2000AA
10
104-10330-10060
2025 RELEASE UNDER THE PRESIDENT JOHN F. KENNEDY ASSASSINATION RECORDS ACT OF 1992
SECRET
15 October 1996
MEMORANDUM FOR:
FROM:
Assassination Records Review
Board
John F. Pereira
Chief, Historical Review Group
SUBJECT:
Foreign Government Information
(Australia)
(We request that this memorandum be returned to CIA once the
Board has completed its deliberations on the issues discussed
below.)
1. (S) Issue: This memorandum will address CIA's position
on the review and declassification of foreign government
information that appears in the JFK collection. This issue has
come to CIA's attention because of the recent review by the JFK
Board of Australian liaison documents. The Agency believes it is
important to address this issue at this time because this is the
first instance that this type of foreign liaison document has
been reviewed by the Board and it is possible that such
information will appear again in CIA's collection.
This memo
will, therefore, focus on the larger issue of a United States
Government (USG) agency's legal obligations in the dissemination
and declassification of foreign government information (but will
also address the specific issue of the six "Australian documents
(documents: 104-10012-10078, 104-10012-10079, 104-10012-10080,
104-10012-10081, 104-10009-10222, 104-10009-10224).
2. (S) Conclusion: CIA does not object to the release of the
information in these six documents, but is only concerned about
protecting foreign government information. Therefore, the Agency
does not object to the release of the four CIA documents in the
redacted form proposed by the Board. With regards to the two
¿Australian letters, the Agency has no authority to unilaterally
agree to their release in any form. Pursuant to its legal
obligations, CIA ordinarily seeks the consent of the foreign
government prior to declassifying their information. (However,
(for reasons described herein, it is not possible to even seek the
consent of the Australians at this time, nor would it be likely
that the Australians would give it. Rather than going to the
“Australians against its better judgment or requesting the
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CL BY: 2224130.
CL REASON: 1.5(d)
DECL ON: X5
DRV FM:
LIA 3-82
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SUBJECT: Foreign Government Information
(Australia
President to agree to the unilateral declassification of foreign
government information, CIA proposes that the release of the
Australian documents be either postponed for a short time or that
a substitution be made *****
3. (U) Legal Authorities: The procedures governing the
declassification and dissemination of foreign government
information are set out in Executive Order 12958, as well as
Director of Central Intelligence Directives (DCIDs). Executive
Order 12958 defines foreign government information as including
(1) information provided by a foreign government, or any element
thereof, with the expectation, expressed or implied, that the
information and/or the source of the information, are to be held
in confidence; or (2) information produced by the United States
pursuant to or as a result of a joint arrangements with a foreign
government, or any element thereof, requiring that the
information, the arrangements, or both, are to be held in
confidence. Id., at §1.1(d)
4. (U) Foreign government information is subject to a
classification determination under E.O. 12958, section 1.5(c).
When so classified, U.S. government agencies are obligated to
protect that information from unauthorized disclosure. The E.O.
requires that foreign government information shall either retain
its original classification or be assigned a U.S. classification
that shall ensure a degree of protection at least equivalent to
that required by the entity that furnished the information. Id.,
at 1.7(e). Furthermore, agencies are required to safeguard
foreign government information under standards that provide a
degree of protection at least equivalent to that required by the
originating government. Id., at 4.2(g).
5. (U) Pursuant to his authority as head of the
intelligence community to protect all classified information from
unauthorized disclosure, the Director of Central Intelligence has
issued Directives (that is, DCIDs) setting out the procedures for
the declassification and dissemination of foreign government
information. Intelligence obtained from another government or
from a combined effort with another government, may not be
released or authorized for release without its consent. DCID 5/6
attachment § C.3. Furthermore, the release of intelligence that
would be contrary to agreements between the U.S. and foreign
countries is expressly prohibited. Id., at § C.5.
6. (U) Finally, the very fact of intelligence cooperation
between the U.S. and specifically named foreign countries and
government components is classified SECRET unless a different
classification is mutually agreed upon. DCID 1/10-1. Such
information may be declassified only with the mutual consent of
the U.S. and the foreign government whose interests are involved.
DCID 1/10-1.
2
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SUBJECT: Foreign Government Information
(Australia
the U.S. and the foreign government whose interests are involved.
DCID 1/10-1.
