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SubJect· Preliminary Inquiry as to Whether There Exists 

Sufficient Protection Against Serious Breaches 

of Security. 

To Director of Communications Research. 

A. Introduction 

A. Preliminary investigation has revealed that the 

Signal Security Agency is apprently not well p~ntected in 

case or security violations. There are two causes of the 

insUfficient protection, each cause being completely independent of the other. 

1. Failure of existing statutes to make criminal the 

disclosure of vital cryptographic inforrriation, unleee the 

disclosure was ma.de under certain narrowly defined conditions. 

2. The impossibility under existing procedures of 

having a closed, secret trial. 

It should be emphasized that these two failings are 

completely independent of each other, and that both aspects 

must be satisfied before the Agency can be protected in 

case of secUJ:"ity violations. 

Dlll"ing the war, it is essential that safeguards exist 

to help prevent leakage of information of aid to ~he enemy. 

SElOfH!l'i' 

!Declassified and approved for release by NSA on 09-27-2013 pursuant to E. 0. 1352§ 
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At the end of the war, thousands of civilians and demobilized 

soldiers will be in possession of vital information which can 

not even then be disclosed. Unless there are effective sanetions to insure silence on their part, there will unquestionably be a relaxation of vigil resulting from the termination 

of the war. 

Both during the war and after the war, it is essential 

that these sanctions exist. Now is the time to assure such 

safeguards. To wait until there is a violation, with consequent embarrassment and actual harm, is believed to be unwise. 

The undersigned has made these preliminary inquires 

using the ordinary legal materials available to civilian 

lawyers, informally, and on his own tiirle. It is recommended 

that, if there appears to be foundation to the fears expressed, 

tho :matter be forwarded to personnel having all available 

military legal materials, and who have been working full-time 

on all phases of military legal matters. 

B. Persons SubJect to Military Law 

1. Military personnel are, of course, subject to the 

Articles of War and no real difficulty is believed to exist 

with regard to such personnel. 

Quite apart from other statutes, a breach of security 

would appear to be a violation of Article 64, disobedience 

of a superior officer, and perhaps of other articles as well. 

SEOR:S'±1 

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With respect to the trial of such a case, the Court 

could convene on the Post. The personnel of the court, the 

Trial Judge Advocate, the Defence Counsel, and the Reporter 

could be drawn from officers stationed on the post who have 

already been cleared. The record of trial could no doubt 

be reviewed by other selected officers, and the routing of 

the record be strictly limited.* 

2. On the other hand, whether civilian personnel in 

SSA are subject to the Articles of War is open to serious 

question. If it is determined by competent authority that 

they a.re, this brief paper can be completely disregarded. 

However, there is strong indication that the Articles of 

War are not easily applicable to civilians (see Winthrop, 

Military La.wand Precedent,2nd ed., pp. 97-102). If it is 

held that they are not so subject then it is necessary to 

examine what sanctions and procedures are available under 

other existing statutes. 

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C. Legislation with Respect to Violations of Cryptographic oK. 

Security. 

A copy of Safeguarding Military Information, AR 380-5 

is annexed hereto. Section IX of this Regulation contains 

extracts from pertinent laws and regulations. 

* There may be a few difficulties, e.g., the accused has 

a right to counsel of his own choice (A.W. lVand a right to 

record of trial (A.W. 111). 

SEORE2 
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DI!lORB'i' 

An examination of these extracts reveals that the following 

typical, obvious, and serious breaches of security are apparently 

not violations or any existing law: 

1. In 1944, Miss Jones speaking inform.ally to her roonnnate, 

a loyal United States citizen: "I help compile codes a.nd ciphers 

for our Army. One of the principal systems is fascinating and 

works as follows: . . . . . . . . . . . . . ................................ 11 

4 

2. In 1946, Mr. Brown (during the war he had been a Ca.pta.in) 

boasting to a client. "During this last war, I was in charge of 

the •••••••••••••• code. We read it easily. The system was 

unsound for the following simple reason ••••••••••••••• It yielded 

terrific intelligence." 

These two typical and outrageous breaches of security a.re 

not believed to be a. violation of any la.w set forth in AR 380-5, 

section IX. The language of these laws is too~restrictive: 

Thus, the Espionage Act speaks or "with •••• reason to 

believe that the informa.tion ••• is to be used to the J.n.JUJ:>Y of 

the United States", sec. 70a (a), (b), (c); "willfully communicates or transmits {a code book)", sec. 70a (e); "with •••• reason 

to believe that it is to be used to the inJury of the United 

States", sec. 70b (a), "in time of war, with intent that the 

same shall be communicated to the enemy", sec. 70b (b); "willfully----furnish to another (any official diplomatic code or 

any matter prepared in any such code)", sec. 73. 
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~ECRE!'!' 

A lawyer appreciates how difficult it is to prove Buch 

specific intents beyond a reasonable doubt to a jury. Moreover the Espionage Act is apparently designed to include spies 

and their collaborators, not loyal citizens who tell their 

good friends the war work they are or were engaged in. Finally, 

sec. 73 relates only to diploma.tic codes not to military, 

military attache, or other codes, and includes only furnishing 

the code or matter prepared in the code, not the extent of 

success in the cryptanalysis of the code, nor the cryptanalytic 

reasons for the extent of success. 

D. The Need for a Closed, Secret Trial 

For the purpose of the following paragraphs, 

~L..,.I i 

fl r.-.~ r.,. - \I it is assumed 

that the breach of security would be a violation of a statute. 

Assumed a spy is on trial. The importance of keeping 

such a trial secret can easily be seen from the issues ~d 

testimony which are likely to develop at the trial. The alleged 

spy has been working at Arlington Hall and knows certain phases 

of work intimately. In fact, he has been working there for 

several years both on our own cipher machines and on enemy codes. 

He admits, of course, working at Arlington Hall, but denies he 

is a spy. The prosecution therefore offers proof as to exactly 

what the alleged spy told certain other persons. But what he 

said about our or an enemy's cryptographic systems must not 

be divulged in public. The question is, can the trial and the 

records be kept closed and secret? 
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The courtroom can or course be cleared or visitors, but 

this merely scratches the surface. The judge, members of the 

jury, defence colUlsel, prosecuting attorneys, and reporter 

must first be investigated. The defence counsel can presumably 

make statements to the press. Since ~he records belong to the 

Court, rather than to the A:r!my, there may be difficulties of 

classification and of storage. There may be many appeals, 

both interlocutory and at the end of the trial, and persons 

handling and seeing the appeal papers must first be investigated. Also, most records of completed trials are open to the 

public, this can not be permitted here. The Judge :might close 

the records, if authorized to do so, but suppose he will not 

agree9 

A preliminary search has revealed no available procedure 

which will make possible a completely closed and secret trial. 

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If a secret trial cannot be had, competent authority may 

fear the publicity of an open trial and discourage a prosecution 

even of an obvious violation. General knowledge of such a 

helpless position would certainly make more difficult the .maintenance of security.