NATIONAL SECURITY SECRETS AND THE ADMINISTRATION OF JUSTICE REPORT OF THE SENATE SELECT COMMITTEE ON INTELLIGENCE SUBCOMMITTEE ON SECRECY AND DISCLOSURE UNITED STATES SENATE TOGETHER WITH ADDITIONAL VIEWS

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95th Congress
2d Session
NATIONAL SECURITY SECRETS AND THE
ADMINISTRATION OF JUSTICE
REPORT
OF THE
SENATE SELECT COMMITTEE
ON INTELLIGENCE
SUBCOMMITTEE ON
SECRECY AND DISCLOSURE
UNITED STATES SENATE
together with
ADDITIONAL VIEWS
Printed for the use of the Select Committee
on Intelligence
U.S. GOVERNMENT PRINTING OFFICE
34-520 0 WASHINGTON : 1978
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SENATE SELECT COMMITTEE ON INTELLIGENCE
(Established by S. Res. 400, 94th Cong., 2d Bess.)
BIRCH BAYH, Indiana, Chairman
BARRY GOLDWATER, Arizona, Vice Chairman
ADLAI E. STEVENSON, Illinois CLIFFORD P. CASE, New Jersey
JAKE DARN, Utah
CHARLES McC. MATHIAS, JR., Maryland
JAMES B. PEARSON, Kansas
JOHN H. CHAFEE, Rhode Island
RICHARD G. LUGAR, Indiana
MALCOLM WALLOP, Wyoming
ROBERT C. BYRD, West Virginia, Ex Officio Member
HOWARD H. BAKER, JR., Tennessee, Ex Officio Member
WILLIAM G. MILLER, Staff Director
EARL D. EISENHOWER, Minority Staff DiPector
AUDREY H. HATRY, Chief Clerk
WILLIAM D. HATHAWAY, Maine
WALTER D. HUDDLESTON, Kentucky
JOSEPH R. BIDEN, JR., Delaware
ROBERT MORGAN, North Carolina
GARY HART, Colorado
DANIEL PATRICK MOYNIHAN, New York
DANIEL K. INOUYE, Hawaii
JOSEPH R. BIDEN, JR., Delaware, Chairman
JAMES B. PEARSON, Kansas, Vice Chairman
WILLIAM D. HATHAWAY, Maine JOHN H. CHAFEE, Rhode Island
WALTER D. HUDDLESTON, Kentucky
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CONTENTS
l' ge
1. Preface-----------------------------------------------------
1
II. Summary -------------------
--------
3
.
III. Background If Secrecy and Disclosure Subcommittee inquiry------
5
IV. "Leak" and classical espionage investigations--------------------
7
A. "Leak" investigations---------------------------------
7
B. Espionage investigations-------------------------------
8
C. Damage by confirmation versus augmentation------------
9
D. Augmentation of the damage in criminal cases------------
9
E. "Gray Mail" : The Price of Failing to Resolve the Dilemma-
10
V. Cases of "Gray Mail"----------------------------------------
12
A. A case of bribery--------------------------------------
12
B. The KCIA case: A more recent bribery conspiracy-_------
13
C. The Khramkhruan case: Narcotics trafficking-------------
13
D. The Nha Trang murder--------------------------------
14
E. The Watergate case-----------------------------------
15
VI. Past legislative and administrative proposals in response to the
"Gray Mail" phenomenon----------------------------------
17
A. Legislative initiatives: Abortive efforts to enact an Official
Secrets Act-----------------------------------------
17
B. Administrative initiatives------------------------------
19
VII. New initiatives----------------------------------------------
21
A. Leaks, espionage, and current law--------------------..--
21
B. Facilitating enforcement of existing statutes and the
charters--------------------------------------------
24
VIII. Recommendations-------------------------------------------
30
IX. Additional views:
Senator Adlai E. Stevenson-------------------------------
33
Senator Malcolm Wallop----------------------------------
34
APPENDIX I-CURRENT STATUTES
A. 50 U.S.C. 783----------------------------------------------
39
B. 18 U.S.C.793----------------------------------------------
40
C. 18 U.S.C.798----------------------------------------------
41
APPENDIX II-REPORTING REQUIREMENTS
A. 28 U.S.C. 535----------------------------------------------
42
B. Memorandum of understanding (CIA/FBI) on Procedures for Re-
porting Violations of Federal Law as required by 28 U.S.C. 535-
43
C. Executive Order 12036 section 1-706--------------------------
47
APPENDIX III
Section 2 of the British Official Secrets Act of 1911 ----------------
48
(m)
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I. PREFACE
For more than one year, the Secrecy and Disclosure Subcommittee
of the Senate Select Committee on Intelligence has studied the impact
of secrecy on the administration of justice in cases involving the
national security. During this period, the subcommittee conducted
case studies into investigations and prosecutions where justice has
been frustrated by claims of national security.
The subcommittee discovered that enforcement of laws intended
to protect national security information often requires disclosure of
the very information the laws seek to protect. Indeed, the more
sensitive the information compromised, the more difficult it becomes
to enforce the laws that guard our national security. At times then,
regardless of whether the compromise is to a newspaper reporter or
directly to a foreign agent, the Government often must choose between
disclosing classified information in a prosecution or letting the conduct
go unpunished. In the words of one Justice Department official who
testified before the subcommittee, "To what extent must we harm
the national security in order to protect the national security?"
Evidence of this dilemma has been found in investigations not only
of leaks and espionage but also of bribery, drug trafficking and murder.
Therefore, this dilemma not only adversely affects national security,
but also can pervert the administration of justice.
The balance between accountability to the law and protection of
national security information is a fragile one. Intelligence agencies
through the last several decades have frequently insisted upon the
inviolability of the "sources and methods" of intelligence gathering
to the exclusion of other concerns. This insistence worked to preclude
many prosecutions involving national security information.
In the past 3 years, however, this imbalance of the past has caused
the intelligence community and the Department of Justice to be
especially sensitive to the importance of prosecuting such crimes.
This administration, much to its credit, has developed ad hoc informal
procedures for resolving this dilemma in many cases.
This committee desires with the appropriate Executive Branch
agencies to develop permanent and formal procedures to insure that
consideration of the national security should not in itself defeat the
principle of accountability. Of course, the committee is especially
concerned that the provisions of the proposed intelligence community
charters (S. 2525), which provide for criminal sanctions for egregious
intrusions on the rights of Americans, as well as amendments to the
espionage statutes intended to protect the identity of our intelli-
gence agents, be enforceable to the fullest extent possible. If the
balance in national security cases in future administrations is skewed
once again in favor of the protection of "sources and methods" and
other classified information, charter provisions may become unen-
forceable.
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The committee recognizes the need to confront the issue of whether
a major recasting of the existing espionage statutes is or is not neces-
sary. The committee has nonetheless found that many practical,
legal, and political differences and difficulties lie in the path of such
an undertaking. Major advances can in the meantime be made in
procedures and practices under current statutes that will permit the
resolution of many of the dilemmas regarding the use of national
security information in the administration of justice.
Although continuing examination of alternatives to the current
statutory scheme is necessary, the committee at this time wishes to
recommend certain ameliorative steps, short of any major immediate
recasting of the law, because they can yield effective improvement.
By contrast, any substantial ,revision of current statutes will occasion
months, if not years, of delay, with no improvement in the meantime.
Furthermore, some of the cases reviewed and testimony received
indicate that even the most radical revision of the espionage statutes
along the lines of the British Official Secrets Act may not resolve this
dilemma. Only the establishment of a secret trial system for these
kinds of cases would resolve the problem described in this report-
not in our opinion a very desirable or likely development. Ultimately,
the Congress must decide whether leaks of some national security
information and the exposure of some such information in prosecu-
tions are the inevitable cost of constitutional guarantees of freedom of
speech and the press and the constitutional right to a public trial:
JOSEPH R. BIDEN, Jr., Chairman,
Subcommittee on Secrecy and Disclosure.
JAMES PEARSON, Vice Chairman,
Subcommittee on Secrecy and Disclosure.
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The committee's inquiry has led it to the following conclusions:
(A) There has been a major failure on the part of the Government to
take action in leak cases.-To date, we have been unable to identify
a single successful prosecution of an individual who leaked informa-
tion to a publication. Admittedly, the question of whether some leaks
are punishable under existing statutes is not altogether clear. The
committee found that leak cases are uniquely difficult to investigate.
But, we found cases where no action was taken-investigation or
prosecution-even where a leak clearly violated an existing statute
and caused serious harm to our national security.
The failure has resulted in part from an impasse between the De-
partment of Justice and the intelligence community on how to deal
with the further use of classified information necessary for investiga-
tion and prosecution of these leak cases. Briefly stated, there is no
effective and formal mechanism for investigating these cases or, in
the few cases where the source of the leak is discovered, weighing the
risks of additional disclosures against the benefits of prosecution.
(B) Several immediate steps may be taken to facilitate the administration
of existing laws, while Congress determines the need for major revision of
the espionage statutes. Furthermore, it is possible that improvements in the
administration of existing statutes might affect ultimate decisions on
statutory revision.-Present day reality and historical precedent show
that numerous political and practical obstacles would seriously delay
any major new statutes designed to deter leaks. While there is a wide
divergence of views among committee members about what changes, if
any, should be made in the espionage statutes, a narrowly drawn
provision that would punish disclosure of the identity of American
intelligence agents appears to be necessary. For the time being, the
committee has recommended several steps to insure the removal of
obstacles to prosecutions which exist under current law.
(C) Disagreements over the use of classified information in prosecutions
also impede espionage prosecutions.-(1) The committee reviewed some
espionage cases which have not proceeded to either investigation or
prosecution for the same reason that leak cases cannot 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) Espionage cases are generally considered more serious than
leak cases.
(b) The Federal 'espionagstatutes are more clearly drawn to
cover espionage than most leaks.
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(c) Many 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, there-
fore, pressure the intelligence community to provide information
necessary for prosecution.
(d) Usually the constitutional problems (primarily first amend-
ment problems) are much less severe in espionage cases than in
leak cases.
(D) The impasse over the use of classified information in prosecutions
occurs in other types of criminal cases and at times defendants may have
placed the Department of Justice at a marked disadvantage in perjury,
narcotics, and possibly even one murder case.-The committee has
formulated a series of recommendations designed to alleviate some of
the problems faced by the Government in maintaining the secrecy of
legitimate national security information. These recommendations can
be found on pages 30-32.
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III. BACKGROUND OF SECRECY AND DISCLOSURE
SUBCOMMITTEE INQUIRY
On April 26, 1977, with the agreement of the full committee, the
Subcommittee on Secrecy and Disclosure asked the staff to under-
take (1) a review of unauthorized disclosures of intelligence informa-
tion 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 in-
quiry, 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. Over 30 interviews and
briefings were conducted with officials of the Departments of Justice and
State and the major intelligence agencies (the Central Intelligence
Agency, the National Security Agency, and the Defense Intelligence
Agency). In the course of these briefings each agency was asked to
provide the subcommittee with ten cases in which intelligence infor-
mation 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 30 case
files or summaries of case files provided by these agencies. These files
have served as a valuable data base for our survey. 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 rele-
vant 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 subcom-
mittee redirected its inquiry. The subcommittee originally began on
the assumption that the major issue to be addressed would be evaluat-
ing the desirability of additional criminal sanctions for unauthorized
disclosure of information that jeopardized sensitive foreign intelli-
gence "sources and methods". As the work proceeded, however, 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, has been infrequently used despite
the large number of leaks of communications intelligence. The files
which the subcommittee has studied reveal several cases in which
violations of even this statute were neither investigated nor prose-
cuted.'
