m) Asamember of the Clouse of Representatives Subconunitiee on Sci- chee Reseacel and Development, he adveented the allocation of Na. tional Science Foundation grants to small coileges and universities not previously eligible for such support. Among these beneficiaries in his home State are Texas A & M., Southern Methodist, and the Univesrity of Texas. all of whom grate filly acknowledge lus dynaniic eforts in their hehalf. In addition, he was instrumental ino amending and strenethening the District. of Colianbia Crime bill, insuring more cqnitiable justice for all ettizens Chan had theretofore prevailed. Ie farther devised a new financing concept enabling construction of the wetro miss transit system to proceed, and also authored lewislation precluding duplication ef welfare benefits to recipients in the District. During his entire career tn public office hie remained responsive to the needs and wishes of his constituents. working tirelessly ins the tiferests of the State of Fexas and its inhabitants. COMMITTEE VIEWS The Committee believes it would be most appropriate to name the Federal Olice Building and U.S. Conrthouse the “Earle Cabell Ped: eral Building” asa trilute to this outstanding individual, whose every effort was directed toward achieving mace eflicient Government. ad- mitnistration. COST OF LEGISLATION Section 252 (a) (1) of the Legislative Reorganization Act of 1970 requires publication in this report of the Committee’s estimate of the casts of reported legislation, together with estimates prepared by any federal agency. There is no cost to the Irederal Government an thorized by this legislation, ROLLCALL VOTES Section 135 of the Legislative Reorganization Act. of 1970 and the rites af the Committee on Public Works require that any rolleall votes he onnonneed in this report. During the Committee’s consideration of this Diil no rofleall votes were taken. The measure was, on a voire vote, unanimously ordered reported. CHANGES OF EXISTING LAW In compliance with subsection + of rule XXIX of the Standing Rules of the Senate, it is reported that this bill effects no chango in existing law. et AS ma:
ain CONGRESS SENATE ; Rurovr Ist Nession No, O33 -4G6 QUESTIONS RELATED TO SECRET AND CONFIDENTIAL DOCUMENTS Ocrotein EZ, L9T3.—Ordered to be printed REPORT of the SPLCIAL COMMITTEF TO STUDY QUESTIONS RELATED TO SECRET AND CONFIDENTIAL GOVERNMENT DOCUMENTS In aceordance with the provisions of S. Res. 13, the Special Com- mittee Co Study Questions Related to Secret and Confidential Docu- ments subinits the following report. and recommendations. The Committee was sided in its work by the Legistitive Reference ~wrviee of the Library of Congress and wishes to commend Mr. Rebert Lauck and Mr. David Sale of that) service for their contributions, This report. covers questions relating to (1) xecess ta elussified formation by Membets of Congress, (2) legal righis of an individual “tntor with respect to classified documents in his pesseesien, (3) Jogal tishts of a Senate Committee with respect to classified documents in ts passession, (4) legal rights of individual members with respect to ‘ecuments on information received from foreign cmissnries, (5) the declassifiention of documents in the possession of an individual tertuber, (6) pending bills and proposals for Congressional machinery ‘oversee classified information matters and (7) reconimendations by He Commilter. Po Access to Coassrrreo Inrormation ny Me ners or CONGRESS the Freedom of Information Act (FOIA), Pub. L. 89-487, 80 Stat. 45 USC, 552, amending the Administrative Procedure Act, “USC. S51, ef seq), enunciates a policy of public disclosure and verse to information generated by Federal agencies. Wesianing with the access problem in the context. of the Freedom ‘i formmtion Act, the first two questions are: (1) What limitations ve provided by the Acton public disclosure of classified information? * fy da these limitations apply to Moenibers and committees of fon. * Vtess, cya
