S. HRG. 98-1278

AMENDMENTS TO THE FREEDOM

OF INFORMATION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

/ OF THE

COMMITTEE ON THE JUDICIAKY

UNITED STATES SENATE

NINETY-EIGHTH CONGRESS

SECOND SESSION

ON

S. 1335

A BILL TO PROVIDE CERTAIN STANDARDS FOR THE APPLICATION OF

THE FREEDOM OF INFORMATION ACT EXEMPTION FOR CLASSIFIED

INFORMATION

AND

S. 2395

A BILL TO AMEND THE FREEDOM OF INFORMATION ACT TO PROVIDE

FOR THE PROTECTION FROM DISCLOSURE OF RECORDS RELATED TO

TERRORISM AND FOREIGN COUNTERINTELLIGENCE

APRIL 3, 1984

Serial No. J-98-108

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

39-388 0 WASHINGTON : 1985
COMMITTEE ON THE JUDICIARY

STROM THURMOND, South Carolina, Chairman

CHARLES McC. MATHIAS, JR., Maryland JOSEPH R. BIDEN, JR., Delaware

PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusette

ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia

ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio

ALAN K. SIMPSON, Wyoming DENNIS DECONCINI, Arizona

JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont

CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana

JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama

ARLEN SPECTER, Pennsylvania

VINTON DEVANE LIDE, Chief Counsel and Staff Director

DEBORAH K. OWEN, General Counsel

DEBORAH BERNSTEIN, Chief Clerk

MARK H. GITENSTEIN, Minority Chief Counsel

SUBCOMMITTEE ON THE CONSTITUTION

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina DENNIS DECONCINI, Arizona

CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont

STEPHEN MARKMAN, Chief Counsel and Staff Director

RANDALL RADER, General Counsel

CAROL EPPS, Chief Clerk

BOB FEIDLER, Minority Chief Counsel

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^ \ CONTENTS

OPENING STATEMENTS

Page

N Hatch, Hon. Orrin G. (subcommittee chairman) 1

J^ Thurmond, Hon. Strom (chairman) 2

Svf^ Grassley, Hon. Charles E 2

^* Leahy, Hon. Patrick J 20

PROPOSED LEGISLATION

Text of S. 1335•A bill to provide certain standards for the application of the

Freedom of Information Act exemption for classified information 4

Text of S. 2395•A bill to amend the Freedom of Information Act to provide

for the protection from disclosure of records related to terrorism and foreign counterintelligence 6

CHRONOLOGICAL LIST OF WITNESSES

Wannall, W. Raymond, former Assistant Director, Federal Bureau of Investigation 8

Denton, Hon. Jeremiah, a U.S. Senator from the State of Alabama 12

Durenberger, Hon. David, a U.S. Senator from the State of Minnesota 50

Garfinkel, Steven, Director, Information Security Oversight Office, General

Services Administration; Mary Lawton, counsel for intelligence policy and

review, Department of Justice; Mark Lynch, American Civil Liberties

Union; and Robert L. Sproull, president, University of Rochester 54

ALPHABETICAL LISTING AND MATERIALS SUBMITTED

Denton, Hon. Jeremiah:

Testimony 12

Dear Colleague letter 18

Durenberger, Hon. David: Testimony 50

Garfinkel, Steven:

Testimony 54

Prepared statement 58

Annual Report to the President, fiscal year 1983, from the Information

Security Oversight Office 64

Letter from the White House 103

Letter to Senator Orrin G. Hatch 104

Lawton, Mary C:

Testimony 105

Prepared statement 107

Leahy, Hon. Patrick J.:

Articles:

"The Census-FBI Pipeline," from the Vermont Vanguard Press,

dated April 8, 1980 26

"FBI's Census Cover May Spark Probe," by Greg Guma, from the

Vermont Vanguard Press, dated April 22, 1980 27

"New Case of Nazi Criminal Used as Spy by United States Is Under

Study," by Ralph Blumenthal, New York Times, dated Jan. 9, 1983. 28

"My Biography•by the FBI," by Alfred Friendly, Washington Post,

dated Feb. 6, 1982 30

"Illinois Altered Jobless Data During 1982 Campaign," by David

Hoffman, Washington Post, dated Aug. 7, 1983 31 4? (ill)
IV

Leahy, Hon. Patrick J.•Continued

Articles•Continued

"The FBI and Dr. Einstein," by Richard Alan Schwartz, The Nation, Pae

e

dated Sept. 3, 1983 35

"Secret Hoover Files Show Misuse of FBI," by Joanne Omang, Washington Post, dated Dec. 12, 1983 42

"The Secret Files of J. Edgar Hoover," U.S. News & World Report,

dated Dec. 19, 1983 43

Lynch, Mark H.:

Testimony Ill

Prepared statement 113

Memorandum for the Secretary of Defense 117

Report of the Defense Science Board "Task Force on Secrecy," July 1,

1970 118

Sproull, Robert L.:

Testimony 136

Prepared statement 139

Wannall, W. Raymond: Testimony 8

APPENDIX

Statements from:

National Coordinating Committee for the Promotion of History 149

The Association of American Publishers, Inc 153

American Newspaper Publishers Association 158

The National Committee Against Repressive Legislation 159

Sample documents 162
AMENDMENTS TO THE FREEDOM OF

INFORMATION ACT

TUESDAY, APRIL 3, 1984

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:38 a.m., in room

SD-228, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the subcommittee) presiding.

Present: Senators Grassley, Leahy, Durenberger, and Denton.

Staff present: Dick Bowman, counsel; Stephen J. Markman, chief

counsel and staff director; Randall R. Rader, general counsel;

Deroy Murdock, staff assistant, and Carol Epps, chief clerk.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR

FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON

THE CONSTITUTION

Senator HATCH. On February 27, 1984, the Senate unanimously

approved S. 774, the Freedom of Information Reform Act. This legislation, which is now pending before the House Government Operations Committee, would enact important protections for confidential investigations and informants.

This bill sprang from evidence supplied in nine hearings over a

span of two Congresses. This evidence presented by the FBI Director and others substantiated that, to quote a Senate Judiciary

study, "Informants are rapidly becoming an extinct species because

of fear that their identities will be revealed in response to a FOIA

request." Moreover, in the words of the Attorney General's Task

Force on Violent Crime, FOIA is used by lawbreakers to "evade

criminal investigation or to retaliate against informants."

As the Senate committee report on S. 774 states:

Five other studies concluded that the FOIA has harmed the ability of law enforcement officers to enlist informants and carry out confidential investigations.

This hearing is scheduled as an ongoing oversight of the Freedom of Information Act. Specifically, the subcommittee will today

consider two bills: S. 2395, Senator Denton's bill, providing a specific exemption for terrorism and foreign counterintelligence, and S.

1335, Senator Durenberger's bill, altering the current first exemption which protects classified information.

Since the subcommittee will have the opportunity to hear from

the authors of these two proposals, I will only describe these bills

in the briefest fashion.

(l)
S. 2395 would create a new exemption in FOIA for information

"related to investigations of terrorism or concerned with foreign

counterintelligence." It also eliminates the provision of FOIA requiring the release of any information "reasonably segregable"

from the exempt portions of a sensitive document. S. 1335 provides

that classified information will only be subject to exemption from a

FOIA request if the classifying agency can show a "reasonable expectation of identifiable damage to national security" should the

documents be released. Furthermore, the classifying agency must

demonstrate, under S. 1335, that the need to protect the information outweighs any interest in disclosure of the information.

The subcommittee is pleased to hear from witnesses on these important issues and looks forward to House hearings and subsequent

passage of S. 774. Since the Senate has determined the issues covered by S. 774 in detail and determined unanimously that S. 774 is

a responsible and necessary change in FOIA, we are confident that

the House will reach a similar conclusion when it takes an indepth look at S. 774 and the problems it addresses.

I would like to put into the record statements by Senator Thurmond and Senator Grassley.

[The following was received for the record:]

PREPARED STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE

OF SOUTH CAROLINA, CHAIRMAN, COMMITTEE ON THE JUDICIARY

Mr. Chairman: Today we begin consideration of two bills which propose amendments to the Freedom of Information Act. Both of these measures, S. 1335 and S.

2395, propose changes to Section 552(b) of Title 5 of the United States Code and, if

enacted, would have an impact upon our national security.

It is my belief that matters pertaining to the security of this Nation should have

the highest priority. In light of the recent bombing of the Capitol and the increased

threat of terrorist activity in an open society, such as ours, it is imperative that the

Federal government increase its efforts to ensure the continuation of domestic order

and provide for the national defense. This activity necessarily entails the collection

of information pertaining to those persons and organizations responsible for the

planning and execution of terrorist acts.

In order to afford greater protection to collected information and those who provide it, it may be necessary to amend the Freedom of Information Act. The proposal

by the distinguished Senator from Alabama, Senator Denton, may be one way by

which we may help to guarantee that national security information is protected

from disclosure to those who seek to create disorder and undermine the United

States government. Under the provisions of his bill, it would no longer be possible

for terrorist agents to piece together information useful to them from the so-called

"reasonably segregable portions" of information which must be disclosed after the

deletion of exempted data.

Mr. Chairman, I commend you for holding this hearing on these two proposals

and I look forward to hearing from today's slate of witnesses.

PREPARED STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE

STATE OF IOWA

Mr. Chairman: As we all know, the control and release of information is becoming

an increasingly important issue in our communications oriented society. When Congress first enacted the Freedom of Information Act in 1966 it was to assure our citizenry that as a democratic government we will operate in the open . . . allowing

the public maximum access to government information.

Since then we have struggled to balance that effort to facilitate an informed

public with protection of national security, confidential business concerns and privacy of individuals. That is a very delicate balance. I think any of us who were involved over the past several years in evaluating reforms of the Freedom of Information Act would agree.
Mr. Chairman, you and the rest of my colleagues on this subcommittee, are to

again be commended for the FOIA reform measure which recently passed the

Senate. It is a package of improvements in our nation's information policy which

reflect the varied interests and suggestions of many groups. While I am in full support of that package and hope that the House will soon consider it favorably, I realize there are issues which were not addressed in that measure.

I am pleased that we are continuing to evaluate some of those issues, and most

specifically that balance between the effective protection against terrorist and counterintelligence activity and openness of our government's function. I look forward to

hearing out witnesses thoughts on those issues today. Thank you Mr. Chairman.
n

98TH CONGRESS

1ST SB88ION S. 1335

To provide certain standards for the application of the Freedom of Information

Act exemption for classified information.

IN THE SENATE OF THE UNITED STATES

MAY 19 (legislative day, MAY 16), 1983

Mr. DUEENBERGEE (for himself, Mr. BIDEN, Mr. COHEN, Mr. HUDDLESTON, Mr.

LEAHY, Mr. MATHIAS, and Mr. MOYNIHAN) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To provide certain standards for the application of the Freedomf

of Information Act exemption for classified information.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the "Freedom of Information

4 Protection Act of 1983".

5 SEC. 2. Subparagraph (B) of section 522(a)(4) of title 5,

6 United States Code, is amended•

7 (1) by inserting in the second sentence after

8 "court shall" a comma and "except as provided in the

9 third sentence of this subparagraph"; and
1 (2) by adding at the end thereof the following new

2 sentence: "In the case of agency records withheld

3 under the exemption set forth in paragraph (1) of sub4 section (b), the court determination with respect to sub5 paragraph (C) of such paragraph shall be limited to as6 certaining whether the agency withholding such

7 records made the determination that the records are

8 matters described in such subparagraph.".

9 SEC. 3. Paragraph (1) of section 522(b) of title 5, United

10 States Code, is amended to read as follows:

11 "(1) specifically authorized under criteria estab12 lished by an Executive order to be kept secret in the

13 interest of national defense or foreign policy and are•

14 "(A) in fact properly classified pursuant to

15 such Executive order,

16 "(B) matters the disclosure of which could

17 reasonably be expected to cause identifiable

18 damage to national security, and

19 "(C) matters in which the need to protect

20 the information outweighs the public interest in

21 disclosure.".

O
II

98TH CONGRESS

2D SESSION S. 2395

To amend the Freedom of Information Act to provide for the protection from

disclosure of records related to terrorism and foreign counterintelligence.

IN THE SENATE OF THE UNITED STATES

MABCH 7 (legislative day, MABCH 5), 1984

Mr. DENTON introduced the following bill; which was read twice and referred to

the Committee on the Judiciary

A BILL

To amend the Freedom of Information Act to provide for the

protection from disclosure of records related to terrorism

and foreign counterintelligence.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That subsection (b) of section 552 of title 5, United States

4 .Code, is amended•

5 (1) by striking out "or" at the end of paragraph

6 (8);

7 (2) by striking out the period at the end of para8 graph (9) and inserting in lieu thereof a semicolon;

9 (3) by adding after paragraph (9) the following

10 new paragraph:
2

1 "(10) related to the investigation of terrorism or

2 concerned with foreign counterintelligence oper3 ations."; and

4 (4) by striking out the second sentence thereof.

O

S 2395 IS
Senator HATCH. Our first witness today will be Mr. Raymond

Wannall, former Assistant Director of the Federal Bureau of Investigation.

Mr. Wannall, we will turn to you at this point and take your testimony. You will be testifying, as I understand it, on S. 2395.

Mr. WANNALL. Yes, Senator.

STATEMENT OF W. RAYMOND WANNALL, FORMER ASSISTANT

DIRECTOR, FEDERAL BUREAU OF INVESTIGATION

Mr. WANNALL. Mr. Chairman, I appreciate the opportunity to

appear in support of Senate bill 395, which would amend the Freedom of Information Act to provide for the protection from disclosure of records related to terrorism and foreign counterintelligence.

My interest in this stems from 33 years and 7 months' service in

the Federal Bureau of Investigation. I entered the Bureau as a special agent in July 1942, and 5 years later, was transferred to the

Intelligence Division at FBI Headquarters, where I served for the

next 28 Vfe years. I held every position from agent supervisor to Assistant Director heading the Division, which position I occupied

when I retired on February 27, 1976.

During the last year, I began to observe the debilitating effects

on the Nation's security of the 1974 amendments to the Freedom of

Information Act, FOIA, and the Privacy Act. May I cite just two

examples.

First, an industrialist in a gulf coast State had been cooperating

with us in an operation launched against the United States by the

Soviet KGB. He was motivated by patriotism and knew if his cooperation became known to the Russians, he could suffer serious financial losses. Upon passage of the FOIA amendments, he came to

us, said he feared he might read about his cooperation the next

week, the next month, or the next year in the New York Times,

and, apologetically, discontinued all contact with us.

The second example: As head of the Intelligence Division, I was

approached by the representatives of two friendly foreign intelligence services with a proposal their two agencies and the FBI hold

a joint conference to exchange information on and ideas for combatting transnational terrorism. When they learned that there was

even as much as a remote possibility that information they provided might be released under a Freedom of Information Act request,

they withdrew their proposal. This was at a time when our country

would have gained much from such a conference, since the two foreign services had been faced with international terrorism more extensively than had we here in the United States.

There are literally scores of examples of this type which have

been furnished to this subcommittee in the past. I have in mind a

document dated December 11, 1981, and captioned, "Impact of the

Freedom of Information Act Upon the Federal Bureau of Investigation." This was compiled by the FBI after the appearance of Judge

William H. Webster, Director of the Bureau, in an executive session of this subcommittee, in response to a request by the chairman. I have a copy of this document, containing public source material, which I will gladly turn over to this subcommittee if desired.
9

Senator HATCH. That document has been previously submitted in

the hearing record on S. 774, the Freedom of Information Reform

Act.1

Mr. WANNALL. The impact of the FOIA upon FBI operations can

perhaps be best illustrated by the reaction of those persons who

must discharge certain responsibilities placed upon them by law.

During open testimony before this subcommittee on November

12, 1981, Director Webster reported the results of a poll of 4,100 of

his field agents, representing more than half of them. He said that

70.3 percent indicated the FOIA had diminished their ability to develop quality informants.

Recognizing that all FBI agents are not engaged in work requiring informant development, I would suggest that closer to 100 percent of agents so engaged have experienced this effect upon their

ability.

Espionage and counterintelligence have been described as the

secret war that never ends. And success in that war, as in any war,

depends upon the quality of your weapons. Here, our weapons are

sources, informants, agents, double agents, agents in place. If the

Congress denies quality weapons to the FBI in waging this war, it

must surely do so recognizing the aid and comfort it may be affording to the terrorists and to those who have promised to bury us.

I know there are Members of Congress as concerned about this

problem as any of us who spent our careers in the intelligence

services. The chairman of this subcommittee has been an outspoken proponent of "protecting our national eyesight." In an article

captioned in this manner, which appeared in the June 24, 1981,

edition of "The Union Leader," he wrote:

Without adequate intelligence services, we may find ourselves in the shoes of a

blind man trying to negotiate a minefield. The real irony, however, is that we are

blinding ourselves. Neither the Soviet Union nor the world's terrorist forces have

done as much to damage our intelligence-gathering capabilities as our own laws and

policies.

Based on a third of a century experience, I know that foreign

counterintelligence and counterterrorist operations are the most

difficult the FBI faces. In these areas, your opponents are highly

trained and disciplined. They are taught to operate stealthily, and

their plans are closely guarded against detection. To deny a legal

weapon to the Bureau in its efforts to frustrate these plans is somewhat like ordering that a man-eating lion be tracked down and

killed, then furnishing a BB gun to do the job.

The FOIA has, in its latest revisions, been tested for nearly 10

years, and has been found wanting in its applications to antiterrorism and counterintelligence. It was intended to open Government

information to our people in our open society. What it has done in

these two sensitive areas is open the doors to greater chances of

success on the part of those who would steal our secrets, alter our

society, influence our policies, and jeopardize lives through violence

and disruption.

1 See p. 432, Freedom of Information Reform Act, hearings before the Subcommittee on the

Constitution, Committee on the Judiciary, testimony of Hon. William H. Webster, Director, Federal Bureau of Investigation. Held Apr. 21, 1983.
10

When Congress amended the FOIA in 1974, the House Committee on Government Operations projected the additional costs for

the entire Federal Government would amount to not more than

$50,000 that fiscal year and $100,000 for each of the succeeding 5

fiscal years. The FBI alone spent $160,000 on FOIA in 1974 and is

currently spending approximately $12.5 million annually. By adopting S. 2395, Congress would not be eliminating all this expenditure,

for the act would still apply to FBI operations other than in the

two sensitive areas of terrorism and counterintelligence.

Neither would the public be completely excluded from access to

information related to these subjects. Congress enacted the Records

Disposal Act of 1943, which is the basis for modern records disposition programs. Later, the Federal Records Act of 1950 made such

programs mandatory for the whole Federal establishment.

Records can be destroyed only through the procedures of a disposition program. This program, which is administered by the National Archives and Records Service, known as NARS, recognizes

that Government records contain a wealth of data and source materials basic to scholarly and technical research in almost every

conceivable field.

The FBI has regularly for many years transferred records to

NARS, where guides, inventories, lists, and indexes are prepared

and made available to persons wanting to use the records. A

trained reference staff is ready to aid researchers in finding and

using the material desired.

Adoption of S. 2395 would not eliminate the functioning of the

Records Acts of 1943 and 1950. The review requirements of the Executive order relating to classification and declassification of material would assure release of FBI material in these sensitive areas to

the NARS on a timely basis for review by historians and authors.

The congressional oversight of the FBI would assure timely compliance.

The adoption of S. 2395 would eliminate a loophole through

which individuals having interests inimical to our welfare, or a disregard therefor, have crawled in the past to the detriment of the

safety of our country and its people.

Mr. Chairman, that is the end of my prepared statement. I will

be pleased to answer any questions I am in a position to answer.

Senator HATCH. Well, thank you so much. We appreciate your

good statement here today.

A study done by the Drug Enforcement Administration documented that 14 percent of all DEA drug investigations were aborted or significantly compromised by FOIA disclosures. Are you

aware of similar damage done in the areas of terrorism or foreign

counterintelligence?

Mr. WANNALL. I am aware, Senator, of the two examples I have

given. I have also studied the document, which I will turn over to

this committee, which contains scores and scores of such examples.

Senator HATCH. Thank you. One aspect of FOIA requires that

every request for Government records be answered with specific

reasons given for the failure to satisfy the request. Now, what happens if an agency is asked for records, the existence of which it

cannot confirm, without damaging an investigation, or even lives?
11

For example, what happens if a request comes to the FBI asking

for all records obtained from wiretaps performed last week in the

vicinity of G Street in New York City. If the FBI even acknowledges that it has such records, it may jeopardize the investigation

of the agents at the G Street location listening post.

What, in your opinion, can be done about this problem?

Mr. WANNALL. Well, that is one of the problems that has turned

up quite frequently, Senator. Even acknowledging having a case

under investigation has been quite detrimental to some of the investigations being pursued. If an individual writes in and asks for

his own records under the Privacy Act, he must be given those

records, or he must be told that they cannot be given to him under

certain bases for denial. Under the Freedom of Information Act,

the same thing occurs. There have been situations, for example,

where a number of individuals connected with a particular organization have written in and asked for records, and in those instances where there has been a denial of a record on a particular

person, they have either assumed that he is an informant, or he is,

in fact, under investigation.

Senator HATCH. At our hearings in the 97th Congress, the Justice Department testified that•

A number of law enforcement agencies have found that hostile foreign government intelligence agencies and extreme political groups have attempted to use

FOIA to uncover government informants in their midst, or to discover information

concerning government investigations.

Do you think that that situation which was described back in

1981 has become worse in the past few years?

Mr. WANNALL. Well, of course, I am not in a position to know

that directly, because I am no longer connected with the FBI; but I

know even before we left, we experienced that sort of a problem.

Senator HATCH. Well, some will undoubtedly perceive this particular bill as reducing the ability of citizens or private groups to

obtain information about FBI activities. Do you think that this will

substantially inhibit such individuals from monitoring Government

activities, and do you feel any reduction in the amount of information about terrorism investigations available to any requester is

justified by the need for confidentiality in this sensitive area?

Mr. WANNALL. Well, I certainly think that it is justified by the

need to withhold the information. There have been•there were

bills passed prior to the Freedom of Information Act, which I think

was passed in the midsixties, originally, which provided for the release of information to persons interested in an open Government,

through the Records Acts of 1943 and 1950, which I called attention

to.

Senator HATCH. In the 95th Congress, Mr. Jerry Bodash appeared before Senator Nunn's committee and testified that he and

others had made FOIA requests "to try to identify the informants

that revealed information.' When asked by Senator Nunn if they

wanted this information to murder the informants, Mr. Bodash responded, "Yes."

Do you think that that kind of a comment by Mr. Bodash is typical? Do you think that it is part of the reason for the numerous

requests made by terrorist groups, which you have mentioned in

your testimony?
12

Mr. WANNALL. Well, I do not think the comment is typical, because I think persons having that intention would not admit it

openly. But I surely feel that there have been cases where terrorist

groups have been trying to determine through whom the Government became aware of their activities. In a group of that sort, you

must get into the group before you can determine what is being

done. And live informants are the lifeblood of any law enforcement

agency. It is true with respect to any intelligence agency. In fact,

during the review of domestic security operations by the General

Accounting Office in 1974, the GAO came up with a figure of something over 60 percent of information which was utilized by the FBI

came through live informant coverage.

Senator HATCH. OK. Now, we sometimes hear that the only problem with FOIA is a perception problem, meaning that some people

perceive that FOIA poses a threat to informants which, in fact, it

really does not. In your opinion, does the FOIA problem with law

enforcement go beyond mere perceptions?

Mr. WANNALL. It surely does. There is no question that it is damaging to the coverage afforded, particularly through live informants.

Senator HATCH. Do you think reform in the area of foreign counterintelligence is as great as the need for reform of FOIA in the

area of terrorism?

Mr. WANNALL. Yes, I think there is an equal need in both areas,

because for the most part, terrorism being investigated today is

transnational terrorism, and I think there has been a very clear

showing that the persons behind that are the persons whom we are

combating in our foreign counterintelligence operations.

Senator HATCH. Well, thank you so much, sir. We appreciate

your testimony here.

I notice that both Senator Denton and Senator Durenberger are

here. Let us call Senator Denton at this time, since we are discussing his particular bill.

Senator, we are happy to take your testimony. We welcome you

before the committee, and we appreciate the work that you do in

the Subcommittee on Security and Terrorism.

STATEMENT OF HON. JEREMIAH DENTON, U.S. SENATOR, STATE

OF ALABAMA

Senator DENTON. Thank you very much, Mr. Chairman. It is a

pleasure to work with you on that subcommittee, and I appreciate

very much the opportunity to testify before you today on S. 2395, a

bill I introduced on March 7, 1984, to amend and improve the Freedom of Information Act by providing for the protection against disclosure records related to terrorism and to foreign counterintelligence.

Mr. Chairman, I particularly appreciate your scheduling hearings on the bill so promptly. The issues that the bill seeks to address are matters of considerable urgency. I want to commend you,

too, Mr. Chairman, and also Senator Leahy, who just came in, for

the Herculean efforts that you have devoted to amending and improving the Freedom of Information Act, both in this Congress and

in the 97th Congress. I am honored to have had the pleasure of
13

working with both of you, as I mentioned to the chairman, not only

on the Subcommittee on Security and Terrorism, but on the full

committee and on the floor of the Senate.

In the committee and on the floor, we labored over S. 774 as it

evolved from S. 1730 in the 97th Congress. As it has evolved, we

have seen the development of a consensus for its passage by the

98th Congress. The bill has been endorsed not only by the administration and the Attorney General, but also by the Washington Post

in an editorial and, as we all know, those endorsements represent a

broad consensus.

S. 774 was passed by the Senate by voice vote on February 27,

1984. It now awaits action in the House of Representatives, where

it has been referred to the Government Operations Subcommittee

on Government Information, Justice and Agriculture. Although its

fate there is, as I understand it, uncertain, we can all hope for its

prompt consideration and passage.

I hope you all will excuse my weak voice; I am getting over a

bout with pneumonia.

Notwithstanding the broad consensus for S. 774, I noted with

some concern that, along the way, two vital exemptions, exemptions for information related to terrorism and foreign counterintelligence, were dropped.

The need for those exemptions is longstanding. It has never been

more crucial than now. Our Nation does face a growing threat

from terrorism and from hostile foreign intelligence services. One

wearies of recalling how the lives of 241 American marines were

lost in Beirut, and how the Capitol was bombed by terrorists last

November 7. More recently, terrorist bombings, kidnapings, and

ambushes have been carried out with increasing frequency against

our diplomats abroad. According to State Department statistics,

terrorist incidents against U.S. persons and property abroad have

taken a sharp upswing.

Here at home, the Capitol bombing last fall was most recently

followed by a terrorist bombing of IBM offices in Purchase, NY, on

March 20, the same day that the FBI was scheduled to report to

the Senate Subcommittee on Security and Terrorism in closed session about the FBI's investigation of the Capitol bombing.

During this spring and summer, we are faced with four events,

Mr. Chairman, which will provide tempting targets for terrorists:

the World's Fair in New Orleans, the Summer Olympics in southern California and elsewhere, the Democratic National Convention

in San Francisco, and the Republican National Convention in

Dallas.

We must ensure that our intelligence and investigative agencies

have the authority they need to keep track of terrorist activity,

and that they have the power to prevent the disclosure of the information that they obtain.

A discussion of the threat from foreign intelligence services is

perhaps more appropriate for a closed session of the subcommittee,

but suffice it to say that the threat is real and growing. Senator

Leahy is aware of the depth and breadth of the problem. He took

pains during the closed FBI oversight hearings of the Subcommittee on Security and Terrorism to make his concerns evident both to

the FBI and to the rest of us on the subcommittee. He and I have
14

some ideas about where improvements can be made, and I look forward to working with my distinguished colleague from Vermont on

those changes, and with you, Mr. Chairman, to achieve those ends.

As a first step, however, it is my opinion that we consider it imperative to provide an FOIA exemption for foreign counterintelligence

information.

The need for FOIA exemptions for information related to terrorism and foreign counterintelligence was recognized during the

Carter administration, when then Attorney General Benjamin Civiletti proposed establishing a moratorium on access through the

Freedom of Information Act to any records related to terrorism, organized crime, and foreign counterintelligence. The need for the exemptions was also identified by the Reagan administration when it

undertook its comprehensive review of the Freedom of Information

Act. Provisions for the exemptions for terrorism and foreign counterintelligence information were included in S. 1751, which you,

Mr. Chairman, introduced on behalf of the administration on October 20, 1981. Moreover, the Constitution Subcommittee incorporated exemptions on terrorism and foreign counterintelligence from S.

1751 into S. 1730, which you had introduced 2 weeks earlier.

After extensive hearings, the Constitution Subcommittee approved S. 1730, including the exemptions for terrorism and foreign

counterintelligence information, on December 14, 1981. During the

course of the seven hearings•three more hearings, incidentally,

than were held in 1965 when the FOIA was originally passed•the

subcommittee heard testimony from more than 50 witnesses who

represented nearly every conceivable viewpoint on the strengths

and weaknesses of the act.

When the terrorism and foreign counterintelligence exemptions

were omitted from S. 774, I went along; I advised my colleagues on

the Judiciary Committee that although I would support S. 774 as a

compromise measure, with a lot of good provisions, the Senate and

House needed to act quickly to protect information gathered for

foreign counterintelligence purposes. And for that reason, I did introduce S. 2395.

As early as 1979, when Attorney General Civiletti and the Carter

administration were pressing for a moratorium on the release of

terrorism and foreign counterintelligence data, FBI Director William Webster revealed that, for that year alone, he knew of 125

cases in which individuals refused to provide the FBI with information because of fears that their names would be released under an

FOIA request.

On December 10, 1981, in executive session before this subcommittee, Judge Webster described in detail several cases in which

hostile foreign intelligence services, organized crime figures, members of terrorist groups, and others used the Freedom of Information Act to identify FBI informants and to frustrate FBI investigations.

The chairman then asked Judge Webster to provide for the

public record a document that would reveal to the maximum

extent compatible with classification and national security considerations, the specific examples about which he testified. An 80-page

document, which I have here, is the result. Although the examples

it contains will shock you, Mr. Chairman
15

Senator HATCH. Let us put that document in the record.

Senator DENTON. I understand it already is included in the

record, Mr. Chairman. It is this one right here, called, "U.S. Department of Justice/Federal Bureau of Investigation Impact of the

Freedom of Information Act Upon the Federal Bureau of Investigation," and I understand it was included in the previous hearing.

Senator HATCH. Yes it was.

Senator DENTON. This report was sanitized, and the FBI found it

not possible to chronicle on the public record the manner in which

the Soviet KGB and the Soviet Communist Party have used the

act. Nonetheless, the examples contained in the document are astounding.

For example, a few years ago, an FBI field office notified FBI

headquarters that an informant, who had furnished considerable

information about the Weather Underground, was very upset about

the Freedom of Information Act. He told agents that he had

learned that former and current radicals were filing FOIA requests

in an attempt to identify informants.

I have heard, perhaps, 100 stories like this, Mr. Chairman. His

information was correct. From 1975 through 1981, over 70 members

or former members of the Weathermen made FOIA requests of the

FBI. In addition, the FBI released over 60,000 pages of documents

about the Weather Underground to a west coast attorney who represents individuals connected with the Weather Underground.

On October 20, 1981, a Brinks' guard and two police officers were

killed during the commission of an armored car robbery in Rockland County, NY. Among those who have been charged, convicted,

or are being sought in connection with the incident are persons

who were associated with the Weather Underground. The individuals who allegedly participated in the organization with which

they were associated have made thorough use of the Freedom of Information Act. Five individuals made requests to the FBI for documents about themselves, and four of them received documents from

the FBI pursuant to the Freedom of Information Act.

In another example, a person involved with an extremely violent

terrorist network, and who suspected informants in the group,

stated that, in an attempt to identify the informants, multiple

FOIA requests would be submitted to the FBI, and the responses

would be analyzed. The group has in fact begun submitting requests.

In yet another example, an FBI agent conducting a foreign counterintelligence investigation about possible loss of technology to a

hostile foreign country got in touch with an American businessman

about a research program being conducted by his company. The

businessman was cooperative, but he refused to release a copy of a

company business report to an agent, because he feared that business competitors could obtain the report through the FOIA and

learn about his company's research activities.

I could cite more examples, Mr. Chairman, but the document is a

matter of public record and already has been received by the subcommittee. Suffice it to say that the problem still exists and still

begs for legislative relief.

Appearing before the subcommittee on April 21, 1983 to testify

on S. 774, which by then no longer included exemptions for terror-
16

ism and foreign counter-intelligence data, Judge Webster said that

although the bill protected many of his bureau's interests, he still

believed that further FOIA protections for terrorist and foreign

counterintelligence investigations were necessary.

When he appeared before the Subcommittee on Security and Terrorism last month during the FBI authorization and oversight

hearings, Judge Webster observed that he has been seeking exemptions for information in the areas of foreign counterintelligence

and terrorism for 6 years, and that he would still welcome those

exemptions if they could be obtained.

The FBI, Mr. Chairman, is not the only agency that needs these

exemptions. Francis "Bud" Mullen, the Administrator of the Drug

Enforcement Administration, has for the past 3 years been seeing

more and more involvement by terrorist groups in drug trafficking

all around the world. In his opinion, the connection between terrorist activity and drug trafficking is broadening. It is particularly evident in the use of illicit narcotics revenues to finance arms purchases by terrorist organizations. According to Mr. Mullen, the

relief that S. 2395 would provide is "essential to law enforcement."

As you are aware, Mr. Chairman, there is not only a broadening

nexus between terrorist activity and drug trafficking, but also

growing evidence, developed largely by the Subcommittee on Security and Terrorism, of the involvement of foreign intelligence services in the drug business.

The DEA has conducted a detailed analysis of the effect of the

Freedom of Information Act on DEA investigations. The report

concluded that the FOIA has "a significant adverse effect on DEA's

operation," that 60 percent of all FOIA and Privacy Act requests

received by the DEA originate with criminal elements, and that 14

percent of DEA's investigations are "aborted or significantly compromised by FOIA-related problems."

The DEA report is also a matter of public record, and the subcommittee has a copy. For the sake of expediency, I will not cite

details from it.

In addition to providing exemptions for terrorism and foreign

counterintelligence information, S. 2395 also addresses the problems faced by agencies when they are required under the provisions of the act, to conduct a line-by-line, word-by-word review of a

record in an effort to provide segregable portions of that record to

an FOIA requester.

Judge Webster refers to that procedure as a "mine field process

of analysis." Indeed, the review frequently requires the release of

often seemingly innocuous bits of information within a document

which, when pieced together with other information, could conceivably provide the one item of information that a hostile intelligencegathering team needs to complete its mosaic.

The fact that hostile intelligence analysts can use the "mosaic"

or "jigsaw puzzle" analysis to their benefit is well recognized by

the courts in FOIA case law. For example, in Halperin v. Central

Intelligence Agency, the U.S. court of appeals for the DC circuit

noted:

The Agency's general rationale for refusing to disclose rates and total fees paid to

attorneys is that such information could give leads to information about covert activities that constitute intelligence methods. For example, if a large legal bill is in-
17

curred in a covert operation, a trained intelligence analyst could reason from the

size of the legal bill the size and nature of the operation. This scenario raises a reasonable possibility of harm to the covert activity following from disclosure of the

size of legal fees. We note that the CIA's showing of potential harm here is not so

great as its showing concerning attorney names. We must take into account, however, that each individual piece of intelligence information, much like a piece of

jigsaw puzzle, may aid in piecing together other bits of information even when the

individual piece is not of obvious important in itself. When combined with other

small leads, the amount of a legal fee could well prove useful for identifying a

covert transaction.

I might remark, Mr. Chairman, that in the field of military intelligence, this principle of "mosaic" has long been recognized, and

men have been admonished against giving even unclassified information, either to the enemy while a prisoner of war, or in dealing

with foreign agents in the United States, because of that "mosaic"

problem. It takes the enemies of the United States great time and

effort and manpower to put together unclassified information in

the first place, but often, a piece of unclassified information, added

to a series of classified and unclassified information, will complete

a puzzle in the military sense. This "mosaic" concept has been recognized since the Revolutionary War, as far as I know, in terms of

what you can and cannot divulge to the enemy. And yet, in the

field of terrorism and foreign counterintelligence, where security is

at least as sensitive, we are risking men's lives, we are blowing

covers, we are blowing cases incidental to a very justifiable interest

in the privacy of individuals and the first amendment. And I am

not trying to in any way insinuate that the Freedom of Information Act is not needed. I am simply trying to point to what should

be, I believe, a self-evident need to provide exemptions for these

two features.

This subcommittee has been advised of the danger during previous hearings. I am sure you will recall the testimony of Francis J.

McNamara, a widely respected expert on domestic and foreign intelligence and subversion. In pointing out to the subcommittee the

"human error factor" involved in processing records for release

under the FOIA, Mr. McNamara testified that he had:

Seen FBI documents released under the FOIA in which certain names that should

have been eliminated were not, I am sure inadvertently. There is at least one case

in which the names of FBI agents who carried out intelligence assignments should

have been deleted from FOIA documents, but were not. As a result, they ended up

as defendants in a lawsuit. FBI documents turned over to the National Caucus of

Labor Committees, U.S. Labor Party, revealed the AFL-CIO had given the FBI information on the group and also contained the name of a university professor who had

been a Bureau source•with the result that he came under attack by the group.

The "human error factor" is a particularly glaring problem

where voluminous amounts of records are being released under judicially imposed enforcement of the time constraints of the act.

You will recall, for instance, when Judge Webster was testifying

before this subcommittee about the Rosenberg/Meeropol FOIA

case, where the sons of Julius and Ethel Rosenberg, the convicted

Soviet atomic spies, had requested all FBI records on their parents.

In the ensuing litigation, the judge in the case ordered the FBI to

release documents at the rate of 40,000 documents a month. Judge

Webster pointed out in that case there was "a great potential for

human error," in his words.
18

By deleting the segregability provisions, then, the potential for

human error, the "minefield process of analysis" referred to by

Judge Webster, can be avoided. Once records are determined to be

exempt from an FOIA request under one or more of the statutory

exemptions, agencies will no longer be required to conduct an exhaustive word-by-word review. In addition to avoiding the problems

of inadvertent disclosure, this provision will provide a collateral

benefit in that it will reduce the costs of reviewing documents that

are requested. Those costs, unlike the costs for search and reproduction, are currently not recoverable under the act.

The American system favors open government to the maximum

extent consistent with the demands of reason and common sense.

Balanced against the openness which is so vital a part of American

democracy, we must weigh valid countervailing concerns about and

indeed, even the public interest in, legitimate and well-established

intelligence and law enforcement needs.

I fear that during the intervening years since the FOIA was enacted, the sense of balance to which I refer has eroded.

Our Government is charged with providing for the common defense and promoting the general welfare. During the past few

years, in my view, we have been attempting to provide for the general welfare at the expense of our common defense.

Our Government has no higher duty, in my opinion, than to provide for the common defense. It is in that context and in that spirit

that I offer S. 2395 for your consideration and solicit your support

and cosponsorship of it.

Thank you once again, Mr. Chairman, for the opportunity to

present my views before the subcommittee this morning, and I

hope these views supplement the record and precisely state the

case in favor of the exemptions.

Senator HATCH. Thank you, Senator Denton.

[The following was received for the record:]

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, March 16, 1981

DEAR COLLEAGUE: I recently introduced S. 2395, a bill to amend and improve the

Freedom of Information Act (FOIA) by providing a specific exemption disclosure for

information related to terrorism and foreign counterintelligence. This legislation

also deletes a current provision of 5 U.S.C. 552 that requires the release of segregable portions of a record to an FOIA requester.

On December 10, 1981, FBI Director William Webster testified before the Subcommittee on The Constitution of the Senate Judiciary Committee. He described in

detail cases in which hostile foreign intelligence services, members of terrorists

groups, and others have used the FOIA to identify FBI informants and frustrate FBI

investigations.

As early as 1979, Judge Webster revealed that, for that year alone, he knew of 125

cases where individuals refused to provide the FBI with information because of

fears that their names would be released under an FOIA request.

I firmly believe that, in order to more effectively deal with terrorists and foreign

intelligence operatives, who are increasingly sophisticated in their intelligence-gathering methods, and who rejoice at the ease with which they are able to obtain sensitive information in our open, democratic society, we need to close some loopholes in

the law that allow them access to information they should not have. Additionally,

such requests have a chilling effect on informants who fear exposure through information released under the FOIA. These informants have become increasingly hesitant about cooperating with our law enforcement agencies.

Last year, when we were considering other amendments to the FOIA, I advised

my colleagues on the Judiciary Committee that the Senate and House would need to

act very soon to protect highly sensitive information gathered for foreign counterin-
19

telligence purposes. In some cases, the response to an FOIA request amounts to acknowledgement by the FBI that a file exists on a specific subject. Thus hostile intelligence services are put on notice that an investigation is under way or has taken

place.

S. 2395 also addresses the problem of segregability. As the law stands now,

records requested under the FOIA must be reviewed line-by-line to determine releasability. This type of review frequently requires the release of often seemingly

innocuous information within a document, which, when pieced together with other

information, could conceivably be the piece of information a hostile intelligencegathering team needs to complete its mosaic.

The time has come to stop what amounts to giving help to terrorists and foreign

intelligence services of hostile governments through provisions in a law that was

never intended to be used for that purpose.

I ask that you support this bill and invite your cosponsorship of it. A copy of the

bill is attached for your convenience. If you have any questions or would like to be a

cosponsor, please call me, or have a member of your staff contact Jerry Everett or

March Bell at 224-2673.

Sincerely,

JEREMIAH DENTON,

U.S. Senator.

Senator HATCH. I failed to recognize Senator Leahy earlier, and I

apologize to him for that. Senator Leahy, do you have any opening

remarks you would care to make?

Senator LEAHY. Yes; I do, most of which I will put in the record,

Mr. Chairman, other than to say that Senator Durenberger and I

are proposing an amendment to the FOIA, to require an agency to

find that national security documents withheld "could reasonably

be expected to cause identifiable damage to national security." This

amendment restores the identifiable damage test contained in Executive Order 12065 for FOIA declassification decisions. It would

make explicit the kind of balancing test that has always characterized critical agency decisions under FOIA. It would exempt national security matters "in which the need to protect the information

outweighs the public interest in disclosure." I think that would

answer the criticism of those who fear that judges will impose unreasonably high standards of specificity and thereby harm national

security.

I think it codifies commonsense, and I applaud Senator Durenberger for it.

I will put the whole statement in the record, but at whatever appropriate time, I will have some questions for Senator Denton.

Senator HATCH. Without objection, so ordered.

