of any of these prosecutions it is likely
that the defendant may successfully raise an affirmative defense
that will reauire classified information. For example, an agency
official prosecuted for deceiving Congress, might offer the
affirmative defense that it was a pattern or practice of Agency
officials either to conceal classified information in
Congressional briefings or even to deceive Congressional
committees. In the alternative, the official might argue that
the information he provided the Committee was indeed truthful.
Obviously both of these offers of proof would have required the
disclosure of a considerable amount of extremely sensitive
classified information. 'In cases of organized crime and
narcotics smuggling, a defendant might raise his former
association with the Agency as part of a putative affirmative
defense which would require evidence of the CIA's relationship to
him or similar agency relationships to other individuals in the
ILLEGIB underworld.
(3)
As part of pre-trial discovery. In every
criminal trial the d fendantjes entitled under the Constitution,
V ?i)14
e4 8?),A-RDP81M00980R002800010045-2
?
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-19-
under statute, or under the Federal Rules of Criminal Procedure*,
to: (a) all materials obtained from or belonging to the
defendant; (b) information pertaining to the testimony of a
government witness; and, (c) any exculpatory information within
the government's possession. Frequently the information which
must be disclosed in these pre-trail procedures is classified.
E. "Gray Mail": The Price of Failing
To Resolve The Dilemma
Since the Espionage Act was enacted in 1917, the Federal
Government has been cautious in using the statute because of the
necessity to provide further classified information in the course
of a prosecution. Prosecutors in the Department of Justice and
intelligence community officials have always recognized that the
espionage statute is not an effective remedy for all "leaks" to
the newspaper or covert transmission to a foreign spy because of
the counter-productive disclosure of further secrets. The
Department of.Justice is also aware that a defense counsel, in
the course of trial or through pre-trial discovery, can threaten
the government with frivolous discovery motions or a line of
questioning that discloses or requires the disclosure of
classified information. An internal CIA study of this problem in
1966 characterizes the dilemma as follows:
See Rule 16, F.R. Crim. P.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-20-
Out?
of this evidentiary difficulty has come
a sort of "gray mail", granted on the immunity
from prosecution (and often civil suit as
well) enjoyed by the thief who limits his trade
to information too sensitive to be revealed.
So long as the defendant threatens to reveal sensitive
information in the course of a trial, he or she may engage
this "gray mail" which precludes prosecution.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
in
ae-vuea,;46-",
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-21-,
?
V. "TO KILL...TO LIE, CHEAT AND SPY"
...Agent 007, had a license to kill, but I think
the testimony and the findings of the Subcommittee
staff...support the judgment that the situation in
real life is even more sweeping than Ian Fleming
wrote of in his fictional novels...People...
connected with intelligence information, whether
they are themselves intelligence officers or other-
wise involved with national security operations,
have by virtue of the immunity from prosecution
something like a license not only to kill, but
to lie, steal, cheat, and spy...
in testimony before the
Subcommittee on Secrecy and Disclosure.
The ambiguity of the statutes described in previous sections
and the internal Executive branch procedures for their
enforcement have created a legal vacuum -- tantamount to immunity
for peonle who gain access to secret information. The dilemma
is most often confronted in the leak and classic espionage
circumstances described earlier, but occurs as well in cases not
usually associated with the national security -- bribery,
extortion, obstruction of justice or murder.*
The following are actual cases in the public record where
secrecy and concerns about disclosure of sources and methods
actually interfered with the investigation or prosecution of a
serious felony which was not directly related to the national
security. These cases are important not only because they
represent the different kinds of crimes which give rise to this
phenomena but also .F.he subtlety with which concern
There are no examples of leaks or classical espionage cases
halted for national security reasons included below because any
further public discussion of these cases might raise the same
concerns as investigations or prosecutions -- further disclosure
of legitimate national secrets.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
3
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
. -22-
about sources and methods can interfere with the administration
of justice.
A. A Case of Bribery /
In his book The American Black Chamber published in 1933,
Herbert Yardley, who directed the United States' first signals
intelligence operation, describes an incident concerning a
message which he intercepted between a foreign Ambassador in
Washington and his home government. The message implicted the
Ambassador in bribery of a high American government official and
his secretary.
In a subsequent meeting with a high official in the State
Department, Yardley admitted having sent the message to the
Attorney General. The State Department official and the
Secretary were furious that the Attorney General knew the
contents of the intercept even though it pertained to serious
criminal activity by government officials.
Yardley had thought it appropriate to send this message over
because it looked to him like a Justice Department case. The
State Department official was adamant. "The activity of an
Ambassador is never a Justice Department case," he stated.
Yardley himself warned that if the Ambassador were recalled,
"His government will appoint a new ambassador, install a new
code, and one never knows how much difficulty a new code will
cause." Yardley continued:
The new Ambassador will probably engage in
the same sort of activities, but we may not be in a
Position to know just what is going on. Isn't it
more desirable to keep this Ambassador here and know
what he is up to than to have a new one without
being certain that we can check up on his activities?
