CIPC PANEL ON THE USE OF CLASSIFIED INFORMATION BY DRUG ENFORCEMENT AGENCIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88B00687R000200450003-1
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 17
• Document Creation Date: December 23, 2016
• Document Release Date: September 30, 2010
• Sequence Number: 3
• Publication Date: July 30, 1984
• Content Type: REPORT

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CIPC Panel on the Use of Classified Information by
Drug Enforcement Agencies:
A Report by the Acting Chairman
BACKGROUND
The deliberations of the CIPC's Narcotics Working Group led to production
of the International Narcotics Coordination and Collection Study, as approved
and promulgated by the DCI in February 1984. During these deliberations, the
CIPC established a separate interagency panel to recommend policies for the
Intelligence Community that would enhance the flow of intelligence concerning
narcotics to designated US law enforcement agencies, while protecting the
security of the information and of intelligence sources and methods.
The panel was asked to focus on three specific topics:
? security standards used by drug enforcement agencies,
? protection of sources and methods against indirect compromise,
and
? use of intelligence and intelli ence-derived information for law
enforcement investigations.
In response to this charge, a nine member panel--originally consisting
only of representatives from the Intelligence Community--commenced meeting in
September 1983. The anel later was augmented by law enforcement
representatives.
In the course of the panel's work, a number of events occurred which
resulted in some of the issues being shifted to other forums. In addition,
through an educational dialogue with law enforcement representatives, a number
of perceptions changed and some issues became non-problems. In other words,
the panel's work was overtaken by a variety of events. Nonetheless, there is
utility in describing some of the panel's work and reporting on some of its
findings to make them available for future reference.
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GENERAL
Over the past two years, the Intelligence Community has seen an increased
demand for support to US drug enforcement efforts. For example. intelliaance
agencies are being asked tol
As reported by the Deputy Director of Central Intelligence (DDCI) at a
hearing conducted by the Senate Select Committee on Intelligence (SSCI) on 16
May 1984, there has been a dramatic increase in the analytical output by the
Intelligence Community in 1983 and 1984, and information is flowing between
the intelligence and law enforcement communities at an unprecedented rate.
With the significant growth in the provision of intelligence to law
enforcement customers, there has been an understandable concern on the part of
many in the Intelligence Community with regard to the increased potential risk
for compromising sensitive sources, methods and activities, particularly in
situations where intelligence material is used as a basis for prosecution of
drug traffickers. In that specific regard, the Director, NSA, in his prepared
statement for the SSCI hearing on 16 May 1984 noted that although it is not
all clear that the protection accorded national security information during a
trial would be sufficient given the extreme sensitivity of NSA sources and
methods, at this stage there is little that can be done to eliminate this
indefinite problem. He went on to say that NSA is taking precautionary
measures which should help--for example, Memoranda of Understanding with law
enforcement elements--and that the Department of Justice has established a
Task Group to investigate the problem on a more comprehensive basis. He
concluded with the remark that, should the security problems suggested by
these concerns become real problems, the nature and scope of NSA's activity
then will have to be thoroughly evaluated.
INTERVENING EVENTS
Among the events that tended to moot the deliberations of the panel are
the following, many of which resulted either directly or indirectly from the
activities of the CIPC Working Group or recommendations contained in the
aforementioned CIPC report on International Narcotics Coordination and
Collection:
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? In a 11 November 1983 letter to the Attorney General, the DCI
expressed his concern over the protection of intelligence
information relevant to narcotics, and suggested that a
"brainstorming" session among Justice Department officials and
Intelligence Community attorneys to discuss this and related
issues would be helpful (copy at Tab A);
? Subsequently, officials in the Intelligence Community, the
narcotics enforcement agencies, and the Department of Justice
have been discussing ways to improve coordination and
communication regarding the use and protection of intelligence
information in support of international narcotics interdiction
and criminal investigations and prosecutions. Work of this
legal panel is continuing;
? There has been an exchange of correspondence among the
Department of Transportation, GSA's Information Security
Oversight Office (IS00) and the National Security Council Staff
on the subject of the basic authority of law enforcement
agencies to classify narcotics enforcement information. The NSC
response--supporting the IS00--notes that information relating
to international narcotics trafficking, while not classifiable
in and of itself, may be classified when such information is
derived from or linked to information within an existing
classification authority. Copies of this correspondence are
attached at TABs B and C;
? As referenced above, NSA has initiated discussions with law
enforcement organizations which engage in communications
monitoring with the objective of concluding Memoranda of
Understanding which will include provisions governing protection
of sensitive intelligence sources and methods;
As a direct result of the CIPC study, the Chairman of the DCI's
SIGINT Committee has been directed to work with NSA and
appropriate members of the law enforcement community to review
policy issues relating to the signals collection effort by law
enforcement organizations.