[The following was received for the record:]
20

PRFPARED STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT,

I1R. CHAIRMAN, THE BALANCE BETWEEN THE NEEDS OF NATIONAL

SECURITY AND THE PUBLIC'S NEED TO KNOW HAS ALWAYS BEEN A DELICATE

ONE. THIS COMMITTEE'S HARD WORK ON FOIA LEGISLATION IN THIS

CONGRESS AND THE LAST HAS BROUGHT THIS ISSUE HOME TO ALL OF US.

BUT S. llh DID NOT PURPORT TO DEAL WITH THE ISSUES RAISED BY THE

BILL NOW BEFORE US, S, 1335.

THE FREEDOM OF INFORMATION ACT ESTABLISHES A PRESUMPTION IN

FAVOR OF ACCESS, CONSTRAINED ONLY BY A SERIES OF NARROWLY-DRAWN

EXEMPTIONS, WHERE THE NEED TO KEEP GOVERNMENT INFORMATION SECRET

CLEARLY OUTWEIGHED THE PUBLIC'S RIGHT TO KNOW.

PRESIDENT REAGAN'S EXECUTIVE ORDER 12356 ON CLASSIFYING NATIONAL

SECURITY INFORMATION HAD THE EFFECT OF REVERSING THAT PRESUMPTION,

IN DOING SO, THE ORDER REVERSED A TREND TOWARDS GREATER OPENNESS

OF 30 YEARS, A PERIOD WHICH SPANNED SIX ADMINISTRATIONS.

EXECUTIVE ORDER 12356 DID MORE THAN JUST TO CREATE THE RISK THAT

ZEALOUS OFFICIALS WILL OVERCLASSIFY. FOIA HAS ONLY WORKED BECAUSE

THE BURDEN ON AN AGENCY TO JUSTIFY A DECISION IN FAVOR OF SECRECY

PUTS A MAMMOTH GOVERNMENT AND ITS CITIZENS ON AN EQUAL FOOTING.

SHIFTING THE BURDEN TO THE PUBLIC WILL HAVE THE INEVITABLE EFFECT

OF UPSETTING THAT BALANCE AND GIVING GOVERNMENT ITS NATURAL

ADVANTAGES IN THE FIGHT FOR ACCESS: SIZE AND RESOURCES.

CONGRESS NOW HAS THE OPPORTUNITY, AND I BELIEVE THE STRONGEST

DUTY, TO RESTORE THE FOIA EXEMPTION FOR NATIONAL DEFENSE AND

FOREIGN POLICY MATTERS TO ITS FORMER MEANING AND TO MAINTAIN

THE PRESUMPTION OF OPENNESS. AND YET, BUILDING ON MORE THAN

15 YEARS OF EXPERIENCE WITH THE ACT, WE CAN MAKE THOSE CHANGES

IN A WAY THAT PERPETUATE AND INDEED STRENGTHEN THE PROTECTION

REQUIRED FOR DOCUMENTS THAT CLEARLY AND LEGITIMATELY REQUIRE

CLASSIFICATION ON SECURITY GROUNDS.

SENATOR DURENBERGER AND I ARE PROPOSING AN AMENDMENT TO

THE FREEDOM OF INFORMATION ACT THAT WOULD REQUIRE AN AGENCY TO

FIND THAT NATIONAL SECURITY DOCUMENTS WITHHELD "COULD REASONABLY

BE EXPECTED TO CAUSE IDENTIFIABLE DAMAGE TO NATIONAL SECURITY."

THIS AMENDMENT RESTORES THE IDENTIFIABLE DAMAGE TEST CONTAINED

IN EXECUTIVE ORDER 12065 FOR FOIA DECLASSIFICATION DECISIONS.
21

SECOND, OUR PROPOSAL WOULD MAKE EXPLICIT THE KIND OF BALANCING

TEST THAT HAS ALWAYS CHARACTERIZED CRITICAL AGENCY DECISIONS

UNDER FOIA. OUR BILL WOULD EXEMPT NATIONAL SECURITY MATTERS

"IN WHICH THE NEED TO PROTECT THE INFORMATION OUTWEIGHS THE PUBLIC

INTEREST IN DISCLOSURE." COURTS REVIEWING AGENCY COMPLIANCE

WITH THE BALANCING TEST REQUIREMENT WOULD NOT BE ABLE TO SUBSTITUTE

THEIR JUDGMENT FOR THAT OF THE DECISIONMAKER BUT WOULD BE LIMITED

TO ASCERTAINING THAT THE TEST WAS IN FACT MADE. THIS SHOULD

CLEARLY ANSWER THE CRITICISM OF THOSE WHO FEAR THAT JUDGES WILL

IMPOSE UNREASONABLY HIGH STANDARDS OF SPECIFICITY AND THEREBY

HARM NATIONAL SECURITY.

I ALWAYS HESITATE TO URGE MY COLLEAGUES TO CODIFY COMMONSENSE,

AS THIS BILL ADMITTEDLY DOES. BUT THE PRESIDENT'S EXECUTIVE

ORDER HAS MADE THIS PROPOSAL NECESSARY. STATUTES LIKE THE

FREEDOM OF INFORMATION ACT WORK BEST WHEN THEY ENJOY THE GOOD WILL

OF THE ADMINISTRATION AND THE AGENCIES CHARGED WITH THEIR

IMPLEMENTATION. IN THE ABSENCE OF EVIDENCE THAT THE PRESUMPTION

OF OPENNESS WILL BE HELD HIGH AS A STANDARD, THE PRESENT BILL

BECOMES CRUCIAL.

I THINK THAT BOTH GOVERNMENT AND REQUESTERS WOULD BENEFIT

FROM ADOPTING THE CAREFUL STANDARD SENATOR DURENBERGER AND I

HAVE SET FORTH IN THE PRESENT BILL. IF THIS STANDARD BECOMES

PART OF THE FOIA, BOTH NATIONAL SECURITY AND THE PRINCIPLE OF

OPENNESS WILL BE THE BENEFICIARIES,

I WANT TO OFFER MY PERSONAL THANKS TO SENATOR DURENBERGER,

WHOSE ROLE ON THE INTELLIGENCE COMMITTEE HAS BEEN VITAL AND WHOSE

PERCEPTIONS ABOUT THE BALANCE BETWEEN THE NEEDS OF SECURITY

ON THE ONE HAND AND THE PUBLIC'S RIGHT TO KNOW ON THE OTHER HAVE

BEEN AN EXAMPLE TO ALL OF US.
22

Senator HATCH. Let me just ask Senator Denton one question,

and then I will turn to you, Senator Leahy•and Senator Durenberger, we are going to take your statement right after Senator

Denton's.

Senator Denton, the U.S. News & World Report devoted the

cover of its January 9 issue to the prospect that the U.S. mainland

might become the next target for widespread terrorism. Do you

think that this is a genuine prospect, and do you think that this

bill will have any influence on that prospect?

Senator DENTON. There are very few targets left for terrorism,

other than the mainland of the United States. Certainly, terrorism

is rampant throughout the Western Hemisphere except, I would

say, in North America. It is rampant in many parts of Africa; and

throughout Southeast Asia. If you consider that totalitarian Communist societies are ruled by terrorism, which I think is a valid assumption, then all you have left is the free world and Europe. And

you have seen Turkey, Italy, West Germany, and other free nations

subject to, perhaps, 50 times the terrorism per capita or proportionality and sizewise, than the United States has undergone. So, we

may have been preserved, Mr. Chairman, in my view, up through

this point, as a relatively sleeping giant, in that if I were a Soviet

planner•and their average age is even older than mine, by maybe

15 to 20 years•they have been around a long time. They do not

play chess carelessly. They are, Mr. Chairman•and this is the

foremost conclusion of mine since I have come to the Senate•eroding U.S. interests by conducting terrorism abroad at a rate which,

were the American public aware of that rate, we would be very,

very aware and conscious of the need to squelch terrorism not only

within our own continental limits, but to take a more active role,

not necessarily militarily, but an active role in supporting antiterrorist activities abroad, where our interests are being hurt very severely.

But the very questions of yours goes to the heart of the problem,

of when the Soviets would find it most advantageous to awaken the

United States to that fact. I am coming out with facts soon which I

hope you will find interesting•others have•former Secretary

Haig was in my office the other day, and I showed him some quantification of the results in the U.S. economy of certain derivations

of terrorism, and he was amazed and said he had been working on

that in general, but did not have it quantified that much.

It is my belief, Mr. Chairman, that we would not have had 241

marines killed in Beirut had the United States been subjected to

something like half the terrorism that Turkey has. We would have

thought about such an attack as being a likelihood, a contingency

against which we should protect ourselves.

So I did not share in the condemnation of the marines or the

Marine Commandant for not dreaming that up; I think that the

marines suffer from the same syndrome that the rest of us do.

Your question deals directly with that, and I cannot predict

when the Soviet Union would choose to stop cooling major efforts

of terrorism against the United States. They do not direct worldwide terrorism, but to the degree that it exists, exported from Nicaragua into El Salvador, certainly they are involved through

Havana and Managua. I do not believe they would want it to
23

happen, or have not wanted it to happen, up to now, because they

want us to remain a sleeping giant. However, we do have Cuba assisting drug traffic into the United States, with one purpose of that

being the bartering for arms for the M-19 terrorists in Colombia,

and others in Latin America. We have proven that Castro and the

very top of the Cuban Government are involved with that. It has

not been given a great deal of attention in the press, but that has

happened. We have terrorism from•allegedly, and I think somewhat convincingly established evidentially, at least in the early

stages•of Soviet use of surrogates such as Bulgaria, and some very

hideous terroristic plots, including complicity in the assassination

attempt on His Holiness, John Paul II.

So the question you ask is the $64 trillion question. It is self-evident to you, to me, to the Soviets, that our open society, our very

small percentage of police, FBI, and so on, lends itself to terrorism.

The question is, When do they want to let us see into the glaring

horror, the maw, the mouth, of terrorism?

I do not know. I do know that four remarkably tempting events

occur this year, which organizations other than those which are

controlled by, in any way, the Soviet Union, such as the Armenians, who might take off against the Turks, such as any number of

groups in the Mideast, which may or may not have any support in

the Soviet Union•even if the Soviet Union would be against their

striking, they could choose to strike with devastating effects at any

one of those four events with unprecedented results.

So I think you have asked a good question, and I do not consider

myself capable of making the prediction, but I think that the remarks with which I surrounded my effort to get at your question

are important ones.

Senator HATCH. Thank you.

Senator Leahy?

Senator LEAHY. Thank you, Mr. Chairman.

Senator Denton, I appreciate your support of S. 774. I know you

are familiar with the provisions which relate to the law enforcement community.

Are you aware that the bill contains a change in the language of

exemption 7(a) to provide that information which could reasonably

be expected to interfere with a law enforcement investigation could

be withheld?

Senator DKNTON. I am informed that the problem is that some of

those investigations are terminated, and when they are terminated,

they are subject to the kinds of disclosure to which I have been referring.

Senator LEAHY. Well, are you aware that the FBI believes that

this change will help protect the random bits of information which,

in the hands of a knowledgeable criminal like a person in organized crime, with their banks of computers and all, could lead to

the identification of an informant?

Senator DENTON. I am sorry, I did not catch the first part of the

question.

Senator LEAHY. Are you aware that the FBI believes that the

change we made in S. 774 would help protect those random bits of

information and that before, there had been a concern that organized crime especially could take these random bits of information
24

and find out the identity of an informant•are you aware that with

the changes we have made in S. 774, the FBI now feels that we

have improved that situation substantially?

Senator DENTON. I am aware and was elated by the progress

made toward organized crime in this respect, to which you seem to

be directing the bulk of your attention. But I am also aware that

the FBI, as I have reviewed throughout my statement, is still anxious to get provisions made by which would be exempted the areas

of foreign counterintelligence and terrorism.

Senator LEAHY. Are you also aware, though, that the same exemption 7(a) applies to all investigations, including investigations

of terrorism?

Senator DENTON. This all seems to have to do with the investigations being closed, Senator Leahy, and once closed, subject to the

requests for information which S. 2395 would guard against.

Senator LEAHY. Well, are you also aware that it contains language in the 7(d) exemption which clarifies the Bureau's authority

to protect confidential sources; it contains a provision which excludes third party requests for informant files, whether they are

maintained under name or other personal identification.

The reason I ask these questions•it seems that we have answered most, if not all, of the concerns you have raised, and this, of

course, is an area that Senator Hatch and I, on the law enforcement part, worked very closely on, with a great deal of cooperation

from the Attorney General and the Director of the FBI

Senator HATCH. Senator, if you could yield on that for a second.

Senator LEAHY [continuing]. And I think we were trying very

much to correct the problems. I am hoping that we do not end up

now so scattering our direction that we run into a situation where

nothing ends up passing this Congress.

Senator HATCH. If you would yield on that point, Director Webster did say that he thought S. 774 would solve many problems, but

he also indicated that there are other areas where reform is needed

or may be needed, and he listed terrorism as one of those areas. He

seemed happy with the progress of S. 774, but I do not think he

meant to foreclose any other corrections or reforms.

Senator DENTON. That is my belief, Mr. Chairman, if I may say

so in answer to Senator Leahy. If things were all that honky-dory, I

do not know why the CIA is requiring in S. 1324 protection of

themselves with respect to disclosures involving counterintelligence.

Senator LEAHY. Well, of course, the Director of the CIA stated

publicly that he prefers doing away with FOIA entirely, so you

might feel that probably has some involvement there. But we have

worked very closely with the CIA and others, in trying to get

through legislation•and did get through legislation, certainly,

through the Senate Intelligence Committee•which, if I take their

public and private testimony at face value, as I do, they were in

favor of. But I wonder whether perhaps a question might be raised

that your legislation may go too far. Your bill would exempt from

disclosure records about medicare fraud or records about a State

government which allows jobless workers to continue receiving extended unemployment benefits.
25

Do we really want that to happen, because so often, those kinds

of fraud things are turned up by the press or independent investigators or others, and not by the congressional watchdogs. I raise

that question.

Senator DENTON. Well, if the Senator is reading my bill, I do not

know where he is reading anything about Social Security. This is

one of the most brief bills in legislative history, and the operative

thing which it adds is "related to the investigation of terrorism or

concerned with foreign counterintelligence operations," period. It

does not have any effect on Social Security or any of the other matters you mention.

Senator LEAHY. Here is a copy of the exact bill itself. The fourth

line, by striking out the second sentence, "thereof," if you go back

to the bill and read what that does, it eliminates the requirement

of reasonably segregated documents. Couldn't that cover just about

anything? Are we painting with too broad a brush?

Senator DENTON. My understanding is that that "reasonably segregate" part has to have fallen under a previously specified exemption before it becomes an applicable clause or phrase.

Senator LEAHY. But it does, of course, apply to every record in

the Federal Government.

I would like to put a number of articles into the record for which

references could not have been written if the requirement to reasonably segregate documents did not exist.

Senator HATCH. Without objection, we will put those in the

record.

[The following were received for the record:]
26

[Fran the Vermont Vanguard Press, April 8, 1980]

The Census-FBI Pipeline

Copyright I860 Vmurf ggg

BURLINGTON * ,

INFORMATION PRO

vided to the government on

census forme issupported to

be strictly confidential for 72

years. On the forms centtojust

about every American, the

D partment of Commerce says

that census workers can be

fined or imprisoned for violating this 60-year-old law.

Nevertheless, a Burlington

man has discovered that in

1972 the Federal Bureau ofInvestigation (FBI) used a "spot'

check" of the 1970 census to

identify him during an investigation of a "commune" the

Bureau considcreda gathering

spot for "extremists." In documents obtained via_the-Erefr

dom of Information Act

<KOIA>. Jed Lowy. a family

nurne practitioner al the

Community Health Center,

found that the FBI was attempting to identify the driver

of a blue 1970 Vnlkswagon..

"This vehicle has previously

been observed at New Left locations in Vermont," notes a

report dated May 19.

To find out who was driving

the car, the Albany FBI office

contacted its Newark, N.J,

counterpart. Discovering that

the car belonged to a 53-yearold man (Lowy'e father), they

initiated a search to see who

might be driving it.

A report tram-Newark toAlbany, rimed June 16, contains

the following admission: "A

(deleted) to (deleted) the (deleted) of a spot check for the 1970

census resulted in a (deleted)

with the (deleted) from whom

the following was obtained."

The information included

l.owy'» name, the fact that he

had finished school and continued to live in Vermont, and

that he drove the family VW.

How much information came

from the census is unclear, but

the FBI explained in a letter to

l.owy that the deleted portions

of the memo referred to other

people whose privacy rights

were being protected and the

* ' C c^*--*

inolino &Su±

FBI Memo: What's a tpot check?

were used.

Once the FBI hud Lowy'R

name, they were able to zero in

on him through the New Jersey Department of Motor Vehicles. The investigation into

his associations continued for

another six months.

The file on Lowy was not

closed immediately, despite

the lack of any direct evidence

of his involvement with "extremists," because the FBI

thought that he was Partowner of the Fresh Ground

Coffee House. It was thought

at the time to be "a known contact «p*4«t- -£o*-.Mbr«mj*t(«4c)

and associated with the Red

Mountain Green Commune...

in view of his identification as

a partner in the coffee house it

is recommended that this case

be reopened for additional investigation..."

Later in the same year, two

FBI agents conducted a physical surveillance of the restaurant, and according to Lowy

and others, eventually tried to

interview several people who

frequented the place. Lowy'e

file was closed in December

1972.

Although there have been

exceptions to the confidcntislIty law governing use ofcensus

roundci] up in 19-10). the In w for

decades horn hern Unit no rintn

can be revealed to anyone outside the Bureau of the Ccm-sus

in a form that identifies individuals. Jim Price of the FBI's

Washington, D.C. office said,

when asked aboutthe Bureau's

policy, that "the FBI does not

utilize census information. Period." Told about the existence

ofthe Lowy memo. Price asked

for time to do some research

SoTflu

b

"

quenUy,aid thnt *•

r BI has not had acres* to the

census, but that he is "not at

liberty to discuss documents

that the FBI has." •_^

Price did not deny the exist '**

ence of the memo or the mention ofthe census "spot check."

It is not known whether this

alleged violation ofcensuslaw

is an isolated occurrence or

part ofa pattern. Linda l/>t? of

the Campaign for Political

Rights says that researcher'*

on FBI activities have so far

found no otheT reference* to

the census in document* from

the Bureau.

Lowy is not sure what he or

his father will do about the

census issue, but plans to secure legal advice. "I just think

this should become public in

formation.** he say*.
27

[Fran the Vermont Vanguard Press, April 22, 1980]

Nation

FBI's Census Cover

May Spark Probe

By Greg Guma

More light was shed on the

case of the 1970 census, the

FBI and a memo uncovered

by a Burlington man when the government released a less deleted version of the controversial document

last week.

After Jed Lowy discovered a refer- .

ence to census "spot check" in a document obtained via the Freedom of -

Information Act(FOIA), the FBI and

Census Bureau denied that confidential data had been used. It took a week,

however, for the government to take

action to clear up the case. That in-.

olved sacrificing portions of the

memo which had been deleted under

legal exemptions. What the memo

• shows is that, "A pretext call to 640

Overland Avenue (the'Lowy family

home in New Jersey), under the aua- '

picies of a spot check for the 1970 census, resulted in a conversation with

the maid, EDNA PRATHER, 517

South 21st Street, Irvington, NJ.V J

from whom the following was obtained." , • .-. " '

Posing as a census worker, the FBI

agent, whose name is still deleted,

apparently learned from the maid :

that Jed Lowy was living in Vermont.

and driving the family Volkswagen. -

The vehicle,seen at homes and public•

places under surveillance, had -

sparked the so-called New Left investigation.

The FBI says the use of "pretext

interviews" was legal, but that FBI

Director William Webster has reemphasized to all Geld officesthatposing

as a census worker is now prohibited.

Nonetheless, Rep. James Jeffords has

Jed Lowy'* file showed a pattern of

surveillance and yet another -

FBI abuse.

..written to the chairpersons of subcommittees on the census and constitutional rights, suggesting that

"oversight hearings may well be in

order." Specifically, Jeffords wantsto

know whether such impersonation

was (or is) a common practice and if

posing as an employee ofsome other

federal agency should be formally

prohibited in the pending FBI charter.

Despite the Bureau's claims, some

congressionalstafferssay thatposing

as a census worker violates census

law. Ifthat is correct, the techniques,

'according to 1977 FBI guidelines,

weren't supposed to be covered up in

the first place. •
28

[From the New York Times, Jan. 9.1983]

NEW CASE OF NAZI CRIMINAL USED AS SPY BY UNITED STATES IS UNDER STUDY

(By Ralph Blumenthal)

For the second time in a year, the Justice Department's Office of Special Investigations has begun an inquiry into the use of a Nazi war criminal by American intelligence authorities after World War II.

The new investigation involves Robert Jan Verbelen, a Belgian SS officer and

police commandant who was tried in his absence, convicted and sentenced to death

for war crimes by a Belgian military court in 1947.

According to newly available United States Army documents, Mr. Verbelen

worked for American counterintelligence in Vienna under a false identity from 1947

to 1956. Whether his alias was assigned to him by American agents who knew who

he was•as he maintains•or whether he was successful in fooling his intelligence

superiors for nine years•as Army documents indicate•are among the questions

under investigation.

The 72-year-old Mr. Verbelen, who still lives in Vienna, said in a telephone interview Friday that he had organized an American spy network of 100 Soviet-bloc

agents in Vienna after the war. But he denied having committed any of the crimes,

including killing of Jews and mistreatment of two captured American pilots, for

which he was convicted in what he portrayed as a seven-minute trial. In 1965 he

was cleared by an Austrian court in the slaying of seven members of the Belgian

underground.

ARMY RECORDS HEAVILY CENSORED

The Army records long classified and still heavily censored, were obtained

through a Freedom of Information request by the Anti-Defamation League of B'nai

B'rith. Justin J. Finger, an official of the Jewish rights group said, in calling for a

Federal investigation that Mr. Verbelen still "speaks and writes regularly on proNazi issues." Mr. Verbelen disputed the charge.

Stephen S. Trott, an Assistant Attorney General in the Justice Departments

criminal division wrote to the Anti-Defamation League late last month that a

"review" of the case was under way. It marks the second time that the special investigations office, formed in 1978 to deport Nazi war criminals living illegally in

America, has been directed to examine a case involving someone outside the country.

Last August, the special investigations office issued a long report on its findings

that American counterintelligence authorities in West Germany had employed

Klaus Barbie, a former Gestapo leader in occupied France, and helped him escape to

South America in 1951. Mr. Barbie, who had also been tried in his absence for war

crimes and sentenced to death by a French court, was extradited from Bolivia to

France last February and is now facing a new trial in Lyons.

An examination of the Verbelen records obtained from the Army suggests that, as

with the Barbie case, at least some intelligence officials were ignorant of their

agent's true identity. But because of the substantial material blacked out of the

Army documents, many aspects remain hidden. It is not clear, for example, what

the Army meant when it stated in some of the documents that Mr. Verbelen "was

considered suitable for rehire."

DESCRIBED AS A NAZI OFFICER

Army intelligence files describing Mr. Verbelen's true identity say that he was

born April 5, 1911, in Gerent Bei Lowen, Belgium and that he served as an obersturmfuhrer in both the general SS, or Nazi elite guard, and the SD, the Nazi security service. The records say he commanded a police battalion and was forming a

Flemmish storm brigade when German troops occupied Belgium. During the Allied

advance he fled to Germany and was seen in Berlin in November 1944.

Mr. Verbelen said in the intervew, conducted in German, that as the Nazis retreated before the Allied advance he fled to Germany and served as chief of police,

with the "theoretical" rank of general, in a Flemish exile government.

Mr. Verbelen's indictment before a military court in Brussels in 1947 charged him

with having ordered and taken part in killings and torture and with having attacked a farm where two American pilots were hiding. The pilots, identified as

Lieut. Nuncio B. Street and Lieut. Eugene W. Dingledine, were said in court papers
29

cted to physical tortures" and sent to the Buchenwald concentrasre said to have been liberated later by the Russians in Berlin.

Mr. Verbelen guilty of 67 charges and condemned him to "death

1 in the interview that he was just an anti-Resistance officer who

ds of Flemish officers unjustly condemned to death in mass postal the allegations involving the fliers "a shameless lie" and said

in American pilot during the entire war.

g to Army records, Mr. Verbelen was hired as a bartender in a

Jrs' club in Zellam See, Austria. Whether he arrived under his

»r. He said in the interview that he had escaped from Germany

it that he had told the Americans in Austria his true name,

he began to work with what the Army records called, without

• Special Services" in Bad Hofgastein, Austria. That work was

in 1946. The next sentence in Army documents is blacked out

i Mr. Verbelen's own statements that this is when he took on

illigence duties.

ne, too, the papers indicated, he acquired a large number of

Ufred H. Schwab, Alfred Heinrich Gustave Schwab, Herbert

er, Herbert Charpentier, Josef Pollack, Alfred Kluger and Herl in the interview that the aliases had been given him by Americers. "When one name got too hot, I got another," he said. He

' here to the Russians, not the Belgians.

f Mr. Verbelen's intelligence work for the Americans is blacked

pers made public. But in the telephone interview and in earlier

had organized an Eastern European spy network•for "ideolo-

>r pay•that succeeded in exposing an attempted 1950 Soviet

ndermining Austrian neutrality.

en's aliases were given to him by Americans, it evidently came

sast some officers of the 66th Counter-intelligence Corps in 1956

lad known since 1947 as Alfred H. Schwab was in reality someUNDER POLICE SURVEILLANCE

nt in May, 1956, after "Mr. Schwab" complained to the Amerit to another document, "he had been unable to carry out his

•veillance by the Austrian police,

nversation, the document said, "following facts regarding suband his past activities were developed:

ed Schwab, by which subject was introduced to his present hanch name is contained in all Allied papers [line blacked out] is

.me. Subject is actually Robert Jean Verbelen a Belgian citizen

i the Flemish SS (Schutzstaffel•Elite Guard)."

also indicate that he had doctored his history. At first he said

. 30, 1914, in Apia, German Samoa, that he attended school in

l in Lowen, Belgium. He said he had been a captain and recruitman Army division, had served in SD headquarters and was a

as found to be false in 1956, the papers show, Mr. Verbelen told

lso contained discrepancies and fell short of the full extent of

although he acknowledged that he had "worked closely with

? the German occupation of Belgium."

that Mr. Verbelen was discharged from American service on

payment of 5,000 schillings. No reason was given,

•ican officers offered to arrange for him to come to the United

eferred to remain in Austria. He said he then went to work for

encies and that in recognition of his services he was awarded

in 1959.

alen stood trial on war crimes charges in Vienna and was ac-
30

[From the Washington Post, Feb. 6, 1982]

MY BIOGRAPHY•BY THE FBI

(By Alfred Friendly)

I have just read a biography of me that leaves my ego miserably deflated. Luckily

for my reputation, it is a limited edition, under the imprimatur of the Federal

Bureau of Investigation, of one copy. It contains 383 pages, 103 of which are almost

illegible. The cost was $38.30. No billing was made for 20 more pages withheld in

their entirety, which is fair enough, although a dime apiece for several pages like

the one illustrated here smacks of sharp practice.

But my complaint lies elsewhere. I had expected that my FBI files, obtained

under the Freedom of Information Act, would confirm my recollection of myself as a

stunningly dangerous fellow, writing unkindly of Joe McCarthy, Pat McCarran,

Martin Dies and, before they were jailed, Andrew J. May and J. Parnell Thomas.

Even more sinfully, I publicly expressed admiration for the scholarship of Owen

Lattimore, the genius of J. Robert Oppenheimer, the public service of Leon Henderson and the merits of a host of similar New Deal subversives. Did not all that entitle me to a AAA-I, or at least AA-I, rating as a security risk?

Not at all. The files show only the most meager evidence that the FBI ever considered nominating me. I would like to think that those 20 withheld pages and some of

the blacked-out lines portrayed me as a more sinister figure, but the only solace I

can find on the record is that I was enrolled on the FBI Enemy/No Contact list at a

precociously early stage in my journalistic career. And even that was not for being a

dangerous leftist, but for reporting that J. Edgar Hoover ran the most anti-union

outfit in town, keeping it uncontaminated by government workers' unions (as it remains today) by firing any employee known to be a member, and that, by methods

any child could have deduced, he kept Congress in slathering public adoration of

him.

Indeed, the files suggest, the FBI's exclusive interest in me derived from my wickedness not merely in not bestowing the fundamental osculation on its chief expected

of every red-blooded American boy reporter, but also in actually hinting that

Hoover and his Merry Men suffered from ethical halitosis. I and, much more important, my employer, The Washington Post, did not agree with El Supremo on who

were his, and therefore America's, enemies. To the extent the files are interesting at

all is their repeated recording of FBI refusals to give us information or service on

even the most routine and innocent requests. Louis B. Nichols, a principal Hoover

lieutenant, explained the situation to me early on (although the episode is not in my

files). I had asked him for an explanation of the stonewall I was encountering. He

said, "If you kick a man in the groin do you expect him to be nice to you?" One may

question the principles on which the FBI operated, but not its fidelity to them.

To be sure, I was twice the object of the FBI's determined attentions, but only

because it was ordered to make special investigations required for those under consideration for certain levels of government jobs. Each of those inquiries seems to

have set a score of agents in four different field offices into frenzied activities for

three or four weeks. Any fair-to-middling newspaper reporter could have done them

in a week's time, with fewer inaccuracies and a great deal more information useful

to a prospective employer.

The inconsequential results may not have been due entirely to the incompetence

of the investigators. Hoover had forbidden them to interview anyone connected with

The Washington Post, where I had spent most of my working life and who, therefore, presumably knew most about me. It was as if the sheriff of Nottingham, seeking information about Robin Hood, forbade his deputies to talk to anyone in Sherwood Forest.

The two investigations revealed that I was a good friend of Nobelist Edward U.

Condon; that somehow I had been seen with someone (the blacked-out passages were

particularly heavy here) who knew the presumed Soviet agent Nathan Gregory Silvermaster; that I found Alger Hiss impressive when I met him for the first time (in

1971); that I had been fined $25 for speeding when I was in college and that my son

ran a stop light when he was in college, and that (according to an FBI informant

there) I had once visited Commonwealth College in Mena, Ark. The stoolie neglected

to report that I there declared that the madhouse was one of the most ludicrous Far

Left ventures I had ever seen, for which I was publicly denounced as a "bourgeois

liberal," a breed Lenin deemed "more vicious than the reactionaries themselves."

Oh, yes. I was reported to hold liberal views consonant with the New Deal and

favored civilian control of atomic energy. Otherwise, I was the living embodiment of
31

the Boy Scout oath and ran Nathan Hale a close second in the patriotism and loyalty sweepstakes.

Perhaps other FBI files make more sense, but mine gives the impression of the

treasures of a deranged filcher of ashcans. They tell more about the FBI than about

me, and as such should be more worrisome to the compilers than to the subject.

[From the Washington Post, Aug. 7, 1983]

ILLINOIS ALTERED JOBLESS DATA DURING 1982 CAMPAIGN

(By David Hoffman)

The administration of Illinois Gov. James R. Thompson (R) altered key unemployment statistics last year in the midst of Thompson's close reelection campaign in an

effort to prevent loss of extended federal benefits to 50,000 jobless workers in the

state, internal government documents show.

The alterations, which occurred at a time when unemployment was a major campaign issue, were made several days after Thompson talked by telephone with Labor

Secretary Raymond J. Donovan and requested a delay in submitting the statistics to

the federal government.

Donovan granted the delay, but Labor Department officials later questioned the

accuracy of the data submitted by Thompson's administration, according to documents obtained by The Washington Post under the Freedom of Information Act.

One Labor Department official said there was a pattern in the statistics that had

"never occurred in the history of the UI [unemployment insurance] program." Another official said Illinois "appears politically arrogant . . . apparently feeling a Republican administration will not cause problems for a Republican governor in a

tough reelection race in Illinois November 2."

The alterations in the statistics triggered a criminal investigation by the Labor

Department's inspector general. The investigation found evidence that the statistics

had been altered improperly, but no evidence linking the alterations to Thompson

or Donovan. The probe was then referred to the Justice Department's fraud section,

which declined to take further action, officials said.

Neither the governor nor labor secretary was questioned in the probe, officials

said, nor was Albert Angrisani, assistant secretary for employment and training,

who oversees the program in question.

Thompson said this week through his spokesman, David Gilbert, that he was not

aware of any improper alterations in the statistics. Gilbert said the governor's telephone call to Donovan was made strictly to obtain a week's delay in submitting the

statistics. Gilbert added that "at this point no one in the governor's office has any

information" that statistics were improperly altered.

"If there was any procedure that was taken that was not appropriate, we'll have

to take a look at that to see what can be done, who was at fault," said Gilbert.

"We'll get to the bottom of it."

Donovan refused to respond directly to queries about the case. Through his

spokesman, Mike Volpe, he said he discussed the extension with Thompson, who expressed concern that "a lot of unemployed people would lose their benefits." Volpe

said Donovan turned the matter over to his staff, and the delay was granted a few

days later. Volpe said Donovan recalls nothing more about the telephone call.

After questions were raised last year about the statistics, the Labor Department

sent auditing teams to Illinois. The state was eventually permitted to recount its

unemployment claims under federal auditors' supervision. In the recount, the auditors allowed the state to include some claims that had previously been left out. Top

department officials then accepted the recalculated figures, so benefits were not cut

off.

But "no one paid the piper" for having made the initial alterations in the statistics, said one Labor Department source familiar with the case.

At the time, Thompson was in a hard-fought reelection campaign against Democrat Adlai E. Stevenson III. Thompson won by 5,074 votes out of 3.67 million cast•a

0.14 percent margin. The race was considered the closest in Illinois history.

The Post obtained, under the Freedom of Information Act, copies of interviews

and other internal documents produced in the inspector general's investigation.

However, some documents were withheld, and others the Labor Department heavily

censored.

The documents describe events that began in mid-1982 when the recession was

lingering and causing major political problems for Republican candidates. At the

time, Thompson was the only GOP governor in the Great Lakes region seeking reelection, and Stevenson was making the economy and jobs a major issue.
32

Unemployment in Illinois had been rising all year, from 9.2 percent in January to

12.3 percent in October, the month before the election.

Even as the jobless situation was growing more serious, however, the state was in

danger of losing its "extended jobless benefits, which provided 13 extra weeks of

benefits in periods of high joblessness.

These benefits were paid after workers had exhausted the regular 26 weeeks of

unemployment benefits. According to the documents, Illinois was receiving a total of

$3.5 million a week in federal extended benefits.

The extended benefits were based on a complex state-by-state eligibility formula.

The program was in jeopardy in Illinois because the formula was tightened in one of

the federal budget cuts Reagan pushed through Congress in 1981.

If Illinois lost its eligibility, 50,000 jobless workers would lose their benefits and

the payments could not be resumed for 13 weeks. The state was thus faced with the

paradox of rising unemployment but the possibility of less federal aid to cope with

it.

To continue qualifying for the benefits, the state submitted weekly reports to the

Labor Department. These reports calculated a mathematical "trigger" that, if hit,

would end the program in Illinois.

The trigger worked this way; the benefits would continue as long as 5 percent or

more of all workers covered by unemployment insurance were receiving regular unemployment benefits. If the figure fell below 5 percent, the state would "trigger off'

the extended benefits program.

The actual unemployment rate was higher than the 5 percent trigger level because some workers had exhausted their jobless benefits altogether, while some

others were not covered by unemployment insurance.

The documents obtained by The Post, as well as interviews with some key officials, detail how the statistics were altered during several weeks in late July and

early August 1982.

In a staff memorandum on July 19, 1982, Thompson was warned that the extended benefits were "likely to trigger off by the end of this week." The memo

added that if this happened, Aug. 7 would thus be the last week benefits could be

paid and the program could not begin again until mid-November.

Two days after that memo was written, a similar conclusion was reached by official in the Illinois Bureau of Employment Security, the state agency that administered the unemployment insurance benefits.

In a memo analyzing trends in the jobless data, the Illinois officials wrote July 21

that "it is not very likely the state would remain on the extended-benefits program.

Already, for the week ending July 17, Illinois had hit the 5 percent trigger rate, the

memo said. Given the downward trend in the data, ". . . We can reasonably expect

the EB program to trigger OFF" the next week, they said.

It is not possible to determine who wrote the memo since Labor Department officials deleted all names in releasing the documents.

The next week, Thompson's staff urgently attempted to arrange a telephone call

to Labor Secretary Donovan. A July 27 memo prepared for Donovan by his staff

said that Illinois was about to trigger off extended benefits. However, the governor

"believes these figures are incorrect" and wanted a week's grace period in submitting the data, according to the memo.

Donovan was told by his staff that the "only solution you can offer" was to grant

a week's delay. The delay was granted.

The same day, Thompson held a news conference in Chicago. According to an account in the July 28 Chicago Tribune, Thompson appealed to Illinois jobless workers

who had not applied for benefits to file claims so the state would not "trigger off'

extended benefits.

Thompson also said the state would use the week-long grace period to "recheck

figures" that might allow Illinois to remain on extended benefits.

Labor Department investigators later interviewed officials in the Illinois Bureau

of Employment Security, which prepares the data, to determine what happened in

the days before and after Thompson s call.

The reports of these interviews were made available to The Post. All names and

titles, as well as other information, were deleted, making it impossible to determine

who was responsible for the alterations.

One official told the investigators that on July 26 a tentative computer run had

shown the trigger rate was 4,997 percent. Since the Labor Department in the past

had not permitted rounding off such a figure to 5 percent, Illinois would be forced

off the extended benefits. Maryland had just lost extended benefits under similar

circumstances.
33

The Illinois official said the 4,997 percent figure was immediately reported to his

supervisors. But he said he was told not to send it to the Labor Department "until

further notice."

The following week after Thompson's call to Donovan the official said he was ordered to prepare the report by adding into the statistics some 1,500 unemployment

claims from an earlier week. This would be just enough to boost the trigger rate to

exactly 5 percent, the official said.

The official told investigators that he "questioned the propriety of this adjustment" was told it was an attempt to compensate for claims that hadn't been counted earlier.

That report was submitted Aug. 2, showing a 5 percent trigger rate. It was the

second time in a row Illinois hit 5 percent exactly.

The Illinois official said he used a similar method for preparing the next week's

report, this time adding 4,754 extra claims, "just enough to reach the 5 percent trigger rate."

This was the third consecutive week the state hit precisely the 5 percent rate.

For the next week, the official said the report was not altered but the 4,754 claims

that had been "borrowed" the previous week were not subtracted as they should

have been because of a "human error."

For the fourth time, Illinois reported a trigger rate of 5 percent.

Another Illinois official whose name was also deleted in the documents is quoted

as having "readily acknowledged" to the investigators that "had the claim reporting

system not been altered they would have triggered off and would have lost the extended benefit eligibility for 13 weeks."

This would have meant that workers in Illinois would be without extended jobless

benefits until after Election Day.

Several of the officials interviewed by the Labor Department investigators denied

that Thompson's staff had ordered the changes, according to the documents.

However, one of these officials, under investigators' questioning, "conceded the political realities of a large number of individuals going off UI compensation in an

election year."

The unemployment compensation program is run by the Employment and Training Administration, while the Bureau of Labor Statistics, a separate Labor Department unit, compiles and publishes federal jobless statistics.

According to the documents, one Illinois official told the investigators that the

Employment and Training Administration had given the state data a "clean bill of

health ' in early August. The official did not say who provided it, however.

Angrisani, the assistant secretary for employment and training, did not return a

reporter's telephone queries last week about the Illinois case. A spokesman for him

issued a statement saying Angrisani had "simply followed" the recommendations of

career professionals under him.

The Illinois data was immediately questioned by two career officials, William

(Bert) Lewis, administrator of the Office of Employment Security, and Carolyn Golding, administrator of Unemployment Insurance, each of them said in an interview

last week.

Lewis said the trigger statistics are "volatile" and thus unlikely to come in at the

same figure two or three weeks in a row. Illinois had reported hitting the 5 percent

trigger precisely in four consecutive weeks.

"It didn't take us four times" to question the data, he said. Lewis said he had

never seen a comparable situation.

Another official told the Labor Department investigators that Illinois might legitimately have reported the 5 percent level the first time. But, the official said, when

the state reported 5 percent the second time•in the delayed report with the 1,500

additional claims•"knowledgeable UI program people could not believe it."

Still another Labor Department official, identified in the documents only as a specialist on unemployment insurance, said his "immediate reaction and conclusion

[were] that the figures were bad or fixed." This official said Illinois "appears politically arrogant . . . apparently feeling a Republican administration will not cause

problems for a Republican governor in a tough reelection race in Illinois November

2."

In Illinois at the time, the explanation given publicly for the continuation of extended benefits was that enough claims had been found in a "recount" to prevent

the state from "triggering off the program.

Agaliece Miller, director of the Illinois Bureau of Employment Security, told the

Chicago Sun Times Aug. 2 that "her staff in 60 filled offices had searched their mail

bins and other places and had found about 2,000 additional unemployment applica-
34

tions." The newspaper quoted her as saying, "We squeaked through." Miller, who

has retired, could not be reached for comment last week.

But the Labor Department career officials had doubts about how the state had

"squeaked through." %

On Aug. 12, Lewis filed an "incident report" with the inspector general's office,

triggering an investigation. The report noted that Illinois officials had expected disqualification for extended benefits, but it did not occur. The report suggested that

an "abnormal pattern has developed."

Lewis said last week that Illinois had, in effect, double-counted the unemployment

claims for two weeks, and in the third week failed to adjust for this double-counting.

The investigation in August and September included sending a team of auditors

to Illinois. On Sept. 14, the state was requested to recalculate the statistics for the

weeks in question under the direct supervision of the Labor Department auditors,

and in the recount the auditors allowed the state to include some unemployment

claims that had previously not been included in the statistics.

Lewis said the recount was unusual in that the department had never before sent

auditors and staff to oversee a state's trigger calculations.

A few days later, in a letter to Golding, the Illinois officials promised not to alter

the statistics as they had done before. The recalculations showed that Illinois still

qualified for extended benefits. The result was that in late September, Labor Department officials decided to approve the data.

Later, the inspector general's office forwarded the results of this investigation to

the Justice Department. Officials there declined to carry it any further, according to

a Justice Department spokesman who could not explain why.

"You can look at it two ways," said a Labor Department official. "The system

worked" in that the altered statistics were detected. But, he said, "no one paid the

piper" for making the alterations in the midst of Thompson's reelection campaign.
35

.September 3-tO, 1983 J1.25; U.K. 65p

-i-k •••:.<"='.•

The EEL and Dr.Einstein

Richard Alan Schwartz
36

168 The Nation. Sepumber3-I0, 1983

ARTICLES.