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-23-.
The State Department official responded:
Yes we have thought of all that. My impression
is the entire case will be dropped. It is too serious
to meddle with.*
Yardley, Herbert, The American Black Chamber (1933).
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
STAT Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Next 7 Page(s) In Document Exempt
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-32?
VI. PAST LEGISLATIVE AND ADMINISTRATIVE PROPOSALS
IN RESPONSE TO THE "GRAY MAIL" PHENOMENA
Over the years the CIA and its predecessors have responded
with two initiatives to the problems of enforcement of the
espionage and other statutes which risk disclosures of foreign
intelligence "sources and methods". First, especially with
respect to leaks and espionage violations, military and
intelligence agencies have called for enactment of statutes
similar to the British Official Secrets Act. Second, since 1954
the CIA has sought special arrangements with the Department of
Justice designed to avoid controversies in these kinds of cases
by relieving CIA of its responsibility to report to the
Department criminal activity where further investigation might,
in CIA's judgment, jeopardize clandestine operations.
A. Legislative Initiatives: Abortive Efforts
to Enact An Official Secrets Act
Obviously, some of the problems 'described earlier in the
administration of espionage statutes would be resolved if the
culpability requirements were eased. It would be immensely easier
to prosecute leaks and espionage if all that had to be proven was
that the defendant had passed classified information to
unauthorized persons -- essentially the rule under the Official
Secrets Act.*
According to Professor Benno Schmitt of Columbia Law School,
one of the nation's experts On our espionage statutes, proponents
It should be noted that the Official Secrets Act not only
applies to divulgence but also to publication of secrets, and
that its scope extends to all official government information,
not just national security secrets.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-33-.
of such legislation "reached back to Civil War experience, in
which the Union cause had been hindered by newspaper detailing of
military plans prior to their execution." The most famous
confrontation in the Congress over this kind of legislation was
during the Wilson administration when, according to Professor
Schmitt, the administration "proposed to censor or make
punishable after the fact (exactly which option was never made
clear), publication of defense information in violation of
Presidential regulations, without any limiting culpability
requirement." According to Schmitt:
In response to this proposal, the Congress
engaged in its most extensive debate over freedom
of speech in the press since the Alien and Sedition
Acts. The preoccupation was not an academic one.
Opponents feared that President Wilson or his
subordinates would impede, or even suppress, informed
criticism of his administration's war effort and
foreign policy under the guise of protecting military
secrets...The aggrandizing of presidential powers
during wartime was a recurrent fear of Republicans,
especially Senate progressives such as Borah,
LaFollette, Norris and Hiram Johnson.
The proposal was ultimately voted down and only the more modest
of the Wilson administration's espionage proposals were adopted.
That legislation serves as the framework for our present
espionage statutes.
Similar proposals were made during the World War II period.
In 1946 the Joint Congressional Committee for Investigation of
the attack on Pearl Harbor recommended that Congress enact
legislation prohibiting the revelation of any classified
information. During the war there had also been a study jointly
conducted by Army and Navy Intelligence and the FBI which made
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
similar recommendations transmitted by the Secretary of War to
the Attorney General in June, 1946.
In 1947, the predecessor of Section 798, making it a crime
per se to reveal communications intelligence, was introduced and
in September of 1948 an omnibus bill was proposed by the Truman
administration incorporating the Section 798 language and a
number of earlier proposals for simplifying the culpability
requirements of the espionage statutes. During this period the
CIA, objecting to what it called a "piecemeal" approach of
amending various sections of the espionage statutes to deal with
special limited problems, suggested a redrafting of the whole
espionage statute along the lines of the British Official Secrets
Act. A few of the technical changes proposed by the Truman
administration, and the intelligence and the military departments
were incorporated into Title 18; the most significant of those
was Section 798 of Title 18. However, the intelligence community
and Department of Defense were not, satisfied with those
amendments and in 1952 Defense Secretary Robert Lovett proposed
to President Truman that the administration still seek
legislation similar to the British Official Secrets Act. The
Justice Department prepared such legislation but it did not reach
the floor in either House.
In 1957 the Commission on Governmental Security suggested
legislation that wodld make it a crime "for any person willfully
to disclose without proper authorization for any purpose
whatsoever, information classified, knowing such information to
have been so classified." The Commission justified its proposal
in terms of the "gray mail" problem:
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-35--
Since esoionage cases may frequently- involve
national security information of the highest
classification, the government is confronted with
a serious problem of how far such information can
be compromised in the course of prosecution...A
defendant who may have met with the greatest
success in securing our most precious secrets, may
also have secured an advantage in warding off
successful prosecution.
No action was taken on the Commission's recommendation, nor
on subsecuent initiatives in 1958 in the Eisenhower
administration, nor a similar initiative in 1966 by the CIA.