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DELIBERATIONS OF THE PANEL
The composition of the original panel (a list of participants is attached
at TAB D) reflected a primary focus on security policy and on legal issues
that may arise when drug agencies utilize intelligence in their interdiction
and prosecution efforts. Operational considerations were not addressed and
the panel's membership did not, at the outset, include representatives of the
law enforcement community. Subsequently, panel members met with
representatives of the Drug Enforcement Administration, Customs, Coast Guard
and the Jrustlice Department in order to exchange information and clarify
issues.
A. Security Standards Used by Drug Enforcement Agencies
A large proportion of the panel's discussions focused on the
Intelligence Community's need to be assured that its product is
afforded appro nate security protection by law enforcement
recipients.
Drug enforcement agencies have not been accustomed to handling
large quantities of highly classified material. As the flow of
SCI material has increased, law enforcement recipients have been
faced with the need to review physical handling procedures, to
upgrade voice, record and data communications, and to increase
the number of SCI clearances held both at headquarters levels
and in the field. Such expansion is not easy to accomplish
rapidly, and the Intelligence Community needs to recognize and
be prepared to deal with this 1fmig factor as plans for
expanded service are pursued.
As the panel engaged in dialogue with law enforcement elements,
it was readily apparent that these elements are indeed cognizant
of the need to protect SCI and that they are responsibly moving
forward to improve and expand processes and procedures in order
to accommodate the receipt and handling of increased amounts of
intelligence information. At the same time, it was recognized
that as this expansion occurs, there are likely to be "growing
pains"; more important, it is certain that required increased
protection capabilities will lag actual needs. As an example,
favorable budgetary decisions to acquire and install secure
record, voice, and data communications will not result in
immediate solutions, since it will inevitably take months and,
in many cses1, years to result in the fielding of operational
systems.
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In this kind of environment, as new arrangements for providing
SCI to law enforcement organizations are contemplated, it would
be prudent for both the provider and the recipient of the
intelligence to conduct case-by-case reviews of relevant
security considerations, and the provider of such information
should be assured that appropriate security arrangements are in
place before any material is provided. Both NSA and CIA have
spent considerable time during the past year working with law
enforcement elements in this regard, and this continued close
cooperation relatirnn_to the protection of sensitive intelligence
should continue.
B. Protection of Sources and Methods A ainst Indirect Com romise
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C. Use of Intelligence and Intelligence-derived Information for Law
Enforcement Investigations
The final issue considered by the panel concerns legal
considerations relevant to the Community's ability to ensure the
security of its intelligence sources and methods and other
classified information provided to drug enforcement agencies.
It is recognized that information provided by the Intelligence
Community may result in or otherwise contribute to a criminal
prosecution. It is possible, for example, that a criminal
defendant would attempt to force public disclosure of the
information, resulting in compromise of sources and methods.
Although, as a general rule, the Government can deny a defendant
access to Government information that is not material to the
case, under the Federal Rules of Criminal Procedure, a criminal
defendant is entitled upon request to inspect any documents that
are in the Government's possession that is material to the
case. A refusal by the Government to pefffit access may well
result in the defendant's seeking to compel discovery by
subpoena.
It should also be noted that a court may require an in camera
review of intelligence information in order to make a
determination on the legality of the collection activity. While
it is possible that a judge might find a previously authorized
intelligence activity to have been unlawful, current procedures
and requirements for legal review within the Community and with
the Department of Justice would tend to minimize the possibility
of that occurrence.
While the foregoing would indicate that lawfully collected
intelligence information that is neither material nor relevant
to a criminal defendant's ability to conduct a defense would
probably be beyond the reach of a criminal defendant in court,
more difficult problems arise where the information at issue may
be important to the prosecution's case. For example, the
prosecution may wish to introduce the contents of a
in order to prove that a conspiracy to
violate the drug laws has occurred. Also, law enforcement
agencies seeking to obtain a warrant a ainst a criminal target
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may require the revelation of the intelligence information in
order to show that there existed a probable cause to believe the
individual engaged in illegal activities. In either event, the
introduction and disclosure of intelligence information would be
relevant to the prosecution's case, which could not proceed
without the particular information.