•H WHAT THE FILE TELLS

The EBI and

Dr. Einstein

RICHARD ALAN SCHWARTZ

AI the conclusion of Hamlet, as bodies lie strewn

about the stage, Horatio announces to Fortinbras that he shall hear "Of carnal, bloody, and

unnatural acts, /Of accidental judgments, casual

slaughters, •'Of deaths put on by cunning and forced

cause,/And, in this upshot, purposes mistook/FaU'n on

th'inventors' heads. All this can I/Truly deliver." The file

of some 1,500 pages that the Federal Bureau of Investigation accumulated on Albert Einstein between 1932 and 1955,

copies of which 1 obtained under the Freedom of Information Act, contains a litany of horrors as long and as unusual, ihough not so gory. The eminent physicist is accused

of running an espionage ring, of being the "brain" behind

the alleged Communist push to tajce over Hollywood, of inventing a miracle ray, of being behind the Lindbergh kidnapping and of devising a robot able to read human minds

and exercise thought control.

Most of the information in the file is far more mundane.

There are clippings and summaries of newspaper and magazine articles, many of them on Einstein's leftist politics.

There are tedious enumerations of all the organizations to

which the physicist belonged or lent his name that had been

labeled subversive or Communist. Frequently repetitious,

the reports in the file are never explicitly judgmental.

Nonetheless, the principals of selection the Bureau employed reveal at least a suspicion that Einstein's outspokenness about world peace, civil liberties, disarmament and

racial equality was evidence of his Communist ties. Some of

the reports are concerned with the Bureau's suspicions that

he had been involved, at least indirectly, in Soviet espionage

activity, and perhaps still was at the time of the investigation.

Although the F.B.I, had collected information on Einstein since 1932, it did not begin its official investigation of

him until the 1950s. An internal memorandum dated February 15, 1950, from D.M. Ladd, an F.B.I, agent, to F.B.I.

Director J. Edgar Hoover summarized all the information

on Einstein collected by the Bureau to date. That Hoover requested such a summary suggests a concern about Einstein's

activities at the highest level. It is difficult to ascertain why

Hoover did so, however, since thirteen pages in this part of

the file were deleted by the Bureau under provisions ofTne

Freedom of Information Act that allow government agencies to withhold the identities of informants and living peoRichard Alan Schwartz is an assistant professor ofEnglish

at Florida International University in Miami

pie, and information whose release could be detrimental to

national security. Whatever interested Hoover in Einstein

initially, the focus of the investigation quickly turned to espionage. Below a section titled "Contacts and Associates"

in the February 15 summary (deleted by the F.B.I, on the

above grounds), there is an uncensored handwritten note initialed by Hoover that reads: "We should develop this. I

have seen somewhere Einstein was the one who suggested

Fuchs [sic] assignment to live in England. What about

this?" In another note on the same page. Hoover wrote:

"Also I recently saw a statement to the effect that a member

of his family was in Russia. I think it was his son."

On March 10, 1950, Ladd sent another memorandum to

Hoover. In it he put to rest the belief that Albert Einstein Jr.

was in the Soviet Union (not permanently, however, since

allusions to the son behind the Iron Curtain persist in subsequent reports). Ladd also promised to "develop" information linking the British atomic spy Emit Klaus Fuchs to Einstein, though he said that Einstein did not request Fuchs's

assignment to England. The memorandum reports that

Fuchs "was a brilliant scientist who had left his native Germany and had become a British subject; that Einstein had

sent for him to help work on the atom bomb and that he had

then recently returned to England." Ladd cited a newspaper

interview with Fuchs's father, who claimed his son had been

released from a Canadian internment camp for aliens after

Einstein, unaware that he was a Communist, intervened on

his behalf. According to the father, Einstein had been impressed by Fuchs's paper on nuclear energy and had considered him valuable to the Allied war effort.

With these tentative links between Einstein and Fuchs

established, the Bureau took quite seriously subsequent

charges that Einstein might be, or might have been, a spy. In

early 1950, a German woman named Emma Rabbeis sent a

letter to the State Department in which she claimed to be

"in a position to make very positive statements to you concerning [Einstein's] political activity during the years of his

residence in Berlin. I can also give you most exact information about the particulars of a woman with whom Einstein

collaborated internationally." The letter was forwarded to

Hoover's office, which in turn forwarded it and an English

translation to the director of Army Intelligence on April 5,

requesting that he investigate the matter. (The F.B.I.

presumably ceded jurisdiction to the Army because Rabbeis

lived in Berlin.) A counter intelligence agent interviewed her

on June 22, and on July 31 Hoover received a summary of

his findings. The report dismissed Rabbeis's accusations as

hearsay.

She said that in the 1930s she had operated a Berlin dress

shop that was frequented by a Baroness von Schneiderglend, whose entire family were communists. According to

Rabbeis, Einstein and the Baroness's daughter had been

fellow passengers on a voyage to America in the 1930s, and

both had created a stir when they refused to stand during the

playing of the German national anthem. That incident was

Rabbeis's "proof that Einstein was a communist. Rabbeis
37

September 3-10, 1983 The Nation. 169

added that she believed Einstein was the father of von

Schneider-glend's illegitimate child. Further questioning by

the agent elicited a possible motive for Rabbeis's charges:

she had devised a mathematical formula for winning the

Berlin lottery and had sent it to Einstein for his comments.

He had not replied.

Although Rabbeis's accusations were readily dismissed,

the cover letter to the report notes, "However, information

which emanated from former well placed K.P.D. members

regarding Einstein's past activities is presently being checked

and the European Command will forward a detailed report." This is the first reference to an espionage investigation based on the theory that from 1929 to 1931 Einstein's

Berlin office-was used as a "drop" for telegraph messages

from Soviet agents in the Far East, a theory which the

F.B.I, and Army Intelligence not only took seriously but

later represented as fact. The suspicion triggered a four-yea.

investigation by the F.B.I, and Army Intelligence, which

was dropped shortly before Einstein's death for lack of corroborating evidence.

The spy charges against Einstein were brought by an informant whom Army Intelligence described as "usually reliable•

possibly true." (As late as 1955, though, his identity was apparently unknown to the F.B.I., since an internal memorandum from that year identifies him as "an unnamed source.")

The charges are summarized in an Army Intelligence report

dated January 25, 1951, which was sent to the F.PI. The informant alleged that Soviet agents sent coded telegrams to

Einstein's Berlin office, where they were not noticed because of

the large amount of international correspondence he received.

He claimed they were intercepted by Einstein's chief secretary,

a Communist agent, who passed them to Soviet couriers, who

took them to Moscow. The source said that Einstein might

have been unaware of this activity, since his secretary forwarded the telegrams before he could have seen them, but he believed Einstein might have known about it. Once, when his secretary was on vacation for several weeks, Einstein was allegedly handed the messages along with the rest of his mail. The

source pointed out that a person who discovers his office is being used for unofficial purposes would most likely question his

staff. Einstein did not do so, and the use of his address by

Soviet spies continued, the informant claimed.

He also claimed thai Einstein's entire Berlin staff of typists

and secretaries had been recommended to him by the Klub der

Geistesarbeiter {K.d.G.), the Club of Scientists, which was a

Communist front, and he alleged that Klaus Fuchs had been a

member. The informant believed that Einstein's chief

secretary, whose name he could not recall, had a close, "probably intimate" relationship with a member of the Communist

International Apparate" [sic], and that this affair, along with

her communist sympathies, had drawn her into the conspiracy.

According to the January 25 Army Intelligence report, "the information given by the source, as far as it goes, is probably accurate. On all points every effort was made to avoid

generalities, which have been used only where detailed

knowledge was* not available." The source also provided the

names of K.d.G. members and descriptions of their contacts.

and claimed that several had been liquidated by the Russians in

the purges of the mid-1930s.

The wealth of detail the informant supplied lent credence

to his testimony, so much so that a subsequent F.B.I, report

that was transmitted to the Immigration and Naturalization

Service suited flatly, in a section tilled "Synopsis of Facts":

"Einstein's office in Germany was used as a telegram address by Soviet Apparate [sic] in the early 1930s." That

allegation led to a series of F.B.I, investigations intended to

identify Einstein's chief secretary as well as to locate people

whom the source had named or who had known the scientist

or lived near him at the time. Those were difficult tasks,

since the investigators did not want to question Einstein or

his current secretary and housekeeper, Helen Dukas, directly.

Also, most of the people the F.B.I, sought had been killed

in World War II or were missing or living in the Soviet

sector of Berlin.

The Bureau's suspicions eventually turned to Helen

Dukas, who had emigrated to the United States with Einstein. The F.B.I, suspected, but was never able to establish,

that she had been Einstein's chief secretary from 1929 to

1931. She is depicted in several reports as being sympathetic

to communism and as having communist acquaintances, but

no specific allegations against her were ever made. On October 9, 1954, more than three years after the charge that

Einstein's office had been used as a drop by Soviet agents was

first made, the Newark office of the F.B.I., which was

stymied in its investigation, recommended to Hoover that

Dukas be interviewed directly. Hoover authorized the interview in a letter dated January 30, 1955, ordering that it "be

conducted by experienced agents who must thoroughly

familiarize themselves with all details and personalities mentioned in the Dukas and Einstein cases." The F.B.I, chief

also suggested that the interviewers approach Dukas on the

pretext that they were seeking information about individuals

who had lived in Germany, not investigating her.

The interview took place three weeks later, in accordance

with Hoover's suggestions. Dukas is described as being "extremely friendly and appear[ing] quite sincere in her

answers. She did not appear to be evasive in any manner,

but spoke quite freely. ... At no time did she give any hint

or indication that she was aware the investigation concerned

her in any way." Dukas recognized only one of the names

the Army Intelligence source had provided. She said she had

never heard of the K.d.G., and described herself as apolitical and concerned only with Einstein's well-being. Most significant, she stated that Einstein worked at home and had

po office in Berlin, and that she was his only secretary during the period in question, though his wife sometimes helped

her with his correspondence.

In a cover letter accompanying his account of the meeting, the agent who interviewed Dukas observed that her

recollection "in itself tends to discredit the allegations by

G-2's [Army Intelligence] source, who furnished the information that Einstein's office had a staff of secretaries and

typists." The agent addressed a recurring concern of the
38

170 The Nation. September 3-10, 1983

Bureau in his report: "It is also to be noted that the interview has identified Einstein's children and their current

whereabouts, discounting any possibility of children being

held behind the Iron Curtain as possible hostages of the

Soviets." He concluded:

It is believed that additional investigation is not warranted in

view of the long lapse of time since Einstein's office was

allegedly used by the Soviets, the lack of corroborating information, and the fact that personnel involved are scattered in

many countries and in many cases are deceased. Therefore,

both the Dukas case and the Einstein case are being closed in

the Newark Office, and will not be reopened on the basis of

this allegation, unless advised to the contrary by the Bureau.

An April 26, 1953, memorandum from the Los Angeles office to Hoover concludes this part of the investigation: "In

view of the announced death of Albert Einstein on 4/18/5S,

this office contemplates no further investigation without the

specific request of the Bureau or Newark office."

Around the time the story of the Berlin message drop first

reached Hoover's desk, the Bureau received other information about Einstein's purported Communist connections.

On February 23, 1950, the radio commentator Walter Winchell forwarded a letter from one of his listeners containing

a list of seventeen "commie fronts" to which Einstein

allegedly belonged in 1947. In Jury, Winchell sent the F.B.I.

another letter concerning Einstein's Communist affiliations.

Of greater urgency was the Immigration and Naturalization Service's request for a "report as to the nature of any

information contained in any file•other than fingerprint

records•which your Bureau may have concerning the following person." The form letter, dated March 8, 1950, and

signed by District Director Karl I. Zimmerman, identifies

Einstein as the subject of an l.N.S. investigation. On June 9,

the F.B.I, asked the l.N.S. to "clarify the purpose" of the

investigation of Einstein, "inasmuch as he is a citizen." On

September 14, W.F. Kelly, Assistant Commissioner of the

I.N.S., replied that "information available indicates that

this naturalized person, notwithstanding his world-wide

reputation as a scientist, may be properly investigated for

possible revocation of naturalization." Included with

Kelly's letter were two internal l.N.S. memorandums written by Zimmerman and dated June 14, 1950, and Jury 12,

1950. The first states that the l.N.S.'s interest in Einstein

was triggered by an article in the Brooklyn newspaper The

Tablet, which "would seem to indicate that an investigation

should be conducted to determine whether there were activities on the part of the subject. . . which might justify

the filing of a suit to cancel citizenship." Zimmerman summarizes the article, an expose of Einstein's ties to groups

listed by the House Committee on Un-American Activities

as Communist or Communist fronts, and he dwells on Einstein's support of groups that opposed the fascists during the

Spanish Civil War. The "evidence" against Einstein included the fact that he "was a sponsor of the Spanish Refugee

Relief Campaign . . . and a pamphlet entitled 'Children in

Concentration Camps.'" (H.U.A.C. classified the Spanish

Refugee Relief Campaign as a Communist front in 1940.)

The July 12 l.N.S. memorandum merely supplies the additional information that in 1932 Einstein participated in the

First World Congress against War and Fascism.

On November 28, the F.B.I, responded to Kelly's letter

with a report headed "RE: Albert Einstein," which informs

the l.N.S. that "a check of the general indices of this Bureau

failed to disclose that any investigation has been conducted

by the F.B.I, pertinent to your inquiry." The report provides a five-page summary of Einstein's life, emphasizing

his pro-communist political views, and concludes with a

two-page list of organizations with which he was affiliated

that were on the usual lists.

Although the Philadelphia office of the l.N.S. formally

requested F.B.I, clearance to investigate Einstein and Helen

Dukas in August 1950, it was never granted because the

F.B.I, did not receive the letter•at least it had no record of

it. The exchange of memorandums between the two agencies

continued, culminating in a letter from Hoover to the commissioner of the l.N.S. dated February 12, 1952, in which

Hoover assures the l.N.S. chief that "the Federal Bureau of

Investigation does not interpose any objection to any investigation that the Immigration and Naturalization Service

may desire to conduct concerning Albert Einstein and Helen

Dukas, nor has the Federal Bureau of Investigation ever interposed any such objection." On February 23, the F.B.I,

sent the l.N.S. a thirteen-page summary, which, among

other things, represented as fact the allegation that

Einstein's Berlin office had been used as a Soviet message

drop. There is no information in the F.B.I, files on whether

the l.N.S. took further steps in its Einstein investigation.

The exchange of information between the F.B.I, and the

l.N.S. drew Hoover's attention to the fact that although the

Bureau had collected more than a hundred pages of documents, it had not prepared an investigative report on Einstein. On January 10, 1952, Hoover sent a memorandum to

die Newark office discussing the l.N.S. requests, which

concluded:

Bufiles (Bureau files] reflect that there has never been an investigative report prepared in the Albert Einstein case.

Newark is therefore directed to prepare an investigative report, suitable for dissemination, containing all the pertinent

data received to date on Albert Einstein.

Hoover's memorandum led to a more comprehensive

effort, called a correlation summary, which was begun on

February 25, 1952. When the summary was completed a

year later, it filled 1,160 pages.

Purporting to be "a summary of information obtained

from a review of all references to the subject contained in

Bureau files except main file references," the mammoth

report is a potpourri of facts and wild allegations. It contains, for example, a translation of Einstein's introduction

to the German edition of Upton Sinclair's book on mental

telepathy. Mental Radio. The subject of telepathy recurs

eighteen pages later, in an interview with an informant who

claimed to know someone who had been a victim of a mindcontrol robot that Einstein had allegedly invented. The in-
39

September 3-10, 1983 The Nation. 171

terviewer later learned that either the source or her acquaintance had spent two years in an insane asylum.

The report also contains a letter from a Beaver Falls,

Pennsylvania, patriot, who told the F.B.I, that at the

November 1, 1938, meeting of a group called the Music

Boys in New York City, a speaker had claimed that Einstein

"is experimenting with a ray which wilt help us to destroy

armed opposition•aircraft, tanks, and armored cars. He

hopes that with it a dozen men could defeat 500. Through it

500 could rule a nation." Another reference to the ray

appears in the Bureau's summary of a May 21, 1948, article

in the Arlington Daily, which stated that Einstein and "ten

former Nazi research brain-trusters" had met secretly and

watched a beam of light melt a block of steel. According to

the article, this new weapon could destroy entire cities.

Following the summary is a paragraph stating that Army Intelligence had been told by its research and development

group that the article had no basis in fact. A September 28,

1951, entry states that a caller told the Bureau that Einstein

had framed Bruno Hauptmann, who had been convicted

and executed for the Lindbergh kidnapping.

Someone who claimed to have been a story and advertising

executive with D.W. Griffith Pictures from 1919 until the

early 1930s, and executive head of the story department at

RKO in the early 1930s, made an allegation the Bureau took

more seriously. In a letter dated April 21, 1953, the informant described meeting an acquaintance at a -fashionable

portrait studio in the lobby of the Ambassador Hotel in Los

Angeles. When asked how he could afford to pay the Ambassador's rent, the acquaintance replied that the studio was

a Communist front. He tried for three hours to persuade the

informant to cooperate with the Communist Party. Failing

to do so, the acquaintance took him upstairs to Einstein's

suite, explaining, "He's the one that never fails with the big

shots." Einstein himself answered the door but said he was

busy. Could the informant come back tomorrow? The informant did not return, however, and ignored subsequent

warnings that "if I wanted to get ahead in Hollywood I had

better play ball with him, that through Einstein they were

getting control of every studio, and that if I didn't be sensible I might be through in Hollywood." The man claimed

that within weeks he had lost his job and had four contracts

canceled. He said that since then he had been unable to hold

a job with a Hollywood studio for more than a few weeks

before being fired.

This tale spawned an extensive investigation and a

twenty-page report, which cited a reliable source who insisted that Einstein had never rented a suite at the Ambassador Hotel.

In an interesting twist, in 1940, Einstein, upon being interviewed by F.B.I, investigators, told them of his concern

about the loyalty of another scientist, the Nobel Prize-winning chemist Peter Debye. A Dutchman named Feadler (the

Bureau's phonetic spelling) sent Einstein a letter in the

spring of 1940, accusing Debye, a former head of the Kaiser

Wtlhelm Institute in Germany who was then lecturing at

Cornell University, of possibly being a German spy. British

agents intercepted the letter and brought it to Einstein. Einstein notified Princeton University Prof. Elia Lowe, who accompanied the agents to Cornell to discuss the matter with

university authorities. Despite Lowe's advice to the contrary, the Cornell authorities told Debye of the charge

against him. Debye subsequently wrote Einstein insisting

' that he was not involved in espionage. When the F.B.I,

learned separately of the allegation, they questioned Einstein. While he was careful not to make any statements he

could not substantiate and to point out possible benign interpretations of the charge against Debye, he expressed

strong doubts about Debye's character and loyalty. Einstein

told the F.B.I, that Debye should not be trusted with military secrets unless it was certain he had severed all connections with the German government, and he "made it clear

that Debye should be watched for awhile to ascertain his

motives."

One ofthe last documents in the F.B.I, file, a memorandum

from W.A. Branigan, an F.B.I, official, to A.H. Belmont, an-
40

The Nation. September 3-10, 1983

other official, dated July 27, 1955, can serve as a summary of

the case against Albert Einstein. The memorandum states:

Investigation of Einstein instituted 1950 based upon information thai he was affiliated with over 30 Communist-front

organizations. Investigation reflected he sponsored entry into

U.S. of numerous individuals with pro-Communist backgrounds. . . . Extensive investigation in U.S. showed Einstein affiliated or his name extensively associated with literally hundreds of pro-Communist groups. No evidence of

C.P. membership developed.

The memorandum also discusses the Berlin message drop

investigation, but it is difficult to say which was of greater

concern to the Bureau, Einstein's alleged involvement in espionage or his open avowal of pacifism, civil rights and

racial equality. His support of the Hollywood Ten and

his advocacy of the abolition of the Thomas Committee on

Un-American Activities are noted in his file. His support of

populist Presidential candidate Henry Wallace is noted. His

sponsorship of a testimonial dinner for W.E.B. DuBois is

noted. His support of Willie McGce, a black man Einstein

believed to have been framed on a rape charge, is noted, as

is his support of the Scottsboro Eight. His friendships with

leftists like Charlie Chaplin, Paul Robeson and Frank Lloyd

Wright are noted. His articles in The Bulletin ofthe Aromic

Scientists advocating world government and a more humanistic, less militaristic approach to. foreign policy are summarized. Included too are articles that question the veracity

or importance of Einstein's scientific contributions, that

relegate him to a mere copier of his scientific predecessors

and that attack his religious views. Statements made by

Einstein criticizing fascism that coincide with the views of

the Communist Party appear in the file.

THE ISSUES ARE JOINED

Future Controversies in "The Nation"

World Government: An Idea Whose Time

Has Returned? By Sidney Lens

Comments: Richard Falk, Kirkpatrick Sale,

Paul M. Sweezy

Libel and the Press: Why Not a Right of Reply?

By Aryeh Neier

Comment: Martin Garbus

F.O.I.A. Exemptions: Are the C.I.A. and the

A.C.L.U. Strange Bedfellows? By Angus Mackenzie

Comment: Morton H. Halperin & Allan Adler

More Comments on Beyond the Waste Land

And Also•

Stephen Cillers: The Warren Court Never Died

Jamie Kalven: Justice Bork? {What He Thinks

About the First Amendment)

Earl Shorris: While Someone Else is Eating (IV)

To the historian of science, the F.B.I, file on Einstein is

significant for several reasons. First, it demonstrates the extent to which the government kept an eye on the most

famous atomic scientist of the period. Moreover, it underscores the suspicion with which the government regarded his

efforts to have the fruits of his research applied in a responsible, moral fashion. It also reveals something of Einstein

the public figure, who inspired a mixture of awe and fear

among ordinary people. The unsolicited letters accusing him

not only of being a communist sympathizer but also of being a courier, a mastermind and a spy are most revelatory of

that ambivalence.

What is so disturbing about the Hie is that it shows that,

in spite of the apparent professionalism with which most of

the investigations were conducted, there seems to have been

a willingness, almost a desire, to presume that Einstein was

guilty ofsomething. That comes across in Hoover's obvious

desire to find a connection between Einstein and Klaus

Fuchs, in the Bureau's ready acceptance of the Army Intelligence source's claim that Einstein's office had been a message drop for Soviet agents, in its decision to invest so much

time investigating the preposterous allegation that Einstein

was the "brain" behind the alleged Communist push to take

over Hollywood in the 1930s, and in the alacrity with which

the Newark office reopened its investigation of Einstein

after learning he had sent a confidential letter to Judge Irving R. Kaufman, the presiding judge in the Rosenberg espionage trial, on behalf of the defendants. The I.N.S.'s willingness to launch an investigation of Einstein on the

strength of a single article in a right-wing newspaper is part

of the same pattern.

From the standpoint of the taxpayer, the waste of public

funds chronicled in these reports is appalling. The amount

of money spent to pay the people who devoted countless

hours to clipping newspaper items, typing summaries of

public statements and following up absurd leads must have

been enormous. Even granting that plausible suspicions of

espionage should be pursued, only a relative handful of

pages in the file deal with legitimate national security matters. The bulk of the material concerns Einstein's exercise of

his rights of free speech and political expression, which

should have little place in an espionage investigation. If he

had been on the far-right end of the ideological spectrum

rather than on the left, it is doubtful that the file on his

political views would be nearly as extensive.

Perhaps most perplexing is the way in which history is ignored. The Depression, the rise of Nazism and World War II

might never have happened as far as the F.B.I, was concerned. That someone might have supported communist

causes during the 1930s in response to an economic crisis

that represented at least a temporary failure of capitalism or

to the spread of fascism is not even considered. The F.B.I,

appears to have thought that a Communist or suspected

Communist from the past is necessarily a Communist in the

present, and just as necessarily a threat to the American

system. More than anything else, the 1,500 pages of the

F.B.I, file reveal how powerful and widespread that belief

was. In the end, the Hie is not only a lode of information
41

September 3-10, 1983 The Nation. 173

tnd innuendo about Albert Einstein; it is also a record of

the F.B.I.'s mentality during the early 1950s. D

/ wish lo acknowledge the financial and intellectual support of the National Endowmentfor the Humanities. Thisproject was conceived in a 1980

N.E.H. seminar conducted by Stephen Brush at the University ofMaryland

and completed in 1983 in a seminar conducted by Eugene Rochlin and Paul

Thomas at the University of California at Berkeley I wish also to thank

Manfred Enssle of Colorado Stale University, who originated the idea of

requesting the F.B.I, file on Einstein. Thefile was obtained under the provisions of the Freedom of Information Act, and the duplicating fees were

paid by en awardfrom the College ofArts and Sciences at Florida International University.

•LETTER FROM EUROPE '

How Many Masses

Is PolandW)rth?

DANIEL SINGER

O!h God," Heinrich Heine wrote, "how big is

t your zoo!" This sentence kept popping into my

f head in June as I read the dispatches of my

journalistic colleagues on Pope John Paul U's

journey through Poland, apparently written on bended

knees after having visions of the Black Virgin of

Czestochowa. So strong was the spell they were under that

they did not even raise an eyebrow when the Pope proclaimed that the right to form trade unions could not be

granted by a government because it was "innate," inborn. It

was not won by political struggle, he said, it was a gift from

God. But if the right is innate, 1 wondered, why didn't the

Catholic Church recognize it until well into the twentieth

century, and then only in some countries? One felt meanspirited quibbling over such matters while the Pope was

being hailed not only by reporters but by millions of people

in Warsaw and Wroclaw, in Krakow and Katowice, as the

spiritual leader of Poland, the scourge of the military dictatorship and the main supporter of Solidarity.

After the extraordinary show was over and the enthusiastic crowds had gone home, Osservatore Romano, the official Vatican newspaper, in a too-candid editorial, revealed

what the Pope's game really was. He had not gone to Poland to curse General Jaruzelski but to strike, or ratify, a

complicated deal that would prop up the regime.

To say such a thing may get me in trouble. Not so long

ago several allegedly left-wing readers practically accused

me of being an agent of the Vatican because 1 insisted

Solidarity was primarily a proletarian movement, despite

the size of the cross Lech Walesa wears. Tomorrow the same

people will warn people of the left not to be "more Catholic

than the Pope," and to treat Jaruzelski at least as a partner,

even if we don't bless him. Yet why should left-wingers

Daniel Singer is The Nation's European correspondent. He

is the author of The Road to Gdansk (Monthly Review

Press).

follow in the footsteps of John Paul II? What sort of unholy

bargain with Caesar did Cardinal Glemp work out, subject

to papal endorsement? And if the Pope and the general did

conclude an agreement, will they be able to implement it at

the expense of Solidarity and over the heads of the Polish

workers? To answer those questions we must understand the

historical role of the Catholic Church in Poland.

Before World War II, the Polish church was one of the

most reactionary in the world. It pandered to the rich,

preached submission to the poor and appealed to widely

held prejudices such as anti-Semitism. Paradoxically, the

Catholic Church was weaker then than it is today, despite

the close links it had with the state (For example, couples

who wanted to be married in a civil ceremony could do so

only in the Free city of Danzig•Gdansk.) More than onethird of Poland's 35 million people belonged to ethnic or

religious minorities: they were mainly Jews, Protestant Germans, Orthodox Byelorussians and Ukrainians. Arrayed in

opposition to the reactionary church were the forces of the

left•the Communists, the Socialists and a not negligible

anticlerical intelligentsia. The power of the church was also

potentially threatened by the very fact that it rested on the

prejudices it fostered among a predominantly backward peasant population. (It was commonly believed in the countryside that Christ was Polish, because one was either a "true

Pole" or a Jew, and God, it goes without saying, could not

be Jewish.) - '

After the war, the situation changed dramatically. The

ethnic and religious minorities had vanished: the Jews had

been tragically exterminated, the Ukrainians and Byelorussians had been absorbed by the Soviet Union, and the Germans had been expelled. The new regime's early progressive

measures, such as land reform and the elimination of capitalist property, thrust virtue upon the church by depriving it

of some embarrassing backers. Instead of defending the interests of wealthy landlords, the church was relegated to

representing peasant smallholders. The Stalinist postwar

regime also helped the church by confusing ideological

struggle for the minds of the people with coercion and repression of religion, including a ban on building new

churches. Once pampered and now persecuted by the state,

the church acquired a martyr's halo. The regime's mistakes

and injustices in other areas helped the church regain its

ancient role as a rallying point for resistance to an alien

power.

Wladyslaw Gomulka, who returned to power in 1956,

realized that the government had not used the most popular

or the most efficient methods of handling the religious question. His policies transformed the relationship between the

Communist Party and the church into a complex struggle

for ideological supremacy, a contest which did not exclude

concessions and compromises by both sides. In this battle of

wits, the clergy, guided for years by the stubborn and wily

Cardinal Wyszynski, scored points time and again, helped

by blunders perpetrated by the stale. In 1968, for instance, it

was the world upside down: the Catholic university in Lublin

offered teaching positions to academics who had been fired

by a "communist" government because they were Jewish.
42

gfcgfcfc fctuwlw j| MW THE WASHINGTON POST

Secret Hoover Files

Show Misuse of FBI

' , ByJ

President Fnuiidin D. Ram**

dismembered the Array's spy-catching Counter-intelligence Corp* i»

1943 after it allegedly spied orr Heanor Roosevelt's sex lib, according,

to third-hand reports in former FBIdirector I. Edgar Hoover's "officiai

. and confidential" files outlined irr

the current issue of VS. Newt and

World Report •f/fp"^cvrv. I

uTltsDei. 19 issuaUiut today, the

nswi rntarrim describes the contents of 7,000 OVII nineties frotrr

Hoover's secret filet mede public

recently-under e Freedom of infant

nation tet request by historian

Athan Theohans of Marouetie UniIn a teaspoon* interview with The

Washington Post, Theoharis called |

•the papers 'a very; valuable collection . .., pert of Hoover1

! 'dirt i

file." but noted that another 10,000 1

pages were withheld for national security, personal privacy or other rear

son allowed by htwi

Hal document*, although heavily

censored, show a pattern oTiSsevyute by presidents from FDR to Rrh- j

ant M. Niton of the FBI's cooaidV L

erabfc powers to investigate politapeJri

enemies, intimidate critics and engage in wiretapping and electronic

eavesdropping for concerns hav

nothing to do with national security,,

according to Theohans.

They document the" development

of FBI policy on the use of microelectronic equipment and the twists

and turns of congressional oversight

efforts. "Some documents suggest

the bureau was operating on Hi own

Thsohsait

The documents also substantiate

widely published illegilinrav 6am

former FBI officiek the*. Hoover

kept virtually every scrap o*-information that came into- hie hands

from any source, with- or without

corroborauon, and "drew-on' the

wealth of defamatory information at

his fingertips to curry few with

presidents and other officials," the

article says.

FBI officials, cortfinning the papart' release, said., they would not.

comment on the magarrne article or

the content of the documents, which

are expected to be made available to

the public at the FBI library.

An FBI agent named G.C. Burba

wrote a memo Dec 31.1943, indud6Q eaeaftOttntC Uat? QOOawPeWtleV L^tU plJa^

ported to explain why FDR had all

but doted down the Counter-intelligence Corps earlier that year. Bur- .

ton. said two colonek had told him

the C1C infuriated Roosevelt by

bringing him tapes allegedly of Heanor Roosevelt having tea in a hotel

room with then-Army Air Corps Sgt -

Joseph ft Lett, 33-et the tune, who'

was under aurveiilanee for suspected

ttrtorvatnant wilh leftist groups.

Lentil author of the 1962 book •

"Love, Eleanor," hat vehemently denied having an affair with Eleanor

Roosevelt, who wet 26 yean older

thanhe.

"Mrs. Roosevelt was called into,

the conference snd was confronted -

with the information, and this retutted in a terrific fight between the

president and Mrs, Roosevelt," Burton's memo said the colonels had

told rriro.

A few weeks later, Lath and 10

other airmen were abruptly transferred from Michigan to the South

Pacific and the CIC headquarters at

Fort Holabird, Md• wet doted. By

the end of the year, hundreds of CIC

egenta had been reassigned.

But other roeraoa in the file suggest that Burton's source» may have'

mixed up a CIC' report of en uneventful, strictly platonic March

meeting between Eleanor Roosevelt

areLLash at a hotel with another

CIC report of a. vary un-piatooic

night. Lath spent a week later in the

same hotel with the woman he later

married, Trade Pratt. "A later FBI

memo dearly confuses the two," the.

US. News article said.

The papers show that President

Lyndon BE Johnson's office ordered

that no recordt of his requests be

kept an order Hoover ignored. Johnton demanded and got "blind

memoe" on paper without letterheads, signatures or watermarks.

At his order, the FBI talked to "at

least five officials of the [Washing'

ton| Evening Star, iiictuding the editor, Newbold Novas.' in June, 1985,

about Johnson's irritation at unfavorable Star articles, the documents

show.

Agents also questioned reporters

about Chicago Daily Newt reporter

Peter Lisagor in 1966 when Johnson

wet irritated with him. In 1962,

when, Johnson wet vice president

agents bad interviewed the editor of

Farm-and Ranch magazine over a

critical editorial- he had written

about Johnson.

The tfcjtjtjtmjti include voluminout fats on President John F. Kenasdy* tlbtatl jjM»ry ectivitiet, and

quite a lot on Adlai E. Stevenson

the Democratic presidential candi

date in 1952 and 1956, frequenth

misspelling hit name. There are at*

dossiers on Roosevelt holdovers it

President Harry S Truman s admin

istration, compiled at Truman's re

quest and on three employes o

Dwight D. Eisenhower's Wm>

House who resigned after charges o

homosexual activity.-

But virtually none of the files in

dude data on Eisenhower himtel

and the FBI withheld a 5,000-pag

file on Truman's' White Hotta

Theoharis said "We just have th

cover letters on reports that are dt

leted," he said . ?•£ i '.
43

The

Secret

Files of

J. EdgarHoover

For five decades, the FBI's famed chief

amassed highly personal information on key

politicians. These documents, now being

released, tell some startling stories.

The government is lifting the lid of secrecy from the

confidential files of). Edgar Hoover•records once so sensitive that the FBI treated them, in one official's words, "like

three cabinets full of cancer."

Dealing with Presidents, lawmakers and other political

bigwigs, the material ranges from reports of their sexual

hanky-panky to accounts of behind-the-scenes infighting•

all gathered by agents and sequestered by Hoover in his

own office during the nearly half a century in which he

headed the Federal Bureau of Investigation.

Even top bureau officials were barred from looking at

these "official and confidential" files without their chiefs

permission.

Now, more than 7,000 pages of the documents have been

released under the Freedom of Information Act to scholars

and others. Many of the allegations are hearsay; many are

unproven. Still, though heavily censored, the files are a

treasure-trove for historians, providing insights into the

operations of one of the country's most powerful agencies

from Hoover's appointment in 1924 until his death in 1972.

Among records examined by U.S.News A World Report:

• Memos summarizing alleged sexual adventures ofJohn

U.S.NEWS & WOULD REPORT. 0»C. 19. 1963

Kennedy as a naval officer, senator and President,

and describing how Hoover handled these reports.

• A thirdhand account of a White House meeting

that was described as a stormy session in which Army

Counterintelligence Corps (CIQ officials played for

Franklin Roosevelt a recording of a supposed sexual

liaison between his wife Eleanor and a young CI in a

hotel. The sexual-misconduct charge is vehemently

denied and remains unproven. The surveillance of

Mrs. Roosevelt, however, figured in the near dismantling of the CIC during World War II.

• Memos detailing how Lyndon Johnson sent the

I bureau on political errands and then demanded that

no record be kept of his requests.

• Reports on FBI investigations

of alleged homosexual activity by

White House and subcabinet officials, including long-buried information on the forced resignation

of the State Department's No. 2

man during World War II.

• Accounts of Hoover's secret

aid to Thomas Dewey in his losing GOP drive against Harry

Truman in 1948, plus critical

dossiers on Democratic presidential nominees Adlai Stevenson, beaten by Dwight Eisenhower in 1952 and 1956, and

George McGovern, who lost

to Richard Nixon in 1972.

• Documents describing

politically inspired wiretapping conducted by the FBI

at the behest of the Truman White House.

After Hoover died, his

loyal aides were so nervous about what his files contained that

they denied the documents' very existence at first. When

newly appointed FBI officials looked into these files in 1975,

they were called to account by members ofCongress worried

that the bureau held dossiers stuffed with the most intimate

secrets oftheir lives. The FBI men explained that the bureau

routinely kept information that came into its hands, no

matter how personal, farfetched or unsubstantiated, because

it mightsomeday help solve a serious crime such as blackmail

of a senator or the assassination of a President.

The records examined by the magazine's staff members

show that the bureau's instinct for self-protection often

dictated its actions. The files also corroborate reports from

some of Hoover's ex-aides that he drew on the wealth of

defamatory information at his fingertips to curry favor with

Presidents and other officials and used the bureau's resources to intimidate persons who criticized him or the FBI.

Even so, the documents available•less than half of Hoover's private files•leave questions unanswered. There are

voluminous files on Kennedy but little on Nixon and Eisenhower. Why? Was Johnson alone in demanding that the

bureau keep no record of his irregular requests, or did

other Chief Executives make similar demands?

The Dossier on JFK

In the 20 years since John F. Kennedy's death, reports of

sexual exploits by the late President have been widely

published. While Kennedy was living, however, such stories

circulated only among a few Washington insiders. All went

into Hoover's files, with little attempt to check accuracy.

In July, I960, when the Massachusetts senator was on the

verge of becoming the Democratic nominee for President,

45
44

FBI analysts pulled together a nine-page report on him for

their chief. One section said:

"As you are aware, allegations of immoral activities on

Senator Kennedy's part have been reported to the FBI over

the years They include data reflecting that Kennedy

carried on an illicit relationship with another man's wife

during World War II; that (probably inJanuary, 1960) Kennedy was 'compromised' with a woman in Las Vegas; and that

Kennedy" and a world-famous male entertainer had "in the

recent past been involved in parties in Palm Springs, Las

Vegas and New York City."

The memo further related that JFK and the entertainer

were "said" to be the subjects of "affidavits from two mulatto

prostitutes in New York" in the possession of Confidential

magazine, a scandal sheet that flourished from 1955 to 1958

before collapsing under an avalanche of libel suits.

Petspeech. Available files

do not indicate whether

Hoover conveyed word to

Kennedy about these allegations or whether the President-elect was aware of

them when he announced on

Nov. 10,1960, two days after

his election, that he was asking Hoover to stay on as FBI

director. The record does

show that when Hoover

picked up a report of sexual

misconduct by an important

politician, he often found occasion to pass the word on. "I

know there's no truth to this.

I'll never speak of it to anyone," Hoover would promise. "It was one ofhis favorite

speeches, one he gave often

to politicians," recalled the

late William Sullivan, a longtime aide who had a bitter fallingout with him in 1971.

An August, 1962, memo indicates that the bureau informed Robert Kennedy, who as Attorney General was

Hoover's boss, when it received allegations that he "was

having an affair with a girl in El Paso." The Attorney General

was quoted as replying that he had "never been to £1 Paso."

The collection of data on John Kennedy did not cease

when he became President. On March 20, 1962, bureau

officials assembled from their files reports that Judith

Campbell, a free-lance artist in Los Angeles, had made a

series of telephone calls to President Kennedy's secretary,

Evelyn Lincoln, at the White House. Campbell was being

watched because of her friendship with two mobsters.

"The nature of the relationship between Campbell and

Mrs. Lincoln is not known," a memo to Hoover said, but

added: "[deleted] referred to Campbell as the girl who was

'shacking up with John Kennedy in the East.'"

"This is being submitted as the director may desire to bear

this information in mind in connection with his forthcoming

appointment with the President," a covering letter said.

Hoover and Kennedy lunched together on March 22, but

there is no record of what was discussed. The last telephone

call from Campbell to the White House was logged a few

hours after that session. Still, the FBI kept her under close

surveillance. An August, 1962, document told how an FBI

agent saw a man enter Campbell's Los Angeles apartment

from a balcony. Although the agent witnessed what may

have been a burglary in progress, FBI officials decided not

to inform the police "in view of the highly sensitive nature

of our inquiries concerning Campbell."

46

Hoover with John and Robert Kennedy. The FBI kept collecting

allegations of womanizing by JFK even after he wai President

Agents vied with each other in providing tidbits on political figures that ranged from corroborated intelligence to

outright gossip. A 1940 memo told how Supreme Court

Justice Felix Frankfurter was pulling strings with his

"stooges in the administration" to influence the appointment of the Secretary of War. Decades were to pass before

historians caught up with the bureau's inside knowledge of

how politically active Frankfurter was while holding a position supposedly above politics.

Hoover often let his agents know that he appreciated the

information. In a letter on June 10, 1958, he wrote: "I

certainly appreciate your bringing to my attention personally the many interesting items." On Oct 29, 1965, he

thanked another agent for "advising me of the immoral

activity existing in certain circles in Washington, D.C."

Hoover sometimes used these "interesting items" to ingratiate himselfwith the powers

**« that be. Francis Biddle, Attorney General and Hoover's superior in the Roosevelt administration, recalled

later how Hoover had titillated him with "intimate details" about his fellow cabinet members. Likewise,

when Johnson was in the

White House, Hoover sent

him what officials have since

described as transcripts ofrecordings made in civil-rights

leader Martin Luther King's

hotel rooms.

Many of the reports from

agents that Hoover and his

aides relied on for the inside

gossip they relayed to political leaders ended with the

line, "Unless otherwise indicated, the material set forth above has been obtained from

confidential technical means." This was the bureau's euphemism for bugs or wiretaps.

The First Lady and the Sergeant

In 1943, at the height of World War II, FBI officials

watched in amazement as the Army's spy-catching arm, the

Counterintelligence Corps, was all but dismantled in just a

few months. Its headquarters was closed down, agents were

reassigned, files were burned. By early 1944, the CIC was

hard put to fill an urgent request from General Eisenhower

for agents to support the Normandy invasion.

What accounted for such seeming lunacy? Four decades

would pass before the story became public. But top FBI

leaders received an explanation in a memo dated Dec. 31,

1943, from agent G. C. Burton. Two disgruntled colonels

had told him, he reported, that the torpedoing of Army

counterintelligence stemmed from a colossal CIC misstep:

Its agents had bugged what they portrayed as a liaison

between Eleanor Roosevelt and Joseph P. Lash, then 33, an

Army Air Forces sergeant under surveillance because of his

association with leftist groups.

Burton reported that he was told FDR learned of the

eavesdropping and summoned two top Army intelligence

officers to the White House at 10 o'clock one night for a

meeting that lasted until dawn. The embarrassed officers

played a recording that "indicated quite clearly that Mrs.

Roosevelt and Lash engaged in sexual intercourse during

their stay in the hotel room," Burton's memo said.