Indeed, legislation was never seriously considered in this area
until the Federal Criminal Code Reform legislation was introduced
t?
by the Nixon administration. That legislation contained some of
the recommendations suggested by the intelligence community in
the past but met with strenuous opposition from media and civil
liberties groups. Similarly, those same groups strongly
criticized legislation drafted by the CIA and proposed by the
Ford administration in February of 1976. No action has been
taken on the CIA proposal.
Typical of the type of opposition that the Federal Criminal
Code Reform and the subsequent Ford administration proposal
Provoked is the testimony of Jack Landau of the Reporters
Committee for Freedom of the Press before a Congressional
subcommittee which was considering the Federal Criminal Code
Reform:
It is abundantly clear that S. 1 (the Code
reform proposal) is an unwise and unconstitutional
proposal which could be used to silence the type
of aggressive news reporting which produced articles
about the Pentagon Papers, the Mylai massacre, the
Watergate cover-up, the CIA domestic spying, the FBI
domestic spying and other government misdeeds: News
reporting which has been embarrassing to some persons
in the government and which is dependent in whole or
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-36-
in part on government compiled information-and reports
frequently supplied to the press by present or former
government employees without government authorization.
The new espionage provisions of the Federal Criminal Code
Reform were dropped prior to its consideration by the Senate
early this year; proponents realized that any further action on
the Federal Criminal Code Reform would be indefinitely postponed
as long as there was significant controversy over its
constitutionality.
B. Administrative Initiatives
In February of 1954 Lawrence Houston, General Counsel for
the CIA, established an arrangement with William Rogers, Deputy
Attorney General, to obviate the need to report to the Department
of Justice certain criminal activity coming IA's attention.
According to a memorandum by Houston todmiral Turner Houston
justified this arrangement to Rogers in the following terms:
Occasionally, however, the apparent criminal
activities are involved in highly classified and
complex covert operations. Under these circumstances,
investigation by an outside agency would not hope for
success without revealing to that agency the full
scope of the covert operation involved as well as this
agency's authorities and manner of handling the
operation.
Apparently, Rogers agreed with this assessment and "saw no
purpose in referring the matter to the Department of Justice"
under the circumstances.- There is some uncertainty in the
materials the Commiftee has reviewed as to whether this
arrangement was ever to have been reduced to writing or any
formal understanding between CIA and the Department of Justice.
The ambiguity of the arrangement is highlighted by an
exchange of correspondence between the CIA and the Bureau of the
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Budget in August of 1954. The CIA expressed concern regarding
legislation about to be enacted which would grant the Attorney
General exclusive responsibility for investigating all violations
of Title 18 by government officers and employees. Notwithstanding
the CIA's concerns, that legislation was eventually enacted and
codified as 5 U.S.C. 5.311(a) (since recodified in 28 U.S.C.
S.535(b)(2), see Appendix).
In November of 1958, Rogers sent a memorandum to the heads
of all departments and agencies in the Executive branch of
government emphasizing their responsibilities under the
legislation. Subsequent Attorneys General have issued the same
reminder soon after taking office. However, for over twenty
years the CIA, based on its 1954 arrangement, assumed these
directives exempted reporting the kinds of cases Houston had
described to Rogers. Although there were minor changes in the
procedures described in Houston's original memorandum -- in 1955
and again in 1964 -- the basic thnust of the arrangement wherein
CIA took primary responsibility for balancing the need for
secrecy against the administration of justice remained until
1975.
In .3-e.D.J.Dx4E---erf---1-9-7-5-DCI William Colby and Lawrence Silberman,
Acting Attorney General, reviewed the 1954 arrangement. At that
time Silberman took the tosition that the agency should comply
with 5 U.S.C. S.311'(a) by providing a summary "but not an
investigative report as such" in essentially every case and that
the basic security issue should be raised, but ?that the Attorney
General, not the CIA, would make the decision on whether or not
to prosecute. The responsibility of the CIA to report evidence
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-38?
?
?
of crimes by its employees to the Attorney General was the
subject of a specific provision in Executive Order 11905 issued
by President Ford (designed to regulate the activities of the
intelligence community) and its successor issued by President
Carter, Executive Order 12036.
The Attorney General and DCI are currently attempting to
develop a memorandum of understanding which would serve as a
successor to the 1954 arrangement. The new Executive Order and
the draft memorandum of understanding between Justice and CIA
retain the principle established by acting Attorney General
Silberman that the Dep"artment of Justice has the responsibility
of balancing the needs of secrecy against the ends of justice.
Both the memorandum of understanding and the Executive Order
purport to impose a burden on the intelligence community to
report criminal acts by its own employees. With respect to non-
employees, the new Executive Order reads as follows:
...(the head of any intelligence agency must)
report to the Attorney General evidence of
possible violations by any other person of
those federal criminal laws specified in guide-
lines adopted by the Attorney General.
No such guidelines have yet been adopted and, therefore, the
reporting requirements under that provision are unclear.