Because of these and other complex legal matters, it was
considered appropriate for legal experts from the Community to
work with representatives of law enforcement agencies and the
Department of Justice in addressing this general subject. These
legal discussions are continuing.
SUMMARY
To summarize, the CIPC Panel on the use of Classified Information by Drug
Enforcement Agencies convened in September 1983 and held numerous meetings
over a period of several months. The discussions held within the panel and
with representatives of the law enforcement community were wide-ranging and
very useful in adding clarity to the issues which were addressed and
establishing better mutual understanding among the conferees. A number of
events occurred which had the effect of overtaking much of the panel's work,
and major aspects of two key issues are now being explored in other forums.
This report is submitted, without specific recommendations, as a matter of
record.
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antml Intdizerbcc Agncy
Viteurgcn 0 C 2030S
Honorable William French Smith
Attorney General
Department of Justice
Washington, D.C. 20530
Dear Bill:
ii/oveniaeiq
I have been concerned about the problem of unauthorized _
disclosures of sensitive intelligence information for some
time and I know that you share my concerns. I very much
appreciate the assistance you have provided in tackling this
problem, particularly.your promulgation of the Willard report
and your support of NSDD-84. I think that it is now time for
us to focus on additional areas where productive efforts
might be undertaken. I would note,'for example, the problems
which have been raised by General Faurer in his letter to me,
which I am enclosing. I am persuaded that a "brainstorming"
session involving senior Department of Justice officials and
senior Intelligence Community attorneys would be most
helpful. If you identify for me a senior official in your
Department who would coordinate such a session, I will have
my General Counsel, Stan Sporkin, get in touch with that
individual to help plan the session's agenda.
One additional subject which I believe should be
discussed at this session is how to protect intelligence
information when that information is relevant to narcotics or
export control cases..
? If this session is structured as a one-day conference/
seminar that includes senior Justice, FBI officials as well
as.senior Intelligence Community legal personnel, I believe
it would be extremely productive. It would help to focus
thinking and perhaps might lead to a resolution of issues
.which have been troubling us for some time.
Sinc
illiam J. Casey-
Director of Central 'Intelligence
Enclosure: SCI Material
8 . a
ALL PORTIONS CLARSTFTRII CONFTDPNITTAr. ER 3 - r3 9
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.???
/
;
February 7, 1983
?F.
General information Security
Services OtersiGht
Administration Office ? Washington. DC 20405
?
?
Honorable Elizabeth H. Dole
Secretary of Transportation
Washington, DC 20590
Dear Madam Secretary:
?
?
? ?
Executive Order 12356 (the "Order"), signed by the President on April 2.
1982, prescribes a uniform system for classifying, declassifying and
safeguarding national security information. Section 5.2 of the Order
provides that the Information Security Oversight Office (IS00) shall be
responsible to the President for monitoring its government-wide implementation.
Among the specific tools of the 1500 Director are the authorities to
conduct on-site program reviews of those agencies that create or handle
national security information and to mandate the declassification of .
Information that the Director determines should not be classified under
the Order. Determinations under this latter authority, which ISO?
invokes rarely, may be appealed by the head of the classifying agency to
the.Hational Security Council.
On January 11, 1983, during a routine liaison meeting between ISOO's
Harold Mason and Department of Transportation (DOT) security officials.
a DOT representative presented Mr. Mason with a newly-prepared United States
.Coast Guard classification guide entitled "Commandant Instruction 5510.'
A classification guide is an instruction issued by an authorized original
classifier prescribing classification levels and durations for specified
categories of information. Because of his concern with the categories
of information to be classified. Mr. Mason brought the Coast Guard guide
to the attention of 'SOO Deputy Director Robert Wells and me. We shared
his concern and requested a meeting with responsible DOT officials to
discuss the guide.
On January 19. 1983, we met.with Karen Lee, DOT Deputy Assistant Secretary
for Administration, Rear Admiral N. C. Venzke. USCG, and members of
their respective staffs. At the meeting the Coast Guard representatives
explained its need to protect the information in question, and argued .
that it met the requirements for classification underthe Order. I .
concurred on the need to protect the information, but stated that the
Information, from its description in the guide, was not national security
Information, i.e.. "information, the unauthorized disclosure of which
could reasonably be expected to_catqe.damage to our national defense or
foreign relations.' theelatierigtiogrigimgreamtillAWs;contention:j
Ithat wholJy_law..nf9rcement1nf rrna Ion,evek.WrIiirftneed
t tonal security .1Ffoit _ .
der the Order.11
??