"After this record was played, Mrs. Roosevelt was called

into the conference and was confronted with the informaU.S.NEWS & WORLD REPORT. Dae. 19. 1983
45

tion, and this resulted in a terrific

fight between the President and

Mrs. Roosevelt," the memo continued. "At approximately 5:00

a.m. the next morning the President called. Genera) Arnold,

Chiefofthe Army Air Corps, and

upon his arrival at the conference ordered him to have Lash

outside the United States and on

his way to a combat post within

10 hours.

"After the conference was

over it was learned that the

President had ordered that anybody who knew anything about

this case should be immediately

releaved [sic] of his duties and

sent to the South Pacific for action against the Japs until they

were killed," the memo said.

Doubts and denials. So

steamy a tale of sin and vengeance within the First Family

must have astonished the FBI's

top echelon. But how much truth was in the account?'

Burton, who now lives in Sun City, Ariz., says he knows

no more than what he was told. He neither heard the

recording nor saw CIC reports on the surveillance of Lash.

Substantial reasons exist to doubt major aspects ofthe story.

Lash, who now lives in New York, obtained under the

Freedom of Information Act many of the FBI and CIC

documents referring to him and published some ofthem last

year in his book Love, Eleanor. A friend of both Eleanor and

Franklin Roosevelt, Lash vehemently denies having had an

affair with the First Lady, who was 26 years his senior. In a

foreword to the book, Franklin Roosevelt, Jr., says of the

White House meeting described by Burton: "I find the

episode unbelievable. It would have been out ofcharacter for

my father and mother to have acted the way they are

reported to have acted."

An analysis ofthe recordssuggests that agent Burton or*his

sources, neither of whom was present at the White House

meeting, may have gotten two CIC documents mixed up. A

• later FBI memo clearly confuses the two. One CIC report

covers a meeting between Lash and Mrs. Roosevelt at the

Urbana-Lincoln Hotel in Urbana, 111., on March 5, 1943. It

makes no mention of bugging

the hotel room assigned to Lash

or the adjoining room of Mrs.

Roosevelt and her aide, Malvina

Thompson, or of any sexual misconduct. The investigator sent

to watch Lash remained in the

lobby until 10:15 p.m. and then

received instructions to "discontinue surveillance of the subject," the CIC report said.

One week later, Lash stayed at

the same hotel with Trude Pratt,

who later became his wife. This

time the room was bugged. The

lieutenant conducting the surveillance wrote that Lash and.his

friend "appeared to be greatly

endeared to each other and engaged in sexual intercourse a

number of times."

Mrs. Roosevelt poses with Trude Pratt and Joseph Lath at

the White House 2Vx years before Army spying episode.

Whatever happened at the Illinois hotel or in the White

House meeting, a swift series of

actions followed, suggesting

high-level disapproval. Lash and

10 other airmen were abruptly

pulled out of the classes they

were attending at a weatherforecasting school in Grand Rapids, Mich., and shipped off to the

South Pacific. Officers there

were mystified when they arrived on their "secret" mission.

An inspector general's probe

ofArmy counterintelligence got

under way, and by the end ofthe

year hundreds ofCICagents had

been shifted to other assign-

, ments. The Countersubversive

j System, which had produced

: many leads on possibly disloyal

I soldiers, was abandoned. All

countersubversive manuals, statistical reports and personnel

US NEWS 4 WORLD REPORT

records were ordered burned.

The CIC headquarters at Fort Holabird, Md., was closed in

February, 1944.

What was behind it all? As far as the public knew, the CIC

was broken up because of a mess the inspector general

uncovered. A different explanation is given in documents

that were classified until recently. Col. H. R. Kibler, wartime

head ofthe CIC, told an Army historian in 1953 that the move

was ordered by Gen. George Marshall, Army chief of staff,

because of an investigation conducted by agents in Washington and Chicago involving "something that would be personally embarrassing to the Roosevelt family."

FBI reports on the episode were tucked away in Hoover's

closely held files but not forgotten. They were pulled out in

1951 when a senator asked if the FBI had ever investigated

the ties between Lash and Mrs. Roosevelt. Hoover's aides

concluded that, since the reports were not in the main files

and only a few top bureau officials knew of them, it was

"thoroughly safe" to tell the senator that "FBI files do not

contain any such information."

Burton's explosive memo was recalled again in 1954

when an aide sent a copy to Hoover with a note saying:

'The thought occurs that if the President [EisenhowThe youthful FBI director with er] does not know of the furor that was caused in G-2

FDR In the Oval Office. [Army intelligence] some years ago as the result of GS 2's investigation of [Lash and] his connections with

Mrs. Roosevelt, you might want to consider mentioning this incident to him." Available documents do not

reveal whether Hoover passed this juicy bit of hearsay along to Eisenhower.

Orders From Lyndon Johnson

Hoover's files suggest that President Johnson often

demanded favors of the FBI and that Hoover usually

granted them. Only when the bureau appeared in

danger of being dragged into a damaging political

donnybrook did he say no.

In 1966, for example, when rumors began circulating that Senator Thomas Dodd (D-Conn.) was involved in illegal activities, the Johnson White House

ordered the FBI to check out the rumors "discreetly"

but not to open an investigation or interview Dodd.

Later, when it was learned that columnist Jack Anderson had obtained Dodd's office records, Johnson

gave the green light for an FBI investigation. But the

47
46

White House cautioned the bureau that "no record should

be made in FBI files regarding the fact that the White

House had previously requested that no investigation

should be conducted regarding Senator Dodd."

Hoover penned at the bottom of a memo from an aide:

"We certainly got into a squeeze play through no fault of

our own." Dodd was censured by the Senate in 1967 for

irregularities in his financial affairs and was defeated for reelection in 1970. He died the following year.

Johnson was ever fearful that his contacts with the bureau would leak out. In 1966, his aides instructed the FBI to

respond to White House queries on "matters of extreme

secrecy" with "blind" memoranda•reports with no indication of the source, on paper without watermarks. In 1967,

Johnson asked specifically that this protection be given to

White House requests dealing with the case of Bobby

Baker, the former secretary of the Senate and protege of

LBJ's who was later convicted of fraud. Johnson, in fact,

wanted the FBI itself to keep no records of his demands

and inquiries•an order Hoover ignored.

"Put a surveillance on him." Other records show how

Johnson several times used the FBI to lean on journalists he

considered unfriendly. In June, 1962, he called in a bureau

official to report that he was "very angry" about a critical

editorial in Farm and Ranch magazine. Hoover approved

agents interviewing the editor and preparing a report for

Johnson, who at that time was Vice President.

In June, 1965, Johnson, by then President, complained to

Hoover about a number of adverse articles and cartoons in .

the Washington Evening Star. A Hoover aide reported to

the director that he had "discussed this matter on a very

discreet basis with at least five officials of the Evening Star,

including the editor, Newbold Noyes," and received an

accounting that showed the paper had published more

favorable than unfavorable articles about the President.

Another journalist to stir Johnson's ire was the late Peter

Lisagor of the Chicago Daily News. In February, 1966, a

White House aide told Hoover "the President feels Lisagor

is tearing him apart and getting information from someplace and thought we ought to put a surveillance on him to

find out what he is doing and where he is getting his

information.*' To satisfy the President, agents questioned

other reporters about Lisagor and his sources.

Hoover oats a Lyndon Johnson-styla handshake. LBJ called on

the FBI to perform a variety of political errands.

48

The limit of the bureau's willingness to do the bidding of

Johnson was reached inJune, 1962. A Johnson aide asked that

FBI agents be sent to interview Representative William

Cramer (R-Fla.), who was publicly threatening impeachment

proceedings against the Vice President for allegedly being

involved with Billie Sol Estes, a Texas wheeler-dealer later

imprisoned for fraud. The proposed interview may have

beenseen as a way ofcalling Cramer's bluff or scaring him off.

An FBI official told the Johnson man that Cramer would

"holler like a stuck pig" ifthe bureau approached him on the

basis of a request from LBJ. The next morning, lobbyist

Thomas Corcoran, a Johnson acquaintance, telephoned the

FBI to request the Cramer interview in his own name.

Hoover scribbled on a memo a comment describing Corcoran as "the devious Tommy.'" When a top Hoover assistant

objected that "we could very well be setting ourselves up as

the bird in a badminton game," the director drew the line:

"I agree•I think we should keep out ofthis completely."

Hoover's "devious Tommy'" epithet was in character.

From his vantage point at the FBI, he kept up a running

commentary about the actors on the Washington stage both

in memos for his files and in cryptic notes written in blue

ink at the bottom of the papers that came across his desk.

On Oct. 28, 1941, reacting to a critic of the bureau, he

wrote: "I do want to make certain that we do everything

proper to thoroughly handle all aspects of this case so as not

to give this little whelp any real basis for howling.**

On March 7, 1959, at the bottom of a memo reporting

controversy over remarks by Robert Kennedy, then engaged in his brother's presidential campaign. Hoover

penned: "Re: Robert Kennedy•this is what happens when

the prodigal son gets too far away from home and papa."

The Railroad Ride of Sumner Welles

Hoover's confidential files show how allegations of homosexuality in government during the 1940s, 1950s and 1960s

damaged reputations and sometimes ruined careers.

One case involved Sumner Welles, scion of a rich and

distinguished family who became under secretary of State

in 1937. When Welles resigned in 1943, he cited his wife's

poor health. The press speculated that Roosevelt had finally

had enough of the constant feuding between Welles and

Secretary of State CordeU Hull.

Hoover's records tell a more complicated story•one of a

President who had reason to fear that his No. 2 man at the

State Department was about to become the target of a

congressional inquiry for alleged sexual misconduct.

The problem stemmed from a September, 1940, train

trip taken by Roosevelt, Welles and other administration

figures. A Secret Service agent reported after the journey

that Welles had "propositioned a number of the train crew

to have immoral relations."

Welles was an imperious man with many enemies. They

got wind of the episode and immediately began retailing

the story around the capital. One foe, William BuUitt, ambassador to France, wanted President Roosevelt informed,

but he was afraid to deliver the bad news himself, fearing

that the informant "would get his own legs cut off." Welles

and FDR, two Eastern aristocrats, had long been friends.

When Roosevelt learned of the allegations, he ordered an

FBI investigation. Hoover reported the results several

weeks later, offering no conclusion on the validity of the

charges. He quoted the patrician diplomat as saying he

"had been drinking rather heavily" and remembered nothing about the trip except that he had become ill.

FDR chose to let the matter pass. But enemies of Welles

made sure the whispering continued. Hoover described

what happened next in memos for his files: Welles's boss

and chief antagonist, Secretary Hull, called Hoover to his

US NEWS i WORLD REPORT. DM. 19. 1983
47

Under Secretary of State Sumner Welles, right, with his rival,

Cordell Hull. Incident on a train helped drive Welles from office.

apartment in October, 1942, and asked for a copy of the

FBI's report. Hoover politely suggested that Hull get it

from the White House. Hull said several senators' wives

were buzzing about Welles's transgressions and that he was

going to warn the White House of the risk of "considerable

embarrassment unless some steps were promptly taken."

The next spring, Senator Owen Brewster (R-Me.), a frequent Roosevelt critic, spoke to Hoover about the "disgraceful action" of Welles and said he would press for a Senate

investigation and a "report to the Senate." The tale ofsin on

the rails was beginning to reach journalistic ears, and in

September, 1943, Hoover told Roosevelt aides that a Los

Angeles police official and three persons from the Hollywood film industry were overheard talking about the alleged

incident. Two weeks later, Welles was eased out of office.

A glimpse of Hoover's views on homosexuality can be seen

in a 1953 memo recounting a conversation with Senator

Joseph McCarthy (R-Wis.) Hoover recalled criticizing the

State Department for considering homosexuality "strictly a

personal matter." At the same time, Hoover told McCarthy

that "it was very difficult toprove a charge ofhomosexuality"

and that "it was often a charge used by persons who wanted to

smear someone." From the government's standpoint, homosexuality was worrisome because it could lead to blackmail.

In a 1957 memo to top aides, the FBI chief wrote that

three employes of the Eisenhower White House had resigned after being accused of homosexual acts.

In 1969, the FBI looked into an allegation by a Nixon White

House aide•brought to the FBI's attention by a journalist•

that three colleagues were homosexuals. FBI official Cartha

DeLoach reported to Hoover that he had told the reporter

that "the FBI of course could not sit on a story ofthis nature."

DeLoach added that the "matter is ofsuch consequence that

[Hoover] may desire to personally advise the President."

Writing for his files. Hoover turned his wrath on the

press. He suggested that the journalist was "a rat of the

worst type." If he took no action. Hoover mused, the reporter "could say this information was supplied to the bureau ... and it was hushed up by the White House or the

US NEWS & WORLD REPORT, Dec 19, 1993

Attorney General." On the other hand. Hoover noted that

investigating the case would give the journalist an opportunity to write that the FBI was probing the charges. The

three men "under oath emphatically denied" the allegations, apparently ending the matter.

The Director Is Accused

Hoover was hounded by persistent, but never substantiated, rumors that he himself was a homosexual•rumors fed

by his practice of taking aide and fellow lifelong-bachelor

Clyde Tolson along on out-of-town trips. The files show that

the FBI chief and his agents took strong exception to•and

sometimes action against• those who cast such slurs.

In 1944, for example, agents in the New York City field

office told Hoover that a man they were interviewing had

remarked that he "had heard a rumor to the effect that Mr.

Hoover was a 'queer.' " Hoover scribbled on the report: "I

never heard of this obvious degenerate. Only one with a

depraved mind could have such thoughts."

The previous year, an agent reported to headquarters

that an FBI employe had remarked at a bridge party in

Cleveland that Hoover "was a homosexual and kept a large

group of young boys around him." After the FBI's head

agent in Cleveland called the employe into his office and

"chastised her most vigorously," Hoover was told, she

"thoroughly understood the untruth of her statements."

A 1951 episode sent agents further afield in defense of

their boss. While having her hair done in a Washington, D.C.,

beauty parlor, an employe of the FBI heard the owner say

Hoover was "a queer" and "was being paid off by bookies.**

Agents were promptly dispatched to interview the offending woman, who denied making the statements. In a threepage memo on the episode, bureau official L. B. Nichols

lamented that such "women have so little to lose ... and it is

always difficult to catch up with gossiping rumormongers."

Stalking White House Hopefuls

Presidential elections worried Hoover: A new Chief Executive might someday end his long tenure at the FBI. At

times, he helped the White House aspirants he liked.

In 1948, while Hoover was serving under President Truman, he worked behind the scenes as an adviser to Republican presidential nominee Thomas Dewey. The director's

files show, for example, that Hoover told Dewey he saw

"definite possibilities" in the candidate's proposal to force

Communist Party members to register with the government. He promised to have material from the bureau's files

flown to Dewey so he would have it the next morning.

Hoover deflected a move against an earlier GOP presidential candidate, Wendell Willkie. In 1940, he refused a

request from Secretary of the Interior Harold Ickes that the

FBI look into a report that Willkie had changed his name

from "Wulkje." Hoover aide Edward Tamm advised that it

would be "a serious mistake" for the Department ofJustice

to conduct political investigations.

Hoover took this advice in the Willkie matter, but sometimes acted differently when it came to liberal Democrats.

The FBI, for example, kept an open file on Adlai Stevenson

when he sought the Presidency in 1952 and 1956.

Hoover suspected the Illinois governor was sympathetic

to Communism•a charge that is not supported by the

documents released. Rumor, hearsay, trivia and unflattering newspaper stories fill the fat dossier. Agents had trouble

spelling Stevenson's first name. It showed up in their reports as "Adley," "Adlee," "Adlei," "Adlai," "Adalai,"

"Adali," "Adelai" and "Adelaide." His last name at times

was recorded as "Stephenson."

George McGovern was another Democratic presidential

aspirant Hoover came to despise. In February, 1971,McCov49
48

ern lambasted Hoover for the forced resignation of an agent

who had made the mistake ofcriticizing the FBI in a letter to

a professor. Hoover's response to the McCovern attack was

to order his 21 top aides to write "unsolicited" letters to the

South Dakota senator lauding their boss. McCovern gleefully

inserted the testimonials in the Congressional Record, poking fun at so transparent a move.

Hoover sought a way to get even. The director's confidential Hies show that thought was given to use of FBI "power"

against McCovern. But the bureau's legal counsel, D.J.

Dalbey, cautioned that it was better to let the controversy

"fade out." He said that if McCovern "wants to be President,

he'll have to run on something other than a campaign against

the director. There is no act that would get political sympathy

for McCovern quicker than the beliefofthe other politicians

that the director had used the power at his disposal against

McCovern. There is no gain here to justify the risk."

The Big Ears of Harry Truman

When Roosevelt died on April 12, 1945, and Harry Truman succeeded him, the new President's "Missouri Gang"

of advisers found themselves competing with vast numbers

of Roosevelt loyalists inside and outside the bureaucracy.

For help in keeping control over them, the new Chief

Executive turned to his FBI director. The files show that

Hoover obliged by setting up wiretaps on at least one

administration official and on a prominent lobbyist.

The official was Edward Prichard, Jr., a 30-year-old lawyer who was Fred Vinson's top assistant. At the rime of the

wiretap, Vinson headed the Office of War Mobilization and

Reconversion and then became Secretary of the Treasury. -

The records do not reveal why Prichard specifically was

tapped. Now an attorney in Lexington, Ky., Prichard suspects it was because he had expressed his "dim view" of

Truman and the "numbskulls" he had brought into his

administration after Roosevelt died. The wiretap on "PR"•

as Prichard was identified in the FBI logs•began in May,

1945, and stopped when he left government and returned

to Kentucky the next fall. "The whole thing is a damned

outrage," he declares. "It was illegal as hell."

Along with the reports on "PR," the Truman White

House got summaries almost daily from another tap: This

one was on "CO"•Thomas Corcoran, a former New Deal

braintruster who had become one of Washington's most

potent lawyer-lobbyists. Truman feared that he would use

his ties to friends throughout the government to thwart key

administration policies.

The President asked A try. Gen. Tom Clark to authorize

surveillance in late 1945, because he wanted to make sure

that Corcoran's "activities did not interfere with the proper

administration of government," Hoover wrote in a confidential memo. The tapping went on until 1948, ending

when Corcoran somehow learned that his phone was "loaded." In one of the final conversations recorded, he was

overheard warning a caller, "Watch this telephone! There's

a record on this phonel I'll call you over some other phone

later in the afternoon, huh?"

Footnote: The Corcoran wiretap may have backfired on

Truman and helped Hoover save hisjob. FBI agents heard a

caller say that the President had told him he was seeking a

way to remove Hoover without stirring a public protest. The

director promptly wrote to a Truman aide telling him of the

"loose talk" his agents had overheard•destroying any hope

the White House may have had oftaking Hoover by surprise.

Still Mora Secrets

The FBI's release of portions of Hoover's confidential

files came in response to a Freedom of Information Act

request by Athan Theoharis, a historian at Marquette Uni50

versify in Milwaukee. Theoharis sees the documents as "a

very valuable collection, especially in terms of understanding how the bureau dealt with sensitive policy matters.

They provide fascinating insights into the operations of the

bureau under Hoover." Still, the 7,000 pages released tell

only part of the story. Almost every page has been censored, ranging from the blacking out of certain names to

the elimination of entire paragraphs.

In addition, the FBI has withheld altogether more than

10,000 other pages, citing national security, personal privacy or other grounds that exempt material from the Freedom of Information Act. Charging that the extent of the

FBI's deletions is "totally unwarranted," Theoharis is asking

Justice Department officials to release many more of the

documents. But even if his appeal succeeds, hundreds if not

thousands of pages are likely to remain sealed.

Decades more could pass before the world learns the last

ofJ. Edgar Hoover's secrets. •

By OUR KELLYwith TED CESTandJOSEPH P. SHAP1MO

: ~ William Webster haa been FBI director since 1978.

FBI Today:.Living by New Rules

£=£ In the dozen years since J. Edgar Hoover died, farreaching reforms have been adopted by Congress, the

executive branch and the FBI itself to discourage what

a special Senate committee has called misuse of the

bureau's power• z£ t'~'\.:V-\~S'

:* • No director will be able to perpetuate

r

himself in

• office decade after decade. The law sets a fixed 10-

' year term" for FBI chief William Webster and his

successors^ _;•>'-•'- -

:

- '.-•••*•. .::" .

;

-"vba Court approval is required for all electronic surveillance in domestic and national-security cases.

'-- • Guidelines issued by the Attorney General tell

the bureau what it may and may not do. Although

recently relaxed, such rules have led to a sharp decrease in the FBI's gathering of information on politicalgroups..v;~;f^»-•-.-V - i? -..«.y-.v-r"?>•-** '

'•;' a Actions of the FBI are monitored by outsiders

more than ever before•by the public, through use of

the Freedom of Information Act, and by congressional intelligence committees.

a The FBI no longer maintains the special political

files Hoover kept at his elbow. Civil libertarians warn,

however, that there is no cause for complacency. They

note that the bureau's main files still contain a reservoir

ofsensitive information on millions of Americans.

U.S.NEWS & WORLD REPORT, D»c 19. 1983
49

Senator LEAHY. I look at some of these things that have come out

of FOIA, and I do not think any one of us ever wants to go to a

closed society. We have disadvantages, certainly, in this country as

an open society, but one of the advantages we always speak of is

that we are better off than the Soviets with their closed society,

and I am sure nobody is suggesting that we go to either a closed

society or a police state. But I would remind everybody that it was

under FOIA that we found out, for example, that the FBI had

maintained investigatory files of reporters whose views they disagreed with, such as the Washington Post's Alfred Friendly, or we

found out that the FBI created a thick dossier on Albert Einstein,

because they thought he was the head of a Communist spy ring.

We found out about the CIA's project which used unknowing

American citizens to conduct drug-induced mind-control experiments.

Now, I like to think we can tighten up in a number of ways of

congressional oversight on these things, but I am not convinced

that we are never going to have administrations, Republican or

Democrat, that are not going to either make mistakes or get themselves involved in things that they should not do, and I like to

think that the FOIA gives a protection to those who are outside the

Government, to make sure their Government follows the law, all of

us, and that the Government does not make mistakes. Notwithstanding my strong support of FOIA, I have worked very hard to

tighten up some things where I think some changes should be

made, especially in the law enforcement area, and I think that we

have worked that out. But I am afraid that if we start going off in

a shotgun fashion, we may find that nothing in the way of changes

in FOIA will pass this year at all. Now, we have passed one bill

unanimously in the Senate, with some major changes, which Senator Hatch and I worked on. We passed significant legislation that

the Senate Intelligence Committee requested. But I could see the

whole thing coming to a screeching halt if we stray off those paths.

Senator HATCH. Well, if the Senator would yield, I think there is

some merit to what the Senator has been saying, but I would also

like to point out that since there is no way to know how much a

requester might know about an investigation or what little piece of

information might be vital to his understanding of the status of an

investigation or the identity of an informant, no one could decide

with certainly what can be segregated out of a sensitive document

for release. Thus, with respect to confidential law enforcement, I

have to admit that Senator Denton's recommendation has some

merit. I think that just needs to be pointed out. I think Senator

Leahy has been fair in pointing out his side, and you have been

fair in pointing out yours.

Senator DENTON. I appreciate any help you can give me, Mr.

Chairman, since I am not, as I say and have said many times, a

lawyer. However, I have dealt with questions like this all my life,

in my previous profession, and I am quite aware and agree with

the Senator from Vermont, about abuses which took place. I was

not in this country when they were taking place, nor aware of

them, but I understand that they took place, and I understand that

there is a great need for the Freedom of Information Act and the

Privacy Act.
50

So I would not wish to be lumped into a category, nor do I necessarily know firsthand that Mr. Casey said he would do away with

the FOIA altogether. I do not wish to do away with the FOIA. I

note that there are already nine exemptions, and I am asking that

the foreign counterintelligence field and terrorism be added. I

think that they are at least as necessary as classified documents

concerning national defense, foreign policy, internal personnel

rules and practices, information specifically exempt from disclosure

under other laws, trade secrets, internal communications such as

those protected by attorney-client privilege•we are very careful

about attorney-client privilege•protection of privacy, such as medical records, and all of that.

I do not see why we do not want to stop our intelligence people

dying in the line of their duty because some crook or some spy can

write in and ask "Who informed on me?" I do not see that being an

abuse of civil rights at all.

Senator LEAHY. YOU do not see those as covered already by the

exemptions we have written in?

Senator DENTON. No, sir, and neither does the Director of the

FBI.

Senator HATCH. Thank you, Senator.

Thank you, Senator Denton. We appreciate the testimony you

have presented here today and the efforts you have put forth in

these areas. Thank you so much.

Senator DENTON. Thank you, Mr. Chairman and members of the

subcommittee.

Senator HATCH. At this point, we will call on our other friend

and Senator from Minnesota, Senator Durenberger.

Senator, we will be happy to take your testimony into the record

at this time. We welcome you before the committee and look forward to hearing from you.

STATEMENT OF HON. DAVE DURENBERGER, A U.S. SENATOR

FROM THE STATE OF MINNESOTA

Senator DURENBERGER. I thank you, Mr. Chairman.

I am pleased that you have agreed to hold this hearing today and

delighted to be able to testify on S. 1335, the the Freedom of Information Protection Act.

Mr. Chairman, I also want to thank my colleague, Senator

Leahy, for his authorship of this legislation and for his comments

about the need to codify common sense. That is what I will try to

elaborate on this morning.

Mr. Chairman, the immediate cause for the Freedom of Information Protection Act is certain unfortunate aspects of the latest Executive order relative to national security information. But the bill

has its roots in a whole generation of efforts to develop a government secrecy policy.

That secrecy goes back, if you will, to the Revolutionary War,

and the protection of military secrets grew notably during and

after the First World War in this century. But our modern classification system, applied to diplomatic as well as military secrets and

supported by Executive orders, really is a product of the Roosevelt

and Truman administrations in the Second World War period.
51

President Truman's Executive order of 1948 was so broad as to

cause great concern in this country. So it was President Eisenhower who began the march toward more openness in this area with

his Executive order of 1953. That order limited who could classify

information, did away with one level of classification, and introduced declassification policies.

Later in Eisenhower's administration, a Defense Department

study called for "a determined attack on overclassification and an

active declassification program." At the same time, a bipartisan

commission called for the abolition of the "confidential" classification for all future defense information materials.

During the Nixon administration, continued study was given to

the problem of secrecy. The Defense Science Board in 1969 set up a

Task Force on Secrecy. The Chairman of that Board was Dr.

Robert L. Sproull, former head of the Defense Advanced Research

Projects Agency and now president of the University of Rochester,

who will be testifying shortly.

I will note just a couple of the important conclusions of that task

force, because they are relevant to the task before us, and I quote:

It is unlikely that classified information will remain secure for periods as long as

5 years, and it is more reasonable to assume that it will become known to others in

periods as short as 1 year.

The amount of scientific and technical information which is classified could profitably be decreased perhaps as much as 90 percent.

Specifically, it is recommended that the present emphasis that promotes classification be reversed to discourage classification by requiring in each instance of classification: A meaningful written justification by the initiator of the classification

action.

That is the end of the quotations from that report.

Our final advice on this subject came from Justice Potter Stewart, in his famous concurring opinion in New York Times Company

v. United States, in 1971. He said:

For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless and to be manipulated by

those intent on self-protection or self-promotion.

All of these studies, Mr. Chairman, had an effect. The Nixon Executive order in 1972 praised the Freedom of Information Act and

held bureaucrats accountable for any unnecessary classification or

overclassification. It also incorporated a far-reaching system of systematic and automatic declassification.

In 1978, the Carter Executive order actually cut back on some of

that automatic declassification. But it added the "balancing test"

between "the need to protect information" and "the public interest

in disclosure." It also required that confidential information be tied

to "identifiable" damage to the national security that might result

from its release. That, Mr. Chairman, is a far cry from abolishing

the confidential category, as recommended during the Eisenhower

administration, but it is a clear effort to discourage unnecessary

classification. And both the Nixon and the Carter orders led to dramatic drops in the number of persons authorized to classify information.

Against that heartening progress over nearly 30 years, the most

recent Executive order stands out as a clear and unnecessary break

with the past. Gone is the "identifiable damage" criterion. Gone is
52

the "balancing test." Gone are mandatory systematic review and

automatic declassification. And clearly reversed is the basic thrust

toward maximum openness, consistent with the national security,

that had guided the two previous orders.

Hence, the bill I am presenting to you, the Freedom of Information Protection Act. For we cannot avoid the responsibility for protecting FOIA from foolish bureaucrats who thrive in secrecy and

expect the country to do the same.

You know, Mr. Chairman, as I do, that the way people operate

around this place is on the theory that information is power. And

the lower you are in the pecking order, the more valuable information is as a tool of power. So this bill is basically designed to affect

bueaucratic routine, in an effort to get some reality into the declassification process.

What will S. 1335 do? It is a very simple bill. It will reestablish a

standard of thoughtfulness for the declassification decisions that

are promoted by FOIA requests. By doing so, it will also encourage

thoughtfulness in other declassification decisions.

Briefly, S. 1335 applies only to the (b)(1) exemption in FOIA for

classified information. It does not apply to other exemptions like

the statutory exemptions you have been talking about in the last

hour or so, or the one for law enforcement information. It requires

that information withheld under the (b)(1) exemption meet both

the "identifiable damage" standard and the "balancing test." That,

in effect, restores the past. Now we improve on the past in one

way. The bill limits judicial review of the balancing test to ascertaining that the agency withholding the information did, in fact,

strike that balance. It does not argue with the result. This limit answers the executive branch's basic concern at the time that they

eliminated the "balancing test."

This bill applies only to FOIA declassification decisions, not to

the whole classification system. And it does not raise the substantive standard for classification or declassification. It does require

that agencies think through each individual case and consider all

the relevant factors, and it will make clear our concern over increased secrecy in Government.

Why is that important? Why does it warrant legislation to deal

with the effect of an Executive order on one FOIA exemption?

The reason is, Mr. Chairman, that the Freedom of Information

Act strikes the critical balance that is unique to America, between

openness and secrecy, that permits us to maintain a democracy

while keeping large amounts of information secret.

We all know that some information must be kept secret. We do

not always realize, however, how important it is that some of that

information be made available for public scrutiny, and how important it is that the public have confidence in its ability to gain

access to some of that information when it is safe to do so.

Those in our Government who possess information and have the

responsibility to protect the secrecy of that information also have

the right to hide it from the public, to release it to the public, or to

give it to others who can share that information. The public does

not have those rights.

Some classified information bears directly upon issues on which

we and the public make decisions: the difficulty of verifying arms
53

control agreements, for example; the murder of American nuns in

El Salvador; problems of military preparedness. When a journalist

or an historian receives declassified information on such topics

through FOIA, we all as a society benefit from the ability to debate

those issues with a better factual base. When too much information

is bottled up, then we suffer the wars of leaks and counterleaks in

place of rational discussion.

Other classified information may give a bereaved family information about the death or disappearance of a loved one, or it may

show a private citizen what information the Government has collected about him. This society has granted its Government, for

very, very good reasons, rights to gather information on people and

to keep some of that information secret. The public's consent to

this depends at least in part on its sense that people can obtain the

Government's records on them.

If we allow restrictive Executive orders and routinized FOIA decisions to change that perception, then we risk losing the popular

consent on which the whole classification system rests. It is for

these reasons that the Senate Select Committee on Intelligence

unanimously advised the President of the United States not to dispense with the "identifiable damage" standard, not to dispense

with the "balancing test." That is also why all my cosponsors on

this legislation are current or former members of the Senate Select

Committee on Intelligence. We know the need for classified information. We also know that the system of classification will survive

only so long as the people have confidence in it.

I am sure that we all receive letters from constituents recounting

impersonal treatment of their FOIA requests. My State includes

everybody from the former skipper of the U.S.S. Liberty to an anthropologist studying the Hmong people of Kampuchea. These

people deserve a Government that considers their FOIA requests

thoughtfully, rather than relying upon rote decisionmaking. My

constituents deserve that consideration, and so do yours.

S. 1335 is a simple bill. It is only a beginning, but it is a good

place to start. It corrects problems, rather than trying to set up a

whole new system. And importantly, it will send a clear signal to

the security bureaucrats. This bill will say that Congress meant it

when it passed FOIA. It will tell them: "Think, before you reject

those requests," and will keep this country on the highway to

greater openness, rather than the dead-end street of secrecy.

Mr. Chairman, several organizations and individuals have called

my office in the last few days to express regret that they were not

invited to testify here today. I would hope that you would be able

to leave the record open for a couple of weeks after this hearing, so

that those persons and groups could submit written statements on

this bill.

With that, I will thank you especially for your thoughtfulness

and for making it possible for us to have this hearing.

Senator HATCH. Thank you, Senator Durenberger.

We will be happy to keep the record open for 2 weeks for statements from people who are expressly concerned about this particular bill and these issues.

Senator DURENBERGER. Thank you.
54

Senator HATCH. Senator Durenberger, we would like to invite

you to come up here and sit with us, as we introduce the next

panel.

I have to go and introduce some Utah constituents. Senator

Leahy, could you preside?

Senator LEAHY. Well, Mr. Chairman, I was about to leave for another meeting, myself.

Senator HATCH. Well, Dave, you are it. Why don't you come up

here?

Senator DURENBERGER. I was on my way to the doctor.

Senator HATCH. Well, how lucky you are. You get to finish these

hearings.

I apologize, but I have a Utah constituent that I need to go and

introduce to the Communications Subcommittee, if I can.

Our next four witnesses will be a panel. I will call on Mr. Steven

Garfinkel, Director of the Information Security Oversight Office of

the General Services Administration; Mary Lawton, Counsel for

Intelligence Policy and Review of the Department of Justice; Mark

Lynch, of the American Civil Liberties Union, and Robert Sproull,

the President of the University of Rochester.

I would like to ask each of you witnesses to summarize your prepared statements so that we can place them in the record, and if

you can summarize, it would be very much appreciated, I know, by

Senator Durenberger and myself. But we will place all prepared

statements in the record as though fully delivered.

Thank you for being here. We are happy to welcome you before

the committee. We will begin with you, Mr. Garfinkel.

Let's also leave the record open so that we can have anybody on

this committee submit questions in writing to any of the witnesses

who have appeared here today.

Mr. Garfinkel?

[Whereupon, Senator Durenberger assumed the chair.]

STATEMENT OF A PANEL, INCLUDING STEVEN GARFINKEL, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE, GENERAL SERVICES ADMINISTRATION; MARY LAWTON, COUNSEL

FOR INTELLIGENCE POLICY AND REVIEW, DEPARTMENT OF

JUSTICE; MARK LYNCH, AMERICAN CIVIL LIBERTIES UNION;

AND DR. ROBERT L. SPROULL, PRESIDENT, UNIVERSITY OF

ROCHESTER

Mr. GARFINKEL. Thank you very much, Mr. Chairman.

As requested, I will attempt to summarize the more critical parts

of my statement.

In 1982, the President issued a new Executive order on national

security information, Executive Order 12356, which replaced Executive Order 12065, introduced by President Carter in 1978. There

were a number of reasons for revising Executive Order 12065.

ISOO discussed these reasons in an article entitled, "The Background of Executive Order 12356," which appeared in ISOO's

Annual Report to the President for fiscal year 1982.

With the permission of the committee, I propose to enter this article into the record as an appendix to my statement.
55

Senator DURENBERGER. Without objection, it will be made a part

of the record along with your statement.

Mr. GARFINKEL. None of the reasons for issuing Executive Order

12356 was the one that has been repeatedly cited in the popular

media•that is, to increase the types and quantity of information

that may be classified and thereby protected from public disclosure.

Because classifiers read the newspapers, it has been this assertion and several like it that ISOO and its agency counterparts have

sought to contradict in their oversight programs. Fortunately, the

combination of a credible, efficient information security system and

effective oversight has proved the critics of Executive Order 12356

wrong. I quote from my letter transmitting ISOO's Annual Report

to the President for Fiscal Year 1983:

As the report reveals, to date, Executive Order 12356 has achieved the standard

you announced in issuing it. The Order enhances protection for national security

information without permitting excessive classification of documents by the government. In fact, the number of original classification decisions, which is the most important measurement of classification activity, decreased by almost 200,000 actions

in fiscal year 1983. This reduction is an unprecedented accomplishment, especially

in the context of improved protection for national security information.

With the permission of the subcommittee, I offer into the record

of this hearing a copy of ISOO's fiscal year 1983 annual report.

Senator DURENBERGER. Without objection, we will make it part

of the record.

Mr. GARFINKEL. It reveals a number of other facts that contradict the myths about Executive Order 12356 that continue to thrive

on idle speculation and hearsay. Please permit me to cite some examples•and with your permission, Senator Durenberger, I am

going to skip to the fourth example that I cite, since that begins

with those that are relevant to S. 1335.

Myth No. 4. "By dropping the modifier, identifiable, from the

standard of damage that is the threshold of classification, the order

broadens the scope of classification."

The threshold for classification in Executive Order 12065 was

"identifiable damage to the national security." In the revised

order, as was the case in the pre-1978 orders, the threshold is

"damage to the national security." "Identifiable" has been

dropped, not to increase the scope of permissible classification, but

to avoid an ambiguous and unnecessary word that is subject to inconsistent and inaccurate interpretation.

Senator DURENBERGER. Are you going to give us some examples?

Mr. GARFINKEL. The statement will give one example.

When added to the 1978 order, it was intended that the inclusion

of the word "identifiable" would put the classifier on notice of the

requirement for a conscious, if somewhat subjective, analysis of

prospective damage to the national security from the unauthorized

disclosure of the information. Instead, litigants seized upon the

word as a qualitative or quantitative modifier of damage; that is,

they argued that the damage to the national security must be of a

particular type or amount in order to classify the relevant information.

For example, in one lawsuit, plaintiffs argued that the disclosure

of certain intelligence sources would not result in "identifiable"

damage to the national security, because the prospective harm to
56

those sources was merely speculative. The deletion of "identifiable"

eliminated this sort of bizarre logic. It has had no impact whatsoever on the quality or quantity of classification decisions. Its reinstatement through the enactment of S. 1335 is both unnecessary

and unsound.

Myth No. 5. "The order forbids the classifier or declassifier from

considering the public interest in disclosure." This myth evolves

from the absence of the so-called balancing test in Executive Order

12356. The "balancing test" was a provision in Executive Order

12065 that was intended to encourage agency heads, in their sole

discretion, to release information that met the requirements for

classification if they determined that there was an overriding

public interest in disclosure.

The problem with the "balancing test" had nothing to do with its

endorsement of openness. Balancing the public interests served by

either protection or disclosure is an inherent part of both the classification and declassification processes, and it remains so under

the current system. Rather, it was the real and potential misapplication of the "balancing test" in the context of litigation that necessitated its demise. Lawyers argued, sometimes successfully, that

the test was not discretionary, and persuaded some judges to

second-guess the responsible agency head, even though it was

agreed that the information met the requirements for classification. As a result, agencies were required to expend large amounts

of time and money and to reveal increasingly more sensitive information in order to defend these lawsuits.

Significantly, in none of these maneuverings did a plaintiff requester ever gain access to information over which an agency

maintained classification. In other words, researchers did not benefit from the "balancing test" before and would not benefit from its

reinstatement now.

Senator DURENBERGER. SO, it is your testimony that having the

"balancing test" and "identifiable" damage standards in there is

really no problem except for the lawyers, and when the lawyers get

into it, then it becomes a problem; otherwise, it is not a problem

for the classifiers nor is it for declassifiers.

Mr. GARFINKEL. I think that is correct. Among the reasons for

amending Executive Order 12065 are reasons relating to the burdens of litigation under the FOIA's first exemption, and the two

primary reasons were the existence of the "balancing test" and the

"identifiable damage" standard. The reason for their deletion had

nothing to do with handling the standard of "identifiable damage"

or the administrative process of considering the competing interests in disclosure or protection of the information.

Senator DURENBERGER. That is a point at which you and I might

disagree, but at least your testimony is that it is only the litigious

nature of•the words, in effect•that you object to.

Mr. GARFINKEL. That is correct.

It would appear that the only potential beneficiaries of its reinstatement through enactment of S. 1335 will be the nonprevailing

lawyers, who will religiously seek imposed attorneys fees notwithstanding the final resolution of the suit.

Mr. Chairman and members of the subcommittee, perhaps more

significant than the successes of the past year are the commit-
57

ments for fiscal year 1984 and beyond. In a letter to me dated

March 23, 1984, the President, though grateful for past successes,

emphasized continued improvement in the administration of the

information security program. I quote from the President's letter:

I ask for the same commitment in the future to improving our performance even

more. We must continue to ensure that information is being classified only when

this extraordinary protection is necessary; that those entrusted with access to national security information appreciate the seriousness of their responsibility to safeguard it; and that systematic review and other declassification efforts are made in

accordance with the Order's goal of making information no longer requiring security protection available to the public.

Members of the subcommittee, with your permission, I offer the

entirety of the President's letter into the record of this hearing.

Senator DURENBERGEE. Without objection, it will be made a part

of the record.

Mr. GARFINKEL. Members of the subcommittee, the Government's

information security program is not only working; it is working

well. It will not be improved through the enactment of S. 1335, but

it could be damaged. I urge you to reject this legislation.

That concludes my statement.

Senator DURENBERGER. Thank you.

[The following was received for the record:]
58

PREPARED STATEMENT OF STEVEN GARFINKEL

Mr. Chairman and Members of the Subcommittee:

As you consider S. 1335, I welcome the opportunity to appear

before you today to respond to your questions about the executive

branch's security classification program. The Administration

strongly opposes this legislation on both program and legal

grounds. I will focus on the program aspects of this opposition,

and Mary Lawton, Counsel for Intelligence Policy at the

Department of Justice, will focus on the legal aspects.

I am the Director of a small and somewhat unusual executive

branch office known as the Information Security Oversight Office,

or ISOO. ISOO is responsible for overseeing the information

security program throughout the executive branch and for

reporting annually to the President on the status of that

program. The information security program encompasses the

classification, declassification and safeguarding of national

security information. National security information is, of

course, referenced by the first statutory exemption to the

Freedom of Information Act, which S. 1335 would amend.

ISOO is an administrative component of the United States General

Services Administration, but receives its policy and program

direction from the National Security Council. The Administrator

of General Services appoints the ISOO Director upon approval of

the President. I have served as ISOO Director since May 1980.

In 1982, the President issued a new Executive order on national

security information, E.O. 12356, which replaced E.O. 12065,

introduced by President Carter in 1978. There were a number of

reasons for revising E.O. 12065. ISOO discussed these reasons in

an article entitled, "The Background of Executive Order 12356,"
59

which appeared in ISOO's Annual Report fo_ th& President lo_c

FY 19_22- With your permission, Mr. Chairman, I propose to enter

this article into the record as an appendix to my statement.