Furthermore, neither the memorandum of understanding nor the
Executive Order address the way in which the Department of
Justice should handle evidence necessary to investigate or
Prosecute an allegation brought to its attention under these
provisions. In other words,neither the memorandum of
understanding nor the Executive Order are intended to resolve the
controversies on the use of classified information in the
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
prosecution or investigation of crimes, the problem to which this
report is addressed.
Certainly one of the difficulties in developing these
policies is concern that these reporting requirements might
indirectly involve the foreign intelligence agencies in domestic
law enforcement in violation of the 1947 National Security Act.
The Committee shares this concern. However, the solution to this
dilemma may be in the distinction between passively reporting
domestic criminal activity on the one hand and actively seeking
it out (e.g., "watchlisting" domestic subversives). The drafters
of the memorandum of understanding and regulations implementing
the Executive Order should keep this distinction in mind and
avoid an unrealistic interpretation of the domestic law
enforcement prohibition.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
VII. NEW INITIATIVES
The Committee agrees with former DCI Colby's testimony
before the Subcommittee on Secrecy and Disclosure that, "We would
be irresponsible if our revision of intelligence structure did
not recognize the need to protect the necessary secrets of
intelligence better than we do today." A resolution of the
dilemma presented by this report must be a part of the charter
legislation being considered by the Intelligence Commitee.
To meet the problems set out in this report, the Committee
has prepared a recommended program.* This program is designed to
serve two basic ends: first, to facilitate the enforcement of
espionage statutes and thereby protect our national secrets
without jeopardizing constitutional principles; and second, to
facilitate enforcement of the criminal sanctions set out in the
legislative charters. Without question, the movement to apply
the rule of law to intelligence through statutory charters will
be severely undermined if leakers or spies continue to go
unpunished or if violations of the charters go unenforced.
A. Leaks and Espionage Generally
The classical espionage statutes cover situations where a
person knowingly gives national security information to an agent
?1114231
of a foreign power.C_Proecution of a spy under these statutes
CiA
often fails fails in the face of the "gray mail" phenomenon. In
addition, although disclosure of communications intelligence
ack,
erfil/g4,-/
The Committee's recommended program is contained in seven
recommendations found in Part VIII, infra.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-41-.
?
and atomic energy secrets is clearly punishable under current
law, most leaks are not, because of the lack of criminal intent
or direct communication to a foreign agent. The leaker's intent
is not ordinarily criminal, because he customarily leaks to a
newspaper, not a foreign agent. In fact, the leaking of national
security information has become an informal and quasi-legal
system. For example, senior officials often disclose classified
information as a means of explaining their positions to the
public, while dissenters leak in order to expose improprieties
and shoddy thinking. There are two major drawbacks to the sub
rosa practice of providing selected intelligence information to
the news media and other sources. First, the public does not
necessarily receive a balanced view from the leaked information
because the process is informal. Second, and more importantly,
information whose secrecy is vital to our national security is
sometimes disclosed.
Administations from the time -of World War I have put
forward plans to make the disclosure of government secrets a
crime even without intent to damage the national security
ri"efi-"(-111Amjjavi
communication to a foreign.agent. Nevertheless, all these
1:a1,6
attempts have foundered, partly due to the inevitability ofturj4
faulty classification. Congress has felt it improper to punish,
someone for releasing inormation which should not in fact havea,e,2
lempoql
been restricted. And, as shown above, offering proof in ope
blitATZ6GIB
court that a certain piece of information damaged the United4AT -
States ensures that the damage will be done by confirming th
veracity of the information.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Although the mere classification of a document may not in
itself warrant criminal penalties for its disclosure, certain
classes of information are in fact so sensitive that a statute
should protect them.
Former Director Colby testified in favor of a proposal that
would impose such strict liability penalties upon the
unauthorized disclosure by government employees of sensitive
sources and techniques of intelligence collection. To an extent
the Committee anticipated Colby's recommendation in a provision
of its proposed legislative charter (S. 2525, Sec. 431(a)). This
section penalizes the disclosure of the identity of a CIA
employee serving under cover in a manner which jeopardizes the
safety of that employee. Colby, however, suggests that the
sanction be expanded to cover CIA sources as well as employees
and circumstances where political or economic reprisals could be
expected. Although Colby urges protection for intelligence
"techniques," the Committee is extremely hesitant in going beyond
the strict liability coverage already accorded communications
intelligence. Colby himself warned the Committee of the great
difficulties inherent in developing a workable definition of
"technique." Added to the difficulty of legally defining
"technique" are the difficulties of proving that any given
disclosure revealed it. '
As this report clearly establishes, the existing espionage
statutes are unenforceable in the face of the "gray mail"
phenomenon and any new statutes would face the same problem.
Therefore, while the modest expansion of the espionage statutes
described in the preceding paragraph may warrant serious
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
consideration, a major restructuring of those statutes to
encompass all leaks is not now warranted.
