PROPOSED DCID NO. 1/--, 'NONDISCLOSURE AGREEMENTS FOR INTELLIGENCE SOURCES OR METHODS INFORMATION'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82M00591R000400070039-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 19, 2016
• Document Release Date: January 4, 2006
• Sequence Number: 39
• Publication Date: May 19, 1976
• Content Type: MF

Approved For Release 2006/01/17 : CIA-RDP82M00591RQ 000700
DCI/IC 76-3704
9 =a+~ 197
MEMORANDUM FOR: Director of Central Intelligence
FROM Daniel J. Murphy
Vice Admiral, USN
Deputy to the DCI for the Intelligence
Community
SUBJECT . Proposed DCID No. 1/--, "Nondisclosure
Agreements for Intelligence Sources or
Methods Information"
1. Attached to this memorandum (Tab A) is a proposed DCID
for the implementation of Executive Order 11905, Section 7(a),
requiring nondisclosure agreements for intelligence sources or
methods information. This Executive Order requires that this
section be implemented by 18 May 1976.
2. The Security Committee reached a consensus on the
minimum requirements for this secrecy agreement, but could not
agree to the scope of material to be covered by such an agreement.
3. Originally, the DIA did not support this proposed DCID,
but would withdraw their non-concurrence if the word "classified"
were inserted before the phrase "information containing sources
or methods of intelligence. " The military services support the
DIA position. The Acting Director of DIA in his position paper
(Tab B) stated that DoD had no unclassified sources and methods
which require protection by means of a secrecy agreement.
4. The CIA position (Tab C), supported by NSA, State and
the FBI, did not purport to state nor imply the existence of unclassified
information containing sources or methods of intelligence, but
wished to segregate the concepts of classification and sources
and methods protection. This would preserve alternate
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Approved For Relee 2006/01/17 : CIA-RDP82M00591R00Q400070039-0
mechanisms for accomplishing the protection requirement, viz, the
classification process and the statutory provisions of the National
Security Act and the CIA Act. Further, the CIA position preserved
the ability for arguing these means of protection independently.
5. Neither of these two Acts, in citing the DCI responsibility
for protecting intelligence sources or methods from unauthorized
disclosure, specifies that sources and methods information need
be classified in order to warrant protection. Neither Section 3 nor
Section 7 of Executive Order 11905 specifies that only classified
sources and methods need protection. The wording of the Executive
Order follows the pattern of the earlier statutes in omitting reference
to the classification or classifiability of the information.
6. CIA/Office of General Counsel representatives discussed
the CIA and DIA positions with Justice Department representatives
who agreed with the propriety of the CIA position provided that it is
understood that a secrecy agreement which does not cover only
classified information would not be enforceable by means of prior
restraint. Consequently, the Justice representative advised that
DoD's objection might be met if a separate agreement were drafted
which could cover sources and methods information without reference
to classification. It is CIA's belief, and the Justice representative
concurred, that such agreement is necessary to provide a basis
for administrative action against an employee in the case of
unauthorized disclosure of sources and methods information.
7. Mr. Mason Cargill and Mr. Tim Hardy of the White House
staff also agreed with CIA's position and discussed it with Mr. Robert
Andrews, Special Assistant to the General Counsel, DoD. Mr. Andrews
subsequently advised the White House and Acting STAT
General Counsel, CIA, that he found the proposal as outlined in
paragraph 6 acceptable.
8. The current draft of the proposed DCID will accommodate
the one-agreement system CIA proposes and the two-agreement
system favored by DoD.
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Daniel J. Murphy
Approved For Rele 2006/01/17 : CIA-RDP82M00591ROQ400070039-0
9. With your approval, the attached draft DCID will be
sent to NFIB members for vote sheet action.