2 There are nine specifie exemptions to disclosure of information te ¢ the publie. The one relating to classified information occurs at 5 USC. | S52): i (b) This section does not apply to matters (hat are— | 1) specifically required by Executive order to be kept secret. ' in the interest of the national defense or foreign polieyx; 2. | The limitation, then, depends upon there having heen a determine. I tion under an Executive order that a document should be classified | “in the interest of national defense or foreign policy.” The current } order tinder whieh such determinations are made is Ex. Ord. 115, issued by the President on Marek 10, 1972, to take effect Sine 1, 1972, The order is discussed in detail in our first report. Qn the question of neeess to chissified information the order i. | unportant as the basis or origin ov any limitation. To repeat, the exemption applies to “nutters . 0. required by an Executive Order Impertant as Che basis or erin or any limitation, To repent, the to be kept seeret. 2." Given a classifiention of documents by the proper executive department official pursimnt Co terms of the [Exeeu- tive Order, what reght is there, first, for a private individtinl and, second, fora Member of Congress, ta gain access to (he documents? The first part of this question was considered by the Supreme Court in /enriranmental Protectian Agency, chal. v. Mink, ct al..—: Us. 35 L. led. 2d 119, Doeket 71-909 (January 22, 1973). Congresswoman Patsy TL Mink and several other Members of Congress (in their capneitics as private individuals, as it developed: sought fo compel disclosure of certain decuments relating lo proposed nuclene testing at Amechitka Island, Alaska. The documents with whieh this paper is concerned were these Cait had been clussified “Top Secret” and “Seeret™ under Executive Order 10501, predecessor to the current order, 18. O. 11652. (Several unclassified document: were sought to be withheld on the basis of exemption (b)(5) “inter. ugeney or intra-ngency memorandums or letters whielt would not be avalible by aw toa party other Cian an agency in Htigation with the ageney.”” The part of the opinion applying only to exemption ( is not discussed here.) IUwas held by the court that exemption (b) (1) prevents disclosure o! the classified documents. The exemption also does not permit fn came: inspection of the documents to identify tinelassified ar “non-secte’ components” for disclosure. The Court of Appeals had read the exemp: Honus applying only Co the portions of the docniments Chat were secret At the direction of the Appeals Court, the Distries Court wns t identify any non-sceret portions for release, But the majority epinie: of the Supreme Court turned down this view. concluding Chat (he sob finding for the court was whether the meterial had been classified f: Pxeeutive order as contemplated by cb) (1). In stating this conclusion, the majority epinien relied on tle longece of the exemption and the legislative history. The tangunee of the exemption, quoted above, ineludes the te” yor “required by Exeentive order to be kept secret... Phe court sae ene, Obviously, this fest was not the ouly allernative available. Bat. Congress chase to follow the Exeentive’s deterinination in these matters aud Chat ehoice must be honored. fd, bi. Ed. en a
3 In his caneurring opinion, Mfr. Sustiee Stewart. agreed with the majority that the Freedom of Information Aet at sec. 552¢b)¢1) fore- clasts any judicial inquiry into the classification of documents: [Congress] has built info the Freedoms of tiformmtion Act an exemption that provides fo means fo question in Mxecu- tive decision fo sGunp a document “secret, however exuical, myopic, or even corrupt that decision might tawe been... J. [he only “matter” to be determined de nace [referring to Mfr. Justice Brennen’s discussion of see. 552(n) (4) in dis- scent} under see. 5520) (1) is whether in faet the President has required by exeentive Order that the documents in question are to be keptsecret. Under (he Actas written, that is the end of the inquiry. /d., 1. ed. p. 136. . As stated above, (he court held Chat ifs view was atse supported hy the legislative history of the Act: ihe levishhtive history disposes of any possible argent Chat Congress titended Che Freedoni of fifermation, Act to subject executive security classifientions to judicnil review at the insistence of anyone who might seek Co question them. Thus, the House Report stated with respect to strh- section (b)(1) that ‘citizens both in and out of Government can agree to restrictions on categories of information which the President has determined must. be kept secret to protect the national defense or (o advance foreizn poliey, such as matters clissified pursuant to) Executive: Order 10501," If. Rep. No. 1497, pp. 9-10, Similarly, Represeniative Moss, Chairman of the House Subcommittee that considered the Ill, stated: (hat Che exemption ‘was intended to specifically recognize that Executive order [No. 10501)" and was drafted ‘in conformity with that Exceutive order. Hearings before a Subcommittee of the House Committee on Government Operations, ‘Federal Public Records Law’, SOU Cons., Ist Sess. (March and April 1965), pp. 52, 105 (hereinafter, 1965 House Hearings). And a menber of the committee, Kepre- sentative Gallagher, stated Chat (he legisiafion and the Com- mittee Report make it ‘erystal clear that fhe bill in noe way affects categories of information which the President oo... has determined must be classified to protect Che nations defense or to advance foreign policy. These arenas of informa- fion most’ generally are classified under Executive Order No, 10501." 