Part of the reason for the reluctance to bring cases under section 798 is the lack of agreement as to whether
courts will require the prosecution to establish the propriety of classification. If a court should decide to look
behind the classification of a document, then this would require the public disclosure of additional sensitive
information.
(5)
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At the heart of this failure of enforcement is a very deep-seated
conflict between the concerns of the intelligence community on the
one hand, and the Department of Justice on the other in enforcing
the espionage statutes. The conflict arises over whether publicly
to disclose classified information necessary to conduct the investiga-
tion and to proceed with the prosecution.2 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 Adm. Stansfield Turner,
the Director of Central Intelligence; Benjamin Civiletti, then the
Acting Deputy Attorney General; Philip Lacovara, formerly of the
Watergate Special Prosecutor's Office; Judge Albert 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 legislative and admin-
istrative actions to facilitate administration of certain statutes
related to the national security.
2 It is common knowledge that the FBI and other counterintelligence agencies do from time to time decide
not to prosecute 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
but only those where investigation and prosecution is the preferred approach.
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IV. "LEAK" AND CLASSICAL ESPIONAGE
INVESTIGATIONS
A. "Leak" investigations
The subcommittee', examined 30 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 30
cases only 3 were actually referred to the Department of Justice
for investigation and none of those was formally investigated. All
were recent cases. Almost half of the cases involved disclosure of
communications intelligence, which could have been prosecuted
under section 798 of title 18 of the United States Code (see appendix
I, p. 41). As noted earlier, section 798 is the only espionage provision
currently 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 the "leak" cases have not been investigated by the FBI
because of the Department of Justice's policy of refusing to investigate
unless the intelligence community is willing to declassify all informa-
tion 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.
According to those cases examined by the subcommittee, the re-
sponse to those leaks which are subject to internal intelligence agency
investigations begins with an employee of an intelligence agency who
is familiar with the intelligence and who identifies the possible. leak
when it is published. For example, if the intelligence relates to infor-
mation 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. 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 leaked
information has been disseminated broadly in such interagency classi-
fied materials as certain CIA. intelligence cables, the National Intel-
ligence 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.'
E Most of the damage assessments that were reviewed were quite perfunctory in nature and provided 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.
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After the damage assessment is completed and a cursory review of
the number of people who might have had access is finished, the in-
formation is forwarded to one of three organizations: to the Security
Committee of the Intelligence Community Staff, to another agency if
it is clear that the information must have been leaked in a publication
or from an 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 Depart-
ment's response is pro forma. According to the cases examined, 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 11 questions" (see appendix II, p. 216, Hearings on
Secrecy and Disclosure). Neither the Department of Justice nor the
FBI will normally proceed further until the 11 questions are answered.
Some of the 11 questions are uncontroversial-such as whether the
compromised information was properly classified in the first place and
whether the article disclosing it was accurate. In most cases, par-
ticularly 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 prosecu-
tion and, if so, the name of the person competent to testify con-
cerning the declassification.
The intelligence agencies view this as a requirement that they agree
to declassify any and all information in question before the Depart-
ment 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 the Department of Justice. Indeed, of
the 30 cases provided by the intelligence agencies, none was investi-
gated by the Department of Justice.
B. Espionage- investigations
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 pages
21-24.) Despite the fact that espionage cases and "leaks" may both be
prosecuted under the same criminal statutes, the 11 question leak
questionnaire is not used in espionage cases. Indeed in espionage cases
a resolution is almost always reached between the intelligence com-
munity and the Justice Department on how to proceed with investi-
gation. Although the government is capable of resolving its differences
in espionage cases, the decision in the past was often not to prosecute.
Recently, the CIA Office of General Counsel and the Criminal Divi-
sion of the Justice Department have-much to their credit-succeeded
in surmounting the-many obstacles to prosecution in espionage cases.
Therefore the initial impasse that prevents the opening of investiga-
tions in leak cases does not occur. Nevertheless, even if the decision is
to proceed to trial in an espionage case, 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; in that case the individual was granted immunity in
return for a full confession of what information he had passed to a
foreign nation.
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United States v. Moore was the successful prosecution last year of a
former CIA official who tossed classified documents onto the Russian
Embassy lawn here in Washington. United States v. Boyce and Lee,
also successfully prosecuted last year, involved an employee of TRW,
a large defense contractor in California, who passed photographs of
documents describing extremely sensitive intelligence systems to the
Russians. Both 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
in the trial. In the Moore case disagreements 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 hostile intelligence
service might tend to interpret that indictment or investigation as
confirmation of the accuracy of the information provided. This par-
ticular form of damage to the national security is practically impos-
sible 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 inter-
ested 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
counterespionage 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 deter-
mined 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 national
security and at the same time ensure the 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
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variety of circumstances in the course of pretrial 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 public and to
the intended recipient, the significance of the information passed.
For example, in the Moore case the government had to disclose publicly
classified information contained in the documents tossed onto the
Embassy lawn, but which in fact were never examined by the Rus-
sians.4 Thus, here the prosecution could have done as much damage
to the national security as the consummated crime.
The Boyce and Lee prosecution earlier this year was one of the very
few prosecutions under section 798 of title 18 for the unauthorized
dissemination of communications intelligence. Even though section
798 on its face does not require proof of harm, Boyce and Lee were
also charged under other sections of the criminal code. Thus, it was
necessary to prove that the information was appropriately classified.
(2) As a part of the defendant's affirmative defense.-In the course of
any of these prosecutions, it is likely that the defendant will raise an
affirmative defense that will require classified information. For ex-
ample, 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 alterna-
tive, 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 a case of organized
crime and narcotics smuggling, a defendant'might allege that a former
association with the Agency provides a putative affirmative defense
which would require evidence of the CIA's relationship to him or
similar agency relationships to other individuals in the underworld.
(3) As part of pretrial discovery.-In every criminal trial the de-
fendant is entitled under the Constitution, under statute, or under
the Federal Rules of Criminal Procedure,' to: (a) all materials ob-
tained from or belonging to the defendant; (b) anything "material to
the preparation of his defense"; (c) information pertaining to the
testimony of a government witness; and, (d) any exculpatory infor-
mation within the government's possession. Frequently the informa-
tion which must be disclosed in these pre-trial procedures is classified.
E. "Gray mail": The price of failing to resolve the dilemma
Since the Espionage Act was enacted in 1917, the Federal Govern-
ment has been cautious in using the statute because of the necessity
to provide further classified information in the course of a prosecution.
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.
J Rule 16.
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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 transmis-
sion to a foreign spy because of the counterproductive disclosure of
further secrets. The Department of Justice is also aware that a de-
fense counsel, in the course of trial or through pretrial discovery, can
threaten the Government with discovery motions or a line of question-
ing that requires the disclosure of classified information. An internal
CIA study of this problem in 1966 characterizes the dilemma as
follows :
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 there is a real threat that prosecution of the defendant may
reveal sensitive information in the course of a trial, he or she may
engage in this "gray mail" to avoid prosecution.'
6 Philip Lacovara characterized this problem in particularly strong language.
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 Tan Fleming wrote
of in his fictional novels ... People ... connected with intelligence information, whether they are them-
selves intelligence officers or otherwise 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 .. .
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V. CASES OF "GRAY MAIL"
The ambiguity of the statutes described in previous sections and
the internal executive branch procedures for their enforcement have
at times created 'a legal vacuum-often tantamount to immunity-
for people who gain access to secret information. The dilemma is
most often confronted in the leak and espionage circumstances de-
scribed 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 inter-
fered with the investigation or prosecution of a serious felony which
was not directly related to the national security. These cases are
important because they represent not only the different kinds of
crimes which give rise to this phenomenon but also the subtlety with
which concern 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 inter-
cepted between a foreign Ambassador in Washington and his home
government. The message implicated the Ambassador in bribery of
a high American Government official and his secretary.
In a subsequent meeting with a high official in the State Depart-
ment, 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?
The State Department official responded:
7 There are no examples of leaks or espionage cases halted for national security reasons included below
because any further public
disclosure discussion of legitimate national of these cases might secrets. the same concerns as investigations or
prosecutions-further
(12)
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Yes we have thought of all that. My impression is the entire
case will be dropped. It is too serious to meddle with.8
B. The KCIA case: A more recent bribery conspiracy
In the early summer of 1971, a U.S. intelligence agency reported
to the Department of Justice the details of intensive KCIA lobbying
of the House Foreign Affairs Committee and a substantial contribu-
tion to a U.S. Congressman. This information was communicated to
C. D. Brennan, FBI Assistant Director in charge of the Intelligence
Division, and to Assistant Attorney General Mardian in charge of
the Department of Justice Internal Security Division. According to
the Justice Department records, Mardian promptly contacted the
FBI to determine whether the Bureau was investigating illegal
transactions of government officials with the Korean Government.
He arranged for a personal review and an additional review by FBI
officials of the intelligence reports "to determine if any action can be
taken."
A few days later Bureau officials forwarded a summary of the
reports, and the following conclusions and recommendations to
Director Hoover:
We have received no information regarding this matter from
any other source and there is no data in Bureau files which would
serve as a basis for the Bureau's conducting any active investiga-
tion. We are precluded from doing this based solely on [sensitive
intelligence reports]. Further, even if the allegations from these
sources could be proven, it is doubtful that any prosecution could
be sustained because of intended disclosures which would be
required in court proceedings. The most logical action which
might be taken would be in the hands of the Department of
Justice, the Department of State or the White House and would
be in the nature of administration action [sic] rather than prose-
cutive action.
Two days after this memorandum was written, FBI Director Hoover
sent a similar memorandum to Attorney General Mitchell attaching a
summary of the intelligence reports. Hoover's memorandum to the
Attorney General reiterates the Bureau contention that it was pre-
cluded from instituting investigation based solely on such sensitive
intelligence reports. Hoover affirmed the absence of independent
material in Bureau files that could serve as the basis of any active
investigation into the matter. Hoover also expressed his doubts to the
Attorney General that any prosecution could be sustained because of
attendant disclosures during court proceedings. Hoover then concluded :
Information in the attached memorandum is also being made
available to Dr. Kissinger at the White House. No further action
is contemplated by this Bureau.
No further action was taken regarding the Korea affair until 1975.
C. The Khramkhruan case: Narcotics trafficking
The following narcotics trafficking case was discussed in great detail
in hearings before a subcommittee of the House Government Opera-
tions Committee in 1975.? During those hearings representatives of
i Yardley, Herbert, The American Black Chamber (1933).
Y Hearings before a subcommittee of the House Government Operations Committee, July 22, 23, 29, 31,
and August 1, 1975.
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the Department of Justice and the CIA discussed the 1974 dismissal
by the Department of Justice of an indictment against a CIA operative
on national security grounds.