Attachments (3)
APPROVED:
Geor Bush
7 ZS &
Date
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 STAT Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
Next 3 Page(s) In Document Exempt
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 - Approved For ReIW 2006/01/17 : CIA-RDP82M00591ROQ 00070039-0
DEFENSE INTELLIGENCE AGENCY
WASHINGTON. D.C. 20301
U-52,300/DS-6
MEMORANDUM FOR THE CHAIRMAN, UNITED STATES INTELLIGENCE BOARD
SUBJECT: Secrecy Agreements for Intelligence Sources and Methods
1. I have watched with interest the efforts of the United States
Intelligence Board Security Committee (USIB SECOM) working group to pro-
duce a Director of Central Intelligence Directive (DCID) which will
satisfy the Director of Central Intelligence's (DCI's) responsibility under
Section 7.a. of Executive Order 11905. A consensus appears to have been
reached as to minimum requirements for the secrecy agreement, but a
serious problem has arisen as to the scope of the material to be
encompassed by the agreement.
2. The Central Intelligence Agency (CIA) membership is pressing for the
inclusion in the agreement of both classified and unclassified intelli-
gence information containing sources and methods. DIA cannot support or
endorse any secrecy agreement which purports to restrict a DoD employee's
use of unclassified information. A number of cogent reasons necessitate
this position.
3. The secrecy agreement is intended to serve one basic purpose -
protection of intelligence sources and methods by three means:
a. A psychological deterrent.
b. Provide a contractual basis for prepublication judicial restraint.
c. Administrative and disciplinary action against violators of the
agreement..
Each of the methods contains sub silentio certain inherent requirements
in order to be successful. I-n addition, administrative convenience
recommends the use of a single piece of paper which would include all
aspects of an agency's secrecy agreement.
4. For a psychological deterrent to be effective, it must be creditable,
logical. and reasonable. Prior judicial restraint as enunciated in the
leading case (U.S. v. Marchetti) requires a contractual relationship
containing consi-'ation and which, for constitutional reasons, is
limited to classified material. Adverse administrative action or disci-
plinary action against a government employee must be reasonable and is
subject to certain administrative due process requirements.- In this
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Approved For ReI a e 2006/01/17 : CIA-ROP82M00591R( 400070039-0
regard it must not be forgotten that only a minority of the Executive
Branch employees fall within the excepted service category or are in some
fashion exempt from the protection afforded by the Constitution, civil
service or military regulations from arbitrary and capricious agency
action including termination of employment.
5. While neither your statutory responsibility to protect intelligence
sources and methods nor Executive Order 11905 speak specifically of "clas-
sified" sources and methods only, it is believed that this is clearly
implied. The need for protection of sources and methods is founded on
their relationship with national defense and foreign relations. This is
the criteria for classification of information established by the President
in Executive Order 11652. A strong argument can be made that Executive
Order 11652 is the exclusive means available for the protection of informa-
tion of this type. Any attempt to protect unclassified sources and methods
by means of a secrecy agreement could be considered as second classifica-
tion system which would of course be contrary to the prohibition contained
in Executive Order 11652. In view of the Fourth Circuit U.S. Court of
Appeals holding in U.S. v. Marchetti, it is believed that any effort on
the part of the government to seek a prepublication restraining order of
unclassified sources and methods would be doomed to failure from the outset.
6. When Executive Order 11905 is viewed in the context of the remarks
made at the White House press conference by Mr. Marsh at the time the
Executive Order was made public, the intent of Section 7.a. appears to be
simply to insure that secrecy.agreements would be used throughout the
Executive Branch and nothing more. A review of Attorney General Levi's
remarks on the same occasion with regard to the accompanying White House
sponsored legislation suggests that the purpose of the legislation was to
provide a punitive sanction to run concurrently and coextensively with the
civil remedy which would be available as a result of the Section 7.a.
agreement. The legislation specifically refers to "properly classified
and.designated" intelligence sources and methods. We can find no indicia
of Presidential intention to introduce any novel concepts or to deviate
from the-generally recognized, accepted and understood practices and
procedures for the safegurading of information "which-bears directly on
the effectiveness of our national defense and the conduct of our foreign
relations."