Hone of the reasons for issuing E.O. 12356 was the one that has

been repeatedly cited in the popular media: that is, to increase

the types and quantity of information that may be classified, and

thereby protected from public disclosure. Because classifiers

read the newspapers, it has been this assertion and several like

it that ISOO and its agency counterparts have sought to

contradict in their oversight programs. Fortunately, the

combination of a credible, efficient information security system

and effective oversight has proved the critics of E.O. 12356

wrong. I quote from my letter transmitting ISOO's Annual Report

ta the. President far EX 1983:

As the Report reveals, to date E.O. 12356

has achieved the standard you announced in

issuing it: "The Order enhances protection for

national security information without permitting

excessive classification of documents by the

Government." In fact, the number of original

classification decisions, which is the most

important measurement of classification activity,

decreased by almost 200,000 actions in FY 1983.

This reduction is an unprecedented accomplishment,

especially in the context of improved protection

for national security information.

Mr. Chairman and Members of the Subcommittee, with your

permission I offer into the record of this hearing a copy of

ISOO's EX 1983 Annual Report. It reveals a number of other facts

that contradict the "myths" about E.O. 12356 that continue to

thrive on idle speculation and hearsay. Please permit me to cite

some examples:

MYTH NO. 1: The new Executive order on national security

information has resulted in widespread increases in the

amount of classified information.
60

To the contrary. As noted above, ISOO's Report reveals an

unprecedented downturn in the number of original classification

actions during the first full year of the revised system. In FY

1983, original classification was down by almost 200,000 actions,

or 18 percent from the previous year. In addition, most of this

reduction occurred in the higher classification levels, "Secret"

and "Top Secret."

In introducing S. 1335, its sponsor stated: "My bill will

prevent excessive secrecy from undermining the Freedom of

Information Act." Mr. Chairman, I submit that E.O. 12356 is

already preventing excessive secrecy from undermining the Act.

MYTH NO. 2: The new Executive order provides, "When in

doubt, classify."

This myth has been in print so many times that I doubt that the

authors will ever get around to reading what they are quoting.

It's bad enough when I see this in a newspaper. It really hurts

when it appears, as it has over and over again, in scholarly

journals published for historians and scientists. The Executive

order does not say, "When in doubt, classify." It says, in

effect, "When in doubt, find out, and do it within 30 days."

There is no rule in this Order that requires a decision by rote

rather than reason.

MYTH NO. 3: The new Executive Order sets us back thirty

years because it abolishes the concept of automatic

declassi:£ication.

The new Executive Order does not eliminate automatic

declassification. Rather, it requires that automatic declassification be tied to a specific date or event, the passage of

which will ensure the lapse of national security sensitivity.

The prior Order, honored in the breach over 90 percent of the

time, fixed automatic declassification to an arbitrary period of
61

years that may or may not have had any relevance to the

sensitivity of the information. And contrary to the prediction

of its critics, under the new Executive order classifiers are

marking documents for automatic declassification at a rate three

and one-half times higher than under the prior Order.

MYTH NO. 4: By dropping the modifier "identifiable" from

the standard of damage that is the threshold of

classification, the Order broadens the scope of

classification.

The threshold for classification in E.O. 12065 was "identifiable

damage to the national security." In the revised Order, as was

the case in the pre-1978 Orders, the threshold is "damage to the

national security." "Identifiable" has been dropped, not to

increase the scope of permissible classification, but to avoid an

ambiguous and unnecessary word that is subject to inconsistent

and inaccurate interpretation.

When added to the 1978 Order, it was intended that the inclusion

of the word "identifiable" would put the classifier on notice of

the requirement for a conscious, if somewhat subjective, analysis

of prospective damage to the national security from the

unauthorized disclosure of the information. Instead, litigants

seized upon the word as a qualitative or quantitative modifier of

damage; that is, they argued that the damage to the national

security must be of a particular type or amount in order to

classify the relevant information. For example, in one lawsuit

plaintiffs argued that the disclosure of certain intelligence

sources would not result in "identifiable" damage to the national

security, because the prospective harm to those sources was

merely speculative. The deletion of "identifiable" eliminated

this sort of bizarre logic. It has had no impact whatsoever on

the quality or quantity of classification decisions. Its

reinstatement through the enactment of S. 1335 is both

unnecessary and unsound.

39-388 0-85
MYTH NO. 5: The Order forbids the classifier or

declassifier from considering the public interest in

disclosure.

This myth evolves from the absence of the so-called "balancing

test" in E.O. 12356. The "balancing test" was a provision in

E.O. 12065 that was intended to encourage agency heads, in their

sole discretion, to release information that met the requirements

for classification if they determined that there was an

overriding public interest in disclosure.

The problem with the "balancing test" had nothing to do with its

endorsement of openness. Balancing the public interests served

by either protection or disclosure is an inherent part of both

the classification and declassification processes, and it remains

so under the current system. Rather, it was the real and

potential misapplication of the "balancing test" in the context

of litigation that necessitated its demise. Lawyers argued,

sometimes successfully, that the test was not discretionary, and

persuaded some judges to second-guess the responsible agency

head, even though it was agreed that the information met the

requirements for classification. As a result, agencies were

required to expend large amounts of time and money and to reveal

increasingly more sensitive information in order to defend these

lawsuits.

Significantly, in none of these maneuverings did a plaintiff

requester ever gain access to information over which an agency

maintained classification. In other words, researchers did not

benefit from the "balancing test" before, and would not benefit

from its reinstatement now. It would appear that the only

potential beneficiaries of its reinstatement through enactment of

S. 1335 will be the non-prevailing lawyers, who will religiously

seek imposed attorneys fees notwithstanding the final resolution

of the suit.
Mr. Chairman and Members of the Subcommittee, perhaps more

significant than the successes of the past year are the

commitments for FY 1984 and beyond. In a letter to me dated

March 23, 1984, the President, though grateful for past

successes, emphasized continued improvement in the administration

of the information security program.

I ask for the same commitment in the future to

improving our performance even more. We must continue

to insure that information is being classified only when

this extraordinary protection is necessary; that those

entrusted with access to national security information

appreciate the seriousness of their responsibility to

safeguard it; and that systematic review and other

declassification efforts are made in accordance with

the Order's goal of making information no longer

requiring security protection available to the public.

Mr. Chairman, with your permission I offer the entirety of the

President's letter into the record of this hearing.

Mr. Chairman and Members of the Subcommittee, the Government's

information security program is not only working, it is working

well. It will not be improved through the enactment of S. 1335,

but it could be damaged. I urge you to reject this legislation.

/
64

\ -•

t.

Iwai

i I.,: W / '//'; t-v /

A t

;-• I

/ /./f..i1ni.!i!.iU It • //mi LIA vr

Annual Report

to the President

FY 1983

Information Security

Oversight Office ' i \ .

'- Y/fuV* V > • ' -'V

o
65

T^f "V|\ General Information Security

" Services Oversight

Administration Office Washington, DC 20405

March 16, 1984

The President

The White House

Washington, DC 20500

Dear Mr. President:

I an pleased to submit the Information Security Oversight

Office's (ISOO) 1983 Report to the President.

Established under Executive Order 12065 and continued under

Executive Order 12356, effective August 1, 1982, the ISOO

oversees the information security system throughout the

executive branch. The ISOO is an administrative component of

the General Services Administration, but receives its policy

direction from the National Security Council.

FY 1983 was a critical year for the information security system.

It encompassed the first full year of E.O. 12356's operation, a

period of time in which the information security program

received extraordinary attention. I am delighted to report that

the new Executive Order and the system established under it have

passed their initial tests in outstanding fashion.

As the Report reveals, to date E.O. 12356 has achieved the

standard you announced in issuing it: "The Order enhances

protection for national security information without permitting

excessive classification of documents by the Government." In

fact, the number of original classification decisions, which is

the most important measurement of classification activity,

decreased by almost 200,000 actions in FY 1983. This reduction

is an unprecedented accomplishment, especially in the context of

improved protection for national security information.

The Report also reveals certain areas of the program that

require greater efforts to reach the goals that you have

established. The ISOO continues to work with the agencies that

create or handle classified information to fulfill these

requirements in FY 1984 and beyond.

Respectfully,

^Jfiz^. J3~f^t^L

STEVEN GARFINKEL

Director

/ r
66

Agency Acronyms or Abbreviations

Used in this Report

ACDA : Arms Control and Disarmament Agency

AID : Agency for International Development

CEA : Council of Economic Advisors

CIA : Central Intelligence Agency

COMMERCE : Department of Commerce

DoD : Department of Defense

DoE : Department of Energy

DoT : Department of Transportation

FEMA : Federal Emergency Management Agency

GSA : General Services Administration

ISOO : Information Security Oversight Office

JUSTICE : Department of Justice

HARS : National Archives and Records Service

NASA : National Aeronautics and Space

Administration

NRC : Nuclear Regulatory Commission

NSC : National Security Council

OMSN : Office of Micronesian Status Negotiations

OPIC : Overseas Private Investment Corporation

OSTP : Office of Science and Technology Policy

OVP : Office of the Vice President

STATE : Department of State

TREASURY : Department of the Treasury

USDA : Department of Agriculture

USIA : United States Information Agency
67

Summary of FY 1983 Program Activity

The FY 1983 Report to the President is the first to examine

operations under E.O. 12356. The following data highlight ISOO's

findings for FY 83:

Classification Activities

The number of original classification authorities

continued to decline in FY 83. The number of original

classifiers has declined from nearly 60,000 in 1972, to

7,010 at the end of FY 83, almost a 90% reduction.

. Agencies made 864,099 original classification decisions,

almost 200,000 (18%) fewer than in FY 82.

By classification level, 2% of original classification

decisions were "Top Secret", 32% were "Secret", and 66%

were "Confidential".

Agencies assigned a date or event for automatic declassification to 35% of all information originally classified,

as compared to an estimated 10% rate experienced under

E.O. 12065.

Agencies made approximately 17 million derivative

classification decisions, a 4% increase over FY 82.

5% of all classification decisions were original, 95%

were derivative.

The total of all classification decisions was

approximately 18 million, a 3% increase over FY 82.

Declassification Activities

Agencies received 3,945 new mandatory review requests,

47% fewer than in FY 82.

Agencies processed 3,610 mandatory review requests, and

declassified the information in whole or in part in over

90% of the cases. In processing these requests, agencies

reviewed over 29,000 documents comprising nearly 175,000

pages.

Agencies received 411 new mandatory review appeals.

Agencies processed 363 mandatory review appeals,

declassifying additional information in whole or in part

in almost 50% of the cases.

Agencies systematically reviewed for declassification

12,407,523 pages of classified information, and

declassified 7,848,295 (63%). The number of pages

reviewed was 36% less than in FY 82. The agencies that

now voluntarily perform systematic review accounted for

77% of total number of pages reviewed.

Inspections

Agencies conducted 22,245 self-inspections, 21% fewer

than in FY 82.

Agencies reported 18,344 infractions, almost 10% fewer

than in FY 82.
Information Security Oversight Office

The Information Security Program

FY 1983

The Information Security Oversight Office (ISOO), established by

Executive Order 1206S on December 1, 1978, operates now under the

provisions of Executive Order 12356, effective August 1, 1982.

ISOO is responsible for overseeing the information security

programs of all executive branch activities that create or handle

national security information. E.O. 12356 also requires the

Director of ISOO to report annually to the President on the

progress of executive branch agencies in implementing the Order's

provisions. In monitoring the program, ISOO oversees the

information security programs of approximately 65 departments and

independent agencies or offices of the executive branch. This is

the first ISOO report that assesses the operations of the

information security program under Executive Order 12356.

ISOO is located administratively in the General Services

Administration but receives its policy direction from the

National Security Council. The Administrator of General Services

appoints the ISOO Director upon approval of the President. The

ISOO Director appoints the staff, which numbers between 13-15

persons. ISOO funding is included in the budget of the National

Archives and Records Service. For FY 1983, isoo's budget was

5579,600.

ISOO meets its assigned responsibilities under E.O. 12356 by:

(a) developing and issuing implementing directives and

instructions regarding the Order; (b) conducting on-site

inspections or program reviews of monitored agencies;

(c) gathering, analyzing and reporting statistical data on

agencies' programs; (d) evaluating, developing or disseminating

security education materials and programs; (e) receiving and

taking action on suggestions, complaints, disputes and appeals

from persons inside or outside the Government on any aspect of

the administration of the Order; (f) conducting special studies

on problem areas or programs developed to improve the system; and

(g) maintaining continuous liaison with monitored agencies on all

matters related to the information security program. This

evaluation of the executive branch's information security program

for FY 1983 is based upon program reviews and inspections

conducted by the ISOO staff and the compilation and analysis of

statistical data regarding program activity.
69

Program Reviews and Inspections

ISOO program analysts serve as liaison to specific agencies to

facilitate coordination and to provide for continuity of

oversight operations. The analysts must stay abreast of relevant

activities within each agency's information security program;

coordinate with assigned agency security counterparts on a

continuing basis; and conduct formal inspections of the agency's

program in accordance with a planned annual inspection schedule.

These on-site formal ISOO inspections encompass all aspects of

the information security program, including classification,

declassification, safeguarding, security education and training,

and administration. The inspections always include detailed

interviews with agency security personnel, classifiers, and

handlers of national security information. To the maximum extent

possible, ISOO analysts review a sampling of classified

information in the agency's inventory to examine the propriety of

classification, the existence of necessary security markings and

instructions, and compliance with safeguarding procedures. ISOO

analysts also monitor security education and training programs to

determine if they adequately inform appropriate personnel about

classifying, declassifying, marking and safeguarding national

security information. When deficiencies in an agency's program

are noted, ISOO analysts recommend corrections, either on-thespot or as part of a formal inspection report. Critical reports

require immediate remedial attention by the agency prior to a

follow-up inspection by ISOO. These inspections are a necessary

means of identifying and resolving problem areas. They provide

positive indicators of agency compliance or non-compliance with

the Executive order that are not apparent simply from the

analysis of statistical data.

Statistical Reporting

To gather relevant statistical data regarding each agency's

information security program, ISOO developed the Standard

Form 311. ISOO revised the SF 311 as a result of the issuance of

E.O. 12356. ISOO now requires that each agency report the

following information to it on an annual basis:

1. The number of original classification authorities;

2. the number of declassification authorities;

3. the number of original classification decisions,

including the classification level of those decisions

and the duration of classification;

4. the number of derivative classification decisions by

classification level;
70

5. the number of requests received for mandatory review for

declassification and agency actions in response to these

requests in terms of cases, documents, and pages;

6. the number of pages of national security information

reviewed during the year under systematic declassification procedures and the number declassified;

7. the number of formal self-inspections conducted by the

agency; and

8. the number of security infractions detected by the

agency within its own program.

The statistical data reported by each agency for FY 1983 covered

a fourteen month period from August 1, 1982 through September 30,

1983. ISOO selected this period to commence with the effective

date of E.O. 12356 and to conclude at the end of FY 1983. In

order to facilitate the comparison of the FY 1983 statistics with

those of prior years, ISOO reduced the reported fourteen month

figures by 14.3% for those data ordinarily reported on an annual

basis.

Continued Reduction in

Original Classification Authorities

(Exhibits 1 and 2)

An "original classification authority" is an individual who is

specifically authorized in the first instance to classify

information in the interest of national security. These

classifiers are designated in writing, either by the President or

by other officials, mostly agency heads, named by the President.

ISOO continually stresses the importance of limiting the number

of original classifiers to the minimum required by operational

needs, which, in turn, helps to control the volume of

classification activity.

Since 1972, executive branch agencies have reduced the total

number of original classification authorities from 59,316 to

7,010, almost a 90* reduction. This trend continued in FY 1983,

with a further reduction of 46 original classifiers from FY 1982.

Although this amounts to only a .7% decrease, it is especially

notable that the decrease in the number of original classifiers

has continued under E.O. 12356.
71

Exhibit 1

The Reduction in Original Classifiers

1971-1983

EO 10501

1971 1972

EO 12065 EO 12356

Despite the overall reduction, the number of "Top Secret" and

"Secret" original classifiers increased very slightly in FY 1983:

"Top Secret" classifiers by 16 (1%); and "Secret" classifiers

by 14 (.3%). These increases are too slight to be considered a

trend, but ISOO will pay special attention to the several

agencies that account for them.

ISOO believes that further reductions in the number of original

classifiers are attainable. ISOO's program reviews and analysis

of data reveal some disparity in the concentration of original

classifiers among agencies with comparable classification

activity. In FY 1984, ISOO will seek further reductions in those

agencies that appear to have more original classifiers than are

necessary.

Three activities merit particular credit for significantly

reducing the number of original classifiers in FY 1983. These

are ACDA, by 40 (-45%); DoE, by 42 (-20%); and CEA, by 3 (-75%).
72

Exhibit 2

Number of Original Classifiers

"Top Secret'

"Secret'

"Confidential'

Authorities

Authorities

Authorities

Total

tttttttti °°

111"329)

tftittttt

1111i °°

= 500 Authorities

Original Classification

Decreases Significantly

(Exhibits 3-6)

An "original classification decision" is an initial determination

by an authorized official that information requires protection

from unauthorized disclosure in the interest of national

security. This determination is accompanied by the placement of

required national security markings on the medium that contains

the information. Because of the current and future impact that

original classification decisions have on every aspect of the

information security program, their number is probably the most

significant statistic that IS00 reports annually.
73

Exhibit 3

Original Classification Decisions

"Top Secret" "Too Secret"

1982 1983

"Secret" "Secret"

1982 1983

"Confidential"

1982

"Confidential"

1983

Total Original

1982

Total Original

1983

| 86•99 [>
74

FY 1983, the first year of E.O. 12356's operation, witnessed an

extraordinary reduction in the number of original classification

decisions. The 864,099 original classification decisions

constituted almost 200,000 fewer actions than in FY 1982. This

amounts to an 18% reduction in a figure that had remained largely

constant throughout E.O. 12065's existence. Even more impressive

were the reductions in the number of original classification

decisions at the higher levels, "Top Secret" and "Secret". "Top

Secret" decisions were down by 4,945, a reduction of 24%, and

"Secret" decisions were down by 155,400, a reduction of 36%.

In FY 1983, "Top Secret" determinations accounted for 2% of the

original classification decisions, "Secret" accounted for 32%,

and "Confidential" accounted for the remaining 66%. In FY 1982,

the breakdown was "Top Secret", 2%; "Secret", 41%; and

"Confidential", 57%. Therefore, in addition to the decrease in

the total number of original classification decisions, the lowest

classification level, "Confidential", accounted for a

significantly higher percentage of those decisions in FY 1983.

Exhibit 4

Comparison of Original Classification Activity

1,040,972

E.O. 12065

1

1,069,058

1

1,055,152

E.O. 12356

864,099

FY80 FY81 FY82 FY83
75

Consistent with prior years, four agencies originally classified

over 99% of all such actions within the executive branch in FY

1983: DoD, 36.08%; CIA, 26.63%; State, 20.92%; and Justice,

15.5%. All other executive branch departments, agencies and

offices originally classified information on less than 7,500

occasions (.87%). Of the four major classifiers, the CIA reduced

its number of original classification decisions by an

extraordinary 44%, and Justice was down by almost 18%. Original

classification increased somewhat at DoD (6.8%) and State (1.7%).

Other agencies active in the security classification program that

experienced significant decreases in the number of original

classification decisions included NSC (-60%); ACDA (-40%); FEHA

(-15%); NASA (-82%); DoE (-13%); NRC (-28%); OMSN (-60%); and

USIA (-59%).

Exhibit 5

FY 1983 Original Classification Decisions by Agency

Agency Original % Assigned % OADR (Must % "TS" % "S" % "C"

Decisions Date or Event Be Reviewed

for Declassi- before Declasfication sification)

DoD 311,795 71% 29% 1% 18% 81%

CIA 230,123 13% 87% 4% 31% 65%

State 180,809 28% 7 2% 0% 21% 79%

Justice 133,882 0% 100% 1% 82% 17%

FEMA 1,937 14% 86% 27% 44% 29%

Treasury 1,562 54% 46% 1% 5% 94%

NSC 1,197 0% 100% 27% 54% 19%

DoE 795 22% 78% 1% 52% 47%

All Others 1,999 50% 50% 2% 19% 79%

Another outstanding accomplishment relating to original

classification in FY 1983 was the fact that 35% of the

actions specified automatic declassification upon the passage

of a specific date or event. This number represents a

significant improvement from the experience under E.O. 12065,
76

when, in ISOO'S estimation, over 90% of all original

classification decisions required agency review before the

information could be declassified. This higher ratio of actions

scheduled for declassification without review will greatly

facilitate the declassification process and increase the

declassified product in the future. DoD, with a rate of 71%, and

Treasury, with a rate of 54%, merit special recognition.

Exhibit 6

Original Classification Decisions Scheduled

for Automatic Declassification

10% 35%

Derivative Classification Increases Slightly

(Exhibits 7 and 8)

Derivative classification is the act of incorporating,

paraphrasing, restating or generating in new form classified

source information. Information may be derivatively classified

in two ways: (a) through the use of a source document, usually

correspondence or publications generated by an original

classification authority; or (b) through the use of a

classification guide. Only executive branch or government

contractor employees with the appropriate security clearance who

are required by their work to restate classified source

information may classify derivatively.
77

During FY 1983, executive branch agencies made 17,141,052

derivative classification decisions, a 4% increase over FY 1982.

Some of this increase in derivative classification can be

attributed to the efforts made by ISOO and others to encourage

the development and use of classification guides. These guides,

issued by original classification authorities, identify

information to be classified in the interest of national

security, and prescribe the level and duration of classification

for each identified item of information. The use of

classification guides promotes uniformity throughout the

executive branch in the classification and declassification of

like information.

Exhibit 7

Comparison of Derivative Classification Activity

20OOOO00

15 000 000

5000.000

16.305,044 16,449,459

17.141,052

15,017,792

Of the total derivative classification decisions made in FY 1983,

522,528 (3%) were classified at the "Top Secret" level, 5,090,280

(30%) at the "Secret" level, and 11,528,244 (67*) at the

"Confidential" level. These percentages coincide exactly with

those in FY 1982.
78

Another coincidence is that the DoD (85.53%) and the CIA (14.11%)

accounted for 99.64% of all derivative classification activity in

FY 1983, the exact percentage of their total in FY 1982. For FY

1983, DoD derivative actions increased by 6.7%, while CIA

derivative actions decreased by 9%. All other agencies

derivatively classified only 61,000 actions during FY 1983.

Other significant percentage reductions in the number of

derivative classification actions achieved in FY 1983 as compared

with FY 1982 included the NSC (-88%); DoT (-49%); OVP (-37%);

FEMA (-22%); GSA (-30%); OSTP (-85%); Commerce (-22%); USDA

(-13%); and NRC (-48%).

Exhibit 8

FY 1983 Derivative Classification Actions by Agency

Agency Total Derivative Actions %"TS" %"S" %"C"

DoD 14,661,349

CIA 2,418,699

Justice 25,714

DOE 16,917

NASA 4,090

FEMA 3,414

Treasury 2,726

All Others 8,143

Classification Activity Remains Steady

(Exhibits 9 and 10)

The total number of original and derivative classification

decisions made by executive branch agencies during FY 1983 was

18,005,151. This was approximately 500,000 more than FY 1982, a

2.8% increase that compares favorably with the modest increases

of the past several years.

Statistics show that during FY 1983, 3% of all classification

decisions were classified at the "Top Secret" level, 30% at the

"Secret" level, and 67% at the "Confidential" level. This is

essentially the same ratio reported for FY 1982. Two agencies

accounted for 97.87% of all classification activity in the

executive branch during FY 1983: DoD, 83.16%, and the CIA,

14.71%. All other agencies accounted for 383,185 classification

actions during the year, a 6.4% decrease from FY 1982.

2% 21% 77%

7% 80% 13%

1% 97% 2%

Bl 9% 91%

0% 98% 2%

8% 65% 27%

0% 46% 54%

19% 31% 50%
79

Exhibit 9

Comparison of Combined Classification Activity

FY Total Actions %"TS" %'S" %"C"

1980 16,058,764 3% 29% 68%

1981 17,374,102 5% 29% 66%

1982 17,504,611 3% 31% 66%

1983 18,005,151 3t 30% 67%

Change:

FY *80- •81 +1,315,338 (+8%) +2% 0% -2%

FY '81- •82 + 130,509 (+1%) -2% + 2% 0%

FY "82- •83 + 500,540 (+3%) 0% -1% +1%

During FY 1983, the ratio of original to derivative classification actions remained consistent with that reported for previous

years. Original classification constituted 5% of all classifications, and derivative 95%. The consistency of this ratio over

the years reinforces the importance of FY 1983's significant

decrease in original classification decisions. Ultimately, the

average original classification decision will result in a total

of 20 classification actions. Therefore, ISOO believes that

continued reductions in original classification decisions will

eventually result in decreased derivative classification.

Exhibit 10

Original vs. Derivative Classification

95%

vs.
80

Mandatory Review Levels Off

(Exhibits 11-14)

Executive Order 123S6 continues the program known as mandatory

review for declassification. Mandatory review provides that

agencies or citizens, through written requests, may require an

agency to review specified national security information for the

purpose of seeking its declassification. These requests, which

may be submitted at any time during the life of the Information,

are popular with researchers as a non-adversarial alternative to

Freedom of Information Act requests.

Following a peak year of new requests in FY 1982, the number of

mandatory review requests received in FY 1983 was 3,945, a total

within the range of those reported in the years immediately

preceding FY 1982. Added to the 3,894 cases carried forward from

FY 1982, agencies had a mandatory review request workload of

7,939 cases in FY 1983. Of these, the agencies processed 3,610,

or 46% of the total. While this percentage is fairly consistent

with the processing rate in previous years, ISOO will seek

increased agency efforts to reduce the inventory of pending cases

in FY 1984.

Exhibit 11

Mandatory Review Requests Received

3,945

FY72
81

For PY 1983, ISOO collected data on agency actions in response to

mandatory review requests in terms of three separate reporting

units: cases, documents and pages. Previously, ISOO had only

collected these data in terms of cases. By looking at mandatory

review actions in terms of documents and pages as well, ISOO

hopes to present a clearer picture of the final product.

Exhibit 12

Mandatory Review Actions

• Granted in Full

• Granted In Part

• Denied in Full

Documents

Of the 3,610 cases processed in FY 1983, 1,980 (54.8%) were

granted in full, 1,277 (35.4%) were granted in part, and 353

(9.8%) were denied in full. PY 1983 marks the first time that

the rate of denials in full has fallen below 10%.

These 3,610 cases comprised 29,464 documents or 174,013 pages of

classified information. Of the 29,464 documents, 22,318 (75.7%)

were declassified in full, 3,078 (10.5%) were declassified in

part, and 4,068 (13.8%) remained fully classified. Although

comparisons with previous years are unavailable, that over 75% of

the documents were fully declassified is very commendable.
82

Of the 174,013 pages, 102,695 (59%) were declassified in full,

51,543 (29.6%) were declassified in part, and 19,775 (11.4%)

remained fully classified. Again without prior year comparisons,

the fact that 88.6% of all pages reviewed were declassified in

whole or in part reveals an excellent commitment to

declassification on the part of the reviewing agencies.

Exhibit 13

FY 1983 Mandatory Review Actions by Agency

Agency Total Cases % Granted % Granted % Denied

Acted On In Pull In Part In Full

State 853 47% 45% 8%

DoD 781 62% 27% 11%

NSC 652 47% 49% 4%

Justice 525 75% 15% 10%

GSA (including NARS) 354 45% 40% 15%

CIA 186 28% 48% 24%

All Others 259 73% 18% 9%

E.O. 12356 also provides that agencies or members of the public

may appeal mandatory review denials to designated officials of

the denying agencies, or, in the case of classified presidential

papers or records, to the Director of ISOO. During FY 1983,

these agencies received 411 new appeals in addition to 759

appeals carried over from the previous year. Of these 1,170

pending appeals, the agencies processed 363 (31%) in FY 1983.

This marks a significant increase in the number of unprocessed

appeals carried over into the next year. ISOO will strongly

encourage the concerned agencies to reduce this backlog as

quickly as possible.

Of the 363 appeals processed, 59 (16.3%) were granted in full,

115 (31.7%) were granted in part, and 189 (52%) were denied in

full. These 363 actions comprised 4,441 documents or 14,815

pages. Of the 4,441 documents reviewed, 679 (15.3%) were

declassified in full, 1,533 (34.5%) were declassified in part,

and 2,229 (50.2%) remained fully classified. Of the 14,815 pages

reviewed, 2,047 (13.8%) were declassified in full, 4,849 (32.7%)

were declassified in part, and 7,919 (53.5%) remained fully

classified.
83

Exhibit 14

Mandatory Review Appeals Received

TOO

600

824

. 592

500 \41 1

400

300 //

200

134

100 »^_72 •2tf

FY77 78 80 81 82 83

Systematic Review Continues to Decline

(Exhibits 15-17)

'Systematic review for declassification" is the program, first

introduced in 1972, in which classified, permanently valuable

(archival) records are reviewed for purposes of declassification

after the records reach a specific age. Under E.O. 12356, the

National Archives and Records Service (NARS) is required to

conduct a systematic review of its classified holdings as they

become 30 years old, except for certain intelligence or

cryptologic file series which are to be reviewed as they become

50 years old. While other agencies are not required to conduct a

systematic review program, they are encouraged to do so if

resources are available.

In recent years, the product of the systematic review program has

declined as a result of two factors. First, the records that are

now being reviewed are not generally susceptible to the bulk

declassification methods that were frequently adequate in

declassifying World war II era records. Second, the resources

available for systematic review have continued to dwindle.
84

This trend continued in FY 1983. Agencies systematically

reviewed 12,407,523 pages of national security information

in FY 1983, of which they declassified 7,848,295 pages (63%).

The number of pages reviewed was 7,096,292 (36%) fewer than in

FY 1982, and the rate of declassification decreased by 22%.

Exhibit 15

Pages Reviewed for Declassification

In Millions

77 80 81 82 83

Despite these declines, it is encouraging to note that executive

branch agencies other than NARS systematically reviewed nearly

ten million pages for declassification during FY 1983, even

though they were no longer required to conduct a systematic

review program. This represented over 77% of the total pages

reviewed in the executive branch during FY 1983. Particularly

noteworthy were the efforts of DoD (9,278,640 pages); DSIA

(154,260 pages); State (106,791 pages); and AID (10,284 pages).
85

Exhibit 16

Percentage of Reviewed Pages Declassified

100

90

80

70

60

50

40

30

20

10 -

99.5% 98%

TT -955%-

91%

27%

85%

63%

FY73 75 77 80 81 82 83

There was a clear disparity in the rate of declassification

between NARS and other executive branch agencies, with the

exception of State. NARS declassified almost 94% of the pages it

reviewed. The other agencies declassified almost 54% of the

pages they reviewed. Much of this discrepancy can be accounted

for by differences in the age and subject areas of the records

that were reviewed.

Exhibit 17

FY 1983 Systematic Review Actions by Agency

Agency Pages

Reviewed

Pages

Declassified % Declassified

DoD 9,278,640 5,013,079 54%

GSA/NARS 2,852,471 2,667,156 94%

USIA 154,260 64,275 4 2%

State 106,791 99,415 93%

All Others 15,361 4,370 28%
86

Critical to the future of systematic review is the ability of

NARS to revitalize its program. The Assistant to the President

for National Security Affairs has indicated his support for this

effort and ISOO is currently working with NARS to seek the means

of achieving this end.

Agency Self-Inspections Decrease Again

(Exhibits 18 and 19)

While ISOO conducts an active program of agency inspections, its

small size and budget dictate that the agencies assume most of

this burden themselves. E.O. 12356 provides that agency heads

administer "an active oversight and security education program.*

Agencies are required to inform ISOO of the number of selfinspections they perform each year.

Exhibit 18

Agency Self-Inspections

40.000

30.670 30.993 (j

28.041

22.245

20,000

10.000

FY 1980 1982
87

Agencies are also required to report to ISOO on the number and

type of infractions detected during the year. An infraction is a

minor violation of the Order, its implementing ISOO Directive or

agency regulations. Infractions to be reported do not include

the more serious violations that agencies are required to report

to ISOO as they occur.

During FY 1983, executive branch agencies conducted 22,245

self-inspections to monitor or evaluate their own information

security programs. This total represents a decrease of 5,796

(21%) from the number of inspections conducted in FY 1982, and

8,748 (28%) fewer than in FY 1981. Given the introduction of a

new information security system in FY 1983, the continued decline

in agency self-inspections was both unexpected and unfortunate.

Agencies also reported a total of 18,344 infractions. This total

is 1,935 (9.6%) fewer than the number of infractions reported for

FY 1982. On an infraction per inspection basis, this indicates

that agencies continue to detect less than one infraction per

inspection, a rate far below that experienced by ISOO in its own

review of the agencies' programs. These data call into question

both the quality and quantity of agency inspection programs.

ISOO will emphasize these apparent deficiencies in its oversight

program for FY 1984.

Exhibit 19

Infractions

Infraction Total

FY 1980

Total

FY 1981

Total Total % Change

FY 1982 FY 1983 82-83

Unauthorized Access

Mismarking

Unauthorized Transmission

Improper Storage

Unauthorized Reproduction

Overclassification

Underclassification

Classification w/o

Authority

Improper Destruction

950 476 475 620 +31%

1,297 8,797 11 ,499 10 ,849 - 6%

1,282 924 1 ,197 1 ,294 + 8%

3,975 3,341 4 ,222 3 ,844 - 9%

300 135 207 249 +20%

N/R N/R 290 220 -24%

N/R N/R 365 317 -13%

N/R N/R 392 238 -39%

N/R N/R 665 581 -13%

N/R = Statistics not reported for FY 1980 and FY 1981
88

A Narrative Look at FY 1983

Executive Order 12356 has been operational since August 1,

1982. Since that date, it has received extraordinary

attention from persons and organizations inside and outside

the executive branch of government. No one has scrutinized

its performance more thoroughly, however, than the staff of

the Information Security Oversight Office (ISOO). Based upon

its observations and the data it has collected and analyzed,

ISOO has reached a number of conclusions about the strengths

and weaknesses of the program through its first full year of

operation in FY 1983. These conclusions reveal that, on

balance, the information security system under E.O. 12356

performed exceedingly well in FY 1983. The President's

stated goal of achieving better protection for national

security information without unwarranted classification is

clearly being met.

FY 1983 Program Strengths: General

(a) Perhaps the most positive aspect of the first year's

experience was the smooth transition from E.O. 12065 to

E.O. 12356. ISOO cites two reasons. First, despite the

great deal of publicity about the differences between the

two systems, in ordinary day-to-day situations they are very

similar. The types of information that were classified and

declassified in August 1982 were the same as those that had

been classified and declassified a month earlier. The only

significant change in the marking of classified information

was the use of "Originating Agency's Determination Required

(OADR)," to indicate the duration of classification for

information of indeterminable national security sensitivity

at the time of classification. Safeguarding procedures

remained virtually unchanged.

The other contributing factor was the concerted effort of

senior program officials throughout the executive branch to

achieve a smooth transition. ISOO, with a small staff and

budget, must rely upon the active assistance of agency heads

and their senior managers to oversee individual information

security programs. The same persons who were instrumental in

the development and issuance of E.O. 12356 were also deeply

involved in its implementation. In the four months between

E.O. 12356's issuance and effective dates, these officials

began preparations for the transition by updating directives

and procedures, and by revising, increasing and publicizing

training opportunities for employees. Most importantly,

these officials were knowledgeable about the prospective

changes in the information security system, and could respond

effectively to the myriad of questions that arose.
89

(b) The concern and involvement of senior program officials

also contributed to a second positive feature of E.O. 12356's

first year: the absence of any incident of serious executive

branch abuse of the information security system. In isoo's

experience, classifiers and declassifiers almost always act

in a good faith effort to comply with the requirements of the

system, even if, on hindsight, a relatively small percentage

of information is misclassified. As in any other program of

comparable size, during the course of almost any year a few

obvious abuses come to light. Executive branch officials

were particularly sensitive to potential abuses in FY 1983.

Their vigilance paid dividends. Despite unprecedented

scrutiny by persons seeking incidents to publicize, in ISOO's

view no serious abuse surfaced during E.O. 12356's first full

year. The oversight and responsiveness of senior program

officials prevented any serious problems.

(c) Another positive feature of E.O. 12356's first year was

the steady realization of the purposes behind the revisions

to E.O. 12065. (ISOO has expressed its views on these

purposes in its essay, "The Background of Executive Order

12356," which is an appendix to its EX 1&&2 Annual Report to

the President.) Program managers exercised greater flexibility in their administration of the information security

system. The courts quickly adapted to the Order's provisions

and the burden of litigating under the Freedom of Information

Act began to abate. Perhaps most important, we began to hear

representatives of our allies informally express greater

confidence in our revised information security system. This

portends less hesitation to share sensitive information with

us.

FY 1983 Program Weaknesses: General

(a) Perhaps the most troubling of ISOO's observations during

FY 1983 was the initial indifference among persons at the

operating level about the introduction of a revised information security system. ISOO attributes this largely to an

understandable sense of frustration at working under the

fourth Executive order on national security information

within a decade. This indifference, however, is not dissimilar to that experienced with the introduction of E.O. 12065,

and, as evidenced in ISOO's most recent program reviews,

appears to be dissipating.

(b) Despite an unprecedented effort to "get the word out"

to operating personnel about E.O. 12356, too many persons who

work with classified information remained unfamiliar with its

requirements in FY 1983. Inaccurate media accounts of the

Order and the indifference cited above aggravated this
90

situation. As a result, ISOO noted too many minor infractions during its FY 1983 inspections and program reviews,

especially in the application of markings and safeguarding.

Again, these problems are similar to those experienced during

the first year of E.O. 12065's operations, and there should

be marked improvement in the near future.

(c) Of the marking violations that ISOO noted in FY 1983,

two types were especially troublesome. The first concerned

the lack of portion marking. E.O. 12356 requires that all

classified documents be portion marked to indicate which

portions are classified and the level of classification.

Agency heads may grant waivers of the portion marking

requirement, which must be reported to the Director of ISOO.

ISOO Directive No. 1 establishes certain guidelines for

agencies to follow in considering portion marking waivers.

Basically, these guidelines suggest that portion markings are

highly recommended for information that is transmitted

outside the originating office or for information that serves

as a potential source for derivative classification. The

waivers ISOO received comply with these guidelines. In

practice, however, especially in the first six months of

E.O. 12356's operation, ISOO took note of a number of documents without portion markings that had been transmitted

outside the originating office and/or served as the sources

for subsequent derivative classification. These examples

were concentrated in a few agencies. ISOO expressed its

concern to the senior program officials of these agencies,

and in the last months of the fiscal year uncovered far fewer

examples of these documents.

The second area pertained to the overuse during the first

half year or so of E.O. 12356's operation of "Originating

Agency's Determination Required" or "OADR" as a marking

instruction for the duration of classification. While ISOO's

experience has been that the duration of national security

sensitivity cannot be determined at the time of classification for most information, there is some information that is

clearly time-sensitive. Following Executive Order 12356's

effective date, ISOO staff members noted a number of

documents marked "OADR" that appeared to be sensitive only

until a specific date or event. In several cases there

seemed to be rote application of the indefinite time frame.

On March 28, 1983, the Director of ISOO addressed a letter to

the senior program official of each agency that creates or

handles national security information expressing his concern

about this problem. Agencies were directed to instruct

original classifiers on the appropriate use of the "OADR"

marking, and the responsibility to attempt to determine a

specific date or event for declassification. As borne out in

ISOO's later program reviews and the data ISOO collected at

the end of FY 1983, there was a very large increase in the
91

number of classified documents marked with a specific date or

event during the last half of FY 1983.

(d) Some agencies failed to issue completed internal

regulations on E.O. 12356 by the end of FY 1983, even though

they were due by December 31, 1982. These agencies have

relied in the interim on patchwork versions of prior

regulations, supplemented by ad hoc temporary instructions.

To ISOO's knowledge, these delays have not resulted in any

serious abuses of the information security system, but they

have promoted the already noted problem of unfamiliarity with

its requirements.

FY 1983 Program Strengths: Statistical

(a) The most important quantitative measurement of the

information security system is the annual tally of original

classification decisions. These decisions bear on almost all

of the other components of the information security program,

including derivative classification, declassification, safeguarding and marking. Therefore, FY 1983's unprecedented

decrease in the number of original classification decisions

is an outstanding achievement. The reduction is especially

significant because, in ISOO's judgment, in FY 1983 it was

almost entirely attributable to systemic factors, rather than

to any changes in world events that would tend to decrease

the number of classification decisions. These systemic

factors include controlling the number of original classification authorities, developing classification guides, and

maintaining strong oversight of the program.

Accentuating the decreased classification, almost all of the

decline was in the higher classification levels, "Top Secret"

and "Secret". These reductions follow ISOO's expressed

concerns about increasing "Top Secret" classifications in FY

1982 under E.O. 12065. By reducing classification levels,

agencies also reduce the costs of protecting the information.

(b) Almost as significant an achievement as the reduction

in original classification is the 35% rate for documents

marked with a specific date or event for automatic declassification. There is a large measure of irony in comparing

this figure with the results under E.O. 12065. This prior

Order mandated automatic declassification at the arbitrary

date of six years from the information's creation, but left a

couple of loopholes for exceptions. In ISOO's estimation,

these "exceptions" accounted for 90% or more of the classification decisions under E.O. 12065, making six-year automatic

declassification the actual exception.
92

Under E.O. 12356, there Is no arbitrary time frame for automatic declassification. Instead, classifiers are required to

set a particular date or event for declassification but only

when it is feasible to do so based upon the anticipated

duration of national security sensitivity. Nevertheless, in

PY 1983, they achieved a rate of automatic declassification

determinations three and one-half times higher than that

realized under the system that attempted to mandate automatic

declassification.

(c) With the onset of E.O. 12356, agency heads named by the

President were required to redesigiiate their original classification authorities. Given the expressed concerns of

providing increased protection for national security information, the number of original classification authorities

might have been expected to rise significantly. Instead,

agency heads exercised praiseworthy restraint by continuing

the trend that began with the issuance of E.O. 11652 in 1972,

to reduce the number of original classifiers.

ISOO considers the continuing decline in original classifiers to be a very positive statistic. First, limiting the

number of original classifiers is perhaps the most important

systemic control on the quantity of original classification.

Second, these limitations help assure greater consistency and

accountability in classification actions.