In 1973 a CIA operative from Thailand, Puttaporn Khramkhruan
was indicted for participating in the illegal importation of 25 kilos of
raw opium into the United States. According to the testimony and a
subsequent congressional committee report on the case, the CIA ini-
tially cooperated with Customs in investigating Khramkhruan's in-
volvement in narcotics trafficking. Khramkhruan was indicted along
with six other individuals in August of 1973. Originally he was to have
been called as a Government witness, and not to have been named as
a defendant: However, Khramkhruan subsequently decided not to
cooperate as a witness and announced that he intended to leave the
country. Khramkhruan was arrested and served a superseding in-
dictment naming him a defendant. At that point Khramkhruan an-
nounced that part of his defense would be that the CIA knew about his
opium smuggling. .
. Initially the CIA had promised its cooperation, including provision
of necessary documents and witnesses, to the Department of Justice.
Indeed it even volunteered to provide a rebuttal witness to any claim
by Khramkhruan that the CIA had advance knowledge of his narcotics
trafficking.
However, shortly before the trial began the CIA notified the U.S.
Attorney that it would not produce documents necessary for discovery
under the Federal Rules of Criminal Procedures or pursuant to the
ruling in Brady v. Maryland, 373 U.S. 83 (1963), nor would it provide a
rebuttal witness on Khramkhruan's charge of CIA advance knowledge,
nor would it comply with the so-called Jencks rule (18 U.S.C. 3500)
requiring disclosure to the defendant of prior statements of Government
witnesses.
According to the testimony of CIA witnesses,10 the CIA's request to
the Justice Department for the dismissal of the indictment was based
on the fact that prosecution would lead to discovery motions by the
defendant which, when granted, would reveal sources and methods of
ongoing CIA clandestine operations in Southeast Asia. The witnesses
left unsaid the fact that CIA would find it embarrassing to have one of
its operatives found guilty of narcotics trafficking.
D. The Nha Trang murder
The Army concedes the existence of a murder prosecution that was
thwarted by national security considerations. However, the Army's
records explain neither the facts leading to the prosecution nor how
national security impinged upon investigation or prosecution. Because
of the incompleteness of the record, the committee was forced to rely
primarily on newspaper accounts and interviews.
In 1968 the Special Forces proposed to conduct an intelligence
operation which would employ Vietnamese spies as trail-watchers
operating on both sides of the Cambodian border. The written opera-
tional proposal had to be cleared by the CIA, the agency charged with
coordinating intelligence responsibility and authority for U.S. forces
in Vietnam. The proposal stated that any agent found to be working
for enemy intelligence would be "terminated with extreme prejudice,"
a phrase allegedly interpreted by CIA to mean that the officer would
10 Hearings before the Subcommittee on Government Information and Individual Rights of the Com-
mittee on Government Operations of the House of Representatives, July 22, 23, 29, 31, and August 1, 1975.
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be turned over to South Vietnamese legal authorities. CIA approved
the operational proposal.
In the late spring of 1969, the Special Forces suspected that a spy
it had employed in the operation was in fact a double agent who
served North Vietnam intelligence. According to a CIA official in-
terviewed by the committee, the Special Forces consulted with the
CIA and were advised in the methods of conducting a proper counter-
intelligence interrogation and investigation. According to this official,
Special Forces personnel did interrogate the alleged double agent and,
concluding that he was guilty, killed him, apparently mistakenly
relying on the original operation proposal authority.
Gen. Creighton Abrams learned of the incident and ordered a pre-
liminary criminal investigation. A month later, eight Special Forces
officers were arrested in connection with the death. Defense counsel
for the officers during discovery proceedings took testimony from
a number of U.S. intelligence community employees. Accordin to the
CIA, the transcripts of this testimony contained the details of a
large portion of U.S. intelligence activities in Southeast Asia. Press
accounts of the legal proceeding were extensive and public attention
was focused on the upcoming trials. A civilian lawyer for three of
the Special Forces soldiers claimed that a representative of the Agency
"hid behind executive privilege." 11 Based upon the discovery pro-
ceedings, this CIA officer assessed the likelihood of public disclosure
of intelligence sources and methods during trial as very high.
On October 1, 1969, the New York Times reported that Secretary of
the Army Stanley Resor announced that he had "decided to drop
all of the charges in view of the fact that the Central Intelligence
Agency would not permit members of its staff to testify."
In its recent memorandum to the Intelligence Committee, the
Army Judge Advocate General's office stated,
This office does not have a factual basis to verify the accuracy
of the statement that, for reasons of national security, the Central
Intelligence Agency would not make available any of its personnel
as witnesses at the pending courts martial. On this basis, how-
ever, the charges were dismissed by the Secretary of the Army
on September 29, 1969.
In further explanation, representatives of the Department of the
Army stated that the Army can confirm that the case was dropped
for national security reasons but all records of negotiations between
the Army and CIA over witnesses and documents for use in the
courts martial are no longer available to the Army.
In subsequent discussions with an official of the CIA, the committee
learned of a meeting between DCI Richard Helms, Attorney General
Mitchell, and Secretary of Defense Laird. Those principals, with
President Nixon's concurrence, decided that the case could not pro-
ceed for national security reasons and instructed Secretary Resor to
drop the case.
E. The Watergate case
The claim that intelligence activities must be protected does not
need to be legitimate for it to interfere with investigations or prosecu-
tions. Nor is it necessary that the intelligence community make the
claim. A prime example of these two possibilities is the Watergate
case.
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Within about a week of the Watergate break-in of June 1972, FBI in-
vestigators discovered evidence linking the burglars to an individual
named Kenneth Dahlberg, and another individual named Manuel
Ogarrio in Mexico City. This was a critical link that eventually traced
the burglars to money in the Nixon reelection campaign and ultimately
to the White House.
According to the House Judiciary Committee Special Impeach-
ment Task Force report, as soon as the White House discovered that
the Bureau had uncovered the connection, President Nixon directed
Haldeman to meet with CIA Director Helms, Deputy Director Vernon
Walters and John Ehrlichman to ascertain whether there was any
CIA involvement in the Watergate affair. The Impeachment Task
Force's report summarizes the results of that meeting as follows:
The President directed Haldeman to ask Walters to meet with
Gray to express these concerns and to coordinate with the FBI,
so that the FBI's investigation would not be expanded into un-
related matters that would lead to disclosure of the early activities
of the Watergate principals.
Although Helms had assured Haldeman and Ehrlichman that
there was no CIA involvement in Watergate, he did direct his deputy
to meet with the FBI Director and to remind the FBI of the agencies'
agreement that if either agency appeared to be running into each
other's sensitive operations, they were to notify each other and back
away.
In a memorandum from Helms to Deputy Director Walters dated
28 June 1972, Helms gave the following directions:
In short at such a meeting (between Walters and Gray), it
is up to the FBI to lay some cards on the table. Otherwise we
are unable to be of help. In addition we still adhere to the request
that they confine themselves to personalities already arrested
or already under suspicion, that they desist from expanding
this investigation into other areas which may well eventually
run afoul of our operations.
According to Walters' testimony before the Senate Watergate
Committee, Helms again reminded Gray of this arrangement on their
way out of the White House after their meeting with Haldeman and
Ehrlichman.
In a memorandum for the record dated June 28, Walters summarized
his meeting with Acting Director Gray as follows:
I recall that the FBI and the Agency had an agreement in
this respect and that the Bureau had always scrupulously respect-
ed this. Gray said he was aware of this and understood what I
was conveying to him.
For about a week the FBI did not proceed with the investigation
because it was under the impression that it had indeed stumbled
across a CIA operation and for national security reasons felt that
further investigations would jeopardize sensitive information and
operations. In fact no such operation was involved but it is possible
that Helms and Walters were not sure at that time whether a CIA
operation was involved. The Watergate case, therefore, illustrates
how such arrangements could be used, especially by White House
officials, to obstruct a legitimate investigation.
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VI. PAST LEGISLATIVE AND ADMINISTRATIVE PROPO-
SALS IN RESPONSE TO THE "GRAY MAIL" PHENOMENON
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 civilian 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 Depart-
ment 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 adminis-
tration of espionage statutes would be resolved if the culpability re-
quirements 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.12
According to Prof. Benno Schmitt, of Columbia Law School, one of
the Nation's experts on our espionage statutes, proponents 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 Con-
gress over this kind of legislation was during the Wilson administra-
tion when, according to Professor Schmitt, the administration "pro-
posed 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 ad-
ministration'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.
22 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.
(17)
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18
Similar proposals were made during the world War II Period. In
1946 the Joint Congressional Committee for Investigation of the
attack on Pearl Habor 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 y and Navy
1 trans-
In 1947, the predecessor of
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 pro-
posals 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
No action was taken on the Intelligence and the FBI which made similar recommendations n, in June 1946.
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
mitted legislation similar d such legislation but
Defense Secretary Robert Lovett proposed to President Truman that
to the British Official
administration still _---_
the
Secrets Act. The Justice Department prepare suc In 1957 the Commission on Governmental Security suggested
legislation that would make it a crime "for any person willfully to
disclose without pro er authorization for any purpose whatsoever,
information classified, knowing such information to have been so
it did not reach the floor in either H ouse fi d i 1 t f the a serious problem f A defendant
classified." The Commission justf e its proposa in terms o
i(gray mail" problem:
info
Since rmwt.i espionage of the highest classification, the Government is of how far such information
.,.,can_ _be,ed with
compromised in the course o prosecution ... who may have met with the greatest success in securing our most
precious secrets, may also have secured an advantage in warng
off successful prosecution.
Commission's recommendation, nor
on subsequent 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
administration. That
Reform legislation was introduced by the Nixon 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 ~aministration in February of 1976. No action has been taken
on the CIA proposal.
Typical of opposition that the Federal Criminal Code Reform and
the subsequent Ford administration proposal provoked is the testi-
mony of Jack Landau of the Reporters Committee for Freedom of
the Press before a congressional subcommittee which was considering
the Federal Criminal Code Reform:
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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 coverup, 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 in part on government compiled
information and reports [is] 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 to CIA's attention. Accord-
ing to a memorandum by Houston to Allen Dulles, 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 cir-
cumstances. There is some uncertainty in the materials the Com-
mittee 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 Budget in
August of 1954. The CIA expressed concern regarding legislation
about to be enacted which would grant the Attorney General exclu-
sive responsibility for investigating all violations of Title 18 by govern-
ment officers and employees. Notwithstanding the CIA's concerns,
that legislation was eventually enacted and codified as title 5, United
States Code, section 311(a) (since recodified in 28 U.S.C. sec.
535(b)(2), see appendix II, part A, p. 42.).
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 20 years the CIA, based on its 1954 arrange-
ment, 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
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20
1955 and again in 1964-the basic thrust of the arrangement wherein
CIA took primary responsibility for balancing the need for secrecy
against the administration of justice remained until 1975.
In January of 1975 DCI William Colby and Lawrence Silberman,
Acting, Attorney General, reviewed the 1954 arrangement. At that
time lberman took the position that the agency should comply with
title 5, U.S.C. section 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 of crimes by its
employees to the Attorney General was the subject of a specific
provision in Executive Order 11905 ' issued by President Ford (de-
signed to regulate the activities of the intelligence community) and
its successor issued by President Carter, Executive Order 12036.