7. From the purely practical point of view:
a. DoD has no unclassified sources and methods which require protection
by means of a secrecy agreement.
b. DoD could not in good conscience justify protection of unclassified
sources and methods in the federal courts.
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Approved For Rel a 2006/01/17 : CIA-RDP82M00591RQ 400070039-0
c. The imposition of such a requirement by DCI would prove highly
embarrassing to the Department in that it has neither the personnel rules
and regulations nor the procedures for supporting the full implication
of the requirement, nor does it feel that they could be obtained.
d. Should an occasion present itself when the Department was forced
to act on such a basis, it would be subjected to public, press and Congres-
sional and probably judicial criticism that it would just as soon avoid.
e. The imposition at this time of requirements which would not be
enforceable throughout the Executive Branch could only serve to-further
degrade the credibility of our security system.,
8. Finally, the DoD General Counsel concurs with me and my General Counsel
in the belief that Section 7.a. of Executive Order 11905 requires only the
publication of a DCID which will prescribe minimum standards for a secrecy
agreement. Agencies and departments of the Executive Branch would be free
to impose such additional requirements as might be needed by individual
situations. Since there is unanimity of opinion that Executive Order 11905
did anticipate the protection of classified sources and methods, the
impending deadline and the novelty of the CIA position, it is recommended
that the DCID be limited.in scope to classified sources and methods and
the breaking of new ground be saved for a later date.
3
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Approved For Rele. a 2006/01/17 : CIA-RDP82M00591ROO00400070039-0
%OW
MAY 1976
MEMORANDUM FOR: Chairman, Security Committee, United
States Intelligence Board
SUBJECT Nondisclosure Agreement for Intelligence
Sources and Methods Information
1. The ad hoc working group of the Security Committee
established by you to address the implementation of
Section 7(a) of Executive Order 11905 has developed
a draft Director Central Intelligence Directive as an
instrument of implementation for the section of the
Executive Order cited. The draft DCID No. 1/XX,
"Nondisclosure Agreements for Intelligence Sources or
Methods Information," a copy of which-is attached, is
endorsed by the Central Intelligence Agency; the wording
of this Directive has also received the approval of
the Federal Bureau of Investigation, National Security
Agency, Department of State working group representatives.
.The Defense Intelligence Agency speaking for itself
and the Services Intelligence components does not concur
in one aspect of the proposed Directive.
2. The DIA position takes exception to the
application of the document to "information containing
sources or methods of intelligence" and wants the
requirements of the proposed Directive to apply only
to such information when it is classified under Executive
Order 11652. It is understood that DIA would withdraw
its nonconcurrence> of the Directive if the word "classified"
were inserted before the phrase "information containing
sources or methods of intelligence," when this phrase
occurs in the draft DCID.
3. .The CIA position supported by other agencies
identified above does not purport to state nor imply
the existence of unclassified information containing
sources or methods of intelligence, but for reasons
outlined below in this memo wishes to segregate the
Approved For Release 2006/01/17 : CIA-RDP82M00691R000400070039-0
OS 6.2011
 Approved For Relea 2006/01/17 : CIA-RDP82M00591R090400070039-0
concepts of classification and sources and methods protection.
Simply stated it identifies the object of protection
as "information containing sources or methods of intelligence"'
and wishes to preserve alternate mechanisms for accomplishing
the protection requirement, viz. the classification
process and the statutory provisions of the National
Security Act and the Central Intelligence Agency Act.
Further, the CIA position on the proposed DCID wishes to
preserve the ability for arguing these means of protection
independently.
4. Neither the National Security Act of 1947 nor
the Central Intelligence Agency Act of 1949 in citing the
DCI responsibility for protecting intelligence sources
or methods from unauthorized disclosure specifies that
sources and methods information need be classified in
order to warrant protection. In the opinion of counsel
it is clear that this omission was not an oversight;
these statutory provisions were clearly intended to
provide an independent means to protect sources or methods
separate from the otherwise available. protection for
classified information.