112 Cong. Ree. 18659. These same sources niake untenable the argument Chiat Classification of material under Exceutive Order tUs0t is somehow insufficient for Exemption t purposes, er that the excmption contemplates the issuance of orders, under some other authority, for cach document the Executive may want protected from disclosure under the Act. Congress could certninly have provided that the Executive Branch adopt. new provedires or it could liive established its own pro- eedures—subject only to whatever limitations the Executive privilege may be held to impose upon such congression:l ordering. Of, United States yo lenaalds, 315 US. 1 1953). Tt Exemption ft dees neither, fC etates with) the ntiaiest
4 directness Chart the Act exempts matters ‘spec ‘ifiently required by dexecutive arder to be kept secret.’ Congress was well awire of the Order and obviously neceptod determina tious purse to Chat Order aus quilifving for exempt status under sec. (bd). En this conftest itis paten tiv anrentistie Co argue that the ‘Order has nothing ¢o de with Che first exemption,’ What has been said thas fir makes whelly untenable any claim Chat the Ae€ intended to subject the soundess of execu. tive security classifications to judicial review at Che insistence of any objecting ctlizea. [also negates the proposition Chit exemption bE authorizes or permits on camera inspection of a contested document bearing a single classification so that the court may sepirate Che seeret fron: the supposedly nansecret and order disctosure of the latter, fd., 1. Hd. pp. 129-20. The Senate epart, S. Rep. No. S13, S9th Cong, Ist Sess. (1964), pp: rently more fave rably disposed to public disclosure, wus before both Pfouses at Che time of the passage of the Freedont of fnformation Act while the /fouse Report was not before (he Senante when it passed the Act, Commentators have Chis opmed that the Senate Report should carey mere weight in interpretation of the provisions of the Act. " " IX. Davis, Administative Law, see, BA. 2, at 117 (1970 Supp. J)" he mh jority of the court appears satistied, lawever, that the opinion is ~ipporled hy the levishilive history represented by hoth Reports. Thos, on Che question whether Congress intended to subject any purtieddie doeument to judicial review to determine whether il wre properly chussified, Mir. Justice Stewart cupsulizes the majority opinion based on both statutory hungunge and legislitive history: mo pent chose... lo deerce blind necoptanee of executive lint.” Jd. 1. Ed. p. 137. Ke. separate Rae a views of Mr. Justice Brennen (joined by Mer, Justice Marshall) and Mr. Justice Douglas vigorously dispute the majority opinion. As to legislative intent: We have the ward of bath Houses of Congress that the de varo proceeding requirement ((n)(3)) was enacted expressly ‘in order (hat the ultimate decision as to the propriety of the agency's action is made by the court and prevent it from be- coming menningless judicial sanctioning of agency diseretion.’ S. Rep. No. S13, Sth Cong., Ust Sess. § (1965) (hereinafter cited as S. Rep. No. 813); 11. Rep. No. 1497, 89th Cong., 2d Sess. 0 (1966) (hereinafter cited as TE. Rep. No. 1497). What was erurted, and purposely so, was on brond grant to Che District Court of ‘authority whenever it considers such action equitable and appropriate to enjoin the ageney from: with- holding ifs records and te order the produc tion of agency records tiyproperly withheld.” TE Rep. No. 1497, at 9. And to woderseore 6s meaning Congress rejected the traditional rule of deference to ndiministrative determinations by [p}lacing the burden of proof upon the aveney? to justify the withholl- ing. S. Rep. No. Sts, at 8; HL. Rep. No. 1497, ai 9. The Court's rejection of the Court of Appeals’ construction is mexplieable in the face of this overwhelming evidence of (he comeresstorinl desten, —~ teen pmupepeemee. .