Before reaching a final determinationi? howeter, we arranged an opportunity
to review examples of the types of. Information to be classified under
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a number of these documents at Coast Guard headquarters. While we.are
most sympathetic to the Coast Guard's operational need to protect this
Information, we concluded that almost all of the documents we reviewed
pertained exclusively to law enforcement activities, and not to national
security as.that term is perceived and practiced under E. 0. 12356.
Therefore, it is my determination that the provisions of "Commandant
.Instruction 5510" are in violation.of Executive Order.12356 and its
Implementing 1500 Directive.piept for Items and 13,.Epclosure.(5);
jo much of -Items II and 12. closure (5), as are provided by.foreign_ _ /,
.11014iihints or-ihiliWpresentativeit-and so much of Item 3,'Endosuee (6).1
?that pertains to those Intelligence sourcesand methods, the unauthorized 17
Idiielosure of which reasonably_could be expected to damage our national
idefense or foreign relatiOns,tand not simply our ability to conduct law ?
ienforcement operations.) In otder to prevent the unauthorized classification
of information, I direct that the Instructioh not be implemented as -
currently drafted, and that any revisions be reviewed and approved by
1500 before implementation. Please note that this decision has no
bearing on DOT'S efforts to protect the information in question through
pertinent administrative procedures or to except it from mandatory ?
disclosure under the Freedom of Information Act under exemptions other
than national security. Other agencies dealing with similar information
have utilized other administrative procedures to protect it.
I am available at your convenience to discuss 'this matter with you or .
members of your staff. Because of the excellent cooperation and cordiality
that I and the other ISOO staff members have received from DOT and Coast
Guard representatives, I am still hopeful that we might be able to work
out a solution amicably and quickly.
As I noted above, as Secretary of Transportation you may appeal this
decision to the National Security Council. Because there has never
previously been a situation in which a decision of the Director of ISO?
has been appealed to the National Security Council. I suggest that, if
this is the route you choose to follow, your staff coordinate this
process with me in order to expedite its consideration. I can be
reached at 535-7251.
Sincerely.
?
STEVEN GARFINKEL
Director
?
? ??
?
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THE WHITE HOUSE
WASHINGTON
December 14, 1983
8587
MEMORANDUM FOR THE HONORABLE ELIZABETH H. DOLE
The Secretary of Transportation
SUBJECT: Security Classification Guide Relating to
International Narcotics Trafficking
I very much appreciate your concern about what the U.S. Coast
Guard sees as an apparent disparity between Executive Orders 12333
and 12356. Specifically, you seem to question why all sensitive
information related to international drug trafficking, referenced
in E.O. 123331cannot be classified under E.O. 12356.
In response, I have had our staff review the two Executive Orders,
and, while there is considerable overlap, we do not believe them
to be contradictory. E.O. 12333 reflects the Administration's
concern that the tools of our foreign intelligence gathering
apparatus be utilized to our greatest lawful advantage. Included
in that Order is authority to utilize existing intelligence
capabilities in the fight against international drug trafficking.
E.O. 12356 reflects several different goals concerning our admin-
istrative and judicial experiences with the prior information
security system. However, as repeatedly expressed by the
President and others within the Administration, the purposes
behind E.O. 12356 were clearly not intended to expand the breadth
of permissible classification. In regard to the classification
system, E.O. 12356 is controlling.
As a result, some of the information produced or gathered by the
Coast Guard in its operations concerning international narcotics
trafficking may be classified, and some may not. Information
relating to international narcotics trafficking in and of itself
may not be classified because it is not within an assigned,clas-
sification category. Its protection would be dependent upon other
administrative or statutory mechanisms, including the "law
enforcement information" exemption to the Freedom of Information
Act. This distinction between law enforcement and national
security information is routinely recognized by other agencies,
including the Federal Bureau of Investigation, even in matters
that involve international criminal activity.
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On the other hand, when such information is derived from or linked
to other information within an existing classification category,
it may be classified, assuming the other tests for classification
in E.O. 12356 are als6 met. Among possible examples are Coast
Guard information that is linked to the operations of the
Intelligence Community in gathering foreign intelligence or in
counterintelligence; to a sensitive national defense objective
carried out in conjunction with narcotics interdiction; or
references to a foreign official or government that would impact
adversely on our foreign relations.
To help draw these distinctions, I recommend that the Coast Guard
continue to work closely with the Information Security Oversight
Office (IS00). Our own experience is that ISO() has been reasonable
and flexible in seeking to resolve disputes within the executive
branch regarding the application of the classification system.
Robert C. McFarlane
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