5. Executive Order 11905 in Section 3 directs the
DCI to insure that appropriate programs are developed for
the protection of intelligence-sources and methods and
in Section 7 addresses the protection of intelligence
sources and methods from unauthorized disclosure. In
neither section does the Executive Order specify that
only classified sources and methods need protection.
The wording of the Executive Order follows the pattern
of the earlier statutes, viz. omitting reference to the
classification or classifiability of the information.
Separation of the concepts of classification and sources
and methods protection on the basis of the Director's
responsibility is important in order to support further
development of the concept of the Director's responsibility
and ability to execute this responsibility. It is essential
that the Intelligence Community understand that the concept
of source protection is not unique to the Community nor
to foreign intelligence operations. It is axiomatic that
police organizations and journalists can and do protect
their sources from disclosure without benefit of the
classification system and Executive Order 11652. The
right to protect such police and journalist sources
is supported in the law and has withstood repeated chal-
lenges. There are other numerous nondisclosure statutes
Approved For Release 2006/01/17 : CIA-IaBP82M00591R000400070039-0
 Approved For Rel ae 2006/01/17 : CIA-RDP82M00591ROD 00070039-0
currently in existence covering income.tax returns,
harvest statistics, etc.
6. The Director's statutory responsibility (50 U.S.C.
403(d)(3) and 50 U.S.C. 403g) as nondisclosure statutes
has now. withstood court challenge in four separate cases
in all of which the courts ruled that these provisions
are nondisclosure statutes under the Freedom of Information
Act. In none of these cases did the court determine that
the information withheld must be also classified in order
to qualify for the sources and methods withholding authority.
7. Under the Freedom of Information Act the burden
of proof for classification rests with the government.
Thus, it is incumbent upon the government to prove to
the satisfaction of federal courts not only that the
procedures under Executive Order 11652 have been followed,
but also that the information contained in a document
for which classification is claimed is indeed "classifiable"
within the criteria set forth in the Executive Order.
8. The Central Intelligence Agency's position on
the proposed DCID recognizes that "cla:;sifiability" ?
pursuant to the criteria of the Executive Order is a
judgement call, at times open to debate,. especially by
.individuals not familiar with this judgement process.
Executive Order 1.1652 recognizes this fact by its
demand that classifying authority be severely limited.
The CIA position would suggest that where possible we
avoid the requirement of allowing a court to review this
judgement when intelligence sources and methods are
involved. Without suggesting any incompetence on the part
of the court, we suggest that it is a great deal more
difficult to prove classification than to prove that
information contains intelligence sources or methods.
9. Thus, while sources and.methods information
requiring protection may in every case be classified,
we believe it infinitely preferable to have a mechanism
whereby such information can be protected to the satisfaction
of the courts without having to bear the onerous burden
of proving classifiability. This is partially desirable
because it is often very difficult to develop an argument
without convoluted logic that the disclosure of the identity
-3
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Approved For Rele 2006/01/17 : CIA-RDP82M00591R000070039-0
of one intelligence source or method will do damage
to the national security under the criteria set forth
in Executive Order 11652. The difficulty in developing
such an argument at times is compounded by the Executive
Order's insistence that when in doubt the lower classification,
or no classification option shall prevail.
Security Committee
xooert Gambino
CIA Member, USIB
Approved For Release 2006/01/17 : CIA-RDP82M00591R000400070039-0
 Approved For Rele 2006/01/17: CIA~RDP82MO0591R000400070039-0
Distribution: Merno to DCI from D/DCI/IC
- DCI w/attachments
1 - DDCI v,
1 -ER D/DCI/IC
1 - ICReg
1
OV,P? - SECOM Ir
1 - Gen. Rumney w/att
Approved For Release 2006/01/17 CIA-RbP'81M00591R000400070039-O