The Attorney General and DCI have recently signed a memorandum
of understanding which would serve as a successor to the 1954 ar-
rangement.13 The new Executive order and the new memorandum
of understanding between Justice and CIA retain the principle estab-
lished by acting Attorney General Silberman that the Department 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 nonemployees,
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 guidelines
adopted by the Attorney General.
No such guidelines have yet been adopted and, therefore, the report-
ing requirements under that provision are unclear. Furthermore,
neither the memorandum of understanding nor the Executive order
addresses 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 is intended to
resolve the controversies on the use of classified information in the
prosecution, the problem to which this report is addressed.
Certainly one of the difficulties in developing these policies is con-
cern that these reporting requirements might indirectly involve
the foreign intelligence agencies in domestic law enforcement in vio-
lation of the 1947 National Security Act. The committee shares this
concern. However, the solution to this dilemma may be in the distinc
tion between passively reporting domestic criminal activity on the one
hand and actively seeking it out (e.g., "watchlisting" domestic
subversives). The drafters of future versions of the memorandum of
understanding and guidelines implementing the Executive order should
keep this distinction in mind and avoid an unrealistic interpretation of
the domestic law enforcement prohibition.
U The committee has been informed that this memorandum may be subject to further revision.
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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 Committee.
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 con-.
stitutional 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.
Although unanimity exists among the members of the committee
on the scope and significance of the problem of "gray mail", there is
substantial disagreement on a remedial program. Some members such
as Senator Wallop (see Additional Views, p. 34) describe the recom-
mendation of the committee as resulting in only marginal improve-
ments. Other members find his approach or any major recasting of the
espionage laws to be fraught with the practical, legal and political
problems which have thwarted efforts to remedy this problem in the
past. This is not to say that the espionage statutes written over six
decades ago should not be subject to a serious reexamination. There is
strong sentiment that the committee should undertake such a study
but the implementation of the program recommended herein should
not await the completion of that study.
The program the committee does adopt, is, however, supported by
those who would take an even more fundamental approach, as being
the minimum dictated by the record disclosed in this report. In the
end the committee recognizes that if this program were adopted in toto
there would still be circumstances where some leaks would go unpun-
ished and some prosecutions subject to "gray mail" but perhaps that
is the price we must pay for the constitutional protections of a free
press and a right to a public trial.
A. Leaks, espionage, and current law
The espionage statutes clearly cover most forms of traditional spy-
ing. Nevertheless, prosecutions under these statutes have often failed
in the face of the "gray mail" phenomenon.
Leaks differ qualitatively from espionage. A leaker normally dis-
closes classified information not to a foreign agent but to a journalist.
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In fact, this type of security leak has become part of a flourishing
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 rosy 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.
Under current law, it is not at all clear whether most leaks of infor-
mation to the media are criminal. To the legal neophyte in this field,
it appears that title 18, section 793 (d) and (e) do address the problem.
Section 793 (d) and (e), in similar language, make criminal the beha-
vior of any person who, having lawful or unauthorized, "access to ...
information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the
United States ... willfully communicates ... the same to any person
not entitled to receive it."
Superficially then, this statute seems to punish leaks to journalists
as well as spying. However, these statutes are not normally used in
cases unless transmittal of information to foreign agents is involved.
Whether they could be used in cases where information is passed to
a journalist is unclear from a careful reading of the legislative record.
This very lack of clarity and congressional reticence to clarify the
statutes, discussed earlier, has in fact discouraged leak prosecution
under these sections which in turn has precluded the growth of case
law to define the statute's meaning. Application of the statute to
publication of national defense information by a newspaper raises
serious first amendment problems. Two distinguished commentators
have suggested that after taking into account constitutional concerns,
there is "little worth preserving in these two remarkably confusing
provisions." 15 As noted earlier, this committee has no desire to decide
in this report whether these statutes perform a necessary task or
whether they do it adequately. However, it does believe the adminis-
tration should itself decide under what, if any, circumstances it
will seek to apply criminal sanctions to leaks of national security
information.
Administrations from the time of World War I have put forward
proposals that would resolve the ambiguities of the law regarding leaks
by making the disclosure of Government secrets a crime even without
requiring proof of damage to the national security. In fact, practically
all of these attempts have floundered in part because Congress has
refused to make leaks explicitly criminal which do not damage the na-
tional security.
Although the mere classification of a document may not in itself
warrant criminal penalties for its disclosure, certain narrow classes
of information are in fact so sensitive that a statute should protect
them against any disclosure. Thus, communications intelligence is
protected against disclosure even without proof of harm or communica-
tion to a foreign agent.
'5 Harold Edgar, Benno Schmitt. "The Espionage Statutes Publication of Defense Information," 73 Colum-
bia Law Review 930.
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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 in-
telligence 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. The committee believes that
such a statute would cover the type of unauthorized disclosure recently
made by former CIA employee Philip Agee. Colby, however, suggests
that the sanction be expanded to cover CIA sources as well as em-
ployees in circumstances where political or economic reprisals could
be expected. Although Colby urges protection of intelligence "tech-
niques," 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 "techniques." Added to the
difficulty of legally defining "technique" are the difficulties of proving
that any given disclosure revealed it.
As this report clearly establishes, great difficulties exist in enforcing
current espionage statutes due to the "gray mail" phenomenon and
any new statutes would face the same problem. Even under the "strict
liability" of section 798, the law is unclear as to whether the prose-
cution would have to establish that the classification of the material
is substantively valid. If so, the Government would face the prospect
that much sensitive information would have to be revealed in the course
of litigating that question.
The modest expansion of the espionage statutes to cover disclosure
of agents under cover warrants serious consideration, despite the risk
of "gray mail." However, the committee is not prepared to recommend
a major restructuring of those statutes to encompass all leaks. First,
in light of the experience section 798 of title 18, most members of the
committee have serious doubts as to whether even a radical restructur-
ing of the rest of the espionage law along the lines of the British Official
Secrets Act could have an appreciable impact on leaks. Second, the
committee is unanimous in the view that countless practical, legal and
political differences lie in the path of such an undertaking.
What other than criminal sanctions will diminish the frequency and
gravity of leaks? 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 classifica-
tion. This new order is an improvement over past practices, but if it is
not strictly construed and vigorously enforced, it 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.16
" 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.
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Yet, given the ingrained nature of the leaks system and the fact
that leaks often result from bureaucratic infighting, some unauthor-
ized disclosure is bound to continue. To deal with leaks 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-these might include
a right to present evidence, to be represented by counsel, to challenge
accusations, and to appeal to the courts-must, of course, be preserved.
At the same time, administrative sanctions would be less onerous.
Dismissal or loss of security clearance are at times more appropriate
sanctions for leaking than criminal prosecutions.
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 in cases where leaks
or espionage have occured and the use of administrative sanctions in
less serious breaches of security or other violations of the law. On the
legislative side, the committee recommends some new judicial proce-
dures 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 administra-
tive recommendations (see ppages 30-32) 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. Leakers-occasionally are penalized on an ad hoc basis." Viola-
tions of the Executive order on classification, and even 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 also believes that the FBI should not conduct investi-
gations of citizens for leaks without their consent except in cases in-
volving a nexus with criminal activity.
But where there is such a nexus, even where prosecution of the crime
is impossible because of the risk of further disclosures, the FBI should
investigate when the leak endangers sensitive intelligence sources or
methods and is reasonably believed to violate the criminal statutes
of the United States. The persons investigated should be officials, em-
ployees, or contractors of the executive, legislative, or judicial branch
having access to the information leaked; the investigation and any
intrusive investigative techniques should be authorized in writing by
the Attorney General; 18 and the investigation should terminate
within 90 days, unless such authorization is renewed. The Attorney
17 E.g., Donald Stewart, formerly the chief leak investigator for the Department of Defense, supplied ex-
amples 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.
13 Court orders would be required for electronic surveillance or searches and seizures; such techniques
would rarely be appropriate in most "leak" cases.
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General should submit information concerning the leak to the head
of the employing agency, or to the President, for appropriate ad-
ministrative action.
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 Gen-
eral's approval. Nevertheless, they break sharply with current Justice
Department policy foreclosing FBI investigations of damaging crim-
inal 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 Director of Central Intelligence has extraordinary powers under
the 1947. National Security Act, and he and the director of the National
Security Agency would have similar authority under the proposed
legislative charters, to dismiss their employees. These charters should
also recognize the authority of the directors of CIA and NSA as well as
that of the heads of other agencies to take disciplinary action against
employees who leak classified information. With that authority should
come the implied responsibility of the agencies to investigate em-
ployees' past activities which would warrant action.
The leak cases reviewed indicate that these initial investigations
are often not conducted because no one official at the intelligence com-
munity level has the authority to require individual agencies to pursue
particular leads in an investigation. Some intelligence community
body should be required to ensure that individual agencies investigate
activity by intelligence agents, employees or informants which violates
security or charter prohibitions. However, this investigative responsi-
bility should not be delegated to the FBI until there is evidence of
criminal violations.
As stated, the advantage of administrative sanctions over criminal
prosecution is that procedures under the former do not require exten-
sive 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 em-
ployees 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, assum-
ing that a deferred compensation pension plan could be conditioned
upon continued compliance with security and charter requirements.
Former employees who violate prohibitions could be made subject to
loss of pension rights through the administrative procedure, if it were
made clear in the pension agreement that payments were contingent
on such compliance. A decision to take away pension rights would
presumably be reviewed by the courts to ensure that no former em-
ployee's rights were violated.
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Another major goal of the committee recommendations for admin-
istrative action is to improve accountability in executive branch
decisionmaking concerning cases involving national secrets. The com-
mittee agrees with the testimony of Philip Lacovara before the Secrecy
and Disclosure Subcommittee :
I have the sense that the Government may be aborting cases
prematurely or unnecessarily 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 prosecution, where
defense efforts to use "national security threats" to stymie the
case were beaten in the courts.
During the course of the hearings the subcommittee members and
witnesses agreed on a number of fundamental points about decision-
making in these cases. There is little controversy that the ultimate
decision on whether to proceed on these types of cases must be cen-
tralized within the Attorney General's office. Nevertheless, the DCI
should have authority, through the "sources and methods" provision
of the National Security Act, to make his views known on whether to
halt prosecution 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 a
prosecution outweighs the ends of justice.
If the intelligence community disagrees with an Attorney General's
decision, the DCI or any other agency head should have the right to
appeal to the President. The decision to drop a national security case
should be made in writing by a high-level official within the Depart-
ment of Justice, an Assistant Attorney General or a Deputy Assistant
Attorney General. Included in that written decision should be a de-
tailed 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 potential 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. As noted in part
VI of this report, the administration is currently at work attempting
to- implement provisions of the new Executive order and has recently
updated the so-called Silberman-Colby understanding as to the re-
quirements 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.
The guidelines should be promptly issued and the Attorney General
and the DCI should quickly determine whether any further revisions
are necessary in the memorandum of understanding on reporting
crimes by employees. It is equally important that either the prospec-
tive guidelines or an expanded memorandum of understanding 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.