7. (U) National Security Considerations: The importance of
such coordination with foreign governments prior to the release
of their information cannot be overemphasized. Should CIA, or
for that matter any (USG) agency fail to coordinate where
required, not only would it be a violation of the aforementioned
E.O. and directives, but it would chill relationships it has
If such lack of
developed with foreign services over the years.
coordination became known, foreign services would hesitate to
share crucial intelligence information with CIA if they believed
it would be released, in spite of any agreements or U.S. laws to
the contrary, without their consent. Furthermore, the U.S. could
not expect foreign services to safeguard U.S. government
information that it shares with its liaison partners in order to
pursue authorized intelligence and foreign policy objectives.
8. (S) According to its legal obligations described herein,
CIA coordinates the dissemination and/or release of foreign
government information. Its obligation to do so is similar to
its obligation to coordinate declassification efforts with
another USG agency should the CIA possess any of that agency's
documents. For example, CIA could not declassify and release to
the public FBI information located in CIA files without
coordinating with that agency. Similarly, CIA has no authority
to unilaterally declassify foreign government documents or
information in its files.
The
9. (S) Coordination with Australia: As two of the documents.
at issue here are letters from the Australian service (104-10009–
10224, 104-10012-10080), CIA is legally obligated by E.O. and
agreement with the Australians to seek the consent of the
Australians prior to their release, even in redacted form.
issue of coordinating with the Australian service is a timely
one. In most cases, CIA would not have an objection to going to
the foreign government and seeking their consent for declas-
sification. However, several events that have occurred in the
last few months depict just how seriously Australia considers any
indication that the U.S. is unable to protect from release their
classified information. Based on the incidents described
below, it is CIA's position that even asking the Australians for
consent to release would threaten the current relationship.
• Within the last year, a demarche was made by the Australian
government expressing strong concern that U.S. declas-
sification legislation expressly spell out that no information
provided to the USG by the Australian service; be declassified
warthout its permission. A copy of this demarche is provided
for the Board's review. (See attached.) It is worth noting
that this demarche is not between intelligence_services-but-
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SUBJECT: Foreign Government Information
Australia
m
rather between governments
--
it was literally delivered by
the Australian Ambassador to the National Security Council and ✓
to the U.S. Ambassador to Australia. The manner in which the
Australians treated the demarche demonstrates that the
protection of classified information is receiving top priority
in the Australian government and is not just a concern of
their intelligence community.
On two recent but separate occasions the Australian service
passed to CIA information indicating that there would be
assassination attempts on two non-U.S. citizens. CIA
-requested that it pass this information on to the targets, but
the Australians refused. They argued that the information was
✓ not specific enough and would endanger a source. The
→
Australians stated that if they believed the information was
useful, they would pass it themselves. The Australians were
concerned that CIA had even asked to pass on this information,
and questioned what they perceived as CIA's willingness to
share their information with third parties. Finally, they
stated that the easiest way to protect their information was
simply not to pass it to CIA anymore.
• Just this month, a senior official of the Australian service
approached the CIA with accusations that a former Agency
employee allegedly_may have disclosed their classified
information. The Australians believe that this disclosure
may be related to the loss of all agent reporting sources
in a country of particular interest to them. The DDCI
promised the head of the Australian service to launch an
investigation into the matter.
---
The Australian service recently expressed grave concern to CIA
about a book published by an American USG official which
alludes to a relationship between the CIA and the Australian
service. Even though this book was not an official CIA
acknowledgment of a liaison relationship, to the Australians,
this incident called into question the CIA's ability to protect
that relationship.
10. (S) Under the circumstances, it would be an affront to
the Australians to be asked for their consent in light of the
above events which have all occurred in the last year. The
Australians would not only be extremely upset with CIA, but would
certainly deny their consent. Should the Australians deny their
consent, CIA would have no authority to agree to the release of
the Information and would be obligated to do all it could to
prevent disclosure. It is crucial not only to CIA's mission but
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SUBJECT: Foreign Government Information
Australia
។
✓ also to the conduct of US foreign relations that the USG is seen
as abiding by its agreements with foreign services as well as its
own laws on the release of information.
(S)
Finally, the importance of maintaining good
relations with the Australians cannot be overemphasized.
As a
result of our valuable relationship with our Australian liaison
counterparts, the USG receives a large volume of finished
intelligence.. Due to our shrinking resources, much of this
information would not be available to U.S. policy makers were it
> not provided by the Australians. Additionally, we work together
with the Australians around the world on joint collection
activities that cover the full spectrum of USG intelligence
priorities. Finally, there are several critical collection
efforts vital to the USG where we do not have the entrée to
collect intelligence independently. In these cases, we rely
ア
entirely on the continued good will of the Australian services to
provide us with the assistance necessary to meet U.S.
policymakers' needs.