? limitations (a aceess fo such information by Che public under the Freedom of Infornimtion Aet. Given the general fimitation of (bh) (1) discussed above, the next question is whether the lanitations applying to publie access apply equally to Members of Congress in their cupacity as Members, This question was nob riled upon by the Supreme Court in the Afiuk cuse beenuse Congresswanian Mink and her colleagues were not before the Court as Members bat as private individuals. Phe Chreshold question of the Menmbers’ standing to sue us Members was challenged in the Disteiet Court, whieh granted a mation fo dismiss on Chis point. The Court of Appeals did not consider the issue, Consequently, the next question, whether Mrs. Mink: and other Congressmen who brought the seit were entitled to the classified documents as Menibers even though notons private individuals, was not decided by the Supreme Court. The question of standing ¢o sie by n Member of Congress in his or her official capacity has not been addressed by the Supreme Court, It received renewed atlention recently in the lower courts. In Peed y. County Commissioners, 277 U.S. 376, 72 Law. Ed. 924, (128), petitioners were ULS. Senators, mentbers of a Committee oreanized and aefing pursuant toa Senate Resolution. Upon refusal of these in charge of cerbain evidence (balfot boxes, ete.) to produce it for the Committee’s use, the Senators brought suit. The court: said that without express authority from the Sonate to bring suit if neces- sary to perform its duties under the Resolution (whieh had not itself provided such authority), the Senators liad no standing ta sue, Authority to exert the powers af the Senate ta conipel woduelion of evidence differs widely fram authority to mvoke judicial power for that purpose... Petitioners are not Guthorized by law fo sue.’ (at 389). fn short, the Senators were said to hiave no standing to sue in their olficind capacity even as aomeans of carrsing ont the stated purpose of Senate Resolution when no aetion of Che body as a whole authorized the use of sich process. (An interesting historieal note is (hint on the sane day the case was decided Alay 28, 1928, the Senate passed a Manding Order authorizing nuy committee to bring suit in any court when in its opinion the surt is necessary to the performance of duties itapased by the Constitudion, Resolution of the Senate, or other faw. ». dour, 572, 70-1, May 28, 1928; Reprinted in Senate Manual, Senate Document No. 1, 89th Cong., fst Sess.). The question of standing of a Member of Congress to bring suit. in its or her official enpacity dias heen considered and decided in several recent cases, In Afiteheld v. Laird, No. 70-1510 (DLC. Cie. Mureh 20, 1973), the court considered whether thirteen Congressmen had stund- ing fo seck declaratory and injunetive relief against continued war- fare in Indochina. Plaintiffs had, according to the court, implicitly premised their standing claim on Congress’ “erelusive right to decide whether the United States should fight aM types of wars.” Without errecing WIth this assertion, the court lind no difficulty finding for the Congressmen on the standing issue: However, plaintiffs are not limited by their own concepts of their standing (o sue, We perceive (hat iu respects which they have not alleged they may be entitled to complain. Mowe. for the moment, assume that defendamts getion. in
6 continuing the hostilities tn Pnde-Clinn were or are hevond the authority. conferred upon them by the Coustifirtion, 1 deeluarmtion to that effect world bear upan the duties of plaintiffs to consider whether toe impench defendants, and upon plaintiffs’ quite distinct and: different duties to nike appropriations to suppart Che hostilities, or to tuke offer levisintice netions related fo such hostilities, such as rising anoarmy or enacting other civil or eriminal legislation, fu cur view, these considerations are sufficient to give glarntiffs a standing to make their complaint, Cf blast v. Cohen, 392 US. S8 (1968); adssociation af Data [racessing Service Organizations, Ine. ve Camp, 397 US. 150 (1970); Barlow v, Collins, S97 USS, 159 (1970). Thas, apprrentiy, where Che performance of legishitive duties: is dependent upon, of celited to, Che relief sonelt or Chere is otherwise a levisiative reason for the netion, Mernbers of Congress have standing to sue in their offieint enpacity. The reasoning seems effectively to premise standing on auy valid “legishitive purpose’, Co use a faoatliar phrase, and must be viewed as going further than did the Meed ense, supra, teean be nrgned that the same test applied