(d) The statistics on declassification in response to mandatory review requests demonstrate that, by and large, the

agencies continue to strive for optimal public access to

formerly classified information. Although a relatively small

percentage of information is overclassified at its inception,

the impact of overclassification is usually not a serious

problem in the absence of any public access interest. In

ISOO's experience, declassification reviews, in response to

mandatory review requests or otherwise, almost always close

the gap between what information needs to be classified and

what information is classified. The executive branch's

record of positive responses to public requests for declassification has been impressive over the years. FY 1983's

effort was probably the best in terms of the percentage of

information declassified and made available for public

research.

FY 1983 Program Weaknesses: Statistical

(a) The systematic review for declassification program continued to deteriorate in FY 1983, and remains the area of

greatest concern in measuring the state of the information
93

security system. This program, in which classified, permanently valuable records are reviewed for purposes of declassification as they become 30 years old (50 years for certain

intelligence and cryptologic file series), began its decline

under E.O. 12065 several years ago. The drafters of Executive Order 12356 hoped to reverse the downward trend by

reinstating the very successful systematic review framework

of E.O. 11652, i.e., requiring systematic review only in the

National Archives and Records Service (NARS), encouraging

voluntary systematic review programs in the other agencies,

and reestablishing the 30-year time frame for review.

Unfortunately, these changes cannot counter the two nonsystemic factors that have impeded systematic review in

recent years. The first is the change in the prevalent

subject areas of the records now ripe for review. Unlike

World War II era records, which in many instances were well

suited to bulk declassification methods, the records now

being reviewed usually require line-by-line consideration.

Second, the resources available for systematic review at NARS

have fallen dramatically, the result of both redefined agency

priorities and overall budget cuts.

The vitality of systematic review for declassification

ultimately depends upon a strong program at NARS. ISOO

believes that a revitalized program at NARS merits

government-wide support. Following up on the expressed

concern of the Assistant to the President for National

Security Affairs, ISOO is working with NARS to seek solutions to the current problems. These may include not only

increased resources, but also improved procedures for

selecting and reviewing classified records. By the time of

its FY 1984 Report, ISOO hopes to report significant progress

toward reversing the downward trend in systematic review.

(b) ISOO remains concerned about both the number and quality

of agency self-inspections. With the institution of a new

information security system in FY 1983, ISOO anticipated a

significant increase in the number of self-inspections as an

important function of each agency's oversight responsibilities. Instead, the number of self-inspections declined.

The number of reported infractions also declined, maintaining

a ratio of less than one infraction detected for each agency

self-inspection. From iSOO's own inspection experience, this

low rate of detected infractions calls into question the

quality of agency inspections. Even those agencies with

outstanding information security programs incur a limited

number of minor infractions.

39-388 0-65
94

Perhaps the most important reason that the information

security system performs effectively is the extent of

internal and external oversight. Inspections are a major

component of oversight. ISOO will be prodding agencies to

increase the number of their self-inspections, and to assure

that these inspections meaningfully examine the status of

their information security programs.

(c) Although the agencies are declassifying information in

response to mandatory review actions at a very impressive

rate, they are falling behind somewhat in their backlogs of

both requests and appeals. Too many cases remain unresolved

at the end of each fiscal year. The attendant delays strain

the patience of researchers, whom the agencies should

appreciate for selecting mandatory review actions over more

adversarial alternatives.

The number of new mandatory review requests and appeals fell

in FY 1983. If these levels remain stable or decrease in

FY 1984, agencies must be held accountable for reducing their

mandatory review backlogs.

Conclusion

The first full year of E.O. 12356's operation attracted

unparalleled attention to the executive branch's information

security system. Never before has this vital program been

more exposed to criticism. Its harshest critics hungrily

awaited for their predictions of rampant overclassification

and other abuses to come true. Largely ignored went the

statements of the President and others responsible for the

program that E.O. 12356's purpose was to improve the

protection of only that very small quantity of information

that merited it, and not to expand upon the classified

universe.

ISOO takes special delight, therefore, in reporting that for

FY 1983, E.O. 12356 and the information security system

operating under it were outstanding successes. The transition went smoothly, the abuses never materialized, and the

agencies achieved greater protection for national security

while originating significantly less classified information.

In a very short time, the Order has fostered a much improved

information security system. ISOO looks forward to even

greater progress in FY 1984 and beyond.
95

APPENDIX

THE BACKGROUND OF EXECUTIVE ORDER 12356

INTRODUCTION

On December 1, 1978, Executive Order 12065, "National Security Information,"

took effect. Less than four years later, Executive Order 12356 replaced it.

What hastened the change? The Information Security Oversight Office (ISOO),

charged with overseeing the government-wide information security program under

both Executive orders, concludes that the authors of E.O. 12065, in an effort to

emphasize the principle of open access to information, included language that

sometimes undermined its effectiveness as an information security system.

This is not to say that E.O. 12065 was a failure. As this Report and ISOO's

prior Reports to the President illuminate, the Government's information security

program was reasonably successful under E.O. 12065. Many of its provisions,

most notably those that limited the number of original classifiers and those

that required effective training and oversight, have had a very positive impact

on the information security program, and are retained or even strengthened in

E.O. 12356. As a matter of fact, E.O. 12356 more closely resembles E.O. 12065

than it does any prior information security system.

Retaining its predecessor's successful features, E.O. 12356 abandons or adjusts

those aspects of E.O. 12065 that proved to be inefficient, inflexible or counterproductive. Without describing each and every change, ISOO groups the

shortcomings of E.O. 12065 into the following categories: (a) Its inefficient

program for the systematic declassification review of information; (b) its

inflexible administrative requirements; (c) its negative tone; (d) its adverse

impact on litigation; and (e) its unrealistic program for automatic declassification. In the discussion that follows, ISOO examines each of these problem

areas in greater detail , and notes the changes in E.O. 12356 designed to remedy

them. They are discussed in the order that each problem arose as a matter to be

addressed in the process of constructing E.O. 12356.

THE SYSTEMATIC REVIEW PROGRAM

In 1972, Executive Order 11652 introduced the program of systematic review for

declassification. It was designed to promote the expeditious, inexpensive and

wholesale declassification of the massive volume of permanently valuable classified records in the National Archives of the United States that dated from World

War II and its aftermath. The Order provided that the Archivist of the United

States would conduct a systematic review of the Archives' classified holdings as

they became 30 years old.

The systematic review program under E.O. 11652 was a tremendous success.

Between 1972 and 1978, the National Archives declassified over 100 million

pages of previously classified records. In retrospect, much of the success of

the systematic review program at that time was due to the nature of the records

being reviewed, most of which related to military operations or emergency

planning, and the high priority given the program in the National Archives.

Looking at the success of the systematic review program, the drafters of

E.O. 12065 decided to take it a few steps farther. E.O. 12065 directed all

agencies, not just the National Archives, to conduct a systematic review program,

and lowered the applicable age of records to be reviewed from 30 to 20 years.

Agencies were further directed to reduce their backlog of permanently valuable

classified records in order to complete the transition to 20-year review no

later than December 1, 1988.

From its earliest stages of implementation, the revised system faced obstacles,

especially in those large classifying agencies that had never conducted their

own systematic review programs. They had to divert money from mission related

programs to fund new systematic review units. Frequently, the personnel in

these units were performing a function that was both new to them and largely

unrelated to their previous experience.
96

The shift to 20-year review created even greater problems. Several factors came

into play that sharply reduced the percentage of records that could be declassified as a result of systematic review. First, the general subject areas of the

post-War records related more to "Cold War" issues than to military operations

and emergency planning. Much more information, frequently involving intelligence

activities, remained sensitive. This required item-by-item review, rather than

tne bulk declassification that spurred the program under E.O. 11652. Second,

experience revealed that the national security sensitivity of a significant

percentage of information lingers after 20 years, but often dissipates around

30 years. Speculation ties this phenomenon to the fact that the 30-year period

more accurately reflects the span of political or public careers. It is worth

noting that the Federal Records Act contains a 30-year rule for specific agency

restrictions on access to records in the National Archives and a number of

foreign democracies restrict access to their records for the sane time period.

Finally, the 10-year reduction vastly increased the volume of information subject

to review, exaggerated by the tremendous growth of the Federal Government during

and immediately after the War. Rather than absorbing the backlog, most agencies

had made little, if any, progress from the 30-year mark by the August 1982

effective date of E.O. 12356.

In June 1980, the -General Accounting Office (GAO), working at the behest of the

House Subcommittee on Government Information and Individual Rights, asked IS0O

and several other executive branch agencies to review and comment on a draft

report entitled, "Systematic Review for Declassification -- Do Benefits Equal

Cost?" The draft report answered its title, "No," and went so far as to recommend an amendment to E.O. 12065 to abolish the systematic review program. The

draft report stated that agencies could meet researcher demands by relying

exclusively upon individual access requests under the Freedom of Information Act

or the mandatory review provisions of E.O. 12065.

To coordinate a reply to the draft report, the IS00 Director convened a meeting

of the Interagency Information Security Committee, composed of representatives

of the major classifying agencies. At the meeting there was almost total

agreement that the GAO draft correctly pointed out a number of deficiencies in

E.O. 12065's systematic review program. (The meeting also featured the first

formal expression of other problems with E.O. 12065 by several agency representatives.) The representatives took sharp issue, however, with the draft report's

recommendation to abolish the program entirely. There was a consensus that

Freedom of Information and mandatory review requests could never adequately

substitute for the broader scale benefits of systematic review. IS0O, on behalf

of the executive branch, strongly objected to GAO's draft recommendation, and

stated that it would examine less drastic means of equating the tangible and

intangible benefits of the systematic review program with its rising costs. The

final GAO report took cognizance of the effort to preserve the systematic review

program while lowering the costs; and ISOO's examination of the systematic

review program played a major role in the changes that appeared in E.O. 12356.

The systematic review program of E.O. 12356, as implemented by IS00 Directive

No. 1, resembles the successful program of E.O. 11652. Once again, only the

Archivist of the United States is required to conduct a systematic review

program for the declassification of records accessioned into the National

Archives, and of presidential papers or records under the Archivist's control.

The Directive schedules systematic review at the 30-year mark again, except that

it establishes 50-year review for sensitive intelligence and cryptographic

information. In addition, it requires the Archivist to establish priorities

based upon the expected degree of researcher interest and the likelihood that

review will result in significant declassification. While other agencies are

not required to conduct systematic review for declassification of records in

their custody, they are encouraged to do so if resources are available.

There is at least one area of the revised systematic review program that requires

special scrutiny. By reducing and slowing down the program, E.O. 12356 potentially worsens a problem that has existed for some time, i.e., the buildup of

permanently valuable classified records. This is especially true at a time when

the National Archives has had to cut back on the resources it devotes to systematic review. A very positive program to counter this problem is the transfer

of funds from a classifying agency to the National Archives so that it vay
97

systematically review specified records of that agency at a cost far less than

would otherwise be the case. The State Department and the National Archives

currently participate quite successfully in such a project. The agencies and

ISOO must also pay particular attention to other variables that may counteract

the buildup of classified holdings. These include educating original classifiers

with respect to determining the duration of classification based upon specific

dates or events, and discouraging the use of the waiver authority vested in

agency heads with respect to both portion marking and the issuance of classification guides. Both portion marking and classification guides tend to control

the volume of classified information, especially that classified on a derivative

basis.

On balance, E.O. 12356's systematic review program represents a reasonable

compromise between the calls to abolish the program and the costly, inefficient

system under E.O. 12065. When properly administered and funded, systenatic

review remains the most effective means of declassifying large quantities of

those classified records in the National Archives that ire in greatest demand

by researchers.

ADMINISTRATIVE REQUIREMENTS

When the Interagency Information Security Committee met on June 19, 1980, to

consider the draft GAO report on systematic review, the discussion turned to

other provisions of E.O. 12065 that the representatives of the member agencies

felt were unworkable or inadvisable. Most of their other complaints expressed

that day could be grouped under the heading, "Administrative Headaches."

In drafting E.O. 12065, its authors designed stringent administrative controls

as a means to restrain unwarranted classification. These controls sought to

limit classification authority initially; to inhibit the delegation of classification authority; to minimize the extension of automatic declassification

dates; to mandate portion marking; to require the promulgation of classification

guides; to restrict the classification of information following the receipt of a

Freedom of Information or mandatory review request; and to ban the ^classification of any information that had previously been declassified and disclosed.

By and large most of these measures had the desired effect and E.O. 12356

retains their positive features. In some situations, however, the degree of

inflexibility drafted into these provisions created unnecessary and unreasonable

impediments to an effective information security system. Notable among these

were the provision limiting agency classification action to the agency head or

deputy agency head following the receipt of a Freedom of Information or mandatory

review request; the universal requirement for classification guides; the requirement that only an agency head or "Top Secret" classification authority could

issue a classification guide; and the total ban on reclassification.

Section 1-606 of E.O. 12065 provided in pertinent part: "No document . . .

may be classified after an agency has received a request for the document under

the Freedom of Information Act or the Mandatory Review provisions of this Order

. . . unless such classification ... is authorized by the agency head or

(ionutu jnpnrv hoarf " The rationale for this limitation is laudable, and carries

Unfortunately, there are several government agencies that receive numerous

Freedom of Information and mandatory review requests for large quantities of

older records, which, although safeguarded from disclosure, have never been

previously marked as national security information. Faced with requests for

access to thousands upon thousands of these documents, many of them clearly

•and routinely classifiable, the requirement that only the agency head or deputy

agency head could classify them became an enormous burden on their valuable and

limited time. E.O. 12356 rectifies this situation by adding the "senior agency

official," designated by the agency head, and agency "Top Secret" original

classifiers, of whom there are less than 1,500 government-wide, as persons who
98

may also classify information following the receipt of a Freedom of Informati on

or mandatory review request. Because these individuals are by and large the

same officials and policymakers who would be recommending classification to the

agency heads, it is reasonable to expect that they will classify information

with the discretion and judgment that these special circumstances demand.

The provision of E.O. 12065 mandating the development and issuance of classification guides also created administrative problems in certain agencies. A classification guide is a document issued by an original classification authority that

instructs derivative classifiers about the particular elements of information

that must be classified, the level of classification and its duration. In most

instances guides help assure uniform classification and otherwise facilitate the

derivative classification process. In some areas, however, it is difficult and

sometimes impossible to predetermine and describe particular elements of information that must be classified. This has proven to be especially true in the

area of foreign relations. As a result, in some cases the cost of producing

usable guides far exceeds their benefits in facilitating derivative classification. Therefore, E.O. 12356 permits an agency head to waive the requirement

to produce classification guides when an evaluation of relevant factors spelled

out in IS00 Oirective No. 1 reveals that the cost of production would exceed the

benefit to the derivative classification process. The agency head must report

waivers to the Director of IS00, who will review them as part of the oversight

function.

Ironically, another provision of E.O. 12065 hindered the promulgation of classification guides by limiting the authority to issue them to agency heads or original

"Top Secret" classification authorities (only the agency head in those agencies

that may not classify originally at the "Top Secret" level). In many instances

the program official most familiar with the subject matter of a particular guide

is an authorized original classifier, but not at the "Top Secret" level.

Therefore, E.O. 12356 facilitates the promulgation of classification guides by

permitting their Issuance by an official who has program or supervisory responsibility over the information and is authorized to classify information originally

at the highest level of classification prescribed in the guide.

Another area of inflexible administration was E.O. 12065's blanket prohibition

against the reclassification of information previously declassified and disclosed. Almost anyone would agree that in most instances it is useless and

sometimes counterproductive to reclassify information once it has been declassified and disclosed. However, there are exceptions. During the time E.O. 12065

was in effect, situations arose in which information had been declassified

erroneously and disclosed, but the information was reasonably recoverable from

the recipient. Despite the fact that the damage to the national security could

be minimized, the blanket prohibition prevented reclassification. father than

closing the door to reclassification completely, E.O. 12356 provides that

information previously declassified and disclosed, but which continues to meet

the tests for classification, may be reclassified by an agency head if it is

"reasonably recoverable." IS00 Directive No. 1 specifies those factors that an

agency head must take into consideration before reclassifying information under

this provision. In addition, each reclassification action must be reported to

the Director of IS00, who closely monitors its reasonableness. These special

safeguards should help assure that this authority is not abused.

A MATTER OF TONE

J

h

n ^''^e"" Community Pl^ed a significant role in the development of

E.O. 12356. I« «Ct, it was in interagency Intelligence Community committee

that composed the first draft of a revised Order. The committee acted in

response to a WhUe House request that it examine ways of improving the nation's

IT* If^T W15

1

ff- The committee f°

cus*d its efforts on the negative

• °lJ-°- 12065 and those provisions of the Order that adversely impacted

other"awsuUs" ,n'9ating Posture in defending Freedom of Information and

It. *T•]S!* f H°- 12065'

$ neS"^ tone refers to its unbalanced portrayal of

l»r2VJ<t\°T 0pen"!$S and secur1ty- The exhortation to openness that

ec•r s t-mTe95 ?•St0rt'

d the fu

"

dame"tal purpose of an informa io security system, .e., the protection of national security information from

un.uthonud d,sclosure. By repeatedly expressing the Classified process in
99

terms of "don'ts" rather than "dos," E.O. 12065 downplayed the critical importance

of protecting our own sensitive information and the information given to the

United States in confidence by foreign governments.

Given the tone of E.O. 12065's language, it is not surprising that foreign

officials often expressed concern over the ability of this Government to protect

shared information. They viewed the Order as an extension of the Freedom of

Information Act. While these fears were largely unwarranted, this perception

threatened to dry up actual and potential intelligence sources. The threat to

the United States intelligence effort highlighted the need to state fundamental

classification policy and procedures in language that recognized legitimate

security requirements.

For example, Section 1-301 of E.O. 12065, which listed appropriate classification categories, began, "Information may not be considered for classification

unless it concerns . . .." Contrast Section 1.3(a) of E.O. 12356: "Information shall be considered for classification if it concerns . . .." Similarly,

Section 1-302 of E.O. 12065, which establishes the threshold damage test for

classification, stated:

Even though information is determined to concern one or more

of the criteria in Section 1-301, it may not be classified

unless an original classification authority also determines

that its unauthorized disclosure reasonably could be expected

to cause at least identifiable damage to the national security.

Contrast the positive statement of its revised counterpart, Section 1.3(b) of

E.O. 12356:

Information that is determined to concern one or more of

the categories in Section 1.3(a) shall be classified when

an original classification authority also determines that

its unauthorized disclosure, either by itself or in the

context of other information, reasonably could be expected

to cause damage to the national security.

Perhaps the clearest example of E.O. 12065's negative tone was found in the

so-called "reasonable doubt" standard. This is the provision that instructs

original classifiers if they are uncertain about the need to classify information, or about the appropriate classification level. Ironically, these

respective provisions, which the news media and others have repeatedly and

inaccurately cited to distinguish the two Orders in an extraordinarily abbreviated fashion, are far more important in theory than in practice. For even

though the original classification process sometimes involves difficult

judgments, the senior status of original classifiers encompasses officials who

routinely make difficult decisions in areas related to national security.

Accordingly, actual cases of "reasonable doubt" are unusual.

E.O. 12065 required that all these cases be resolved in favor of no classification, when whether to classify or not was the issue, and in favor of the lower

classification level, when the appropriate level was the issue. This is a

simplistic and dangerous solution. Why mandate an answer for all cases when the

merits of each situation will differ and there exist reasonable means of resolution? E.O. 12356 takes a more responsible stance, providing, in effect, "When

in doubt, find out." It requires that the information be safeguarded as if it

were classified, or at the higher level, pending a determination by an authorized

classifier, which must be reached within thirty days. This is certainly a

reasonable delay when matters of national security d.re concerned.

With these and other changes in tone, E.O. 12356 sounds like what it is, the

framework for the executive branch's information security system. While

recognizing the critical importance of openness in government generally, it does

not apologize for those situations in which the national security requires

secrecy.
100

THE IMPACT Of LITIGATION

Several agencies frequently must defend in court their efforts to protect

national security information from disclosure under the Freedom of Ilforaation

Act. Executive Order 12065 unintentionally but significantly increased the

burden upon the Government in defending these actions.

Section 3-303 of E.O. 12065 provided: "It is presumed that information which

continues to meet the classification requirements [of the Order] requires continued protection. In some cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information,

and in these cases the information should be declassified. . . ." This was the

so-called "balancing test" of E.O. 12C65.

For many months the drafters of E.O. 12065 debated the inclusion of a "balancing

test." Proponents insisted that it was necessary to state explicitly that even

properly classified records might be declassified for some greater public purpose than that served by their protection. Opponents, while recognizing the

inherent need to balance the competing interests of protection and disclosure,

warned against an explicit "balancing test" on the basis that it would create

significant problems for the Government in defending Freedom of Information

litigation. Ultimately, the proponents of a "balancing test" prevailed, on the

assurance that the discretionary language quoted above would prevent its

exploitation by plaintiffs in these lawsuits.

This forecast proved to be unequivocally wrong. The "balancing test" became,

and in some holdover cases continues to be, the major litigating problem for

the Government in actions involving E.O. 12065. Plaintiffs argued that the

consideration of the "balancing test" by agency heads was mandatory, not

discretionary, and challenged administrative determinations to keep information

classified even when agency heads had applied the test. To defend these actions

required the Government to prove not only the proper classification of information, but also the proper application of a "balancing" procedure. More

ominous was the prospect that some judges would second-guess the agency heads,

who were responsible under law for protecting the information, and who were

knowledgeable about the consequences of disclosure. Finally, litigating the

"balancing test" had the practical effect of requiring the defending agency

to produce successive generations of supporting affidavits, increasing the

details in each. This was not only burdensome, but it required the disclosure

of more and more information about classified subjects, much of which was

Itself quite sensitive.

As in the case of the "balancing test," E.O. 12065's "identifiable" damage

standard for "Confidential" classification is an example of good intentions

leading to unexpected and undesirable consequences in the context of

Freedom of Information litigation. The drafters of E.O. 12065 inserted

the word "identifiable" to emphasize to classifiers the importance of

conscious decision-making before classifying information. Instead, plaintiffs

seized upon "identifiable" to argue that it mandated a qualitative or

quantitative standard or degree of damage to national security before

information could be classified. For example, in one lawsuit the plaintiff

sought the release of certain information, which, if disclosed, would have

revealed intelligence sources or methods. Plaintiff argued that it could

not be classified, because the prospective damage to these sources or

methods was merely speculative, and not presently "identifiable." Fortunately,

the judge in this case recognized the absurdity of this logic. Nevertheless,

'the "identifiable" experience attests to tne legal adage of avoiding

unnecessary adjectives in drafting instruments subject to interpretation.

The drafters of E.O. 12356 agreed that the only realistic way to cope with

these provisions adequately was to eliminate them. Less incisive action,

e.g., alternative language, failed to exclude the possibility of persons

continuing to litigate areas of administrative discretion.

The deletion of the "balancing test" should prove to be one of E.O. 12356's

most Important changes. Its absence should relieve much of the Government's

unforeseen burden in defending Freedom of Information actions seeking access
101

to classified records. ISOO and the classifying agencies must be vigilant,

however, to see that the absence of the "balancing test" and "identifiable"

damage does not result in less thoughtful classification and declassification

decisions. Classifiers and declassifies must consider both sides of the

issue. As with prior Executive orders, E.O. 12356 does not require the

classifier to record contemporaneously the reasons behind the decision to

classify or to keep information classified. Every classifier must be aware,

however, that there are avenues to challenge the validity of classification,

at which time the classifier is likely to be called upon to justify and

explain the classification decision in writing, and frequently under oath.

AUTOMATIC DECLASSIFICATION

Executive Orders 10501, 11652, and 12065 all included some provision for the

automatic declassification of national security information based solely upon

the passage of a fixed number of years. E.O. 12065 carried the concept of

automatic declassification farthest:

Section 1-401. Except as permitted in Section 1-402, at

the time of the original classification each classification

authority shall set a date or event for automatic declassification no more than six years later.

Section 1-402. Only officials with Top Secret classification

authority and agency heads . . . may classify information for

more than six years from the date of original classification.

This authority shall be used sparingly. . . .

What sounds good in theory doesn't always work. As happened with prior Orders,

classifiers honored the automatic declassification requirements of E.O. 12065

far more frequently in the breach than in the practice. They could not ignore a

reality that confronts classifiers much of the time: It is difficult, if not

impossible, to discern at the time of classification the duration of the information's sensitivity.

In theory, uncertain classifiers under E.O. 12065 had two alternatives: (a) they

could disregard their concern about the duration of the information's sensitivity, and mark the information for automatic declassification in six years or

less; or (b) they could bring the information before the head of the agency or a

"Top Secret" classification authority, and seek to have that person classify it

for a period of time not to exceed twenty years (for foreign government information, not to exceed thirty years). In practice, classifiers chose alternative

(a) less than 10 percent of the time. They chose alternative (b), requiring

special procedures and mandated for "sparing" use, approximately 65 percent of

the time.

In practice, to handle the remaining 25-30 percent of original classification

actions, the classifiers relied upon an invention that wasn't even contemplated

in E.O. 12065, i.e., "Review in six years." In other words, the classifiers,

unwilling to risk the automatic declassification of information that might

continue to require protection after six years, but also unwilling or unable to

go through the procedure to extend its classification up to twenty years,

created a makeshift substitute for automatic declassification.

Even though "six year review" may have eased the consciences of classifiers, it

was not a viable solution. First, agencies were already having a difficult time

trying to comply with the requirement to review 20-year old permanently valuable

classified information. It was ludicrous to expect that they would be able to

devote the resources necessary to review a large portion of all their classified

information within six years. Second, because E.O. 12065 did not contemplate a

"six-year review," it was quite possible that the courts would find that information marked in this manner was automatically declassified after six years, and

order its release despite its national security sensitivity.
102

Information properly marked for six-year automatic declassification presented a

different problem. " ISOO and agency reviewers uncovered a disturbing number of

situations in which the automatic declassification provisions of E.O. 12065

led to the rote application of the six-year rule to information that would

clearly require protection for a longer period. This phenomenon was not new

with E.O. 12065, merely exaggerated. Any classification system that mandates

an arbitrary period of time for the duration of protection must presuppose some

degree of premature disclosure and consequential damage to the national security.

E.O. 12065's system for automatic declassification was clearly one of its

greatest failings. Over 90 percent of reported classification decisions fell

outside its prescribed time frame, and too many of the remaining decisions

threatened the disclosure of information that continued to require national

security protection. It was a situation serious enough to demand a fresh look

at the concept of automatic declassification. Taking the bold step of bucking

the trend of prior Orders, the drafters of E.O. 12356 concluded that the only

rational approach was to abandon the myth of automatic declassification tied to

a fixed period of years that may or may not have any relationship to the information's national security sensitivity. Instead, E.O. 12356 takes the only

realistic approach, establishing the duration of classification for "as long as

required by national security considerations." When they are able to do so,

original classifiers are to establish specific dates or events for declassification at the time of classification. Otherwise, declassification follows an

agency review, a process that may be initiated at any time by officials inside

the agency, or citizens outside of it.

CONCLUSION

Executive Order 12356 is the product of a considerable effort to improve upon

its moderately successful, if somewhat flawed, predecessor. Because it consolidates and expands upon the most successful features of prior information

security systems, executive branch agencies have greeted its issuance

enthusiastically.

At the same time, however, the traditional critics of the information security

program have reacted, as could be predicted, negatively. At the heart of their

criticism is the charge that the underlying purpose behind E.O. 12356 is to

permit the classification of more information than could be classified under

E.O. 12065. As this paper illustrates, the perceived flaws of E.O. 12065 did

not include the breadth or scope of permissible classification. The authors of

E.O. 12356 sought to provide better protection for that very small percentage of

information that requires it, not to increase the amount or type of information

to be classified.

Nevertheless, E.O. 12356 presents an important challenge to those who must

implement it. Some of its critics will constantly scrutinize its implementation,

hoping to uncover abuses that might be publicized to undermine its retention.

Minimizing abuses represents the most effective counter-measure to this criticism.

To do so, E.O. 12356's proponents must scrutinize its implementation even more

thoroughly than its critics.
103

THE WHITE HOUSE

WASHINGTON

March 23, 1984

Dear Mr. Garfinkel:

I was very pleased to review your FY 1983 Annual

Report and to learn that the system we have

established under Executive Order 12356 to provide

better protection for national security information without excessive classification is working.

While we anticipated that the revised information

security system would improve credibility and

efficiency of the program, its success is also

dependent upon the outstanding oversight efforts

of you and your staff and the thousands of other

persons throughout the executive branch who are

dedicated to making it work. Please convey my

appreciation to all those whose efforts made these

achievements possible.

I ask for the same commitment in the future to

improving our performance even more. We must

continue to insure that information is being

classified only when this extraordinary protection

is necessary; that those entrusted with access to

national security information appreciate the

seriousness of their responsibility to safeguard

it; and that systematic review and other declasfication efforts are made in accordance with the

order's goal of making information no longer

requiring security protection available to the

public.

I trust that you and your staff will continue to

work with responsible officials throughout the

Government to address these and other issues that

relate to the administration of the information

security program. I look forward to future reports

on the progress that has been made as a result of

these efforts.

Sincerely,
(P

104

General Information Security

Services Oversight

Administration Office Washington. DC 20405

April 23, 1984

Honorable Orrin G. Hatch

Chairman

Subcommittee on the Constitution

Committee on the Judiciary

United States Senate

Washington, DC 20510

Dear Senator Hatch:

Subject: Testimony on S. 1335, April 3, 1984.

As requested, I have returned my revised testimony on S. 1335 to

the Chief Printer for the Committee on the Judiciary.

In your letter and at the hearing, the other witnesses and I were

invited to submit additional information for the record. I would

like to supplement my testimony by offering the following

additional information for the record. In his testimony on

behalf of the American Civil Liberties Onion, Mark H. Lynch cited

to the reclassification of previously disclosed documents by the

National Security Agency (NSA) of materials located at the George

C. Marshall Library. Mr. Lynch suggested in his testimony that

the NSA had failed to notify the Information Security Oversight

Office (ISOO) of this reclassification action, as is required

under Executive Order 12356. I request that the record note that

the NSA did in fact notify ISOO of the reclassification action at

the Marshall Library, and involved ISOO in its deliberations over

this action.

Thank you again for inviting me to appear at your hearing.

Sincerely,

J<MlUM~-

STEVEN GARFINKEL

Director
105

Senator DURENBERGER. Mary?

STATEMENT OF MARY C. LAWTON

Ms. LAWTON. Thank you, Senator.

It is a short statement anyway, but I will just pick up the main

points, without describing the bill, which I assume you are very familiar with.

While S. 1335 purports to amend FOIA, it would have the effect

of amending Executive Order 12356 indirectly, by instructing Federal officials administering FOIA that in addition to following the

President's directive on classification, they must determine that

disclosure would cause "identifiable, exceptionally grave damage"

for top secret information; "identifiable serious damage" for secret

information, and "identifiable damage" for confidential information, and further, that the need to protect against such damage is

not outweighed by the public interest.

We have already submitted a letter to the subcommittee concerning the Department's views on S. 1335, and noting that we believe

the proposal raises serious constitutional concerns.

The concept of separation of powers is inherent in the constitutional division of governmental responsibility into three branches.

Certainly, the division is not rigid, and the Constitution assigns different aspects of some Government responsibilities to different

branches. It is clear, however, that the President is Chief Executive, Commander in Chief, and the principal instrument of foreign

policy. As such, it is his responsibility to protect state secrets involving the national defense and foreign policy and to instruct his

subordinates in this regard. So too, it is the Executive which is empowered to assert the state secrets privilege in the courts.

Through the device of an amendment to FOIA, S. 1335 attempts

to assume these executive functions, providing conflicting instructions to executive branch officials to apply different classification/

declassification criteria to any records requested under FOIA. In

our view, Congress cannot attempt to control the President's decisions with respect to whether particular information needs to be

protected in the interest of national security and cannot decree by

statute what specific items of diplomatic or intelligence information may merit classification in particular circumstances.

The conflicting "instruction" to executive branch officials presents practical problems as well. Those conducting declassification

reviews in FOIA matters would be applying different standards

from officials making classification decisions. This will add an unacceptable level of uncertainty to the classification process. Moreover, adding two additional tests to the first FOIA exemption will

necessitate even more detailed affidavits explaining the basis for

the exemption, increasing both the risk of disclosure and the

burden on the executive branch and the courts. Yet if the experience of the past is a basis for predicting the future, the net result

is likely to be more and more prolonged litigation, at greater expense, disclosing little or no additional information.

For these reasons, the Department of Justice opposes S. 1335. In

our view, information properly classified pursuant to Executive

order should be exempt from disclosure under FOIA. The current
106

language of exemption 1 provides precisely that, and we cannot

support any proposal restricting that exemption.

Thank you.

Senator DURENBERGER. I would just ask a question before I go to

Mr. Lynch.

Will the record show anywhere, either from Justice or from you,

Mr. Garfinkel, how much time has been consumed in litigation,

how many dollars have been consumed in litigation, over FOIA requests, say, over the last 7 or 8 years? Has that information been

accumulated anywhere?

Ms. LAWTON. There may be some in the record in connection

with S. 774, but I am not sure. I was not the witness, and I do not

know for certain, Senator. I can certainly ask and find out whether

we have submitted anything on that.

Senator DURENBERGER. I am being left with the impression that

there wasn't much, but that all of a sudden, after the 1978 Executive order, the litigation shot up as people put pressure on the Government to release information.

Ms. LAWTON. Oh, I do not think it would show that the volume

increased. The volume is incredible now, and has been for some

years. I think what it would show is simply that it got a little more

complex, because you had additional issues. Every word in the statute is one more issue for our lawyers to argue over. Every time you

add a word, you add a legal argument, and there were that many

more legal arguments complicating the volume of cases, but I do

not think increasing the volume.

Senator DURENBERGER. OK.

[The following was received for the record:]
107

PREPARED STATEMENT OF MARY C, LAWTON

Mr. Chairman and Members of the Subcommittee:

We appreciate the opportunity to appear here today to

discuss the Department's views on further amendment to the

Freedom of Information Act. It is our understanding that one

of the proposals before the Subcommittee is S. 1335 a bill to

amend the Freedom of Information Act and, through it, Executive

Order 12356. For the reasons I will explain, the Department

opposes that bill.

Apart from the specialized provisions concerning restricted

data contained in the Atomic Energy Act, provisions relating to

the classification of information have always been established

by Executive Order. As Chief Executive, Commander-in-Chief and

principal instrument of foreign policy, the President has, as

the courts have recognized, a responsibility to protect State

Secrets. This responsibility has been exercised for many years

by establishing a formal system for identifying and categorizing

State Secrets, i.e., the classification system. Without going

into excessive detail, let me outline the current system.

Executive Order 12356 establishes three basic levels of

classification. The levels are based on an assessment of the

harm that the disclosure of the information could reasonably be

expected to cause:

Top Secret - exceptionally grave damage

to the national security;

Secret - serious damage to the

national security;

Confidential - damage to the national security.

The Order limits the authority to classify and declassify, with

different limits being set for each level of information.
108

It also establishes regulations for the handling of classified

information which vary with the classification level.

It is important to note that the Order "defines" the type

of information which may be classified not merely by reference

to the harm done by disclosure but also by a list of categories

of the sort of State Secrets requiring protection. The list is,

of necessity, generic in its descriptions but it nevertheless

provides rather clear guidance on proper subjects for classification consideration.

Classified information is expressly exempted from

disclosure under the Freedom of Information Act, 5 U.S.C.

552(b)(1) if it is "in fact properly classified pursuant to such

Executive Order." If a requestor has been denied information on

the grounds that it is classified a court may review that denial

de novo and the burden is on the government to prove that the

information is properly classified under the Executive Order.

This system would be changed by S. 1335. It would limit

the FOIA exemption to only those properly classified records

which meet two additional tests:

(1) matters the disclosure of which could

reasonably be expected to cause identifiable damage to national security, and

(2) matters in which the need to protect the

information outweighs the public interest

in disclosure.

The bill would also alter the present judicial review standard

under FOIA. As noted above, the courts presently review FOIA

exemption claims de novo. Under S. 1335 the court would use its

own judgment as to whether the damage caused by disclosure is

"identifiable" (presumably to the court) and could reasonably be

expected (presumably by the court) to cause such damage. However, the court's review as to whether the public interest outweighs the need for protection is apparently confined to
109

deciding whether the agency considered this, not whether the

judge would have come to the same conclusion.

While S. 1335 purports to amend POIA it would have the

effect of amending Executive Order 12356 by instructing federal

officials administering FOIA that in addition to following the

President's directive on classification they must determine that

disclosure would cause:

"identifiable" exceptionally grave damage

(Top Secret);

"identifiable" serious damanage (Secret); or

"Identifiable" damage (Confidential); and,

further, that the need to protect against such damage is not

outweighed by "the public interest."

As explained in more detail in our letter to the Committee

concerning S. 1335, we believe this proposal raises serious

constitutional concerns. The concept of separation of powers

is inherent in the constitutional division of governmental

responsibility into three branches. Certainly that division is

not rigid and the Constitution assigns different aspects of some

governmental responsibilities to different branches. It is

clear, however, that the President is Chief Executive,

Commander-in-Chief, and the principal instrument of foreign

policy. As Buch it is his responsibility to protect State

Secrets involving the national defense and foreign policy and

to instruct his subordinates in this regard. So too, it is the

Executive which is empowered to assert the State Secrets

privilege in the courts.

Through the device of an amendment to FOIA, S. 1335

attempts to assume these Executive functions, providing

conflicting instructions to Executive Branch officials to

apply different classification/declassification criteria to any

records requested under FOIA. In our view Congress cannot
110

attempt to control the President's decisions with respect to

whether particular information needs to be protected in the

interest of national security and cannot decree by statute what

specific items of diplomatic or intelligence information may

merit classification in particular circumstances.

This conflicting "instruction" presents practical problems

as well. Those conducting declassification reviews in FOIA

matters would be applying different standards from officials

making classification decisions. This will add an unacceptable

level of uncertainty to the classification process. Moreover,

adding two additional tests to the first FOIA exemption will

necessitate even more detailed affidavits explaining the basis

for the exemption, increasing both the risk of disclosure and

the burden on the Executive Branch and the courts. Yet if the

experience of the past is a basis for predicting the future, the

net result is likely to be more, and more prolonged, litigation,

at greater expense, disclosing little or no additional

information.

For these reasons the Department of Justice opposes

enactment of S. 1335. In our view, information properly

classified pursuant to Executive Order should be exempt from

disclosure under FOIA. The current language of exemption 1

provides precisely that and we cannot support any proposal

restricting that exemption.
Ill

Senator DURENBERGER Mr. Lynch.

STATEMENT OF MARK H. LYNCH

Mr. LYNCH. Thank you, Mr. Chairman.

I have a prepared statement, which I would request be included

in the record.

Senator DURENBERGER. It will be made part of the record.

Mr. LYNCH. I will summarize that, and perhaps respond to some

of the comments that Mr. Garfinkel and Ms. Lawton have made.

We strongly support this bill because it would restore to the

FOIA the requirement of showing identifiable damage. Mr. Garfinkel's account of the history of these orders, I think, is illogical and

does not make any sense. President Carter included "identifiable"

to make it more difficult to classify documents. When you take

"identifiable" out, that must mean that it is easier to classify documents.

Now, the administration's principal concern with this provision

is in litigation. I think that suggests that the Carter order never

made a really significant impact on the bureaucracy. The fact that

classification activity has remained fairly constant, rather than reflecting some extraordinary revolution in the past 14 months, probably more accurately demonstrates that the intended effect of Executive Order 12065 never sunk in the way the authors intended.

Also on that score, Mr. Garfinkel makes a great deal of the fact

that original classification actions have decreased substantially,

and to the extent that has happened, I commend the administration. But I think the key set of figures appears on page 11 of his

report, where you see the combined derivative classification actions

and original classification actions. If you combine those figures, in

fact, classification activity has remained steady, as indeed the

heading for that section states on page 11.

Senator DURENBERGER. SO has overall classification actually gone

up?

Mr. LYNCH. It has remained steady. And I think that, rather

than reflecting an achievement in recent years, reflects failure to

drive home the reforms intended by the old Executive order.

Let me say one more thing about the identifiable damage test. I

am not aware of courts requiring a radically different showing as a

result of the identifiable damage. I will certainly confess that I

urged on courts that it made a big difference, but I was not terribly

successful in prevailing in that argument. And I think in the only

court of appeals opinion that I can recall right now that discussed

the significance of identifiable damage, Judge Wilkie of the U.S.

Court of Appeals of the District of Columbia Circuit said that it did

not make a substantial change and did not require any difference

in judicial review. [Baez v. Department of Justice, 647 F.2d 1328,

1336 n. 48 (D.C. Cir. 1980).]

Now, with respect to the balancing test, if the balancing were reviewable de novo, while I would favor that, I would also agree that

that would complicate litigation substantially, and I can understand, Senator, why you have decided not to go that route. But the

way S. 1335 is drafted, the balancing test will only require decisionmakers to perform that balancing process. It will not enable courts
112

to second-guess what the balance is. It will only authorize courts to

make sure that the process has been performed.

Now, why is a balancing test worth while?

Classification is not an exact science. Whether a document

should be classified does not appear with mathematical certainty

from its face. Frequently the people who are doing the classification will take into account other considerations, and consequently

information which may meet the standards in the Executive order

for classification will nonetheless be made public because the administration perceives some overriding interest in doing so.

I think perhaps the classic example of this happening was the decision by President Kennedy and his advisers to reveal the overhead pictures of the Soviet missiles in Cuba. As you know, Senator,

from your work on the Intelligence Committee, there isn't much

that is more highly and more routinely classified than the products

of overhead surveillance. Nonetheless, in this circumstance, it was

important to convince the country and the world that there was a

serious threat and that firm action was necessary. So that was a

case where the balance favored disclosing information which nonetheless was classified.

More recently, this administration has made public a great deal

of information about the outside aid to guerrillas in El Salvador. In

fact, as you are probably aware from your work in the Intelligence

Committee, that involved quite a debate within the intelligence

community over whether that information should be made public.

But it was made public, because the administration decided that

disclosure was important to sell their policy.

Now, there are other kinds of information to which the same calculus could be applied, but decisionmakers, left to their own devices, are only going to apply this calculus when it is in their interest to do so. Consequently, we have not gotten anywhere near as

much information about human rights violations in El Salvador as

we have about outside aid, although our diplomatic and intelligence services collect both kinds of information. The reason is that

information about human rights violations by our allies detracts

from the policy whereas information about outside aid to the guerrillas supports the policy.

The value of the balancing test is that it would give the public a

foothold to require decisionmakers to apply that calculus to all information which is requested under the Freedom of Information

Act. I am not so naive as to think that the balance is always going

to come out in favor of public disclosure, particularly when the information is going to be adverse to policy, but it is the decision-forcing mechanism. It is a little like NEPA, in fact, in the environmental area. Since the balancing will not be subject to searching judicial review, it should not cause the kinds of litigation problems

that apparently have motivated many of the changes in the new

Executive order.