If leaks cannot then be curtailed by criminal sanctions,
what will diminish their frequency and gravity? Any
comprehensive law against leaks cannot be effective so long as it
is impossible to distinguish between a criminal act and a widely
accepted governmental practice. Past Executive Orders on
classification have failed to protect the most important national
security information by providing for the classification of much
information that ought to be made public. Recently, President
Carter promulgated a new order dealing with secrecy and
classification. The effects of this new Order are not yet
apparent, but if it continues to mandate excessive secrecy, the
Order will foster disrespect for the whole classification system.
In the words of Justice Stewart in the Pentagon Papers case:
"When everything is secret, nothing is secret." Perhaps the
mechanisms contained in the new executive order will avoid
overbroad classification and will allow for declassifying
intelligence necessary to informed public debate and thus
minimize the incentive behind unauthorized disclosure of
information.*
Yet, given the ingrained nature of the leaks system and the
fact that leaks often result from bureaucratic infighting, some
unauthorized disclogure is bound to continue. To deal with leaks
Of course, such a declassification system must be impartial.
Otherwise, the public will be faced with a biased view and
officials disagreeing with this view would have added incentive
to leak.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-44
administrative sanctions are better suited in most cases than
criminal ones because they are more enforceable. No risk of
"gray mail" would exist, because proceedings could be secret.
Due process rights must, of course, be preserved. At the same
time, administrative sanctions would be less onerous. Dismissal
or loss of security clearance for leaking often more strictly
adheres to the rule of Messrs. Gilbert and Sullivan -- "Let the
punishment fit the crime."
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
?45
B. Facilitating Enforcement of Existing
Statutes and the Charters
The review of the cases described earlier and the hearings
of the Secrecy and Disclosure Subcommittee have led the Committee
to recommend a program of both administrative and legislative
action designed to facilitate enforcement of the espionage
statutes. In essence, on the administrative side, the Committee
recommends a streamlining of decisionmaking within the Executive
branch on cases where leaks or espionage occur and to encourage
the use of administrative sanctions in less serious breaches of
security or other violations of the law. On the legislative
side, the Committee recommends a variety of new judicial
procedures intended to strengthen the hand of the judge and
encourage accommodation between the defendant and the prosecutor
concerning the use of classified information in litigation -- to
seek solutions which encourage proceeding with prosecution rather
than dropping the case out of fear of disclosure of sensitive
information.
(1) Administrative Recommendations
At the heart of its administrative recommendations (see pp.
) is the Committee's concern that there is no effective
administrative system currently operating in the Executive branch
for investigating and penalizing unauthorized disclosures and the
crimes of bribery, perjury and others described in Part V.
heakers occasionally are penalized on an
pproved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
ad hoc basis.* Violations of the Executive Order on
classification, and even classical espionage, are not subject to
formal administrative sanction.
In the case of leak investigations the FBI takes the
position that it should not investigate a leak unless there is
clear evidence of a crime. The Committee believes that the FBI
should not conduct investigations of citizens without their
consent except in cases involving a nexus with criminal activity.
However, even where prosecution of the crime is impossible
because of the risk of further disclosures, the FBI should
investigate if --
1) the leak endangers sensitive intelligence
sources or methods and is reasonably believed to violate the
criminal statutes of the United States;
(2) the persons investigated are Government
officials having access to the information leaked;
(3) the investigation and any intrusive
investigative techniques are authorized in writing by the
Attorney General;
(4) the investigation terminates within 90 days,
unless such authorization is renewed; and
(5) the Attorney General submits information
concerning the leak- to the head of the employing agency, or
to the President, for appropriate administrative action.
E.g., Donald Stewart, formerly the chief leak investigator
for the Department of Defense, supplied examples of cases during
his tenure when high-ranking military officials received a "slap
on the wrist" for what appeared to be serious compromises. Mr.
Stewart's prepared statement appears as part of the
Subcommittee's public hearing record.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
These standards do not go as far as the recommendations of the
Rockefeller Commission (on alleged CIA abuses), which proposed
FBI investigations without evidence of a crime or the Attorney
General's approval. Nevertheless, they break sharply with
current Justice Department policy foreclosing FBI investigations
of damaging criminal leaks where administrative action, rather
than prosecution, is the intended result.
The Justice Department is properly concerned that such cases
waste time and money because they often turn out to be leaks
either formally or informally sanctioned by appropriate
authorities. Nevertheless, where such a leak endangers sensitive
sources or methods and violates the criminal statutes
investigation is appropriate. The higher the criminal leaker,
the more important it is to bring in the FBI and the Attorney
General, regardless of the inability to prosecute.
The Director of Central Intelligence has extraordinary
powers under the 1947 National Security Act, and will have
similar authority under the new legislative charters, to dismiss
CIA employees. With that authority comes the implied
responsibility to investigate employees' past activities which
would warrant dismissal. This investigative authority should not
be delegated to the FBI except in the case of explicit criminal
violations. Some organization with intelligence community-wide
authority should be required to investigate activity by
intelligence agents, employees or informants which violates
security or charter prohibitions.
