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REF ID:A40135 

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llEPIORANOOM .for Mr. 'iilliam F. Fr1edman1 

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19 September 1944 

1. The tollowing com.."T!.crtnts are l!lubmitted on the 

enclosed memorandum. 

a. It 1e concluded that all but one ot the problems ~aised have received adequate attention and will be solvecl aa 

tar a~ possible 1£ present efforts to procuro legislation are 

1u.cceasf'ul. 

3. The probldm o.f litigating prosecution under the 

Espionage /ct or under the proposed law mentioned above not 

baV1?1{; received attention hitherto, an informal 1nveat1gat1on ol this subject waa made and tne tollow!ng information obtained. 

4. Sourcos of information in t.lle Department of Juatloe 

d1acloaed that the problem has been Met b7 government proaeout1ng attorne~s in two wayar 

(.1,) ~he tirst ls to limit ae closely aa possible the number ot persons connected in any way with the trial or a 

case 1nvolv1Z1£ clasa1f1ed 1nfor~at1on, to investigate these 

persoua as tar as possible in the time avallable an4 to procure 

• court orOer aate&uarding the records conta1n1ns rererences to 

1uoh 1n£ormation. Thia, however, is onlJ partiall) etteat1ve 

•1nce ther( are limited controls available to the prosecutor 1n 

aelecting pereonnel to be connected with the trial. These 

controls 1nolude oha.lleng~a to the jury, change ot venue, and 

pereuas1ve action upon the attorne7s representing the defense to 

11m1t the number ot persons havlDG 11coees to the class11'1ed 

1ntormat1on • 

(b) The second end more successf'ul method or safeguarding clasm'rtied 1ntormat1on in a cnae enforcing a law against 1ta disclosure is to use tactics which avoid placing the 

1nfol"118.t1on in the1record o~ beto~a Lho P9urt. 1 This may be done ln ~everai waya. n cas~ or an orrenae lnvolv ng aiscLoaQre or 

1n£ormat1on contained 1n documents which are removed trom the1:r 

ott1o1•1 tiles. tor example, a prosocution under Section PB or 

the Uni~ed Btatea Criminal Code tor unauthorized poasess1on ot 

government 4ocum.ente. involving proor only ot the tact that the 

document wae an official government document, and not of 1te 

SICREIJ! 

eclassified and approved for release by NSA on 09-27-2013 pur~uant to E.O. 
REF ID:A40135 

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SPSIE 013 SPSIS-2 

.eon.tents, may bo used. It 1s fluggested, however, that any riethod 

involvlnc the prosecution for a related offense would not have the 

deterrent etfect obtained from a prosecution for disclosure. 

6. However, in a proaeC'ltion !'or disclosure or 

classified 1nfor~..at1on, the nature of tbe lnforrnation need not 

rt6cesear11y be revealed. Seeurill61ind1ctmenta from a grand jury 

on generalized oharges and witb h ~1n1mum of evidence 1s another 

practice whioh a good district att~rney can he.ndle easily. ~,pending on the case, clasaif lea fnfori.iat1on in question may remain undisclosed dur1I)£,the actu~l trial or be disclosed only 

to the court or only to the court 'and a cooperativo defense 

attorney. Cooperation of a defense attorney may be wore readily obte·~An ~1nce he is actins in a capao1t~ which might seem to 

col'lprom1.se his patriotiam, and Y¢i1ch thus makes him more ready 

to emp!.ia~Lze hi~ capao1ty aP an dff1eial of the court owing a ep~cia~ d~t7 to it and to the Feperal Government. 

6. The question of whether " the 1nf'ormat1on 1a probably related 'to national defense oan'bo settled by the testimony of 

the official cu$tod1an of the ipformation. A case is cited which 

involved diaclosure or plane for tne reoent invasion. The "'t'es~ioony of an aI'lny officer ttiat tne 1nforMat1on concerned 

invasion plans satisfied the s~atuatory requirements. Evidence 

neceseary for the success or tllie prosecution which contains 

claeslfied information can be J;iubt'11tted with the classified items 

e.xe1seq with or without t.he c9nsent of the de£endant upon showing p~oper cause t.o the court. J} 

J_,_A. ~ 7. It should be merltionod in closing that. an attempt ~~-~to aec~re legislation s1m1la~1to the British Official Secrets Acts. u~' I f prOVidinc for trial Of Crimitll pr0~8CUtiOn5 involving national , ...... ":_) t-,dc.fenee secrete be.fore a thrf -judge court.~ was mo.de some tlme >.::: ago by t.he Department o.f Jus ce, ctnd a bill to ..,}.at. effect passed ~"" the House,, but wae stopped 1 the Senate. 

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Floyd W. Tomkins~ Jr. 

lst Lt., Signal uorps Legal Assistance Of.fleer 

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