Thank you, Mr. Chairman.

[The following was received for the record:]
113

PREPARED STATEMENT OF MARK H. LYNCH

Mr. Chairman:

Thank you for your invitation to the American Civil

Liberties Union to testify on S. 1335. The ACLU is a nonpartisan

organization of over 250,000 members dedicated to defending

the Bill of Rights. The ACLU regards the Freedom of Information

Act as one of the most important pieces of legislation ever

enacted by Congress because the Act positively implements the

principle, protected by the First Amendment, that this nation

is committed to informed, robust debate on matters of public

importance. Accordingly, we strongly support S. 1335 because

it would substantially strengthen the FOIA and eliminate two

of the most unfortunate features of Executive Order 12356,

which was issued by President Reagan on April 6, 1982.

Presidents Eisenhower, Nixon, and Carter each issued

Executive Orders on classification which were intended to

reduce the amount of information which is classified. President

Reagan reversed this trend with E.O. 12356, which made it

easier to classify information and to deny requests to declassify

information.

Under the preceding E.O., No. 12065, information

could not be classified unless its unauthorized disclosure

reasonably could be expected to cause identifiable damage

to the national security. The current E.O. deletes the word

"identifiable" and thus permits classification on a less

specific and precise basis.

E.O. 12065 also recognized that in some situations

where information meets the minimum standard for classification,

"the need to protect the information may be outweighed by the

public interest in disclosure of the information, and in

these cases the information should be declassified." (Section

3-303.) E.O. 12065 directed that when such questions arose,

they should be referred to a senior official who would perform

a balancing test to "determine whether the public interest in

disclosure outweighs the damage to the national security that
114

might reasonably be expected from disclosure." (Id^) The

present E.O. deleted this balancing provision altogether.

S. 1335 amends exemption one to the FOIA so that

classified information cannot be withheld from the public

unless (1) it is properly classified under the terms of whatever

executive order is in effect, (2) disclosure would cause

identifiable damage to the national security, and (3) the

need to protect the information outweighs the public interest

in disclosure. Thus, S. 1335 locks the requirement of identifiable

damage and the balancing test into the statute so that these

provisions cannot be removed by an Executive Order.

These two changes in the law will have their greatest

value in forcing executive branch decision makers to think

more carefully when they classify information or consider

declassifying information in response to an FOIA request. We

tend too often to think of the FOIA in terms of litigation.

But the real value of the Act is not that it sets up a scheme

of judicial review of agency decisions but rather that it

sets up a scheme for release of information by the agencies

themselves. Judicial review and the threat of judicial review

are vitally important incentives for the agencies to comply

with the Act, but the ultimate aim of the Act is that requests

for information should be handled sensibly at the agency

level. This bill contributes substantially to that aim.

The requirement of specifying identifiable damage

obviously requires a more thoughtful approach to a classification

decision than does E.O. 12356. Furthermore, legislating a

requirement of identifiable damage involves more than a change

in semantics • it tells the bureaucracy that Congress wants

classification kept to a minimum consistent with the national

security. E.O. 12356 told the bureaucracy that the standards

for classification in E.O. 12065 were too stringent and should

be relaxed. There of course was no evidence whatsoever that

the bureaucracy had been constrained by E.O. 12065 from classifying

information which in fact required protection, and this bill

would reverse the unfortunate signal sent by E.O. 12356 that

agency officials should feel freer to wield their classification

_&fc*mps.
115

The balancing provision of E.O. 12065 was a great

step forward in enhancing the public's access to information

because it gave the public an opportunity to invoke a process

that the executive branch regularly follows at its own initiative

when it is in the executive branch's interest to do so.

Classification is not an exact science; whether a document

should or should not be classified cannot be determined with

mathematical certainty. Frequently, the executive branch

will decide to disclose information which meets the standards

for classification because executive officials perceive an

interest in doing so. A classic example was President Kennedy's

decision to reveal the overhead photographs of the Soviet

missiles in Cuba. Although the products of overhead surveillance

are routinely classified at a very high level, disclosure of

this graphic evidence was deemed appropriate to convince the

nation and the world that there was a serious threat which

required a firm response. In short, the public interest in

disclosure outweighed the damage that would result from disclosure

of sensitive intelligence.

The problem is that the executive branch, left to

its own devices, will only consider the public interest in

disclosure in those cases where the executive's immediate

interests coincide with the public interest. For example,

our diplomatic and intelligence services collect information

in El Salvador about outside aid to the guerrillas and also

about human rights violations (including the murders of the

American churchwomen and labor officials) by elements of the

military. But the executive branch is much more likely

to release information about the former than the latter because

information about outside aid bolsters the current policy

while information about human rights violations detracts from

that policy. Yet the public's interest in both types of

information, so that it can assess whether the government's

policy is sound, is equal.

The value of the balancing test, which would be

restored by S. 1335, is that it enables a member of the public
116

to require the executive branch to consider the public interest

in disclosure of any information requested under the FOIA.

The balancing test thus helps to put the public on a par with

the bureaucracy with respect to determining what kinds of

information should be made public.

While this bill will have great value in the administrative

consideration of requests, it will not have a great impact on

judicial review of the decisions which this bill will require.

Although the requirement of identifiable damage will require

a more precise showing by the government to sustain a

classification decision, this change will not expand the

scope of judicial review. Indeed, in one case decided while

E.O. 12065 was in effect, the United States Court of Appeals

for the District of Columbia Circuit said that the addition

of "identifiable" did not amount to a substantial difference

between E.O. 11652 and E.O. 12065 for purposes of judicial

review. Baez v. Department of Justice, 647 F.2d 1328, 1336 n.48

(D.C. Cir. 1980).

It is important to note that S. 1335 provides for

more limited judicial review with respect to the balancing

test than the FOIA provides with respect to the other elements

of exemption one. The Act requires courts to conduct a de

novo review of an agency's claim that a document is properly

classified under the terms of an Executive Order. However,

S. 1335 provides that with respect to the balancing test, the

court's review is limited to ascertaining whether the agency

performed the balancing test. Thus, this bill does not authorize

judges to substitute their judgment on the balance between

the public interest and damage to the national security for

that of executive branch officials. Although the ACLU would

prefer that full judicial review apply to the balancing

procedure, this provision, even with limited review, is a

substantial contribution to the FOIA because it requires

agency officials to consider the public interest and it enables

courts to make sure that officials do so.

In conclusion, Mr. Chairman, S. 1335 would be a most

useful addition to the FOIA, and the ACLU strongly supports

the bill.
117

OFFICE OF THE DIRECTOR OF DEFENSE RESEARCH AND ENGINEERING

WASHINGTON, D C 10101

6 July 1970

MEMORANDUM FOR THE SECRETARY OF DEFENSE

THROUGH: THE DIRECTOR OF DEFENSE RESEARCH

AND ENGINEERING

SUBJECT: Final Report of Task Force on Secrecy

The following report of the Defense Science Board was prepared in

response to a request of the Director of Defense Research and

Engineering. The study was conducted by a special task force of

the Board under the chairmanship of Dr. Frederick Seitz. In his

memorandum of submittal Dr. Seitz emphasizes the need for "major

surgery" in the DoD security system.

With the approval of the Defense Science Board, I recommend this

report to you for your consideration.

Gerald F. Tape

Chairman

Defense Science Board
118

Report of the

Defense Science Board

TASK FORCE ON SECRECY

1 July 1970

Office of the Director of Defense Research and Engineering

Washington, D. C. 20301
119

OFFICE OF THE DIRECTOR OF DEFENSE RESEARCH AND ENGINEERING

WASHINGTON, D. C. 10301

1 July 1970

MEMORANDUM FOR THE CHAIRMAN.

DEFENSE SCIENCE BOARD

SUBJECT: DSB Task Force on Secrecy Final Report

The Task Force on Secrecy herewith submits its final report. This

report, which has been coordinated with all members of the Defense

Science Board, concludes the work of the Task Force.

The report addresses specific questions posed by the DDR&E in

general terms since time and resources did not permit establishment

of detailed steps required to correct the deficiencies identified in

the present DoD scientific and technical information security classification system. These actions are more appropriately the responsibility of the cognizant DoD elements.

In addition, the Task Force considered security classification from

the national long range and short range viewpoints. These combined considerations, i. e., the specific questions posed by the

DDR&E and the national considerations, resulted in a general conclusion that the DoD security classification system requires major

surgery if it is to meet the Defense, national and international

environment of today. Specifically, we found that:

1. It is unlikely that classified information will remain secure

for periods as long as five years, and it is more reasonable to

assume that it will become known to others in periods as short as

one year.

2. The negative aspect of classified information in dollar

costs, barriers between U.S. and other nations and information

flow within the U.S. is not adequately considered in making security

classification determinations. We may gain far more by a reasonable policy of openness because we are an open society.

3. Security classification is most profitably applied in areas

close to design and production, having to do with detailed drawings
120

and special techniques of manufacture rather than research and

most exploratory development.

4. The amount of scientific and technical information which

is classified could profitably be decreased perhaps as much as

90 percent by limiting the amount of information classified and the

duration of its classification.

General recommendations to correct these deficiencies are contained in the report.

Frederick Seitz

Chairman

Task Force on Secrecy
121

PREFACE

Late in 1969 the Defense Science Board established the Task

Force on Secrecy to consider questions pertinent to the classification

of information in all stages of research, development, test and evaluation (RDT&E), as well as procurement and deployment.

The members of the Task Force were as follows:

Dr. Frederick Seitz (Chairman)

Dr. Alexander H. Flax

Dr. William G. McMillan

Dr. William B. McLean

Dr. Marshall N. Rosenbluth

Dr. Jack P. Ruina

Dr. Robert L. Sproull

Dr. Gerald F. Tape

Dr. Edward Teller

Mr. Walter C. Christensen (Staff Assistant)

In the course of its discussions, the Task Force consulted a number of individuals and groups, among whom were the following persons:

Dr. John S. Foster, Jr.

Director of Defense Research and Engineering

Dr. Gardiner L. Tucker

Principal Deputy Director of Defense Research and

Engineering

Dr. Luis W. Alvarez

Professor of Physics, University of California, Berkeley

Mr. Joseph J. Liebling

Deputy Assistant Secretary of Defense (Security Policy)

Dr. Donald M. MacArthur

Deputy Director (Research b Technology), ODDR&E

Lt. Colonel John M. MacCallum

Advanced Research Projects Agency

Dr. Michael M. May, Director, and associates

Lawrence Radiation Laboratory

Mr. Walter McGough

Acting Special Assistant (Threat Assessment), ODDR&E

Mr. Rodney W. Nichols

Special Assistant to the Deputy Director (Research

fc Technology), ODDR&E
122

Vice Admiral Hyman G. Rickover, USN

Director of Nuclear Power, Naval Ship Systems Command

Rear Admiral Levering Smith, USN

Director, Strategic Systems Project Office, Naval

Material Command

Dr. Eugene Wigner

Professor of Physics, Princeton University
123

SUMMARY

General Comments

1. The Task Force considered the matter of classification from

several viewpoints; however, it focused its main attention on the classification of scientific and technical information.

2. The Task Force noted that it is unlikely that classified information will remain secure for periods as long as five years, and it is

more reasonable to assume that it will become known by others in

periods as short as one year through independent discovery, clandestine

disclosure or other means.

3. The Task Force noted that the classification of information

has both negative as well as positive aspects. On the negative side, in

addition to the dollar costs of operating under conditions of classification and of maintaining our information security system, classification

establishes barriers between nations, creates areas of uncertainty in

the public mind on policy issues, and impedes the flow of useful information within our own country as well as abroad.

4. The Task Force noted that more might be gained than lost if

our nation were to adopt--unilaterally, if necessary--a policy of complete openness in all areas of information, but agreed that in spite of

the great advantages that might accrue from such a policy, it is not a

practical proposal at the present time. The Task Force believes that

such a policy would not be acceptable within the current framework of

national attitudes toward classified Defense work. A number of areas

of information in which classification may be expected to continue are

listed in the text.

5. The Task Force noted that the types of scientific and technical information that most deserve classification lie in those phases

close to the design and production, having to do with detailed drawings

and special techniques of manufacture. Such information is similar to

that which industry often treats as proprietary and is not infrequently

closer to the technical arts than to science. The Task Force believes

that most of the force of attention in classifying technical information

should be directed to these phases rather than to research and exploratory development.
124

6. In the opinion of the Task Force the volume of scientific and

technical information that is classified could profitably be decreased by

perhaps as much as 90 percent through limiting the amount of information classified and the duration of its classification. Such action would

better serve to protect that information necessarily classified since

then the regulations concerning the enforcement of classification could

be applied more rigorously than at present.

Recommendations

General

1. Selectivity in classifying. In overhauling our classification

guides the advantages that might accrue from inhibiting the acquisition

of the information by a competitor or potential enemy through classification should be balanced against the advantages of possibly speeding

development in the U. S. through not classifying the information.

2. Time limit on classification. Whenever a document is classified a time limit should be set for its automatic declassification. This

time limit should be adapted to the specific topic involved. As a general

guideline, one may set a period between one and five years for complete

declassification. (Note, however, the exemptions stated below for

certain types of information. ) This time limit should be extended only

if clear evidence is presented that changed circumstances make such

an extension necessary.

3. Declassification of material now classified. All material now

classified should be reviewed as soon as possible after the adoption of

the new policy; we hope this might be accomplished in as short a time

as two years. The review should either declassify the document or set

an appropriate date for its declassification.

Research, Development and Deployment

1. As a general rule, research and early development should be

unclassified. Thus in the main, 6.1 and 6. 2 should be open, while 6. 3

may be classified. The partition between 6. 2 and 6. 3 is not rigid, and

classification should be tailored to fit the individual circumstances.

2. In general, we expect classification to be most justifiable

when the development approaches the "blueprint" stage. This coincides

with the phase when expenditures become substantial. Protection is

most desirable when an item requiring a considerable lead time for

development is being prepared for deployment.
125

3. After deployment, classification may be reduced or canceled.

At that stage, the information will have been disseminated to many

people so tight classification may no longer be realistic. Secrecy will

usually be most valuable in maintaining a technological lead during the

period of development.

4. The Task Force believes that the "Confidential" category is

not appropriate for R&D programs and that "special access" limitations

are more likely than not to seriously impede difficult technical programs.

Plans and Operations

1. In contrast, the information involved in high-level planning

requires rigid protection on a need-to-know basis. To declassify such

information would not speed technical development; the contingencies

envisaged in such planning may never arise, and their publication may

cause ill feelings. The only reason for declassification is the interest

of the historian. Stringently limited distribution and extended classification time limits may be justified in this category.

2. Information relating to specific operational plans should remain classified as long as the plan is in effect--and perhaps even beyond, insofar as declassification could reveal genuine details of possible use to a potential enemy in developing countermeasures. If

secrecy is required, the best protection is afforded by frequent changes

in the pattern of operations. Classification of a specific operational

plan should be promptly canceled if it becomes irrelevant.

Responses to Specific Questions

The Task Force's responses to specific questions posed in its

charter are as follows:

Question: Is our security system generally effective in denying

to potential enemies DoD information that affects the national security?

As a corollary question, how long can we reasonably expect that classified information will remain unknown to potential enemies?

Response: Security has a limited effectiveness. One may guess

that tightly controlled information will remain secret, on the average,

for perhaps five years. But on vital information, one should not rely

on effective secrecy for more than one year. The Task Force believes

that classification may sometimes be more effective in withholding information from our friends than from potential enemies. It further
126

emphasizes that never in the past has it been possible to keep secret

the truly important discoveries, such as the discovery that an atomic

bomb can be made to work or that hypersonic flight is possible.

Question: Granted that excessive use is being made of classification and limitations on distribution, what practical steps can be taken

to better define the DoD information that should be protected in the

interest of national security? Consideration of this question should

include the cost and effect of controlling DoD information to the U. S.

and its allies, versus the benefits to potential enemies of its open

release.

Response: Starting from the premise that the interests of an

open society and the speedy exploitation of technology are best served

by minimal classification consistent with essential security, the Task

Force identified a number of critical areas to be discussed below, in

which continued classification appears justified. These critical areas

span a much narrower region, however, than is now included under

existing classification rules.

The Task Force felt equipped to recommend only general philosophy, as opposed to detailed classification guidelines. Also, we did

not consider monetary costs of security measures but only their likely

inhibition on U. S. technological development.

Specifically, it is recommended that the present emphasis, that

promotes classification, be reversed to discourage classification by

requiring in each instance of classification:

. a meaningful written justification by the initiator of the

classification action; and

. a time limit on the classification, as short as possible,

which could be extended with detailed justification.

Question: Are there key points in the research, development,

production and deployment cycle at which information should be controlled? That is, should we adopt the policy that all DoD research be

unclassified and freely available and therefore impose controls only on

information pertaining to specific pieces of hardware? One point which

should be carefully considered here is the additional lead time that will

be available to a potential enemy if he obtains knowledge of our significant research and technology activities and thus can predict its end use

in a weapon system.
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Response: The Task Force has weighed the detrimental effect of

security controls on the conduct of R&D programs against the need to

meet other national objectives and to avoid disclosures beneficial to

potential enemies. It appears that little is to be gained by classifying

basic research; it is noted that DoD policy and practices are already

in virtually complete accord with this view. Similarly, it seems that,

as a general rule, much of the early exploratory development could be

kept unclassified. Exceptions should require formal documentation and

formal approval by OSD; each approval of classification in this category

should be accompanied by a rigid deadline for declassification.

For all other development work, including advanced exploratory

development and advanced development, classification procedures

similar to those employed today are suitable. The criteria should be

sharpened, however, so that classification may be imposed only to

preclude major technological advantages to potential enemies, to prevent disclosure of information of major importance in the development

of counter measures, or to support national policy directives and regulations. Within this framework, the classification of each system,

component, subsystem or technique in advanced development should be

considered individually on its own merits. Here, too, a rigid schedule

for declassification should be imposed from the beginning.

Major programmatic changes in any category of classified R&D

should be accompanied by reconsideration of the program's security

classification. Particularly, when a system is operationally deployed,

the large increase in known system technology and its diffusion among

many people should be recognized, and classification should be revised

accordingly, with major emphasis on preventing disclosure of system

vulnerabilities and on forestalling the early development of specific

countermeasures by potential enemies.
128 '

DISCUSSION OF PRIME FACTORS AND EFFECTS

IN CLASSIFICATION

1. General Significance of Classification

Although the Task Force was composed of individuals whose

backgrounds are in science and engineering, the group sought responses

to its assignment from a broader viewpoint since it was felt quite

strongly that the issue of classification and the way it is handled has a

significant effect on the posture of our nation in the international community, particularly in relation to our ability to unite and strengthen

the free nations of the world. To emphasize this point, one of the

members quoted an opinion expressed by Niels Bohr soon after World

War II that, while secrecy is an effective instrument in a closed

society, it is much less effective in an open society in the long run;

instead, the open society should recognize that openness is one of its

strongest weapons, for it accelerates mutual understanding and reduces

barriers to rapid development.

We believe that overclassification has contributed to the credibility gap that evidently exists between the government and an influential

segment of the population. A democratic society requires knowledge

of the facts in order to assess its government's actions. An orderly

process of disclosure would contribute to informed discussions of

issues.

When an otherwise open society attempts to use classification as

a protective device, it may in the long run increase the difficulties of

communications within its own structure so that commensurate gains

are not obtained. Experience shows that, given time, a sophisticated,

determined and unscrupulous adversary can usually penetrate the

secrecy barriers of an open society. The Soviet Union very rapidly

gained knowledge of our wartime work on nuclear weapons in spite of

the very high level of classification assigned to it. The barriers are

apt to be far more effective against restrained friends or against incompetents, and neither pose serious threats.

Beyond such general matters, the Task Force noted that there

are frequent disclosures of classified information by public officials,

the news media and quasi-technical journals. While the reliability and

credibility of such information frequently may be in doubt, the magnitude of leaks indicates that, at present, our society has limited respect

for current practices and laws relating to secrecy. It would be prudent
129

to modify the present system to one that can be both respected and

enforced.

2. Some Major Areas in*Which Classification Should Continue

The Task Force recognized that there are major areas in which

classification is either traditional or expected. The Task Force did

not attempt to reach unanimity on the extent to which such classification

is necessary. The following are examples of such areas:

2.1 International Negotiations

There are many international negotiations in which discussions are facilitated by secrecy, even though the results may

eventually be disclosed. Secrecy permits greater freedom of discussion at the conference table and the consideration of a much wider

framework of new ideas and proposals than might otherwise be the

case.

2. 2 Plans for Hypothetical Emergencies

It is frequently advantageous to classify plans for assumed

emergencies in order to limit their circulation. Such plans may include alarming contingencies that may never occur at all--or, at least,

not be realized in the way assumed when the plans were developed.

2. 3 Tactical and Operational Plans

There are many tactical and operational plans that would

lose their effectiveness, or even be jeopardized, if they were not maintained secure for at least a limited period of time. For example, detailed plans for the disposition and operation of the Polaris fleet, or

the state of readiness of combat groups prior to engagement may, for

purposes of effectiveness, deserve to be classified for a specified

period of time.

2.4 Intelligence Information

Information gained through intelligence channels often must

be classified for a period of time in order to protect the sources of information, that would dry up if revealed. Nevertheless, intelligence

that is critical to an understanding of our national posture should be

disseminated as soon as possible, and in as much detail as feasible

(consistent with not compromising our collection capability). Careful

consideration should be given to the question: To what extent could
130

openness and international sharing of information gathered by physical

observation improve our position?

2.5 Specific R8.D Efforts

There may be a good reason for limiting disclosure of the

magnitude and direction of our efforts in specific fields of research

and development for a time, when plans for production are congealing,

in order to maximize the advantages gained through lead time. In all

such cases we must continue to recognize that the lead gained will be

transitory unless each advance is followed by another.

2. 6 Vulnerabilities

It appears essential to restrict information concerning

major weaknesses of operational systems, particularly before remedies

for those weaknesses are completed. At the same time, one must ensure that such restrictions do not result in the lack of recognition of

the problem or in failure to remedy the situation.

3. General Classification Philosophy

Some members of the Task Force are inclined to the view that,

as a nation, we would have more to gain in the long run by pursuing a

policy of complete openness in all matters. For example, the Strategic

Arms Limitation Talks (SALT) might be more realistic if they were

accompanied by a full and open public disclosure of knowledge of weapons capabilities and state-of-the-art developments, preferably by both

sides, but at least on our part--especially what we know about Soviet

systems. In this way, the Congress and the general public would be

better informed regarding the significance of the SALT discussions.

Similarly, some memberB of the Task Force feel that public discussion

of matters such as the SAFEGUARD system would be given a more

realistic basis if intelligence information and analysis were made

openly available, even if this meant disclosing information on certain

collection techniques, providing these would not be jeopardized by open

discussion.

Nevertheless, the Task Force eventually agreed that it would be

very difficult to obtain broad acceptance of highly radical changes in

classification at this time because of understandable conservatism and

deeply ingrained attitudes. Such attitudes would make it difficult to

alter significantly present laws and regulations. The most that can be

hoped for in the short run is that the present system might be
131

overhauled extensively in order to make it more realistic, in which

case it could be respected and enforced far more completely.

In spite of this area of agreement concerning the necessity for

secrecy in limited cases, the Task Force emphasizes that there are

very great disadvantages to extensive reliance on secrecy in our

society.

4. Classification of Technical Information

With respect to technical information, it is understandable that

our society would turn to secrecy in an attempt to optimize the advantage to national security that may be gained from new discoveries or

innovations associated with science and engineering. However, it

must be recognized, first, that certain kinds of technical information

are easily discovered independently, or regenerated, once a reasonably

sophisticated group decides it is worthwhile to do so. In spite of very

elaborate and costly measures taken independently by the U. S. and the

U. S. S. R. to preserve technical secrecy, neither the United Kingdom

nor China was long delayed in developing hydrogen weapons. Also,

classification of technical information impedes its flow within our own

system,, and, may easily do far more harm than good by stifling

critical discussion and review or by engendering frustration. There

are many cases in which the declassification of technical information

within our system probably had a beneficial effect and its classification

has had a deleterious one:

(1) The U.S. lead in microwave electronics and in computer

technology was uniformly and greatly raised after the decision in 1946

to release the results of wartime research in these fields.

(2) Research and development on the peaceful uses of

nuclear reactors accelerated remarkably within our country, as well

as internationally, once a decision was made in the mid-1950s to declassify the field.

(3) It is highly questionable whether transistor technology

would have developed as successfully as it has in the past 20 years had

it not been the object of essentially open research.

As a result of considerations of this kind, the Task Force believes

that much of research and exploratory development (essentially all of

6. 1, most of 6. 2 and some of 6. 3) should generally be unclassified; at

the same time, we realize that the greatest value of classification
132

rests in the preservation of designs and specialized techniques close to

assembly and production and more akin to the technical arts.

In this connection one of the members emphasized that, to the

extent that technical information should be safeguarded in behalf of

national security, the greatest importance should be attached to what

might be called proprietary technical information •information not unlike that relating to fabrication and production which industrial organizations attempt to preserve from competitors. Thus, significant

advantages can be obtained in some areas of categories 6. 4 and 6. 6 by

classification. Even here, however, it should be recognized that

restrictions on the dissemination of such information may impede its

exploitation within our national community at least as much as it impedes those foreign nations which would not scruple to attempt to obtain

it through espionage.

5. Classification Criteria and Limitations

It is the considered opinion of the Task Force that past procedures--

according to which classification rested largely on the desire to withhold information from other nations--should be modified to give greater

consideration to the effects of classification on our own progress. It

should be emphasized that a strong voice, that of the U. S. Congress,

is primarily influenced by the requirement to withhold information

from others. The effects of classification on our own progress will

have to be carefully discussed. We believe that scientific and engineering

information, short of detailed blueprints and critical techniques relevant

to production, should be classified only after having been justified by

very special reasons. At the time of classification, a date should be

specified after which the classification would be removed. This period

should be as short as possible, and an extension should be granted only

when fully justified.

At present, a major proportion of technical information classified

Top Secret is subject to a declassification pattern designated as 3-3-6,

whereby they are downgraded to Secret in three years and to Confidential

in another three, and made open after an additional six years. We believe that, for most technical items, this is much too long.

The Task Force was inclined to the view that the classification

category of "Confidential," as applied at present to research and development not bearing immediately on field problems of military

interest, is probably useless, or even detrimental, for it prevents

normal diffusion of information without providing a really effective

barrier to leaks. It probably would be much more realistic to confine
133

this category of classification to matters bearing on military plans and

readiness.

For somewhat different reasons, it appeared to the Task Force

that the category of "Special Access," as applied to areas of research

and technology, should be carefully monitored to avoid unduly limiting

the number of competent technical minds that provide innovative contributions in the area. In the one case examined (Eighth Card), the

Task Force believes that Special Access should never have been

applied. In circumstances such as those that prevailed during World

War II, when most of the best scientists and engineers were engaged

in classified defense research, on a full-time basis, it may be feasible

to bring to bear a suitably diverse spectrum of minds and talents even

on those areas designated "Special Access." But this would be exceedingly difficult under present-day conditions when so many competent

technologists are associated, if at all, only peripherally to military

research and development. The more open the areas of investigation,

the more dynamic will be our national approach to the exploratory

phases of research and development.

6, Other Observations

As a result of limitations on time and staff, the Task Force

could not explore all facets of the field of classification. It did, however, attempt to gain an understanding of the way in which classification

procedures work at the detailed level in a few cases. The following

observations may be made:

(1) Although there are many alert and imaginative professional experts engaged in assigning and administering classification,

as long as the classified material remains so voluminous it is obvious

that routine procedure can become too burdensome. There is also a

quite understandable bureaucratic tendency to overclassify and to continue classification too long. If the amount of classified material could

be reduced to, say, 10 percent of its present volume, a much more

thoughtful and effective control could be established across the board.

(2) It was noted that the laboratories in which highly classified work is carried out have been encountering more and more

difficulty in recruiting the most brilliant and capable minds. One

member of the Task Force made the pessimistic prediction that, if

present trends continue for another decade, our national effort in

weapons research will become little better than mediocre. In classified

work, the increasing isolation and limited accountability to one's

scientific peers contribute to this degradation. In addition, it is worth

noting that the many scientists and engineers in academic circles who

are willing to work on problems related to national defense would find

it somewhat easier to do so in the environment which prevails at

present if the classified areas were reduced greatly, as the Task

Force believes should be the case.

(3) The Task Force emphasizes that modifications in the

pattern of classification alone will not be a panacea for the difficulties

the Defense establishment faces.
134

Senator DURENBERGER. Would you make some comment, before

you finish, on Mary's constitutional argument?

Mr. LYNCH. Oh, certainly. That is a lot of bluff, in my view.

Senator DURENBERGER. That is fine. Thank you very much.

[Laughter.]

Mr. LYNCH. Pardon?

Senator DURENBERGER. I thought so, anyway, but she was told to

address it, I am sure.

Mr. LYNCH. Let me say a little bit more. That may sound like a

harsh judgment, but I think it has a sound historical basis. In 1974,

when Congress amended the Freedom of Information Act to provide for judicial review of classification decisions, President Ford

vetoed the bill, and his concern with constitutional problems was

one of his principal reasons for doing so. In fact, I would not be

surprised if Mary Lawton had something to do with drafting his

statement and some of the materials that were used in conducting

the debate at that time.

Despite the President's view that the act was unconstitutional insofar as it authorized judges to review classification decisions, the

Justice Department has never made a constitutional challenge to

the statute. And in fact, it had a couple of opportunities to do so.

There was a case in the early part of this administration called

Holy Spirit Association v. CIA, where lower courts had ordered disclosure of information which the CIA determined was classified.

The cert petition presented to the Supreme Court argued that the

courts below had failed to accord the deference required by the act.

They did not argue that the Constitution precluded judicial review.

It was not one of the questions presented.

A similar opportunity, perhaps less clear than the one in the

Holy Spirit case, presented itself recently in a case called Symms v.

CIA, which involves the disclosure of unclassified intelligence

sources, and again, the Government's cert petition did not make

any constitutional challenge. There are sort of penumbral suggestions that this is a constitutionally sensitive area, but despite the

argument in 1974 from President Ford that the act was unconstitutional, the argument has never been carried forward in the courts.

On the substantive matter of constitutional law, I have not seen

the letter which the Justice Department submitted to the committee, but I would be delighted to respond to that in answering your

questions. Basically, that position that the act would raise constitutional problems is based on the concept that the President has absolutely independent and sole authority with respect to national security information. That simply is not the modern concept of separation of powers. In fact, it is not a concept of separation of powers

that the Supreme Court has ever accepted. If Congress decides to

get into the business of regulating national security information, in

my view, there is little question that it can exercise that role consistent with the doctrine of separation of powers. But I would be

happy to respond at length to whatever their argument is.

Senator DURENBERGER. OK.

Senator Grassley?

Senator GRASSLEY. I have to leave right away, but I would like to

know, can you cite any specific examples of abuse of Executive

Order 12356?
135

Mr. LYNCH. Oh, sure. I just got a file the other day from a client,

a person who had applied for a job with the FBI. The application

form sent in by the person was classified "secret"; just the application form, which the client had sent in independently. But when

this person got his file back from the FBI, the application form had

been classified "secret. "

On a more massive scale, we have the situation where the National Security Agency went down to the John Marshall Library at

the Virginia Military Institute and classified a number of documents in the papers of William Friedman•documents which NSA

had reviewed on probably five previous occasions and had determined were not classified. Those documents were on the public

shelves for about some 6 years. They had been reviewed by a

number of researchers. They were used in a book. And as recently

as 2 months ago, NSA exercised the authority to classify documents that had been that widely available. I also suspect that they

probably failed to comply with the provisions of the current Executive order, which require that kind of reclassification be reported

in writing to ISOO, because there is no mention of that incident in

Mr. Garfinkel's report.

Senator GRASSLEY. Then, in regard to the need for S. 1335, since

we heard testimony citing a decrease in classification actions for at

least 1983, you are still taking the position that there is a need.

Mr. LYNCH. Yes, Senator. First of all, I am delighted that there

has been a decrease in original classifications, but as I pointed out,

if you look on page 11, the total classification activity have remained constant. But furthermore, the real test of the Executive

order, for the purposes of the requester, is what happens on a request for declassification, either under the mandatory provisions of

the Executive order or through the Freedom of Information Act.

Not that many people request documents which were generated

yesterday, where original classification makes a great deal of difference. Most people request documents that are of some age and

may well have been properly classified at the outset. And for members of the public, the most important action takes place with respect to declassification, and this bill would be very, very valuable

in that respect.

Senator DURENBERGER. If you will yield, Chuck, I am not sure

what page it is on, but the information I have says that if you look

at the number of pages of information released through declassification, in 1981, the total was 28 million pages; in 1982, it was 17

million pages, and by 1983, it had declined to just 8 million pages.

Mr. GARPINKEL. Could I respond to that, Senator Durenberger?

Senator DURENBERGER. Certainly.

Mr. GARFINKEL. If I could, since we have gotten onto statistics

within the report, I would first like to respond to Mr. Lynch's assertion that the critical figure is not the 200,000 decrease in original classification in fiscal year 1983. This is, to me, an incredible

example of our, as we frequently are, being damned if we do and

damned if we don't.

The most important measurement of classification activity is

original classification activity, because it is only in the original

classification process that an authorized classifier is making a judgment about whether information is national security sensitive or
136

not. In the derivative classification process, a person is obligated by

the classification of the original source to apply the same classification instructions. Original classification is critically important because each original classification decision on the average ultimately results in 19 other derivative classification decisions, for a total

of 20 classification decisions. Therefore, if we can decrease original

classification, we can expect in the future to decrease significantly

the amount of overall classification.

Another very important point that we should make with respect

to this is that overall classification as reflected in this report largely represents derivative classification actions based on original classification decisions that were made in fiscal year 1982 and before,

not on original classification decisions made in fiscal year 1983.

With respect to Mr. Lynch's assertion that 12065 simply failed to

take, I would suggest that our figures demonstrate that overall

classification in the last couple of years of the previous administration was increasing at a rate of by about 8 to 10 percent; in this

past year and the year before, overall classification, including original and derivative, has increased about 2 to 3 percent. And I would

suggest in the context of tremendously increased appropriations for

the defense establishment and the intelligence community, this

percentage shows tremendous restraint on the part of the executive

branch in keeping the lid on classification activity.

Senator DURENBERGER. Dr. Sproull, we appreciate your being

here, and we appreciate your patience this morning. We look forward to your testimony.

STATEMENT OF DR. ROBERT L. SPROULL

Dr. SPROULL. Thank you. There is going to be a very sharp

change of gears at this point, as you will appreciate if you have

seen my testimony, and I do not intend to read it. I would like to

make some footnotes as we go along, if you have it there.

Senator DURENBERGER. Your written statement will be made a

part of the record, and you may abbreviate it.

Dr. SPROULL. Thank you.

I have no competence in this area that has just been discussed. If

I have any competence at all, it is in connection with the Department of Defense and the Department of Energy, in connection with

science and technology matters.

I guess the reason I was asked to testify is that when I was

Chairman of the Defense Science Board, we set up a task force to

look into the classification policy and especially classification practice at that time.

In my testimony, I liken this whole process to the sawteeth of a

common saw, in which classification, at least in the areas I am familiar with, just gradually gets more and more invasive into science and technology, and unless it is arrested with a sharp cut

from time to time, I do not know what would happen. But in 1969

and 1970, we got to be alarmed at the extent to which classification

was interfering with the development of the country's strength in

science and technology and its application in military preparedness. And that was the reason for this task force. You have quoted

it to some extent; I have quoted it elsewhere in my testimony. The
137

main points were that there were negative as well as positive aspects to classification; that the advantages that might accrue from

inhibiting the acquisition of information by a competitor or potential enemy should be balanced against the advantage of possibly

speedy development in the United States through not classifying.

And that is why I am testifying primarily on behalf of the balancing test, and the general setting that reintroducing that into the

language of the country will make when the classification eagles do

their work. And I think that setting is terribly important, even if

the specific provisions of the law are not in front of the person

when he is doing the classification.

The other points that we were concerned about were the time

limit on classification•and you, a few minutes ago, pointed out

quite accurately what we said about that•and finally, the question

of declassification of material, and you also quoted on that. We

thought that as much as 90 percent of the material then classified

should be declassified and that, in fact, the protection of the remaining 10 percent would be better, and particularly the flourishing of science and technology would be better if that were to occur.

Incidentally, we have no hope whatsoever that that 90 percent

would be done, but we thought that we would try to get that as far

as we could. It was not an incautious statement, however. We were

perfectly prepared to have it taken literally, but we were not so

naive as to think that that would happen.

The example I cited about a particularly notable development

that occurred outside the classification fence that would certainly

have been classified had it occurred in the Department of Defense

or Department of Energy is only one of many examples that could

be cited. Others are microwave electronics, first the card-programmed and then the stored-programmed computer, lasers, superconductors•the list goes on and on, of items that would have been

classified if the person developing the idea or the discovery happened to be initially inside the classification fence.

The unsophisticated believe that an invention is the same thing

as a product, and a product is the same thing as an industry. There

is an enormous difference between an invention and a product and

between a product and an industry. It takes a tremendous infrastructure of the country to make those differences.

Translated into military terms, the unsophisticated think that an

idea is the same thing as a weapon, and a weapon is the same

thing as a military capability. Again, it takes a lot of doing along

the way to convert an idea to a military capability.

In doing that, classification is inhibitive at every step of the way.

We, in fact, on the Defense Science Board Task Force, recommended that the classification confidential be not used at all, except for

instruction manuals for the maintenance of military equipment.

Once equipment is in the field, any attempt to classify it inhibits

the use of it, but for a while anyway, a year or two, the maintenance manual of an F-15 might be classified appropriately, but

within 1 year or so, all it does it raise the cost by a few cents or a

few dollars to our opponents to get those manuals. So it is not a

useful thing to do.

The reason I am testifying in behalf of Senate 1335 is that I believe it would signal to Government employees generally that they
138

should think very hard whether they should classify something,

and that they should weigh very carefully the advantages versus

the disadvantages. In fact, in that Defense Science Board Task

Force report, there was a recommendation that the initiator of an

original classification identify himself and his reasons and set a

time limit, in short, to make it as easy for him to underclassify as

it is now easy for him to overclassify.

I do not know whether the committee would like to have that

task force report in the record. It is only 11 pages, and I would be

glad to supply it for the record. It is just as lively a document now

as it was when it was written.

Senator DURENBERGER. Yes, we will make it a part of the record.

Dr. SPROULL. That concludes my testimony, but I would be glad

to answer questions.

[The following was received for the record:]
139

PREPARED STATEMENT OF ROBERT L SPROULL

I am happy to testify on behalf of S.1335. The brevity of this bill might be

misread as indicating lack of importance, but this is an extremely important

matter. The brevity matches the brevity of Executive Order 12356 which, by

deleting a word and a short section and changing a dozen other words in its

predecessor, modified classification policy in a dangerous way.

Let me first state that I have no competence to contribute to the judicial

aspects of this subject, which were discussed by distinguished Senators on the Floor

on 1 May 1983. Further, I have very limited competence to discuss classification

and secrecy in the context of military operations and intelligence collection, but

from what experience I do have I believe that S.1335 in no way hampers such

activities or imperils our forces.

What I should like to discuss is the effect of overclassification and

thoughtless secrecy on the strength of the Nation's science and technology. The

key element here is the "balancing test" that would be restored by the last phrase

of S.1335. I appreciate that this provision introduces a complexity that could be

misused by writers of cheap exposes and could possibly be misapplied by the courts.

But it seems to me to be the vital consideration in deciding what is open and what

is classified and I endorse it warmly.

Classification policy and practice resemble the teeth of a saw: They

gradually increase the amount classified and the intensity of control year-by-year.

Only if from time to time a halt can be called, like the sharp drop of the face of

the saw tooth, can this process be prevented from growing out of control.

In 1969 the Defense Science Board became very concerned about the way

overclassification was decreasing the Nation's security. We set up a Task Force on

Secrecy composed of nine of the most knowledgeable and distinguished of the
140

country's engineers and scientists, all of whom had extensive experience inside the

classification fence. Dr. Frederick Seitz, then President of Rockefeller University

and at that time recently retired as President of the National Academy of

Sciences, was Chairman.

Their report in February 1970 is just as wise and relevant as if it were

written last week. The central point from the General Comments section was:

The Task Force noted that the classification of information has both

negative as well as positive aspects. On the negative side, in addition

to the dollar costs of operating under conditions of classification and

maintaining our information security system, classification establishes

barriers between nations, creates areas of uncertainty in the public

mind on policy issues, and impedes the flow of useful information within

our own country as well as abroad."

The complete "General Recommendations" section is quoted here:

"1. Selectivity in classifying. In overhauling our classification

guidelines the advantages that may accrue from inhibiting the

acquisition of the information by a competitor or potential enemy

through classification should be balanced against the advantages of

possibly speeding development in the United States through not

classifying the information.

"2. Time limit on classification. Whenever a document is classified, a

time limit should be set for its automatic declassification. This limit

should be adapted to the specific topic involved. As a general

guideline, one may set a period between one and five years for

complete declassification. (Note, however, the exemption stated below
141

for certain types of Information.)* This time limit should be

extended only if clear evidence is presented that changed

circumstances make such an extension necessary.

"3. Declassifiestion of material now classified. All material now

classified should be reviewed as soon as possible after the adoption of

the new policy; we hope this might be accomplished in as short a time

as two years. The review should either declassify the document or set

an appropriate date for its declassification."

The report received a warmly sympathetic hearing from the then Deputy

Secretary of Defense and was treated seriously by him and by the Secretary. I

believe it served as the face of the saw tooth and arrested for a time the otherwise

monotonically increasing overclassification. In addition, although we did not

expect Recommendation 3 to be adopted literally and it was not, a great deal of

declassification did occur.

You will have noted in these recommendations the flavor of balancing the

protection afforded by secrecy and classification against the advancement of the

public interest by remaining unclassified. This balancing requires knowledge,

experience, and (that most precious of all capabilities) good judgment. It is far

easier for the Government employee to classify than to permit freedom of access.

I believe it is for this reason that overclassification steadily increases and must be

arrested periodically. These hearings are especially welcome because I believe

another arresting is timely or even overdue.

•Later in the Recommendations, this exemption was explained in detail. The main

point was that "Declassification of [planning! information is not required to speed

technical development; the contingencies envisaged may never arise and

publication may cause ill feelings."