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(2) Legislative initiatives -The purpose of the legislative suggestions
set out in part VIII is to provide alternatives which will allow pros-
ecutors to avoid what one witness described as the "disclose or
dismiss dilemma." Because of ambiguities in existing judicial pro-
cedures or because of a general reluctance on the part of the intelli-
gence 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 to
pursue an investigation at the outset.
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 breaking into the office of Dr. Ellsberg's
psychiatrist :
After the indictment was returned, the defendants did in fact
demand the production of highly classified files, including nu-
clear 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 pros-
ecutor 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 damag-
ing to our national security was avoided.
In many other cases it is possible that if the prosecutor had forced
the court to carefully examine the relevancy of the intelligence in-
formation to a purported defense or motion, the 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 rely on the relevancy standard. They argued that
what one judge found 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 harass the prosecution and thus tie up the prosecutors
in negotiations with the CIA over sensitive documents.
Mr. Lacovara suggests that Congress enact an omnibus pretrial
proceeding for use in all cases where classified exhibits or testimony
would be required. 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 reasonably known of the need for
discovery prior to trial." He would have to argue successfully the
relevancy of each motion before the court in order to secure discovery
of the documents or testimony. For the purposes of argument, the
court could assume that the documents existed without actually
providing the defendant the documents and could decide in advance
IY Of course, if the prosecution is to go forward, the Government must turn over all materials relevant to
the defense notwithstanding the fact that some of them may be classified. See, supra, pp. 10-11.
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28
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 arguments that are relevant
and 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) What action should he take
against the prosecut on if it withholds the documents or testimony
(e.g., dismissal of th case)? Of course, the Government always has
the option of dismiss ng a prosecution if the court's decision on these
matters would requir what it believes to be excessive disclosure.20
In 1974 the Suprem Court proposed the Federal Rules of Evidence.
These Rules of Evide ce were extremely controversial in the Congress
because they contain a provision, section 509, that defined a "secret
of state" privilege. An invocation of the privilege by the Government
would prompt an in c era adversary proceeding in which the parties
would litigate whethe the information in question was in fact "a
secret of state."
Section 509 was reje ted by the Congress as it reviewed the rules
proposed by the Supre e Court. However, several witnesses agreed
that perhaps section 5 9 might serve as the basis for an in camera
adversary proceeding that would resolve the use of intelligence infor-
mation 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 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.
Lacovara in his testimony emphasized the importance of providing
judges with some guidance as to what action should be taken if they
find the privilege is legitimately invoked. Lacovara suggests a "sliding
scale" of sanctions available to the judge so that "the remedy avail-
able to the defendant would vary depending upon the circumstances
of the case." Lacovara goes on to further describe his proposal as
follows :
20 The Government does not undertake prosecution on a whim. Tn 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.
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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 informa-
tion would have proven a given proposition may be possible.
Certainly the Department of Justice should press for some inter-
mediate treatment like that before deciding that the case must
be abandoned.
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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 committee 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.
At this time Congress should focus primarily upon developing
statutory and administrative procedures which would facilitate
enforcement of the espionage law and other statutes subject to the
"gray mail" phenomenon. The committee is not prepared at this
time to recommend a general recasting of the Federal espionage
statutes along the lines of the British Official Secrets Act. However,
limited further protection of intelligence sources, especially the
identities of agents and employees under cover, appears to be
necessary.
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.
III
Administrative procedures for disciplining employees responsible for
violations of security or other laws should be developed. At the same
time the intelligence community should centralize responsibility, per-
haps in the Intelligence Oversight Board, for investigations of breaches
of security and all violations which do not constitute crimes. The
purpose of these procedures would be to permit sanctions against em-
ployees through internal agency procedures in which it is easier to
cope with classified documents or testimony than in traditional public
criminal trials. In many leak cases administrative sanctions may be
more appropriate than criminal conviction. Of course, these admin-
istrative proceedings would grant due process rights to the employee.
(30)
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Some consideration should also be given to applying these administra-
tive review procedures to former employees through withdrawal of
pension rights for former employees who violate security."
The FBI should continue to have exclusive responsibility for inves-
tigating criminal violations involving the intelligence community. In
leak cases the FBI should initiate investigation when:
(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 officials, employees, or con-
tractors having access to the information leaked;
(3) the investigation and any intrusive investigative techniques
are authorized in.writing by the Attorney General; 22
(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.
The Attorney General should issue guidelines under the authority
of Executive Order 12036 on the responsibility of the intelligence com-
munity to report crimes to the Department of Justice. The guidelines
should 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.
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 provide
necessary information to attorneys of the Department of Justice to
proceed with a criminal investigation or prosecution. 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 do to the national security if the
case proceeds. The decision paper should be available to the intelli-
gence oversight committees of the Congress and such cases should
be reported to the committee annually or as required.
91 For discussion of the committee's rationale for recommendations III, IV, V and vr, see pp. 24-26, supra.
22 Court orders would be required for electronic surveillance or searches and seizures. Such techniques
would rarely be appropriate in "leak" cases.
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Congress should consider the enactment of a special omnibus
pretrial 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 intelli-
gence 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 per-
mitted 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."
The Congress should reconsider the secret of state privilege pro-
posed 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 and 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.
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ADDITIONAL VIEWS OF SENATOR ADLAI E. STEVENSON
The Report on Secrecy is a positive step, as far as it goes, but in my
view it unnecessarily stops short of tackling the need for new laws to
cover espionage and other unauthorized disclosures.
The report emphasized improvement of procedures to enforce
existing laws-which could aid enforcement of new laws as well. How-
ever, I believe the Senate Select Committee on Intelligence should
recommend criminal laws that will address the threat to national
security from breaches of security.
The laws affecting espionage are sparse. Those which treat leaks are
almost nonexistent. Grave damage can be done to the national security
through purposeful leaks which may violate no statute.
New laws should not relate only to information derived from intelli-
gence sources and methods; sensitive information derives from many
sources. A State Department or White House official could improp-
erly release information just as damaging as information which
happens to be labeled "intelligence." The law should be drawn
accordingly.
The report's brief mention of the court-martial system deserves
fuller consideration to see if it could legally serve as a model for
civilian officers who handle Government secrets. The uniform code of
military justice provides a system whereby errant members can be
disciplined without breaching their constitutional rights. Any such
arrangements could, of course, provide for appeal procedures and
congressional oversight. It might also be possible to require officers
entrusted with Government secrets to enter contractual arrangements
by which they would agree to submit to special disciplinary procedures
should they violate their contractual and legal obligations.
I urge the committee to address the inadequacy of existing laws. It
is not enough to support the improved enforcement of laws which do
not exist.
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ADDITIONAL VIEWS OF SENATOR MALCOLM WALLOP
The committee's report amply documents the quandary variously
known as "disclose or dismiss" or as "gray mail." Because prosecution
requires disclosure of information likely to compound damage to the
Nation, leakers and spies have been allowed to go unpunished. The
sensitive substance of the documents stolen or leaked must be dis-
cussed in open court because the court cannot assume that the docu-
ments were properly classified in the first place. Therefore, the courts
have refused to enforce section 793, title 18, United States Code,
intended to punish anyone for revealing classified information, without
first determining what the proper classification of the information
should have been. Courts cannot avoid this function, because the clas-
sifying authorities cannot be deemed infallible or disinterested. Only
an impartial determination of the proper classification can form the
basis for judicial punishment of leakers and spies.
The committee's analysis of the possible ways out of the quandary is
circumscribed by three very firm facts. (1) The Constitution requires
open trials. (2) Prosecution of spies or leakers often requires evidence
the disclosure of which in open court would do more harm than the
prosecutor's success would do good. (3) Civil libertarians, not unjustly,
are afraid of making mere disclosure of classified information a strict-
liability crime because information is often classified improperly.
Thus, it is not surprising the report can point the way to only margi-
nal improvements in our ability to enforce laws safeguarding secrets.
These improvements would be effected by conferring greater powers on
judges to exclude certain evidence from espionage trials, and greater
reliance on administrative sanctions to curb leaking by the Govern-
ment's present or former employees. Yet the former may well affect
the fairness of trials, while the latter would surely provide for the non-
judicial execution of penalties weightier than those meted out in most
judicial proceedings. These may be excessive prices for such modest
improvements.
A somewhat different line of analysis, however, can lead us to a solu-
tion at once much more efficacious against "disclose or dismiss," at
least as respectful of civil liberties, and patently fairer than the solution
advanced by the report. In brief : One need not alter the sixth amend-
ment's guarantee of public trials, and one need not disclose classified
information at public trials if the only question to be decided at such
trials is whether the accused did or did not disclose classified informa-
tion to unauthorized persons. But the question "did he unlawfully
disclose" is logically independent of the one regarding the effect of the
disclosure. Penalties need be imposed only if it is determined that the
disclosure caused or could cause harm to the United States. The ques-
tion of harm done-as distinguished from the questions of guilt and
innocence and of motive-could be tried in camera by a judge, with or
without a cleared jury, and with cleared attorneys, without violating
the letter or the spirit of the sixth amendment.
(34)'
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The two questions "did he do it" and "what harm did it do" are
logically separate. Heretofore our judicial system has mixed them,
Unless a statute is enacted to provide for their separate resolution
we will find no solution to the quandary "disclose or dismiss."
Did he do it?
It is useful to start from the fact that officials of the executive branch
who classify information often do it erroneously and sometimes
maliciously. Nevertheless, information does exist the disclosure of
which would harm the country. Moreover, the people who work with
it, no matter how imperfect their minds and motives, cannot help but
be charged with the task of deciding which information deserves special
protection and which does not. Their decision should not be final, but
neither should the law regard it as merely one opinion among others.
Were the law to give its judgment no special weight, the executive
branch could not lawfully keep reporters from TASS out of the
Pentagon's war room.
Of course the executive branch's judgments on classification must be
open to challenge in court. But, until such challenges are upheld, the
executive must have the right to operate on a day-to-day basis as if its
judgments were correct. That requires, at a minimum, that the judicial
process be allowed to determine whether a given individual did or did
not handle classified information in a manner deemed unlawful by the
executive branch.
In recent years, the judiciary has not been able to make such deter-
minations, because it has mixed the question "did he do it" with the
question of whether the information involved was properly classified.
The latter question is essential, but it is separate.
What harm did it do?
Civil libertarians are correct in stating that information is often
improperly and sometimes maliciously classified, and that those. who
bring it into the public domain deserve praise. But no one disputes
that some unauthorized disclosures are harmful. No one should object
to determining whether and to what extent any particular disclosure
was harmful. We should object to accepting uncritically the intelli-
gence agencies' own assessment of the harm done. Such assessments
are the bases of the prosecution's case, and the chief targets for the
defense. It follows therefore that an impartial court must decide
between adversary presentations on the question of harm done.
But it does not follow that courts must decide the question of harm
done in public. This question can and should be answered without any
reference to the identity of the person(s) suspected of disclosing the
classified information, or to their motives. The resolution of this question
cannot in any way be considered the trial of a person. Therefore, the
Sixth Amendment's guarantee of a public trial, which refers to trials
of persons does not apply to this question.