As stated, the advantage of administrative sanctions over
criminal prosecution is that procedures under the former do not
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-48
require extensive public disclosure of classified information.
Therefore, both the staff of the Committee and representatives of
the Executive branch should explore what possibilities exist for
formalizing and upgrading administrative review and investigation
procedures for violations of security and other unlawful acts by
intelligence officials. For example, a possible alternative is
an administrative review procedure for employees similar to
courts martial in the military. Officials of the agency would
hear complaints of violations, especially in circumstances where
the decision has been made to forego criminal proceedings for
national security reasons. These administrative review
procedures could be applied to former employees who violate
charter prohibitions, assuming that a deferred compensation
pension plan has been conditioned upon continued compliance with
security and charter requirements. Former employees who violate
prohibitions could be subject to loss of pension rights through
the administrative procedure, although this procedure would raise
constitutional "due process" issues. 4/461:
1P/b G
Another major goal of the Committee recommendations for
administrative action is to improve accountability in Executive
branch decisionmaking concerning cases involving national
secrets. The Committee agrees with the testimony of
r-------]
before the Secrecy and Disclosure Subcommittee:
I have the sense that the government may be
aborting cases prematurely or unecessarilv because.
of a failure to press the alternatives to their
fullest, as we did, for example, in the Special
Prosecutor's Office in the Ellsberg break-in 6,1
prosecution, where defense efforts to use "national
security threats" to stymie the case were beaten in
the courts.
STAT
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
During the course of the hearings the Subcommittee members
and witnesses agreed on a number of fundamental points about
decisionmaking in these cases. There is little controversy that
the ultimate decision on whether to proceed on these types of
cases must be centralized within the Attorney General's office.
The DCI should have shared authority with the Attorney General
through the "sources
Security Act to halt
and methods" provision of the National
investigation of a criminal case. The
Deputy Attorney General and the DCI in testimony before the
Subcommittee agreed that it was up to the Attorney General, with
disputes settled by the President, to decide whether or not the
jeopardy to national secrets in pursuit of an investigation
outweighs the ends of justice.
If the intelligence community disagrees with an Attorney
General's decision, the DCI may appeal to the President. The
decision to drop a national security case should be made in
writing by a high-level official within the
Justice, an Assistant Attorney General or a
Attorney General. Included in that written
Department of
Deputy Assistant
decision should be a
detailed explanation of the information which would have been
revealed in the course of trial, why the information would be
revealed, and what damage the disclosure of the information would
have to the national secUrity. The mere fact that a written
record must be made'will discourage thoughtlessly dropping a
pbtential prosecution.
A final area appropriate for administrative action pertains
to the requirement that intelligence agencies report to the
Department of Justice evidence of criminal activity by employees.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-50-,
As noted in Part VI of this report, the administration is
currently at work attempting to implement provisions of the new
Executive Order and to update the so-called Silberman-Colby
understanding as to the requirements of the intelligence
community to report crimes of its employees to the Department of
Justice. If there is no mechanism through which the Department
of Justice is so notified, the law enforcement process is likely
to break down.
Thus the so-called Silberman-Colby understanding should be
updated and formalized. It is eaually important that the
?
memorandum of understanding be expanded in scope to address not
only criminal activities of intelligence agents, employees or
assets, but also criminal activity known by the intelligence
community which does not involve its employees or assets. Such
an understanding must consider the protection of sources or
methods.
(2) Legislative Initiatives
The purpose of the legislative suggestions set out in Part
VIII is to provide alternatives which will allow prosecutors to
avoid what one witness described as the "disclose or dismiss
dilemma." Because of ambiguities in existing judicial procedures
or because of a general reluctance on the part of the
intelligence community and the Department of Justice to take the
chance of pursuing these cases, the administration must decide
whether to disclose intelligence information or to dismiss a
criminal case or not pursue an investigation at the outset.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-51 --.
However, the dilemma posed by the introduction of sensitive
intelligence information into criminal cases, especially at the
behest of the defendant, can frequently be avoided because the
information is requested for an irrelevant matter. For example,
Lacovara described to the Subcommittee the following sequence in
the prosecution of the Watergate burglars for the break-in of Dr.
Ellsberg's psychiatrist:
After the indictment was returned, the defendants
did in fact demand the production of highly classified
files, including nuclear missile targeting plans. The
defendants were seeking to utilize discovery to obtain
national security information in order to support the
purported defense that they believed the break-in was
justified by national security concerns. The special
prosecutor argued, however, and both District Judge
Gesell and the U.S. Court of Appeals for the District
of Columbia Circuit agreed, that the information
sought was irrelevant because "good faith" motivation
was not a valid defense against the crime charged,
conspiracy to violate Fourth Amendment rights. Thus
the difficulty of choosing between forfeiting an
important criminal prosecution or disclosing information
potentially damaging to our national security was
avoided.