in Reed would have slowed standing for the Members of the Senate conmnittee ta bring anit in parsianee of its purpose of legisiiting in the cleetion law field Withont the express anthority. fa do se provided by the Standing Order passed ater by the Senate, The points invelved in (he Coaneressional standing issiie were ont. lined in the vers recent ense of [folfznum v, Richardsen, Now 08 Co 537 (D.C. ELDINCY., Jane 05, 975), tno whtel Congres swontnt Holtz- rants steading Ce sue in her official capacity was upheld: Uneer Ardiele UIE, see. 2, Chinse §. af the Constitution, the jurisdiction of federal courts is liniited to Seases” aid Scontraversies.” Lucieial definitions of the elements requisite for “eases” and “controversies” five proved to be elusive. Unlike ease or controversy, ferms specifically enumerated in Article TH, “standing isnot mentioned in the Consutu tion. Et received its first fall expression in /rothingham =v. Mellon, 202 ULS. 447, 45S. C8 597 (1924). Later, in Plast v. Coden, 592 USL S88, SS S.C. £842 (1968), the Court stafed that political questions, advisory opinions, and dnek of standing resalt in Chere being no jusdemble con. troversy, Whether standing is denominaied a component of jurisdiction or of justicinbility may at first bluish seem anime vortant, de to the requirement Chil beth issues qaust be resolved before any determitection enn be made of Che mertts of the ecantraversy, Baker v. Carr, (WO ULS. 185, S25. Ci. GOL (oat AaCosta ve Lied, ATT, 2d pid C2 Cir, E75). However, a complaint may be dismissed for Lick of juris- diction of the subjeet matter onty if the elvin ts so aflenuatled and tenubstantinl as to be absoltely devotd ef merit. Vere huriyport Wieeter Cu, vi Ne whiusyporl, 1a5 UES, S6L, 2S. Ce. Aa cbO0d): Baber ve Carr, siapera, Plaintiff has raised a serious constitutional question deal ine with fhe waremaking power of Coneress enumerated in Antiele fo wee, Sof the Consiitition, Phe seriousness of this
7 question has been recognized repentediy within this etrenit. Berk ve Laird, 429 FL 2d 302 (2d Civ, 1970): Orlanda v. Laird, A4S 2b 1059 (2d Cir, £970). The deliente balanee in the relationship between Conpress and the President con- cerning the power fo wage war is a controversy nrising under the Constitution and therefore within the jurisdietion of this court, 28 ULS.CL see. Pash) Whether a partteufar purty dias a suflieient stake in an otherwise justieinble controversy Co obtain judicial resolution of itis whit hias (raditionally been referred tous Che question of standing to sue. In Srerra Club ve Morton, 405 U.S. 727. 732, 92S. Ch tsGb, 1364 (1972), the Supreme Court held thet when a parts, such as the phundifl bere, does not rely on any specific stitute authorizing invocation of the judicial process, the question of standing depends upon whether the party fias alleged such oa “personal stile ti Che outcome of the controversy,” Baker ve Carr... ous Co enstire Chart “the dixpute sought to be adjudicated will be presented in oan ndversary conftest and ina fori historically viewed as capable of judieial resolution.” Mast vo Cohen, Che heart of Che question becomes whether Che plaintil has alleged sueh on personal stike in: the outcame of Che controversy as fo nsstre the conerete presentation of issues in an adversary context so that a court will be properly ettided in determining diMfieult issues. The controversy involved must be a substantial one admitting of specific relief, Netaa Life Insurance Co, v. Haworth, 300 U.S. 227, 57 S. Ct 466 (1987), In the present case the court is not. being asked to decide Ul-defined controversies ever constitutional issues, Phe issue has been focused as sharply as possible: Whether Che Uresi- dent's orders directing the bombing of Cambodia constitited aousurpation of Congress’ war niaking power under Article [, see, Sof the Constitution, Nor is this a case in whielr the court is being asked to decide a hypothetical question ar abstract issue, Plaintiff is not asking for a determination whether the President would violate the Constitution ty cheaging in certain nets, but rather a determination Chat the present action of the President violates (he Constitiition, Nor ie this a cellusive suit: where the parties are suspected of sharing the same interests. — Plaintiff? qa Congresswoman does not merely suffer in some Indefinite was in conimon with people generally. She iso tiemnber of a speeifie and narrowly defined group the Hetse of Representatives. Asa Congresswoman, plaintill’ is ealled upon to appreprinte funds for quilitary operations. tate an army, and declare war, Additionally, plata till lias a continuing responsibility fo insure the cheeks and bataners of our democracy through the use of impeachment. When wo plomnGil is a member of a narrowly delined group. whieh has heen more directly affected by the enrduct in question han has the general population, the test for standing sould he met. Seott, Standing te the Suprane Court —a at) Punctiond Analysis, 86 Vary, DL. Rev. tdi (Meh, 1979),