There are several ways for the judicial system to decide such
questions in camera. Grand juries routinely and secretly decide
questions of fact, often examining evidence and arguments from varied
sources. Perhaps major unauthorized disclosures of classified informa-
tion could be brought before grand juries, which would issue their
findings concerning the harm to be expected from the disclosure with-
out even knowing the identity of any suspect(s). This would not
constitute a secret trial because although the grand jury's decision
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would ultimately affect anyone found guilty of disclosing the informa-
tion in question, it would affect any such person equally. Its evaluation
would prescind entirely from the accused's identity. The grand jury's
assessment of harm done would be immune to the defense's challenges
in an open trial for leaking or espionage. Indeed the question of harm
done would be immaterial. Then, assuming such a trial resulted in
conviction, the judge would turn to the grand jury's report to decide
whether the defendant deserved a token sentence and congratulations
for having served his country, or severe punishment for having en-
dangered his fellow citizens, or any sentence in between.
One could object to the above procedure by maintaining that the
interest of anyone accused of unlawful disclosure in the assessment of
damage done is so great that no such assessment can be considered
legally authoritative unless the defendant has had the opportunity to
take part in the selection of the jury and in the arguments before it. A
corollary of this objection is that courts may not give opinions outside
the framework of "cases and controversies." These objections could be
met by having the question of harm done decided in camera by the
same jury which had tried the case of unlawful disclosure in open
court; and by allowing the accused and his attorneys to compel and
present whatever evidence they and the court deemed relevant. Of
course all parties to the proceedings would be sworn to secrecy and
liable to severe penalties for violating it. Such a proceeding would not
constitute a secret trial because, although the convict would have an
interest in its outcome, the jury's decision on the harm done by the
disclosure would depend not at all on what the convict had done, or
his motives, or on his person. It would depend only on the qualities
inherent in the information disclosed. These qualities would be on
trial, not the person.
The question of harm
The question before us is how to punish those who harm their
fellow Americans by unauthorized disclosures, and how to do so with-
out infringing on the Constitution or civil liberties. The distinctions
between leaks and espionage, between good and bad motives, between
the release of substantive information and information regarding
sources and methods are all of secondary importance. In fact, when
disclosure cases from each of these different categories have come to
trial, the proceedings have turned on one paramount question: "What
harm did this do?" This is true even of cases under section 798, United
States Code (the statute protecting communications intelligence). And
it seems reasonable that this be so. Of course, the centrality of this
question is the source of the legal quandary "disclose or dismiss."
Lately, attempts have been made to sidestep the question of harm
done in order to make punishment of disclosures easier without
recourse to an "official secrets act." The essence of these attempts has
been to establish categories of disclosure which ipso facto result in
harm to the United States. The release of substantive information
may or may not do harm, while presumably the disclosure of intelli-
gence sources and methods, as well as of intelligence operatives, is
always harmful. Thus the proposals to make the disclosure of CIA
employees, or of sources and methods, into strict liability crimes. But
they will not work. No doubt disclosure of such information is harmful
and should be punished. But why give these categories special atten-
tion and a higher likelihood of punishment and not others (e.g., the
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location of SSBN's) the disclosure of which would be even more harm-
ful? The only answer, that it is legally easier to do so, is unsatisfactory.
The ruling criterion for punishment is, and must remain, harm.
Administrative sanctions
Another attempt to handle the problem without recourse to strict
liability for unlawful disclosure is reliance on administrative sanctions
by agencies against offending employees or against the pensions of
former employees. But such sanctions are indefensible except as
punishment for exposing the country to harm. Should any employee
of the United States be punished administratively except for having
done harm to his country? We rightly answer "no" because agencies'
rules are not made for the agencies' heads' convenience, but for the
good of the country.
Leaking by senior officials has become a part of our Government's
folkways-a dangerous and unfair part. Senior officials can now
punish junior ones very seriously by withdrawing their security
clearances ostensibly for unauthorized disclosure of classified infor-
mation, while they themselves disclose it without authorization but
with impunity. Selective leaks of intelligence by senior officials is the
most common and most dangerous means by which the CIA interferes
in American politics. Today administrative sanctions are liable to the
charge of arbitrariness. However, as we impose legal penalties upon
leakers, we must not hinder the President, and senior officials desig-
nated by him, from wielding classified information, selectively and
covertly as a weapon in the Nation's arsenal. Ultimately, nothing can
prevent a President from weilding such information to his partisan
advantage except a public opinion that is well-informed and fair-
minded. But the law can control employees of the United States,
regardless of rank, who are not following the President's direct orders.
If such an employee does harm to his country by leaking, even for
the best motives, why shouldn't he be punished by the law? To put
this from another perspective: Why should the legal system counte-
nance the imposition of very heavy penalties (dismissal and loss of
clearance for a career intelligence man are worse than jail) except for
harm done to the United States? Does not the establishment of a
nonjudicial system for meting out such punishment mean a possible
detour into corporativism-a destination far more fearsome than an
official secrets act?
Conclusion
In short, the Government may keep information out of the public
domain only if its possession by our enemies would harm the United
States. Now and again, Government officials will err, sometimes mali-
ciously, in classifying information. But they must have the right to
classify, and the fact of unlawful disclosure must be legally ascertain-
able. The key question of harm done-on which punishment depends-
is both separate and not subject to the requirements for an open trial.
That is because a trial of the question of harm done does not deter-
mine the guilt or innocence of any person, but rather the impersonal
effect of an action. Since the finding concerning this effect would bear
upon the sentence, imposed upon a person, that person ought to have
the privilege of being present, of having counsel, of compelling wit-
nesses, etc. But nothing in our Constitution, laws, or indeed in com-
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monsense, argues that these proceedings ought to be open. Parties to
such proceedings must be held to secrecy, even as grand juries are.
It is immaterial whether the determination of harm done takes place
before or after the trial of the person accused of unlawful disclosure.
It is essential that this determination be made in secret-so that it
may be done with the benefit of all relevant information and without
danger to the country. It is equally important that the determination
be made judicially-that is, by an impartial judge and jury, with
adversary counsel-for the sake of accuracy and of legal validity.
Soon the country will witness the attempt of our legal system to try
Mr. Kampiles for allegedly selling the technical manual of the KH-11.
Did he do it? That will be easy enough to prove or disprove. But his
attorney will ask, legitimately, just how much harm the disclosure did.
Any accounting of harm must weigh our knowledge of any counter-
measures the Soviets may have taken since the disclosure, against the
information on the KH-11's targets provided by other sources. That
kind of evaluation-most relevant to the question of harm done-
simply cannot be discussed in public. So, if we hamstring our legal
system by imprudently mixing two questions which are logically
separate ("Did he do it?" and "What harm did it do?"). We will,
irresponsibly, have to conclude we cannot try Mr. Kampiles. And if
we can't try him, whom can we try?
The country could not accept imprudent adherence to unsound
doctrine as an excuse for such irresponsibility.
This committee should consider legislation to :
(1) establish stricter guidelines for classifying information as
important to the nation's security;
(2) establish procedures for releasing classified information to
the public;
(3) make the unauthorized disclosure of classified information
a strict-liability crime, to be tried in open court with full consti-
tutional guarantees;
(4) make punishment for the crime of unauthorized disclosure
vary between purely nominal (e.g., $1 fine) and heavy penalties,
depending on the disclosed information's importance to the Na-
tion and to the harm to be reasonably expected from the
disclosure;
(5) vest the right to determine harm done by the disclosure in
the trial jury, meeting in camera, subject to security clearance
and bound to secrecy. The attorneys would be similarly cleared
and bound; and
(6) insure that the two questions be handled separately in the
appeals process and that the question of harm done continue to
be decided in camera.
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APPENDIX 'I''-CURRENT STATUTES
783. Offenses.
(a) Conspiracy or attempt to establish totalitarian
dictatorship.
It shall be unlawful for any person knowingly to
combine, conspire, or agree with any Other person to
perform any act which would substantially con-
tribute to the establishment within the United States
of a totalitarian dictatorship, as defined in Para-
graph (15) of sectfuh 782 of this title, the direction
and control of which is to be vested in, or exercised
by or under the domination or control of. any foreign
government, foreign organization, or foreign In-
dividual: Provided, however, That this subsection
shall not apply to the proposal of a constitutional
amendment.
(b) Communication of classified information by Gov-
- ernment officer or employee.
It shall be unlawful for any officer or employee of
the United States or of any department or agency
thereof, or of any corporation the stock of which is
owned In whole or in major part by the United
States or any department or agency thereof, to
communicate In any manner or by any means, to
any other person whom such officer or employee
knows or has reason to believe to be an agent or
representative of any foreign government or an of-
ficer or member of any Communist organization as
defined to paragraph (5) of section 782 of this title,
any information of a kind which shall have been
classified by the President (or by the head of any
such department, agency, or corporation with the
approval of the President) as affecting the security
of the United States, knowing or having reason to
know that such information has been so classified,
unless such officer or employee shall have been ape-
cifically authorized by the President. or by the head
of the department, agency, or corporation by which
this officer or employee Is employed, to make such
disclosure of such information
(c) Receipt of, or attempt to receive, by foreign agent
or member of Communist -organization, classified
information.
It shall be unlawful for any agent or representative
of any foreign government, or any officer or member
of any Communist organization as defined in para-
graph (5) of section 782 of this title, knowingly to
obtain or receive, or attempt to obtain or receive,
directly or indirectly. from any officer or employee
of the United States or of any department or agency
thereof or of any corporation the stock of which is
owned in whole or in major part by the United States
or any department or agency thereof, any informa-
tion of a kind which shall have been classified by
the President (or by the head of any such depart-
ment, agency, or corporation with the approval of
the President) as affecting the security of the
United States, unless special authorization for such
communication shall first have been obtained from
the head of the department, agency, or corporation
having custody of or control over such Information.
(d) Penalties for violation
Any person who violates any provision of this sec-
tion shall, upon conviction thereof, be punished by a
fine of not more than 810,000? or imprisonment for
not more than ten years, or by both such fine and
such imprisonment, and shall, moreover, be there-
after Ineligible to hold any office, or place of honor.
profit, or trust created by the Constitution or laws
of the United States.
(e) Limitation period.
Any person may be prosecuted, tried, and punished
for any violation of this section at any time within
ten years after the commission of such offense, not-
withstanding the provisions of any other statute of
limitations: Provided, That if at the time of the
commission of the offense such person is an officer
or employee of the United States or of any depart-
ment or agency thereof, or of any corporation the
stock of which is owned In whole or in major part
by the United States or any department or agency
thereof, such person may be prosecuted, tried, and
punished for any violation of this section at any
time within ten years after such person has ceased
to be employed as such officer or employee.
(f) Membership as not violation per se
Neither the holding of office nor membership in
any Communist organization by any person shall
constitute per se a violation of subsection (a) or
subsection (c) of this section or of any other criminal
statute. (Sept. 23, 1950. ch. 1024. title I, 14. 64 Stat.
991; Jan. 2, 1968, Pub. I.. 90-237. 13, 81 Stat. 765.)
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~7/t Gathering transmitting or being defense in-
formation.