OQ•TQQ r\
142

There have been two basic approaches to the security of the American

position, whether it be the kind of security well-known as "military security" or the

kind of security of the competitive position of an industry or an idea. One view is

that security is obtained by secrecy, by protecting the capability of a new fighter

plane or protecting a new idea from any disclosure to a potential enemy. Clearly

one can have an edge of a few years by keeping an aircraft's operational

characteristics secret during development, and he should. Once the aircraft

becomes operational, however, its effectiveness depends upon a large number of

people knowing its characteristics for training and maintenance, and secrecy must

be drastically relaxed. A new idea, too, needs an incubation period, a time when

the inventor can think through all the implications he can. At this point he will

presumably write a patent disclosure if the idea has practical consequences. There

also needs to be time of a few weeks where he can then discuss the idea with

several members of the same project and even with cooperative workers at similar

projects. By this time, he should be ready to publish and he should be allowed to do

Thus the first approach, security by secrecy, sometimes has an appropriate

role, but only for a limited time.

In the longer term, the only promising approach is the second alternative,

security by achievement. It produces the maximum speed of development within

the project and its cooperative neighbors, the maximum speed of training young

people, and ultimately the greatest strength of the country and of its institutions

(including both industry and the military).

It is instructive in this connection to think of the now familiar example of the

transistor. It is my firm belief that if the transistor had been developed behind the

security fence, the United States would now be nowhere near as strong and secure

a country. Had it been developed in secrecy, it would certainly have been
143

classified and it probably would have remained a classified development for many

years. The whole industry of solid state devices and computers and

communications devices based on them could not possibly have developed as

rapidly. Our protection from the Soviet Onion, which was especially necessary in

the days of Minuteman I, could not have been created.

It is instructive to review what it took to do this. First it took the invention

by Shockley and his associates at Bell Telephone Laboratories. They developed

their observations and ideas in industrial secrecy for several months, but then they

published the original papers in September of 1948. These papers galvanized

activity all over America. The activity at BTL was expanded more rapidly than at

any other place, and it led to Shockley's 1949 paper in the Bell System Technical

Journal on "The Theory of the Junction Transistor" and the Shockley, Sparks, and

Teal paper in the summer of 1951.

The idea was carried from an invention to an industry very quickly because of

the publication and because of the Government support for solid state physics

research in the universities, starting with the Office of Naval Research in 1946.

The ONR and other agencies had been supporting the chemistry, physics, and

metallurgy of a wide range of materials, especially nearly pure single crystals, and

the blossoming of the field would not have been possible without the foresight and

good sense of ONR and the agencies that followed in its pattern. A little later,

when solid state devices permitted the explosive expansion of the computer, the

Government-supported work in universities in mathematics, augmented by IBM's

support and later support by other companies, produced a similar possibility for the

computer.

Let me emphasize the point of security by achievement by stating the

negative side. The Federal Government cannot guarantee security. It is asked to

do so every day, especially now that one of the largest moneymaking enterprises in

America is selling fear books and catastrophe movies. I need hardly emphasize to

this audience the impossibility of guaranteeing security.
144

The Federal Government can, however, guarantee insecurity. It can do this

in either of two ways, both of which are superficially attractive. The first is by

imposing secrecy on every bright idea that comes along. This will stop

development in our open society and it will give us a false sense of confidence, but

it will slow down the closed societies we compete with for only a few months. The

second way the Federal Government can guarantee insecurity is by failing to

support and develop the infrastructure, the young people who are prepared to

exploit new developments fast. Cutting back on support of graduate training,

forcing universities to have ever more obsolete equipment and facilities, and

increasing the tensions on campuses between science and technology on the one

hand and the humanities on the other by under-nourishment will do a fine job of

making this guarantee work.

In recent years the restrictions of classification have been augmented by the

Export Administration Act (EAA) and its associated Export Administration

Regulations (EAR) and by the arms Export Control Act and its associated

International Traffic in Arms Regulations QTAR). These acts are being zealously

administered, perhaps more zealously than Congress intended. The administration

of them threatens American science and engineering which thrive through

international communication and competition. The distinguished Panel on

Scientific Communication and National Security, under the chairmanship of

Dr. Dale R. Corson and under the auspices of the National Academy of Sciences,

reported two years ago that these regulations were potentially damaging to the

security of the country. Not surprisingly, their chapter on general conclusions was

subtitled "Balancing the Costs and Benefits of Controls." They recommended very

strict tests before any controls were imposed on publication and international

communication in science and technology, and wisdom and self restraint in any

application of controls. Although I believe S.1335 does not apply to these

regulations, I believe that its passage would be helpful in establishing the intent of

Congress that we not isolate our nation and its talented scientists and engineers

within a protective cocoon of classification.

I realize that in these brief remarks I have not been able to do justice to this

important subject, as venerable as the Republic itself, but I should be happy to

attempt to answer your questions.
145

TBERGER. I thank you very much for coming down,

icularly because by example, you strike this issue

y, which I spoke to in my opening statement and

everybody has to do, and which Mr. Garfinkel has

u.t. I have been a bureaucrat•bureaucrats are no

nybody else; it is just that we give them a name

rlc for the Government,

has this tendency, I suppose, to do, for the most

is expected of them and no more, particularly if it

i in trouble. So the need is to deal with that

it first, let me say something nice about Mr. Gar-

. I think ISOO is doing a wonderful job, but I also

ley have to do is not very easy. For example, the

rder is a bit wishy-washy on what you call portion

s, marking the classification level of each parais an important aid to future declassification, inses.

r

order came out, I am informed, people began to

py and did a little less portion marking, but then

g; and raised a stink about it.

pie began to make less provision for future declasir documents. Instead, to quote ISOO's report, "In

lere seemed to be rote application of the indefinite

ain, it was ISOO that had to raise a stink and it

ti the report, "the first half-year or so," before the

1 that they could not just mark everything for peration. Now, I think that is why the President wrote

1 and complimented him on the tremendous job he

encouraged him to do more of it. And I guess what

» deal with here is how do we help Mr. Garfinkel do

ob. And I have this practical difficulty in coming to

•hat leaving out something in there by way of a test

some impact on the judgment that people bring to

•sponsibilities in the classification system.

he litigious nature of our society, and I recognize

p on every single word. But maybe, Mr. Garfinkel, I

u try to tell me, if there were no litigation possibilii•well, I think you have to admit that there must

ity in order to get to the notion of an implied ballowing that you might go into litigation, don't you

tie more careful about coming to judgment?

EL. First of all, I would like to thank you, Senator,

comments, and if I could simply state that we were

ve were doing nothing more than that.

to your comment, there is one thing that I agreed

h Mr. Lynch; that is, that the critical time for conhether information should be classified or not is at

iomeone wants access to it. We are aware that there

i information that is classified in Government files,

f that information, the lack of any researcher inter-

; there is really little harm to be paid by society or

-racy. With respect to information that is requested

the public, however, I think that the track record in

lassification is a tremendous one on the part of agen-
146

cies. For example, I would refer to exhibit 12 of our annual report.

It indicates that with respect to mandatory review cases, those

cases in which researchers demand that agencies review their classified documents for purposes of determining their possible declassification, in fiscal year 1983, agencies declassified, in whole or in

part, information in over 90 percent of those cases. Now, that 90-

percent figure is a barrier that had never been broken before; we

had come close.

Also, for fiscal year 1983, we started keeping statistics for the

first time in terms of documents and pages declassified, and I think

those statistics also bear very favorably on the seriousness with

which Government reviewers consider demands for declassification

and the productivity with which their reviews result in the disclosure of formerly classified information.

Senator DURENBERGER. OK, but if•and I do not know whether

you are a lawyer or not, and I should not even bring that up, because people who are not lawyers always brag about not being lawyers.

Mr. GARFINKEL. I was a lawyer in a previous life.

Senator DURENBERGER. SO was I, and that is why I am sensitive

to those comments, by now, on lawyers.

If we inject into this process the judicial review language that

Mr. Lynch said he would not do, but could understand why we

did•in effect, we are changing the test from having the judge try

to figure out whether you came to the right conclusion or not, to

having the judge determine whether or not you even gave it the

test•now, if we do that, and keep in some adjective for damage,

and keep in the concept of the balancing test, can you really tell

me that we are not going to help you improve the quality of the

classification process in our government?

Mr. GARFINKEL. I really do not think the reinstatement of identifiable damage does anything to help us with respect to overseeing

the decisionmaking process on individual classification decisions. I

do not think original classifiers go beyond the concept of, "Is this

going to hurt national security, or is it not going to hurt national

security, and what other factors come into play here that bear on

my decision?"

With respect to the balancing test, I can tell you this. When we

shared a draft of Executive Order 12356 with the Senate Intelligence Committee, among other committees, and that committee

recommended that we continue to include a balancing provision in

the order, we seriously considered that recommendation. Several of

us met with the idea of drafting language that would describe the

inherent balance in access decisions, but would not result in the

type of harm from litigation that we had experienced under Executive Order 12065. We tried to come up with some language, and we

were unsuccessful, at least in the opinion of the experts at the Department of Justice, in coming up with language that would do just

that, retain the concept of inherent balance while avoiding the

question ofjudicial interference.

Senator DURENBERGER. Yes, but you have just described the typical•I keep using this word•bureaucratic process of searching for

the safe world in which to live, and I do not know that there is

such a safe world. That is one of the reasons why we have the sepa-
147

ration of powers and we have the judicial system to oversee the

rest of the process. I do not know that a wholly safe world is there,

and we are trying to get as close to it as we can.

Mr. Lynch, did you have a comment?

Mr. LYNCH. Yes, I would like to make a comment on this alleged

difficulty that was encountered with the balancing act in litigation.

Most litigation involved the question of whether the agencies were

obliged to perform a balancing test. The administration, the Justice

Department, the agencies, resisted that proposition. They said that

under Executive Order 12065, whether to balance was discretionary

and totally unreviewable, and almost all the litigation involved

whether the agencies had to conduct a balance. There was no case

that I know of•and I am pretty sure I know of all of them•where

a judge said, "You must disclose this information, because in my

view, the public interest outweighs the harm to the national security." That issue has never even arisen, let alone being decided adversely to the government.

So, if they were worried, if they had a problem, it was only the

most speculative kind of problem, the sort of worst-case hypothetical that I guess some people are paid to dream up, but do not arise

in the real world.

Senator DURENBERGER. OK.

I have, as you can imagine, a number of questions•some from

other members of the subcommittee who could not be here. This is

my first day on the job on Judiciary, and I am just collecting their

questions. If you all do not mind, we will pose those questions in

writing and ask you to respond. And as the chairman indicated, I

have a number that I did not want to bring up here that are

unique to Dr. Sproull, because of his background, that I think

would be helpful to have as a part of the record. As you pointed

out, they did not quite relate to what was coming from the other

three witnesses.

The chairman did indicate that the record would be open for 2 or

3 weeks for testimony from appropriate experts who have something to say on this issue, so we will try to get you the questions,

also.

I am informed that anyone who has a comment that they would

like to make can do so in writing, and it will be made a part of the

record.

And without objection, a statement by Senator Thurmond, the

chairman of the committee, will be included in the record after the

opening statement by the chairman of the subcommittee; and subsequently, there will be included a statement by Senator Grassley,

who was unable to present it at that time.

I thank you all very much for your help on this issue.

The hearing will be adjourned.

[Whereupon, at 11:50 a.m., the subcommittee was adjourned.]

APPENDIX

ADDITIONAL SUBMISSIONS FOR THE RECORD

Bl NATIONAL COORDINATING COMMITTEE ^tN" I Administrative Offices 400 A STREET SE

FOR THE PROMOTION OF HISTORY I ^^ I WASHINGTON. DC 20003/(202) 544-2422

April 25, 1984

Senator Orrin Hatch

Subcommittee on the Constitution

Russell Senate Office 8uilding

U. S. Senate

Washington, DC 20510

Dear Senator Hatch,

I am writing on behalf of the National Coordinating Committee

for the Promotion of History, a consortium of over thirty

historical and archival organizations, to request that this

statement of support for S. 1335 be added to the record of the

April 3rd hearing of the Subcommittee on the Constitution.

Since Executive Order 12356 went into effect on August 1,

1982, historians have encountered with increasing frequency

massive deletions, delays, and bureaucratic problems in response

to their FOIA requests. Historians recognize that some federal

information legitimately requires protection, but the experience

of the last few years bears evidence that the classification

measures are excessive. "The Annual Report to the President, FY

1983" prepared by the Information Security Oversight Office (ISOO)

reports that in 1983 54% of requests for mandatory review actions

by agencies were granted in full, 35.4% in part and 9.8% denied.

While ISOO makes much of the fact that for the first time the

number of cases denied fell below 10%, conversations with

historians indicate that more and more documents are coming

through review with a line or two at the top of the page and the

rest of the page blank. Since these basically blank pages seem to

qualify as partial declassification, it is easy to see how the

ISOO figures have improved while historians are being deprived

access to increasing amounts of government information.

Historians who are especially handicapped by the restriction

of information under Executive Order 12356 are those who teach and

write about the Korean War, the rising tide of nationalism in the

1950s and 60s and the inexorable manner in which it was enmeshed

in the global battle between the "free world" and the Kremlin in

such countries as Iran, Egypt, Guatemala, and Cuba. Many

historians now realize that they have no assurance that they will

have the documents necessary for careful analysis and thoughtful

(149)
150

conclusions. Even the prestigious and invaluable documentary series published

by the historical office of the Department of State, Foreign Relations of the

United States, must either publish its volume on Korea without the minutes of

the National Security Council, and its volume on the American Republics,

1952-54, without any CIA documents, or refrain from publishing at all.

S. 1335 would send from Congress to the security bureaucrats the important

message that information should be withheld only if disclosure would cause

"identifiable damage" to national security and only if the need for secrecy

outweighs the public interest in disclosure. The American Historical

Association and the Organization of American Historians, the two largest

professional assocations of historians, have both gone on record opposing the

the portions of E.O. 12356 that eliminate the balancing test and that introduce

the policy of "when in doubt" classifiy. S. 1335 offers a much needed

corrective to the overly restrictive E.O 12356.

Jonathan Wiener, a history professor at the University of California at

Irvine, requested under the FOIA, FBI information on John Lennon, who figures

in a book Wiener is writing on the New Left, popular music and politics. The

FBI withheld two-thirds of the files "in the interest of national defense and

foreign policy." Lawrence S. Kaplan, director of the Lyman L. Lemnitzer Center

for NATO Studies at Kent State University, is researching the formative years

of NATO. Since he has been unable to obtain documents for the 1950-54 period,

he has had to greatly alter the scope of his study.

The overall impact of E.O. 12356 has been to reverse the trend toward

openness. The public's right to know is being threatened and its ability to

understand government policies and weigh alternatives is being infringed upon.

The closing of the nation's records not only hinders scholarship but limits our

view of the present and the future. We therefore strongly support S. 1335.

Sincerely,

Page Putnam Miller, PhD

Director

Enclosure: American Historical Association Statement on Security

Classification of Documents and Executive Order 12356

OACANIZED 1884 INCORPORATED BV THE CONCAEI1 I889

• tSlmrriatH 'ftkturitiili/kant'htlitut *•

4OO A STREET l.E. WASHINGTON, D. C. ICCOI | 102 >44 l<i;

Statement on Security Classification of

Documents and Executive Order 12356

Approved by the Council of the American Historical Association

December 27, 1982

The security classification system of the United States has gone through

several stages. For current purposes, the key facts are the following. The

Atomic Energy act of 1954 covers documents in the atomic energy and weapons

area; it provides a Congressionally mandated classification and declassification

system; has remained essentially as established in 1954; and has been left

at least theoretically untouched by the various Presidential Executive Orders which

cover all other US government records. Executive Orders on classification

have been issued by several presidents. The most important for understanding

current issues are 10501 (Eisenhower, 1953); 11652 (Nixon, 1972); 12065 (Carter,

1978); and 12356 (Reagan, 1982).

10501 reduced the old 4-tier system (Top Secret, Secret, Confidential,

Restricted) to a 3-tier one by eliminating Restricted. 11652 tightened the

standards for classification, provided for definite time limits for classification,

vastly increased the automatic declassification review potential of the National

Archives, and established an Interagency Classification Review Committee to
151

which scholars could appeal agency classification actions. 12065 reduced the

nominal maximum initial classification period from 30 to 20 years; was phrased

generally to stress a preference for keeping records open; prohibited the

closing of records once open; replaced the Interagency Classification Review

Committee with the Government Security Oversight Office; and -- most important

for scholars • required the inclusion of a declassification date or event

in the initial classification, thus shifting the eventual massive burden of

work from the process of opening records to that of keeping them closed beyond

the initial period.

The new Executive Order 12356, which went into effect on August 1, 1982,

reverses the whole pattern and trend of prior orders. It requires that in

any case of doubt, the documents be closed, and at the highest level of

classification applicable; it eliminates the requirement for a date or event

for opening without further action; it makes the normal closing period 30

years with an indefinite maximum even in initial classification; it authorizes --

if it does not encourage -- the re-closing of records that have previously

been declassified; and generally shifts all the presumptions in favor of secrecy.

The new order nominally maintains some authority for systematic declassification

by the National Archives in general government records and presidential papers,

but the elimination throught the budgetary process of a majority of the positions

in the Archives allocated to declassification review in fact drastically reduces

the ability of the Archives to carry out such reviews while the new rules

enormously increase the difficulty -- and hence the work load -- of the

declassification process.

The overall impact of the new Executive Order will presumably be to reverse

the trend of the last decade. Systematic review of classified records will

be greatly reduced, and what reviews are carried out will be slower. New records

created by government agencies will be more likely to be classified and at

a higher level of classification. The authority to close records previously

opened will most likely lead to many recently opened records for the period

1945-52 being closed again. The longer, even indefinite, terms for which

records can be classified and the elimination of the requirement • for which

the AHA had long argued -- that a declassification date be included in all

initial classification actions, will combine to guarantee an annual increase

in the volume and the percentage of government records closed to the public,

with no end in sight to this process.

An additional problem results from the fact that in recent years the

term "Foreign Government Information" in the executive order governing security

classification has been used as a catch-all category for the closing of all

manner of American documents on the basis of their contents as well as interminable

delays in their declassification. The prior practice of applying that term

only to documents physically originating from other governments and transmitted

to the U.S. government simplified the process of declassification, maintained

the principle that our government fully controls its own records, and enabled

our government to set an example for others in facilitating intelligent discussion

of government policy by making records available after a reasonable interval.

The U.S. should return to that prior practice.

The new policy direction poses enormous dangers for our country: the

public's right to know is being drastically threatened and its ability to

understand government policies and weigh alternatives is being gravely infringed

upon. The new procedures are designed to get the people off the government's

back by denying them access to the nation's records. This strikes at the

foundations of the democratic process. The closing of the country's records

will not only hinder scholarship immensely, but it will becloud our view

of the present and the future. Intelligent discussion and assessment of the

choices facing the nation require that more, not less, information be accessible.

Hiding our past can only darken our future.

The American Historical Association urges a revision of classification

policy along the following lines:

1. The presumption should be that records be opened, not closed; in case

of doubt, the public's right to know must prevail.

2. All classification actions must embody an initial terminal date. Only

a shifting of the burden of page-by-page review and restamping for those who

want records opened to those who want them kept closed for even longer periods

will ever reduce the growing mountain of classified files.
152

3. We favor a reduction of the base initial classification period from 30

to 20 years; the inclination on first classification is always to use the

longest period available, and 20 years should be adequate for that. Extension

on item review can always protect documents truly in need of classification

for more than 20 years.

4. Any authority to close records previously opened must be most severely

circumscribed to restrict its use to the correction of individual and identifiable

errors in regard to specific documents.

5. The capability of the National Archives to implement systematic declassification

review must be guaranteed by a system of position allocations to the National

Archives geared to the volume of classified files generated by government

agencies, with such allocations charged to the budgets of the agencies generating

the classified records. There is little prospect of ever coping with the mounting

piles of secret files unless there are both rules that make review a feasible

process and budget procedures which give to those responsible for creating

classified records some incentive to exercise restraint and to the Archives'

a real, not just theoretical, opportunity to do its job.

6. The practice of interpreting the term "Foreign Government Information"

in the classification system as applying to the content of documents as opposed

to their physical origin must cease. Only documents actually originated by

foreign governments should be treated as "Foreign Government Information,"

with all other handled in accordance with the classification rules governing

American government generated records. The United States should resume its

leadership in regard to the public's right of access to public records.
153

STATEMENT OF

THE ASSOCIATION OF AMERICAN PUBLISHERS, INC.

CONCERNING SENATE BILL 1335

TO: Committee on the Judiciary

Subcommittee on the Constitution

United States Senate

June 25, 1984

Background

The Association of American Publishers, Inc.

("AAP"), the major trade association of book publishers in

the United States, submits this statement for inclusion in

the record of the hearings of this subcommittee on Senate

Bill 1335, the Freedom of Information Protection Act. For

the reasons we discuss below, AAP wholeheartedly endorses

S. 1335's effort to place in sensible and sensitive balance

the interests of national security, on the one hand, and the

public's right and need to be informed, on the other, in the

context of existing document classification policies of the

Executive Branch.

AAP's more than 300 members are responsible for the

publication of numerous prominent works concerning government, foreign and domestic policy, military and diplomatic

affairs, and history. Many of the books published by AAP's

members are written by scholars, researchers and journalists,

as well as by present and former government employees and

consultants. When writing about such affairs of government,

these authors are dependent to a critical degree upon government-generated material. Such material informs public debate

and enables citizens, as the collective sovereign, actively

to participate in the conduct of the nation's affairs. A
154

fertile source of governmental information for such works has

been material made available under the Freedom of Information

Act ("FOIA") • a law which stands as eloquent testimony to

this nation's commitment to an open governmental process and

whose importance to book publishers and their authors cannot

be overstated.!

AAP's members are at the same time not insensitive

to the need to protect certain information generated or collected by the government, important to the protection of the

nation, from public disclosure for appropriately limited

periods of time. But they are seriously concerned over the

impact that Executive Order 12356, which presently governs

the classification and declassification of information within

the Executive Branch, is likely to have upon the balancing

process so necessary in evaluating the propriety of withholding specific information from the public.

Executive Order 12356, when issued in April, 1982,

reversed a 30-year trend toward reducing the amount of information both initially classifiable and subject to continuing

classification. In a stark turnabout from the Carter Administration's Executive Order 12065, which it replaced. Executive Order 12356, among other provisions, eliminates the requirement that officials consider the public interest in

judging how to classify information or whether to release it,

and authorizes officials to classify documents without basing

1. In this connection, AAP has documented, in prior submissions to other congressional committees concerned with proposals to amend FOIA, some of the important works published in

the recent past by AAP's publisher members whose vitality depended in large measure upon information released under FOIA.

AAP is prepared to provide such information to the subcommittee should the subcommittee feel it may be useful.
155

their decision on any "identifiable- potential damage to

national security.2

As matters now stand, all documents classified under Executive Order 12356 may be withheld from the public

under the FOIA's classification exemption • section

552(b)(1) of Title 5 of the United States Code. That

statutory provision calls for exemptions from disclosure of

any document which has been properly classified pursuant to

the governing Executive Order. In the pro-secrecy

environment invited by Executive Order 12356, potentially

millions of documents deserving of public disclosure may be

subjected to the censor's classification stamp and so

sequestered from the public.3 To AAP and its members, such

opportunity for widescale classification abuse, with its

2. Other aspects of Executive Order 12356 of concern to AAP

and its members, and as to which AAP has previously commented

in submissions to the Congress, include: its failure to provide for automatic declassification even where the classified

information at issue has already been publicly disclosed; its

leeway for the reclassification of previously declassified

information; its elimination of the requirement that classified information be reviewed for declassification after six

years; its authorization for the classification or reclassification of unclassified material after a request for it has

been received under FOIA; and its development of several new

categories of classifiable information.

3. We note that the Annual Report to the President prepared

by the Information Security Oversight Office concerning the

status of classification within the Executive Branch purports

to present data demonstrating Executive Order 12356's success

in containing classification activity. That same report,

however, demonstrates an increase in overall classification

activity and a significant decline in agency monitoring of

their own classification determinations • a development that

the report terms "unfortunate" and which "call[s] into question both the quality and quantity of agency inspection

programs."
156

attendant consequences upon the full discussion of governmental affairs, should not be left unchallenged.

S. 1335

S. 1335 represents a welcome effort to reaffirm the

principle • seemingly abandoned by the Reagan Administration

• that classification of government information in the context of an open democratic society should be the exception

and not the rule. S. 1335 would simply and clearly express

the will of the Congress that section 552(b)(l)'s reliance on

implementation by an Executive Order is not meant to permit

agencies to withhold any and all information without consideration of the public interest. S. 1335 accomplishes this

objective by: (1) pursuant to proposed section 552(b)(1)(B),

requiring an agency to identify the potential damage to the

national security that disclosure of classified information

to a FOIA requester might involve; and (2) pursuant to proposed section 552(b)(1)(C), requiring the agency to weigh

"the need to protect the information" against "the public

interest in disclosure."

By requiring an agency to meet the foregoing standards • identifying potential damage to the national security that disclosure might bring about and balancing the need

for protection against the public interest in disclosure •

S. 1335 would subordinate an agency's predictable interest in

secrecy to a showing that that interest is grounded in genuine need. Such burden as may be imposed by requiring such an

analysis by an agency facing a FOIA request is more than justified by the societal benefits to be gained from such a

process.
157

AAP views the passage of S. 1335 as significant to

the vitality of the publishing process, to the public interest in the workings of our government, and to the principles

which underlie our democracy.

We thank the subcommittee for this opportunity to

express our views on this important subject.
158

:an Newspaper Publishers Association

The Newspaper Center. Box 17407. Duties International Airport. Washington. D C 20041

TO *owANCi THf CAUM o» * MKI WWM Executive Ottices Reston Virginia (703) 620-9500

April 17. 1984

Senator Orrin G. Hatch

Chairman, Constitution Subcommittee

United States Senate Judiciary Committee

Room SD-212

Dirksen Senate Office Building

Washington, D.C. 20510

Dear Senator Hatch:

The undersigned press organizations have appeared before your Subcommittee on the Constitution on numerous occasions to express our support

for the federal Freedom of Information Act. We take this additional opportunity, as the subcommittee considers S. 1335, to reiterate that support

and to urge passage of that bill.

Recent American presidents have viewed with great consternation the

epidemic of government classification spreading through documents that

could and should add to the public's understanding of its government.

From President Eisenhower to the present, administrations have worried

over ways to restrict the security classification only to those documents

for which it was truly needed.

With those concerns so repeatedly recorded by past administrations,

we were perplexed by President Reagan's decision in 1981 to turn back

the clock by removing the identifiable harm standard from the government's

classification process. On this point, the public interest specifically

was written out when Executive Order 12356 took effect.

Senator Durenberger's bill to reintroduce the identifiable harm

standard, only to those documents requested under the Freedom of Information Act, is a sensible approach to restoring the balance between secrecy

and openness in the public Interest. It would require agencies to conduct

the balancing review process only for those records in which a member of

the public has exhibited interest and would avoid massive and expensive

reviews of all documents.

Establishing workable rules that sufficiently protect security concerns but encourage open government is a perpetual difficulty in a free

society. But it is not an impossibility. We appreciate the efforts of

your subcommittee to address this matter. We hope the subcommittee will

be able to turn its attention in this Congress to moving the bill toward

enactment.

Gww

Creed Black L. Jp(t

President *•*

American Society of Newspaper Editors

<y£uH3iimi*

Robert Brinkmann •JJ'K

General Counsel

National Newspaper Association

Charles S. Rowe *Xs

Chairman

ANPA First Amendment/FOI Working Group

C/-4-'
159

STATEMENT OF THE NATIONAL COMMITTEE AGAINST REPRESSIVE LEGISLATION

BY STEPHANIE T. FARRIOR, ESQ., NCARL WASHINGTON COORDINATOR

The National Committee Against Repressive Legislation

is a citizens education/action organization which focuses

primarily on the defeat or repeal of legislation which

infringes on the First Amendment rights of free speech,

press and association. To that end, NCARL's representatives

have testified before Congressional Committees, addressed

college and civic groups, organized conferences and debates,

and published and distributed literature.

NCARL believes that the Freedom of Information Act is

essential to the maintenance of a free and democratic society.

It is one of the primary safeguards against illegal and

improper government conduct.

The attached documents are dramatic testimony to the

severe weakening of the Freedom of Information Act by

Executive Order 12356 (1982). These documents also demonstrate the need for legislation such as S. 1335 in order

to restore some strength to the Act.

The first several pages of the attached material are

typical of documents NCARL received through the Freedom of

Information Act prior to implementation of Executive Order

12356. They reveal some of the COINTELPRO activities used

against NCARL for fifteen years.

The next several pages are representative of over 7,000

documents NCARL has received since implementation of the

Executive Order. Of these pages, two-thirds were totally

obliterated. Only about ten percent of the documents show

anything more than the date and authorship. The justification

given in the cover letter accompanying the documents for this

sudden and striking reversal of policy was Executive Order 12356.
160

NCARL first used the Freedom of Information Act in 1975

when it requested documents from the FBI concerning a 1969

burglary of NCARL's Los Angeles office, as well as documents

relating to NCARL and its then Executive Director, Frank Wilkinson. After a two year delay, NCARL received the first 4,500

pages. Although heavily expurgated, the documents revealed

that NCARL had been a target of an FBI COINTELPRO program since

its founding in 1960 as the National Committee to Abolish

the House Un-American Activities Committee. From these

documents NCARL learned that the FBI had a secret campaign

to "disrupt and discredit" NCARL's work. A Dec. 2, 1960

FBI memorandum states:

"The following counterintelligence action

is aimed at discrediting and disrupting

the activities of the National Committee

to Abolish the House Un-American Activities

Committee."

An FBI memorandum dated October 9, 1962 instructed field offices to:

"be alert for counterintelligence operations

that might be effectively employed concerning

these various speaking engagements of Wilkinson. Any operation that could be employed as

a disruptive tactic should be furnished to the

Bureau setting forth complete details regarding

the proposed operation...."

The documents reveal that the FBI spent much time on disruption of Wilkinson's speeches. A September 27, 1962

FBI memorandum cautions:

"The utmost discretion will be necessary to

avoid any basis for the allegations that the

Bureau is conducting investigations on college

campuses, or interfering with academic freedom."

It was not the interference with academic freedom that

concerned the FBI, but rather that such activities might

be exposed.

Other documents revealed that the FBI encouraged news

media sources to defame NCARL and illegally provided "friendly"

journalists with information from the Bureau's confidential

investigative files; prepared "poison pen" letters and other

documents, falsely attributing authorship to NCARL; disrupted
161

NCARL's public appearances by use of hecklers and pressured

various forums to cancel invitations to Wilkinson to speak;

and so on.

The Justice Department consistently informed the FBI

that its prosecutive reports were completely insufficient

to warrant prosecution of NCARL under any of the legislative

provisions allegedly justifying the FBI investigation. Yet

the FBI Director proceeded to order continuation of the

"investigation."

Rather than allow the open debate of government policy

so essential to our democratic process, the documents NCARL

has received through FOIA show that the FBI did its best to

thwart that process. It is to protect against these abuses

that the Freedom of Information Act must remain strong.

For this reason also, it is crucial that the obligation

to produce reasonably segregable nonexempt portions of documents be retained in the Act. This requirement is essential

to the Act's function as a safeguard against illegal and

improper government acts. Even limited disclosures act

as an important deterrent to the return of the abuses of

the COINTELPRO program.

The Executive Order 12356 (1982) on classification,

however, has so severely weakened the FOIA as to almost

nullify it.

Restoration of meaningful judicial review of an

agency denial of access to records, as proposed in S. 1335,

is an important step to restoring an Act which is essential

if we are to protect against unjustifiable government

secrecy, deter agency misbehavior, and allow our country's

democratic processes to function with an informed citizenry.
162

A • ''- L

1 - Kr.

1 - Mr.

Ware

Kleinkauf • ' &

April 30, 1962

JUxtel

>*:

4S

ion

To: SAC*,» Chicago

Cincinnati

Cleveland

Detroit ' horn Angeles

Jroa: Direotor^JttL (100-433447)^/-/\

3ATI0KAL CDUUTTSX TO ABOLISH THX

HOTSK UK-AMERICAS ACTIVITIES CGMKITTSX

larsasAL SECURITY - c

Milwaukee

3evark

3»«w York

Washington 7ield

Office* receiving instant communication are

instructed to be alert for countarliLteliigance operations

that night be effectively employed concerning these various

speaking engagements of Wilkinson. Any operation that could

be employed as a .disruptive. taniic should be furnished the

Bureau setting forth complete details regarding the proposed

operation;hovever, such an operation should not be placed

into effect without specific Bureau authorization. la vie*

of the tins element involved in connection vlth the early

stages of Wilkinson's tour, Bureau autho«-iz».tl/-a should bs

requested by appropriate communication.e

-: a"'
163

m* %

©_ ^V Mr! Bd•«2!_ V3*Q <l Mr. Uohr

FBI

Oat*: 5/1/62

nit ttw following In .

Arena.

(Type ia plot* t*M or eodoi

(Priority or Mothod of MoiiiHfJ

DIRECTOR, FBI (100-433447)

SAC, 170 (100-37885)

0 XAYlOHAL COMMITTEE TO ABOLISH TBS

H0U32 UN-AMERICAN ACTI7ITISS COMMITTXS (BCAHUAC)

is-e .... .. -

(00: LA)

RE&T23

^

^^TsV--

ReBuairtel, 4/30/62, which Instructed receivings^J

offices to be alert for ooflr.v-.isns which could be employed

AS d<scsny'« tv;t)ca at speajcing engagements of FRANK

IIL2IH30N, Field Representative of tbe NCAHOAC. ¥Hrm30s"

la to speak in Washington, D.C., on 5/4/62. . ..

1FO submits tbe following for consideration by

tbe Bureau:

It la* proposed that contact be made with a friendly

, newspaperman wltb tbe approach that an interesting story could

I probably be developed by having an "inquiring reoorter" liter-fai

Ivlew people who are arriving at tbe All souxs Unitarian Church,

Pierce Ball, 15th and Harvard Streets, H.W., Washington, D.C

ik

on the night

tbe site of tb

Commlttee-for

Joaait'tee CfAi

and LEOHARD

an award~Is

75/4/62 at approximately

sponsored by

Jjltion,-gf,the jptjj 'P°

at wSicH_7RAHKmrnXIHSi

are scheduled' xp 'spyal^X" At ' thZfl "meeting t

presented to CLAHSMC^PICKETT of the Friends '

p.m. This is

ashington Area

AnericanTA&ivittea

•ftt Comalttee_onlSpcial^Legisla.tlon'. A leaflet put out concerning

v

>'thXs_Beeting is attached to tbe original of this airtel. A

copy-of this leaflea is attached to each additional copy of

•inn airtel. XQ60»*

^ EEC--23 &rha*m(g.*tr.2)

1 -Los Angeles (100-59609) (Info) tBM>Jnmi<£-»f-JJ

2-WFO . .•. V • ,, .

'i_ino^">oi8T*. (XACAHDAC)' CA-xCS. . -.,...

BG:aam _. ' •

1»7

loo-USzHlll-M

ilRTSL r\~

Special Agvot In Charg*

EXHIBIT
164

$*-. a*"-- ...-V .-•• • •;' •"'•". &. ..•••.-. . f.-if:

*>. S &kX&

B** WO 100-378iT" /'At^^^i^Pi^*^^*'-^''*'- '•'"'• - " '-'' ' '.^v-'i^'i

;*»».>w» >«*i4lf A'-i^a.-•-••• VvT-.wi-;--A»-,'-si->«riLV-.'* 5* -•'<.' ''•*•••• !-•-""•" ':-*'•' nVjiWW

a.---,.--: .jstfg^ •' ...... • •.»•-.,•••--. :- • ••••'. *;x»

BRADEH and TILXXHSCS are described la the leaflet

, aa "nationally-known leader* 2* Civil Eights and Civil Liberties

eases, who recently served one-year conteapt sentences in

using the First Anendaent against the witch-hunting Bouse

UnAnerican Cosnittee." BOLT is described as a "prominent

Borfolx. attorney, and. articulate spokesman in Virginia

*• :cases involving COU (Congress on Racial Banality) and Southern'

C Christian Leadership.V,- ,' #>.•?;-:.""."'• .•:..•' '.. -, •.•-•{

•»•-•*.' - -- .

If the "inquiring reporter" la at the entrance to

the Ball on 6/4/63 at 8:00 p.a., ha will bo in a position to

interview and identify individuals who are going to attend the

. . aeotlng. 12 he should pose such questions aa, "any I have your

naao and address?"; "why are you attending this aeetlag?"; "do

-'.T you know.:"CARL fffiAmtW or THANK TILZIBSCH?" or "are you aetlvo ' • % in any organization supporting the program of the TACAHDAC, - ...

\l which is sponsoring thla aeeting?", it ia possible that aoao of -

the individuals who are entering the Hall say leave, rather than

take the chance of exposure in the press. The Washington, S.C.

area ia a particularly sensitive area with regard to publicity

for organizations la opposition to HCUA and possible affiliation

with organizations which are tinged by coaaualst infiltration.

, - •• - yor the additional information of the Bureau, the '

•-• 5/1/62 edition of the "Washington Afro Aaerlean," on Page 12,

-"•> carried an advertlsemeat announcing the above-described meeting^

! which la aa indication of the wide-spread publicity being given

-. thla affair. In addition to the announcement,^

> advised that 6,500 copies of the attached leaflet have boon

V prepared for distribution in thla area.
165

October 9, ISM

•"•• •' '.v ,. •-•(-'».•»...•=••-• ^.'•'.''••'••'.•. i'.:r- :•. •. .•*.'''"!;**'-?".'V,-'->

r;/ Airtel.-V,,- ^.-V.^,.--A,-W rw^::Ci;:"?;'V>'->- I - Mr.-tfare^-V:--

To: SACs, Los Angeles (100-54554)

. Minneapolis (100-1878-FFF)

Omaha

From;s\., Director, FBI^l^^I04^J^i-.Vi^^^,«^|^-^;*:s

• COMMUNIST PARTY, USA'- * *•• • •-'••" ,;*.--..;• -ivC^;..:-,•<-•' *-- • " ~ . • i ft

COUOTERINTELLIGENCE PROGRAM V>

It.TEKKAL SECURITY - C ,

Executive Director, ftationaTComaittee to -.•." . IAbolish the House Un-American Activities Committee. Copies of V.'^V?

realrtel have been designated for all offices receiving this"" - • "A

communication. "

liilkinson's tour is planned to support the communist . ,

cause as part of the current strategy of the Communist Party. *

Gus Hall, General Secretary, Communist Party, USA, wrote in the . ,

v(\

September, 1962, issue of "Political Affairs? the theoretical •<?'•'.\

organ of the Communist Party, USA, that the central theme on the ' *^k:

idealogical front Is the battle against anticommunlsts' and one of ^

the most effective means is speeches on college campuses. \~

Each office to which copies of this airtel are directed 31

should give careful consideration to possible counterlntclllgcnce Q\

plans to disrupt the schedule of Wilkinson. The utmost dis- gi

cretion will be necessary to avoid any basis for allegations

that the Bureau is conducting investigations on college campuses, <

or interfering with academic freedom. ' g

3

Submit all suggestions to the Bureau for approval O

before initiating any action on them In accordance with our

current Countcrintelllgence Program procedures.

(7^7 100-433447 (NCAKUAC)

(9')'"T. . •'-•'•'..• •'•':";•: • • SEE NOTE o;: VELLOW PAGE TWO _.' •-;* _

J?U'jfiU lUWKl 201 OCT 121982

f*W*t N

4 JCTJJ51353
166

Memorandum to t.!r. Sullivan

Re: National Committee to Abolish

the Un-American Activities Committee

100-433447

15ie above information has been disseminated to the Department

and the intelligence agencies of the Armed Forces. Botli captioned

organization and IVACMPJAC arc under investigation and copies of reports

concerning the investigations arc being furnished to the intelligence

agencies of the Armed Forces and the Department for its consideration

pursjiint to E.-ecutive Order 10450 and the Internal Security Act of ,950.

. , II I II • • •r• ^'

RSCC.yrin.'DATION:

It is recommended that this memorandum be referred to

l!r. DeLoach for appropriate action in connection with e.-cposing the

setting up and purposes of the Legislative Office of captioned organization.

'.7e are closely following this matter not only from the standpoint of determining pertinent activities of captioned organization and

Allen but also to determine what further counterintelligeDce activities

we will be able to utilize as a disruptive measure.

•

>

~\riJ^

Ua

m

/

- 2

EXHIBIT u

*"*/£>' ••!*?' -*<?' BP-" "Kmst «t -i.-
167

_ -HOTTED STATES « ^RNMENT

Memorandum

IS

• TO i

II SUBJECT:

ty

v

DIRECTOR, PBI (100-433447)

3AC, LOS ANGELES (100-59609)

^NATIONAL COMMITTEE TO AB0LI3H

THE HOUSB UN-AMERICAS ACTIVITIES

COMMITTEE (NCA HUAC)

IS-Cj I3A-50

OATi: Z/Z2/63•.

Re Supplemental Prosecutive summary report of

_1_Z_ da*81* V7/63» at Los Angeles, capD ""

A thorough review has been mad* of the Information

received alnoe rerep by the Los Angeles Office, concerning

the NCAHUAC. Curing this review. Insufficient Information

Mas noted which would Indicate direction, domination or control by the Communist Party (CP), USA of~the NCAHUAC, and

Insufficient Information was noted Indicating aid and support

of the C7-USA by the NCAHUAC, to warrant suDmlaalon at an

additional supplemental proaecutlve summary report at this

tine.

This matter continues to be followed closely by

the Los Angeles Office In an attempt to secure pertinent

proaecutlve Information.

» In view of the above, UACS, an additional review

will be made In forty-five days and the Bureau will be advised of the results thereof, or receive a supplemental -

proaecutlve summary report In this matter on 5/7/63.

(2- Bureau (Registered)

fee si /ad _ ^s^t/y'/-^^

Los Angela

WKW/slw > %

"1263

r^7

S ::*; z3 1363

Cpf^
168

TELETYPE !;

»»-J-Hi«. -

31 434 1 fH i; - URGENT 3-4»«4 «••<.'••-" '-•V'fi^-.A53I>SS

I'JRCt TO ASSIST IH AN ASSASSINATION ATTEMPT OH 'iWKh^^P**£?£$ •••

-XINSON, CHAIRHAN, CITIZENS CMHITTtX TO

:ED0BS, ABO''FIELD SECRETARY, NATIONAL;^*

v^fitfyS**

ISH THE

RCM FOUR INSTANT &•'<#»<

:\f
171

p

) OO

yj '- •'. • .-1 ?- _ • - _d^^MaftAm^f^fgjQ.L
172
171
172
173

CONFIIJ&WTIAL
174
175O