S The questien whether oa partieddar person is a proper perty fe tidabata the aefian daes nat, by its awn Loree, tetse separation of powers problems re dated fo improper [i itieial tnferference rn arenas committed to other brnaebies af the federal! government, Plast v. Cohan, supra, 3 | An irepinedion wats erated in the Tloltzman case on uty 25, 1975 Woe oa stay pending argument before the Court af Appents for tie second Cireait ou daly 27. Plie appests court bras new crated a ste of the injunetion antl Angust 15, Voocetor te the Vad case, mieht Che cesal liave been diferent hae the stamwling question been before the Supreme Court aod lad op heen answered as ah was in the Vilehed? and Holt: nia eases”? Itty te be noted that ne mention was made in the drat enses eve by the dissenters, of a provision uf the Mreedant of Erformiuation Ae theett wertled appenr fo be oof primary IM pertance to deflerniing, Congressional nifent in passing the Act: te). This seetion finelading the classilied inforiurtion “exemption” “fas not authority to withhold infornittiow Croan C ONeTESS, Query whether the Court would reach Che same result as tot classified information exemption of (byt) Wa Member of Congres fouud to have standing to challeuge the exeniption in his o@ her ollie: capacity. Obviously, “this conjecture asstiues that tie Court wi fallow the AVfitehell and floltzman cases on standing the issue. USE AND HANDLING OF CLASSIFIED DOCUMENTS Several questions were posed by Che Committee regarding (he propriate disposition (hat could be made of classified daeuinents | Members and committees of the Congress. In the discussions of the questions that follow ao assumption is made about Che classi documents except that they have been regularly classified, whether: hot with good reason, and Chat thes have come into the possession u Merber of a Committee. é Leavww Rieurs or an Tsprvinuan Sesarorn Witn [sprees CLASSIFIED Documents os Plis Possesstan There are various provisions of the (nited States Cade which mer applicable to persons in possesion of classified documents, W ile ¢ follawine isting is net tatended to he oxhaustve. it does je some general insielit into the type of individual conduct whieh proseribed, 1 TS USC. sees. 792 799 (Espionage and Censorship): See. 0" Catherine, tronsmitfing, or losing defense tiafornnurtion, See, TO4--eathering or delivering defense information te aw foreien cavernmcnt, See 795) photographing or sketching defense tistall: it tetas. Ser, 797- publiention and sale of photographs of defense in- frat, See TOs disclosure af el: isified information, . : nT ee OW ere ste! i riteley eet See i ee
9 3. IS ULS.CL see, 2078 (Reeords ond Reparts): See, 2071 conerul- ment, removal, or nuttiladion of records and reparts, steto as those on file or deposited with any public officer of the United States. 4. 1S ULS.Ch see. G4b (nbezzleuient and ‘Phefty: Ses. Gil re- volving, concealing, or retaining stolea saverntent docun ents. a. 1S ULS.CL see. 8371 (Conspiracy): See, 87 b conspiracy to commit aii offense against the United States. 6. 43 USC sees, 2274 2277 (Development and Coutral of Atoute Energy): See. 2274 -commumicating or disclosing restercted data. Such data dinelades information coneeruing the desien, maniac fire, or etlvation of atomic weapons, (he production of special nucle nutes noloor the use of special nuclear nurterint ia Che production of energy. See 12 USC. sec. 2014(y). 7. 40 US.CL see. 788 (Internal Security): See. 7830) comminnien- tion of classified information by government officer or criplovec. For n detailed exnmination of these statutes, see dear and Sehimidt, The Espionage Statutes and Publication of Defense Information,” 73 Col, L. Rev, 929 (May 1973). (Pab. 0). The question of the extent to whieh an individual Member, or his tide, may be immune from the operation ef these or other criminal provisions, when the Member or aide possesses a classified document, has received some reeant clarification in Grand ve United States, 408 (1S. 606 (1972). [Tab. 2). See also Linited States ve Brewster, AOS US. wt (1972), Gn the basis of the Grared decision it would seenr possthle fo constime t -everal