18 U.S.C. 793
(a) Whoever, for the purpose of obtaining infor-
mation respecting the national defense with intent
or reason to believe that the information is to be
used to the Injury of the United States, or to the
advantage of any foreign nation, goes upon, enters,
files over, or otherwise obtains information concern-
lug any vessel, aircraft, work of defense, navy yard,
naval station, submarine base, fueling station, fort,
battery. torpedo station, dockyard, canal, railroad,
arsenal, camp, factory, mine, telegraph, telephone,
wireless, or signal station, building. office, research
' laboratory or station or other place connected with
the national defense owned or constructed, or In
progress of construction by the United States or
under the control of the United States, or of any of
Its omcers, departments, or agencies, or within
the exclusive jurisdiction of the United States, or
any place In which any vessel, aircraft, arms, muni-
tions, or other materials or instruments for use In
time of war are being made, prepared, repaired,
stored, or are the subject of research or development,
under any contract or agreement with the United
States, or any department or agency thereof, or
with any person on behalf of the United States, or
otherwise on behalf of the United-Sates, or any
prohibited place so designated by the President by
proclamation in time of war or in case of national
emergency In which anything for the use of the
Army, Navy, or Air Force Is being prepared or con-
structed or stored, information as to which pro-
hibited place the President has determined would
be Prejudicial to the national defense; or
(b) Whoever, for the purpose aforesaid, and with
like intent or reason to believe, copies, takes, makes,
or obtains, or attempts to copy, take, make, or ob-
tain, any sketch, photograph. Photographic negative,
blueprint, plan, map. model, instrument, appliance,
document, writing, or note of anything connected
with the national defense; or
(e) Whoever, for the purpose aforesaid, receives
or obtains or agrees or attempts to receive or obtain
from any person, or from any source whatever, any
document, writing, code book, signal book, sketch.
photograph, Photographic negative, blueprint, plan,
map. model. Instrument, appliance, or note, of any-
thing connected with the national defense, knowing
or having reason to believe, at the time he receives
or obtains, or agrees or attempts to receive or obtain
It, that it has been or will be obtained, taken, made.
or disposed of by any person contrary to the provi-
sions of this chapter; or
. (d) Whoever, lawfully having possession of, seem
to, control over, or being entrusted with any docu-
ment, writing, code book, signal book, sketch, photo-
graph. Photographic negative, blueprint, plm map,
model. Instrument, appliance, or note relating to
the national defense, or information relating to the
national defense which information the possessor
Ihas reason to believe could be used to the injury of
the United States or to the advantage of any foreign
~ -nation. willfully communicates, delivers, transmits
or causes to be communicated, delivered, or trans-
mitted or attempts to communicate, deliver, tons-
mit or cause to be communicated, delivered or trans-
mitted the same to any person not entitled to receive
It. or willfully retains the same and fails to deliver
It on demand to the officer or employee of the
United States entitled to receive It; ou
(e) Whoever having unauthorized possession of, -
access to, or control over any document. writing.
code book, signal book, sketch, photograph, photo-
graphic negative, blueprint. Plan; map, model. In-
strument, appliance, or note relating to the national
defense, or Information relating to the national de-
fense which Information the Possessor has reason to
believe could be used to the injury of the United
States or to the advantage of any foreign cation,
willfully communicates. delivers, transmits or causes
to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause
to be communicated, delivered, or transmitted the
same to any person not entitled to receive It. or will-
fully retains the same and fails to deliver It to the
officer or employee of the United States entitled to
receive It; or
(f) Whoever, being entrusted with or having law-
ful possession or control of any document, writing.
code book, signal book, sketch, photograph, photo- -
graphic negative, blueprint, plan, map, model, In-
strument. appliance, note, or information, relating
to the national defense, (1) through gross negli-
gence permits the same to be removed from its
proper place of custody or delivered to anyone in
violation of his trust, or to be lost, stolen, abstracted,
or destroyed, or (2) having knowledge that the Same
has been illegally removed from its proper, place of
custody or delivered to anyone In violation of its
trust; or lost, or stolen, abstracted, or destroyed, and
falls to make prompt report of such loss, theft, ab-
straction. or destruction to his superior officer-
Shall be fined not more than $10,000 or imprisoned
not more than ten years, or both.
(g) If two or more Persons conspire to violate
any of the foregoing provisions of this section, and
one or more of such persons do any act to effect the
object of the conspiracy, each of the parties to such
conspiracy shall be subject to the punishment pro-
vided for the offense which is the object of such
conspiracy. (June 26, 1948, ch. 946, 62 Stall. 760;
Sept. 22, 1950. ch. 1024, title I. 11$. $4 Stet 1003.)
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for cryptographic or communication Intelligence
p ; or
3) concerning the communication Intelligence
activities of the United States or any foreign gov-
ernment; or
(4) obtained by the process of communication
Intelligence from the communications of any
foreign government, knowing the same to have
been obtained by such processes--
Shall be fined not more than $10,000 or Imprisoned
not more than ten years, or both.
(b) As used in subsection (a) of this section-
The term 'classified information" means Informa-
tion which, at the time of a violation of this section,
is, for reasons of national security, specifically desig-
nated by a United States Government Agency for
limited or restricted dissemination or distribution;
. The terms "code." "cipher," and 'Cryptographic
system" Include in their meanings, in addition to
their usual meanings, any method of secret writing
and any mechanical or electrical device or method
used for the purpose of disguising or concealing the
contents, significance, or meanings of communica-
tions:
The term "foreign government" includes In Its
meaning any person or persons acting or purport-
ing to act for or on behalf of any faction, party.
department, agency, bureau, or military force of or
within a foreign country, or for or on behalf of any
government or any person or persona purporting to
act as a government within a foreign country,
whether or not such government Is recognized by the
United States:
18 U.S.C. 798
I79L Disclosure of classified Information.'
(a) Whoever knowingly and wilfully communi- The term "communication Intelligence" means all
gates, furnishes, transmits, or otherwise makes procedures and methods used in the Interception
available to an unauthorized person, or publishes, or of communications and the obtaining of Informs-
uses in any manner prejudicial to the safety or In- tion from such communications by other than the
terest of the United States or for the benefit of any intended recipients; .
forsigi rgovernment to the detriment of the United The term "unauthorized person" means any per-
States any classified Information- son who, or agency which, is not authorized to re-
(1) concerning the nature, preparation. or use calve Information of the categories set forth In sub-
of any code, cipher, or cryptographic system of section (a) of this section. by the President. or by
the United States or any foreign government; or the head of a department or agency of the United
(3) concerning the desiign, construction. use. States Government which is expressly designated
maintenance, or reQalr of any device, apparatus. by the President to engage In communication In-
or appliance used or prepared or planned fora telllgence activities for the United States.
by the United States or any foreign government (e) Nothing In this section shall prohibit the
furnishing, upon lawful demand, of Information to
any regularly constituted committer of the Senate
or House of Representatives of the United States of
America, or joint committee thereof. (Added Oct.
31. 1051. ch. 655,124 (a). 65 Stan 919.)
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APPENDIX II-REPORTING REQUIREMENTS
28 USC 535
? 535. Investigation of crimes involving Government
officers and employees; limitations
(a) The Attorney General and the Federal
Bureau of Investigation may investigate any
violation of title 18 involving Government offi-
cers and employees-
(1) notwithstanding any other provision of
law; and
(2) without limiting the authority to inves-
tigate any matter which is conferred on them
or on a department or agency of the Govern-
ment.
-(b) Any information, allegation, or complaint
received in a department or agency of the ex-
ecutive branch of the Government relating to
violations of title 18 involving Government offi-
cers and employees shall be expeditiously re-
ported to the Attorney General by the head of
the department or agency, unless-
(1) the responsibility to perform an investi-
gation with respect thereto is specifically as-
signed otherwise by another provision of law;
or
(2) as to any department or agency of the
Government, the Attorney General directs
otherwise with respect to a specified class of
information, allegation, or complaint.
(c) This section does not limit-
(1) the authority of the military depart-
ments to investigate persons or offenses over
which the armed forces have jurisdiction
under the Uniform Code of Military Justice
(chapter 47 of title 10); or
(2) the primary authority of the Postmaster
General to investigate postal offenses.
(Added Pub. L. 89-554, ? 4(c), Sept. 6, 1966, 80
Stat. 616.)
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Procedures for Reporting Violations of Federal Law
as Required by 28 U.S.C. ? 535
1. Taking cognizance of the statutory responsibility
of the Director of Central Intelligence to protect intel-
ligence sources and methods from unauthorized disclosure
and taking note of the security problems of the CIA, I
hereby establish the following procedures by which CIA
shall report violations of Federal-law as required by 28
U.S.C. ? 535 and Executive Order 12036. This Memorandum
of Understanding is issued pursuant to authority con-
ferred by 28 U.S.C. ? 535(b)(2) and E.O. 12036, ?? 1-706,
3-305, and supersedes any prior agreements or guidelines.
2. When information or allegations are received by
or complaints-made to the CIA that its officers or em-
ployees 1/ may have violated a Federal criminal statute,
CIA shall conduct a preliminary inquiry. Such an in-
quiry, normally conducted by the office of the Inspector
General or Office of Security and reviewed by the Office
of General Counsel,-will determine if there is any basis
for referral of the matter to the Department of Justice.
The inquiry will not, however, seek to establish all
necessary elements of the possible violation as a pre-
condition to reporting the matter to the Department of
Justice expeditiously.
3. If, as a result of this preliminary inquiry,
there is a basis for referral to the Department of Justice
and CIA desires to conduct a more extensive investigation
for administrative or security reasons, it will so inform
1/ For the purposes of this memorandum, the phrase "CIA
officers and employees" includes all persons defined as
employees by E.O. 12036, ? 4-204. It also includes a
former officer or employee (a) when the suspected offense
was committed during his Federal employment and (b) when
the suspected offense, although committed thereafter, is
connected with his prior activity in the Federal service
(see, e.g., 18 U.S.C. ? 207).
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the Department of Justice to ensure that such investiga-
tions do not jeopardize the Government's criminal inves-
tigation or prosecution.
4. A basis for referral shall be deemed to exist
and the matter shall be referred to the Department of
Justice unless the preliminary inquiry establishes in a
reasonable time that there is no reasonable basis for
belief that a crime was committed. Referrals shall be
made in the-following manner:
(a) In cases where no public disclosure of
classified information or intelligence sources and
methods would result from further investigation or
prosecution, and the security of ongoing intel-
ligence operations would not be jeopardized thereby,
the CIA will report the matter to the cognizant
office of the Federal Bureau of Investigation,
other appropriate Federal investigative agency, or
to the appropriate United States Attorney or his
designee for an investigative or prosecutive deter-
mination. 2/ CIA officers or employees who are the
subjects o! such referrals to any component of the
Department of Justice may be identified as John Doe
# in any written document associated with the
initial referral. The true identities of such
persons, however, will be made available when the
Department determines such to be essential to any
subsequent investigation or prosecution of the
matter so referred.