In many Other cases it is clear that if the prosecutor had
forced the court to carefully examine the relevancy of the
intelligence information to a purported defense or motion,
tfra,-1
0;(k
judge may well have been forced even under the present standards
of relevancy to decline the request for the information.
However, administration witnesses were( reluctant to re
relevancy standard. Th67 argued that what one judge found
the
relevant another judge would find irrelevant and that many judges
-grant the discovery motion first before deciding whether or not
.the intelligence information will be used in the case.
Furthermore, defense counsel routinely make sequential discovery
motions which harrass the prosecution and thus tie up the
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-52--
prosecutors in negotiations with the CIA over sensitive
documents.
suggests that Congress enact an omnibus pre-
trial proceeding for use in all cases where classified exhibit
or testimony would be reauired. The defendant would be required
to put the prosecutor and the court on notice in advance of trial(
of all motions he would make requiring discovery of sensitive
classified intelligence information when he might have reasonablyq115
known of the need for discovery prior to trial. He would have to
argue successfully the relevancy of each motion before the court
F
in order to secure dis'covery of the documents or testimony.
the purposes of argument, the court could assume that the
documents existed without actually providing the defendant the
documents and could decide in advance whether the defense would
be permitted or the motion granted as a matter of law. This
process would be intended to "weed out" irrelevant defenses and
thus simplify, prosecution of the case. If at some later time a
new matter arose requiring a special motion or defense which in
turn required the disclosure of secrets, the court could still
entertain an appropriate discovery motion and both the government
and the defendant would be entitled to an interlocutory appeal.
If such a special omnibus procedure is adopted, the
Committee recognizes that there will be cases where the "weeding
out" process will actually arrive at motions and defense ttt- I0444-1-H?
L#
arguments that do require the use of intelligence information.
At that point the judge must decide two basic questions: (1) Is
the information in Question truly national security information,
the disclosure of which would damage the national security? (2)
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
14-0
? Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-53-.
What action should he take against the prosecution if it
withholds the documents or testimony (e.g., dismissal of the
case)? Of course, the Government always has the option of
dismissing a prosecution if the court's decision on these matters
would require what it believes to be excessive disclosure.*
In 1974 the Supreme Court proposed an amendment to the
Federal Rules of Criminal Procedure known as the Federal Rules of
Evidence. These Rules of Evidence were extremely controversial
in the Congress because they contained a provision, Section 509
that defined a "secret of state" privilege. An invocation of t
privilege by the government would prompt an in camera adversary
qkAl 14'2"
/WA)
At?.74:arv
proceeding in which the parties would litigate whether the C/14'404-gl
information in question was in fact "a secret of state".
Section 509 was rejected by the Congress as it reviewed the
rules proposed by the Supreme Court. However, several witnesses
agreed that perhaps Section 509 might serve as the basis for an
in camera adversary proceeding that would resolve the use of
intelligence information in the course of a trial after the
"weeding out" process described above. Furthermore, several
adjustments to the Section might be made to respond to criticism
which led to congressional rejection in 1974. For example, the
new state secret privilege might more narrowly define the types
of information to which the government could invoke the
*( The Government does not undertake prosecution on a whim. In
deciding to drop an indictment the Attorney General must weigh
the expenditures of time and money in investigation and
prosecution, as well as fairness to the defendant who must live
with the stigma of an unchallengeable indictment.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
.1 ?
STAT
STAT
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
privilege. It might give a greater role to the court in
reviewing the claim of privilege, including authority to go
beyond and behind the classification to determine the actual
damage to the national security if the information were
disclosed. It might guarantee the presence of the defendant and
his counsel in the in camera procedure, subjecting both to
contempt of court and possible espionage prosecution if they
disclose the results of the procedure.
The primary purpose of such a procedure would be to set
standards to place the prosecution and the government on notice
in advance on what types of information could be subject to
privilege and to give the judge Primary responsibility for
administering the privilege.
in his testimony STAT
emphasized the importance of providing judges with some guidance
as to what action should be taken if they find the privilege is
legitimately invoked.
sanctions available to the judge so that "the remedy available to
the defendant would vary depending upon the circumstances of the
suggests a "sliding scale" of
case."
follows:
goes on to further describe his proposal as
At one end of the scale for example, if the
defendant's possible use of the information is
totally speculative, the case simply would continue
without disclosure. At the other end of the scale,
where the information is central to the question
of guilt or innocence and where no other alternative
to public disclosure is possible, dismissal may be
necessary. In between, procedures such as instructing
the jury to assume that the missing information would
have proven a given proposition may be possible.
Certainly the Department of Justice should press for
some intermediate treatment like that before deciding
that the case must be abandoned.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-55-
VIII. RECOMMENDATIONS
The recommendations which follow were formulated by the
Secrecy and Disclosure Subcommittee and are endorsed by the full
Committee. They will serve as an agenda for the Committee as it
proceeds with consideration of legislative charters. The staff
will be developing specific legislative proposals to implement
these recommendations for inclusion in the charters to be
discussed in the course of its ongoing hearings. It is,the
Committee's hope that the Executive branch will work with the
Committee on these matters and, in particular, on its
recommendations for administrative action.