12. (S) In light of all the above, CIA submits the
following two proposals for the Board's consideration. First,
the Board could postpone these two documents from release for a
short period (we propose 10 months) at which time CIA can
reassess its relationship with the Australians. It is possible
that the relationship with CIA and Australia could change so that
it would be possible to seek their consent for release in full.
However, should we seek the consent of the Australians at a
future date and the Australians object to the release of the
documents, we would ask that the Board seriously consider any
negative reaction from the Australians in its deliberations and
abide by their desires. A second option would be for CIA to
coordinate with the JFK Staff a substitution or some sort of
summary of the Australian documents for immediate release. This
summary would hide the fact that the letter came from the
Australian service, but would reveal what the subject of the
letter was. This would avoid the problem of having to go the
Australians to seek their consent, which we would have to do even
in the case of redactions.
13. (U) Should the Board reject these proposals, CIA is
willing to work with the Board to reach another mutually
agreeable solution. We strongly believe, however, that any
approach which suggests that the U.S. Government may ignore its
obligations and commitments to foreign governments would
seriously undermine the vigorous and healthy diplomatic as well
as intelligence relationships that we currently enjoy.
314 (S) With regard to the remaining four documents (104-6
10012-10078, 104-10012-10079, 104-10012-10081, 104-10009-10222,
these are CIA documents and with the redactions proposed by the
5
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SUBJECT: Foreign Government Information
Australia
government. As such, CIA consents to the release of these.
documents with the redactions proposed by the Board.
15. (S) Proposal for Future Coordination: With regards to
any other foreign government information that may exist in the
files, CIA proposes that it approach its liaison services to
request their consent in the release of their information when it
would be appropriate to do so. Although recent events with
Australia make it impossible for CIA to approach them at this
time, this may not be so with other services. In cases were CIA
believes, because of the nature of the relationship, that it
would not be possible to request the consent of the service, CIA,
proposes that the documents either be postponed from release or
that CIA and Board's staff coordinate a summary..
John & Vereina
John F. Pereira
Attachment
n
"
6
SECRET
13-00000.
Attached is a copy of the Australian Demarche on U.S. legislation on declassification.
This was given to the U.S. Ambassador to Australia, Ambassador Perkins, by Philip
Flood then Director of the Office of National Assessments (ONA) in September 1995.
This demarche was also given to Sandy Berger at the National Security Council by
(Australian Ambassador to the United States Don Russell on 4 August 1995.
in
13-00000
CONFIDENTIAL
F
AUSTRALIAN COMMENTS ON
EXECUTIVE ORDER 12958 -
-
CLASSIFIED NATIONAL SECURITY INFORMATION
The Australian government wishes to register its concern over the 17 April Executive.
Order on Classified National-Security Information and the apparent omission of any
explicit provision to protect foreign-sourced information or documentation from
automatic declassification once it is over 25 years old.
The Australian government understands and supports the democratic principles and
còminitment to open government which underpin the Executive Order. We too are
improving access to government information, but are maintaining provisions to
protect foreign-sourced Information-including U.S. information,
We do not agree that these principles can be applied by one foreign government to the
information or documentation of another government without prior consultation and
'clearance. Australian-sourced information was and continues to be passed to the U.S.
government on the understanding that it will be protected. We adopt precisely the
samic approach to information that the U.S. shares with us.
Omission of such consultation would, in the eyes of the Australian government, not
be in keeping with the 1962 U.S.-Australia General Security of Information
agreement or the many other bilateral and multilateral intelligence co-operation and
Information sharing agreements.
The failure to protect sensitive Australian-sourced information about, for example,
our intelligence operations, could have ramifications for our relations with regional
countries and compromise Intelligence sources and methods (upon which the U.S.
depends in part).
Australian concerns could be addressed if provision for clearance with originators of ◊
foreign-sourced material was embodied in the Information Security Oversight Office
✓ Implementation directive to U.S. agencies.
E
such an approach should not impede or delay the declassification process
Australia is not seeking this. For example, categories of sensitivity for Australia
could be identified. A reasonable time limit could be put on Australian response
time after which the U.S. could be free to declassify (we have a similar
arrangement with the U.K.).