categories of activilies and conduct in whieh an individial Member may safely engage when he possesses a elissified document. However, before considering protected and proscribed conduct some wmlvsis of the Grarcl decision is in order. Article [, section 6, clause 1, of the Unifed Stites Constitution provides as follows: The Senators and Representatives shall receive a Com wensation for their Services, (9 be ascertained by Law, and Paid out of the Treasury of the United States, They shall in all Cases, except ‘Freason, Felony, and) Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and tn going fo and returning from the same; and for any Speech or Debate tn either House, they shall not be questioned ins any other Place. It writing for (he Court majority, Mr. dustiee White indicated (hint the Privilege from Arrest, guaranteed by (his Article. extends only ‘on privilege from civil arrest (a practice common at the tine the Constitusion was adepted), and does not immunize Members from ‘operation of the ordinary criminal laws. Grarel vo Cnitel States, ms TES. 606, GI4-G15 (1972). Thus, a Member would be generally Tend by the operation of (hose eriminal hiws whieh regulates conduet. veh respect to the handling of classified documents. | The Courts aimalysis of the scope of protection afforded Members othe fist clause of Article t, section 6, ebiuse f (the Speeel ane 1 hate Clause), however, has important implientions for san tadividnal \ . ot . ry eo 8 . Teober in possession of a elassified document. Explainias Cat the
10 Speech and Debate Clanse does not broadly exempt that whieh ihe Privileze from Arrest Clause allows (ie. that Mearbers are subjeet to the operation of the ordinary criminal law), the Court nevertheless indientod tint the former Chiuise was intended to protect the integrity OF the le detitive process and assure a co-equal brineh of the covern- mentwide freedom of specel, debate, and defiberation without iutimi- dition or Chreats from the Executive Branel.? Jd., at GG. Morcaver, this prote-dien is broad enough fo immamize Members “aeainst proseentions that directly impinge upon or threaten the logishitive braces. ff His impertant fo nele Chat although a Member maw he tinpyine From the operation of the criminal bay where his condued is within toe sphere of leritinmde legtelative neftiviga’ fd at B20), the fact hata parttieutir ae: in some way “relies Co’ the lowislative prace.s (bet necessaede a justifiention for Hnowiniby, Prolection under tho Speech and Debate Chine is available oafy where the Member's wets Celearly a pert of the legishitive process —the due fanetionins of the process.” (united States vo Urowster, 408 US. SOL, 515-516 (19720. The test for determining what eonduet is within Che protected “Sphere of lecitioate lewishitive activity’ under the Speech and Debate Chinse was stated by Justice White as follows: Lecislitive acts are not all-encompassing. ‘The heart of the Chiuse is speech or debate in either Touse. Pnsefar as the Clause is construpd fo rench other mint lors, they trust be an infezeal part of the delibers tive and communicative processes by whieh Members participate in committee and Touse procee ines with respect to the consideration and passage or refeetien of proposed legislation or with respect to other Hatter. woieh the Constitution pliees within the jurisdiction ef either Elanse. As the Court of Appeals put it, Uhe courts have extended the orivilege beyond pure specch or debate in either Pfouse, but Sonly when necessary to prevent indircet Hipatriment of seh deliberation.” Gniéled Slates v, Dae, Vass Pood oat 760. Grave vi United States, 40S ULS. 606, 625 (172), In fieht ef these considerations iL seems appropriate. fo suzees! several types of conduct whieh. in the ease of an individasl Meniber havin posses-ien of a classified document, should be protected wnder the Speech and Debate Clause, The following list is not intended to he exhaustive: . Any speech or debate on the Senate floor concerning the classified doeriiuient, 2. Now speech during a committee meeting, hearing, ete. Nos vending from the ehis-ified document either on the Senste Coor or tha comnittes meeting, 4. Nav speech concerning Che elessified document in comunittes Peperts. henvine:-. or in resebations, So Any phic of a chissified document inte Che pablie record, G0 Any conduct afta committee meeting or on the Senate floor with respeet te ite classified document and any motive or piirpose behind sich comelepedt. eo Sb ceoremonientions between oa Member and side durin Che Poh NOs Cet ptas nent with respieet te the elas ified document!