I. The Congress should not at this time consider any
general recasting of the federal espionage statutes
along the lines of the British Official Secrets Act.
Limited further protection of sources and methods,
especially human sources, may be required, however.
Congressional energies would be better spent on
developing procedures to facilitate enforcement of
existing statutes.*
The Executive branch should interpret the new
Executive Order on security classification with an
emphasis on decreasing the amount of unnecessary
secrecy. The intelligence community, the Intelligence
Oversight Board, and the intelligence committees of
the Congress should declassify as many as possible of
their reports and studies on matters of public concern
to discourage the "leaking" of versions which have not
been sanitized to protect "sources and methods"
information. These reports and studies must be
declassified in a disinterested manner, so that the
public receives the true view of a given situation.
The intelligence community should develop, in
conjunction with the Committee, administrative review
procedures for the exercise of the DCI's authority for
the dismissal of employees for violations 'of security
For discussion of the Committee's rationale for
recommendations I and II, see pps. , supra.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-56-
or other provisions of the intelligence community
charter. At the same time the intelligence community
should centralize authority, perhaps in the
Intelligence Oversight Board, for investigations of
breaches of security and violations of charter
prohibitions which do not constitute crimes. The
purpose of these procedures would be to permit
sanctions against employees who violate the charter
through procedures similar to a military court martial
where it is easier to cope with classified documents
or testimony than in traditional public criminal
trials. Some consideration should also be given to
applying these administrative review procedures to
former employees through withdrawal of pension rights
for former employees who violate security or
provisions of the charter.*
IV. The FBI should continue to have exclusive
responsibility for investigating criminal violations
involving the intelligence community. In leak cases
the FBI shduld initiate investigation if:
(1) the leak endangers sensitive intelligence
sources or methods and is reasonably believed to
violate the criminal statutes of the United States;
(2) the persons investigated are Government
officials having access to the information leaked;
(3) the investigation and any intrusive
investigative techniques are authorized in writing by
the Attorney General;
(4) the investigation terminates within 90
days, unless such authorization is renewed; and
(5) the Attorney General submits information
concerning the leak to the head of the employing
agency, or to the President, for appropriate
administrative action.
V. The Attorney General should issue regulations that are
binding upon all departments of the government which
set out the procedures whereby agencies of the
intelligence community are to report crimes that come
to their attention and to Provide necessary
information to attorneys of the Department of Justice
to proceed with a criminal investigation or
prosecution.
For discussion of the Committee's rationale for
recommendations III, IV, V, and VI, see pps. , supra.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
A
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-57-.
The regulations should also set out how the decision
is to be made not to proceed in national security
cases and who is authorized to make such a decision.
These regulations should require that any such
decision be made in writing and the decision paper
should include the precise intelligence information
which would have been disclosed-in the course of the
trial, why the official believes it would have been
disclosed, and the damage the information would have
to the national security if the case proceeds. The
decision paper should be available to the intelligence
oversight committees of the Congress and such cases
should be reported to the committee annually or as
required.
VI. The Executive branch should complete its memdrandum of
understanding between the Attorney General and the DCI
on the responsibility of the intelligence community to
report crimes to the Department of Justice. The
memorandum of understanding should be expanded to
cover reporting of all activity in violation of U.S.
laws coming to the attention of the intelligence
community, but must consider protection of sensitive
sources and methods.
VII. Congress should consider the enactment of a special
omnibus pre-trial proceeding to be used in cases where
national secrets are likely to arise in the course of
a criminal prosecution. The omnibus procedure would
require the defendant to put the prosecution and the
court on notice of all motions or defenses or
arguments he intended to make which would require the
discovery and disclosure of intelligence information
or the use of intelligence community witnesses. The
judge would be required to rule in advance of the
trial on the admissibility of the intelligence
information and on the scope of witnesses' testimony
as well as the general relevancy of the motion or
defense prior to granting discovery of any
intelligence information to the defendant. On the
other hand, the defendant would be permitted a
discovery motion during the course of trial if the
prosecution presents a matter not originally suggested
by indictment or for which the defendant could not
fairly have been expected to be on notice at the time
of the omnibus procedure.*
For a discussion of the Committee's rationale for
recommendations VII and VIII, see pp. f.f., supra.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2
-587.
VIII. The Congress should reconsider the secret of state
privilege proposed by the Supreme Court in 1974.
That privilege needs to be considerably revised
along the lines described above but at a minimum
should provide for an in camera adversary
procedure on the privilege, define the scope of the
privilege, the standards for its invocation, provide
increased judicial authority for its procedural
administration, and provide a sliding scale of
sanctions available to the judge in the case where
the privilege is successfully invoked.
Approved For Release 2004/04/13 : CIA-RDP81M00980R002800010045-2