A record of such referrals and the action
subsequently taken to dispose of the matter shall
be maintained by the CIA, and on a quarterly basis,
a summary memorandum indicating the type of crime,
place and date of referral and ultimate disposition
will be forwarded to the Assistant Attorney General,
Criminal Division, or his designee. Referrals made
by CIA covert facilities to United States Attorneys,
2/ This reporting requirement applies to all matters
except cases involving bribery or conflict of interest,
which shall be directly referred to the Criminal Divi-
sion. Z
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the FBI or other Federal investigative agencies will
also be included in the quarterly report with due
regard for protection of.the security of said in-
stallations.
(b) In cases where preliminary investigation has
failed to develop an identifiable suspect qnd the
CIA believes that investigation or prosecution would
result in public disclosure of classified informa-
tion or intelligence sources or methods or would
seriously jeopardize the security of ongoing intel-
ligence operations, the Criminal Division will be so
informed in writing, following which a determination
will be made as to the proper course of action to be
pursued.
(c) In cases where preliminary investigation has
determined that there is a basis for referral of a
matter involving an identifiable CIA officer or em-
ployee to the Department of Justice, the future
investigation or prosecution of which would result
in the public disclosure of classified information
or intelligence sources or methods or would seri-
ously jeopardize the security of ongoing intel-
ligence operations, a letter explaining the facts of
the matter in detail will be forwarded to the Crim-
inal Division. A separate classified memorandum
explaining the security or operational problems
which would result if the information needed to
prove the elements of the offense were made public
or which could result from a defense request for
discovery under Rule 16 of the Federal Rules of
Criminal Procedure shall also be forwarded to the
Criminal Division,. if requested. Such officers and
employees may be designated as John Doe #
under the conditions and limitations set ort in
paragraph 4(a), above.
In reporting such matters, the CIA shall
inform the Criminal Division of the steps it has
taken to prevent a recurrence of similar offenses,
if such action is feasible, as well as those ad-
ministrative sanctions which may be contemplated
with respect to the prospective criminal defendant.
The Criminal Division, after any necessary
consultation with CIA, will make a prosecutive
determination, informing the CIA in writing of such
determination.
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5. The CIA may take appropriate administrative,
disciplinary, or other adverse action at any time against
any officer or employee whose activities are reported
pursuant to this Memorandum of Understanding, but shall
coordinate such actions with the appropriate investiga-
tive or prosecutive officials to avoid prejudicing the
criminal investigation or prosecution.
6. While requiring reports to the Criminal Division
to be in. writing, the nature, scope and format of such
reports may vary on a case-by-case basis depending upon
anassessment by the CIA and Criminal Division of the
nature of the matters which are being reported. Matters
not readily resolved by reference to the foregoing guide- .
lines will be handled on a case-by-case basis, as the
need may arise, consistent with the provisions of 28.
U.S.C. ? 535 and E.O. 12036.
7. The Director of Central Intelligence, whenever
he believes security or other circumstances warrant, may
make a direct referral to the Attorney General of any
matters required to be reported pursuant to this Memo-
randum of Understanding, in lieu of following the
reporting procedures set forth herein.
177 8
Grin B. Bell
Attorney General
Central Inte gence Agency
rii
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Executive Order 12036
1-7. Senior Officials of the Intelligence Community. The senior officials of each of
the agencies within the Intelligence Community shall:
. 1-706. Report to the Attorney General evidence of possible violations of
federal criminal law by an employee of their department or agency, and report
to the Attorney General evidence of possible violations by any other person of
those federal criminal laws specified in guidelines adopted by the Attorney
General;
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SECTION 2 OF THE (BRITISH) OFFICIAL SECRETS ACT
1911
Text of section 2 of the 1911 Act (as amended)
"Wrongful communication etc. of information
(1) If any person having in his possession or control any secret
official code.word, or pass word, or any sketch, plan, model, article,
note, document, or information which relates to or is used in a pro-
hibited place or anything in such a place or which has been made or
obtained in contravention of this Act, or which has been entrusted in
confidence to him by any person holding office under Her Majesty or
which he has obtained or to which he has had access owing to his
position as a person who holds or has held office under Her Majesty,
or as a person who holds or has held a contract made on behalf of Her
Majesty or as a person who is or has been employed under a person
who holds or has held such an office or contract-
(a) communicates the code word, pass word, sketch, plan,
model, note, document, or information to any person, other
than a person to whom he is authorized to communicate it,
or a person to whom it is in the interest of the State his duty
to communicate it; or
(aa) uses the information in his possession for the benefit of any
foreign Power or in any other manner prejudicial to the
safety or interests of the State;
(b) retains the sketch, plan, model, article, note, or document
in his possession or control when he has no right to retain
it or when it is contrary to his duty to retain it, or fails to
comply with all directions issued by lawful authority with
regard to the return or disposal thereof ; or
(c) fails to take reasonable care of, or so conducts himself as to
endanger the safety of the sketch, plan, model, article, note,
document, secret official code or pass word or information;
that person shall be guilty of a misdemeanour.
(1A) If any person having in his possession or control any sketch,
plan, model, article, note, document, or information which relates to
munitions of war, communicates it directly or indirectly to any foreign
Power, or in any other manner prejudicial to the safety or interests
of the State, that person shall be guilty of a misdemeanour.
(2) If any person receives any secret official code word, or pass word,
or sketch, plan, model, article, note, document, or information,
knowing, or having reasonable ground to believe, at the time when he
receives it, that the code word, pass word, sketch, plan, model, article,
note, document, or information is communicated to him in contraven-
tion of this Act, he shall be guilty of a misdemeanour, unless he proves
that the communication to him of the code word, pass word, sketch,
plan, model, article, note, document, or information was contrary
to his desire."
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Notes on section 2*
1. The main offence created by section 2 is committed by a person
who, "having in his possession any information which he has obtained
owing to his position as a person who holds office under Her Majesty or
a contract on behalf of Her Majesty", "communicates the information
to any person other than a person to whom he is authorised to com-
municate it". In ordinary language, it is an offence under section
2(1) (a) for a Crown servant or Government contractor to make an
unauthorised disclosure of information which he has learnt in the
course of his job. The word "communicates" has its ordinary meaning.
It covers the passing of a document or other record, and the trans-
mission of information orally. All kinds of information are covered.,
The section contains a list, several times repeated, which includes code
words, sketches, models, etc., but in each case this list ends with the-
all-embracing words "document or information". There is no limita-
tion of subject matter; but section 2 applies only to "official informa-
tion", in the sense described in notes 2 and 3.
2. The main class of information covered by section 2(1) (a) is defined
by reference to two classes of persons. The first class comprises persons
"holding office under Her Majesty". This includes not only civil ser-
vants and members of the Diplomatic Service, but also Ministers of the
Crown, members of the Judiciary (from Judges of the Supreme Court to
Justices of the Peace), members of the Armed Forces, police officers
(by virtue of their office of constable) and others. By virtue of the
definition in section 12 of the 1911 Act it includes any office or em-
ployment in or under any department of the Government of the
United Kingdom. Employees of the Post Office and of the United
Kingdom Atomic Energy Authority are deemed by the Post Office Act
1969 and the Atomic nergy Authority Act 1954 respectively to be
holders of an office under Her Majesty for this purpose. The above-
mentioned persons are for convenience described as Crown servants in
this Report. Whether members and employees of public bodies on the
fringes of central Government, and persons appointed by Ministers,
are Crown servants for this purpose is in many cases unclear. The
second class of persons specified in section 2(1)(a) comprises those
who hold a contract made on behalf of Her Majesty, and their
employees. Former members of both classes are also covered.
S. "Official information", as we use the term in this Report, is in-
formation which a Crown servant or Government contractor (in the
sense explained in note 2) learns in his capacity as such. The un-
authorised communication of such information by such a person is an
offence under section 2(1) (a). A person who is in neither of these classes
also commits an offense under section 2(1) (a) if he makes an unau-
thorised communication of official information which has been en-
trusted to him in confidence by a Crown servant. The meaning of
"entrusted in confidence" is not defined. These words may bring
within the scope of section 2(1) (a) a wide range of people, for instance
those involved in the outside consultations frequently undertaken by
central Government, which may be conducted in confidence.
?These notes are taken from the report of the Departmental Committee on section 2 of
the Official Secrets Act 1911 (the Franks Committee) Cmnd. 5104.
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4. Note 3 has described offences under section 2(1)(a) committed
by those who are properly in possession of official information. It is
also an offence under section 2(1)(a) to make an unauthorised com-
munication of information "which has been made or obtained in
contravention of this Act". Some uncertainty attaches to these words,
since nothing in section 2 speaks of its being a contravention of the
section to make or obtain anything, whereas section 1(1) (b) and (c)
create offences which use these words. The commonly accepted
interpretation, however, is that when official information has been
communicated in contravention of section 2, the recipient commits
an offence if he in turn communicates that information without author-
ity. This means that it is possible to have a chain of unauthorised
communications, each link in the chain committing an offence under
section 2 (1) (a).
5. A Crown servant or Goverment contractor does not commit an
offence under section 2 (1) (a) if he communicates official information
to a "person to whom he is authorised to communicate it, or a person
to whom it is in the interest of the State his duty to communicate it".
The Act provides no guidance on the interpretation of these words.
The way in which they are in practice interpreted by Crown servants
is explained in paragraph 18 of the Report. In brief, implicit authorisa-
tion to disclose official information is regarded as flowing from the
nature of each Crown servant's job. This interpretation can be adapted
so as to apply to Government contractors and persons entrusted with
official information in confidence. The meaning of the words quoted
above in relation to other persons is obscure.
6. Section 2 (1) (a) is concerned with the communication of official
information, and section 2(2) with its receipt. Section 2(2) provides
that, where a recipient of official information knows or has reasonable
grounds to believe, at the time, that its communication to him con-
stituted a breach of the Official Secrets Act, he is also guilty of an
offence unless he proves that the communication to him was "contrary
to his desire". It is immaterial whether the recipient makes any use of
the information. If he in turn communicates it, he may then commit
an offence under section 2(1)(a) (see note 4).
7. There are a number of other offences under section 2, less im-
portant than those discussed in the notes above.
(a) Under section 2(1)(a), an offence is committed by a person
possessing any secret official code word or pass word, or any
information relating to or used in a prohibited place, or
anything in such a place, who communicates it without
authority. This offence is not restricted to the Crown servants
and the other classes of person mentioned in notes 2 and 3.
All persons are forbidden to pass on information about
prohibited places, however acquired. Prohibited places are
defined in section 3 of the 1911 Act, and include any defence
"establishment or station, factory, dockyard, mine, minefield,
camp, ship or aircraft belonging to or occupied by or on
behalf of Her Majesty or any telegraph, telephone, wireless
or signal station or office". The Secretary of State has power
to declare other places (such as public utilities) to be pro-
hibited places on the ground that information about them
would be useful to an enemy.
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(b) The other offences created by section 2(1) (aa), (1) (b), (1)
(c) and (1A) are relatively straightforward. Subsection (1)
(aa) and subsection (1A), which were added by the 1920 Act,
both include the words "manner prejudicial to the safety or
interests of the State", which gives them an affinity with
section 1. The offence in subsection (1A), like that relating to
prohibited places, can be committed by any person who has
information about munitions of war in his possession, how-
ever he obtained it.
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