It if related to a cominittes reeting or other lesisintive aet of (he Sfeaber, As to those types of condue’ for whieh it would seem uo Speeeh or Hehe Clause protection exists, Che following, also not intended to he evhanstive, are illustrative: 1 Any aet wilh respeet Coon classified document in proprration fora hearing which tay be refevant to the investigntion of third-party THe, . 2. Any act with respect Coa elussified document in preparation for vhearing whieh ts itself criminal, eg., gathering defense mformation IS ULS.CL See. 795). 4. Any act arranging for the private publication of a classified deruimnent. 1. Any act publishing a classified document privately, 3. Any speech or debate concerning the classified document de- ‘wered or condueted outside Congress; Le. not ite committee meeting eran the Senate floor. 6. Any fransmitfal or communication concerning the chissified Hocumont in newsletters or news releases to constituents or in answer- me coustitient annul. 7. Any disclosure of the classified document on radio or television SPPeariices, Apart from any listing of acts ait conduct which may be entitled * protection under the Speech and Debate Clause, another importunt peetof the question concerning the legal rights of an individual Senator int passession of a classified document may be noted. The Court in Graved indicnted that it could not “perceive any constitue conn! or other privilege that shields 2.2. any... witness from sean jury questions relevant (o tracing the source of obviously highly soestfied doctuments that came into the Senator's possession and ace he basic subject matter of inquiry in this ease, ws long us no legislative s tistmplieated by the questions.” fd. al G28. This analysis, as subse- endly reflected in the Court's final order (see //., at 629) presents a “ana tooan individual Member which has been summarized as t OOO ae ~.. [The decision in Gravel may make it impossible for a Congressnitn to promise confidentiality (oa would-be iuform- ant: where the release of information could constitute a erie nnd could therefore be investignted by a grand jury, the decision farces na Congressman cither to refuse to promise comfidentintity or to risk a contempt charge ina subsequent grand jury tuvestgiation. “Phe Supreme Court 197 Pern Protection of Congressional Aides and Scope of Privileged Activity, 86 ZZarr. LZ. leew, 189, 195 (1972). It should be mentioned that. the Grarc! Court also determined that cope of immunity available ton Member's aide under the Speech tT Debate Clause is coextensive with that of the Member himself. tty any net ofa Member's aide with respect ton elassified docu- J thiel wonld constitute a protected legishilive act if done by the ber hirself, is alse immunized under the Chase. The rationale hts canal trentiment of Member and aide “is that itis literslly im Mie in view of the complexities of the modern legistative process, Conere ns alimast constinthy dn session ond nirtters of lei dative t
1 coneern conshendhy proliferating, for Members af Congress to perforin their lecishitive tasks without the help oof atdes and assistents: tha the elev -taeday work of such aides is se erttien! to the Menibers' per. formance that Che ‘omust be treated as the fatter’s after csca carted Clon if thes are net se recognized, the contml cole of Che Speech ar Debate Chane Co prevent intimidation of leqistitors by the Myecative: and secortibebriiy before a possibly hostile judiciary will inevitably be dimiuishedt andl Crasteated. fd. at G16 GE. ffl. Leeann Rreevs or . Sevare Cosaturren Wrote Resprer te Crvssertep Docemenrs iN brs Poassesston There world net seer ta be sry feet busts fora distinction hetiwred the rieht. of a eerumittee or ofa coniittec’s stall ti possesston ef tlassthied: dhaeaments and the rebts of au tadtctdaad Meriber or bee pile Pip esseee, a eomiiintee psa eretip of Netirbers sured a cotaniette: stlf tsa creupoaf aides, Moreover, althourh a COUTEEL LOE CLT Ovs sates degree of tidependernt status ae an entiey nits own rtrebt, a wad he alled that the protections of the Speeeli amd Debate Cfapse sre applic: able te ‘Sermaters and Representattees ” p tits sane expressly . tn the world appear therefore, thirt the ~rape of perniisst ble wef gVities taoeofoaa Senate comrntitee ar canmnapites staff in Pa sstast’ nrelaed: fied’ Goeintedt, weotld fall ceneratly tata Chose eatewertes sum cote whieh were prediented upon the Grace? and Brorster deetsian. Chie udbditional potnt of iuipottanee caneermne the fest recht. of + Grard Court's disposition of th: thee Sper if cormoditee ean be noted a thre Crovernorents eorteutton that the eourts are free undec ated Debite Chiuse Ca question the “regulnentv’ of the SHbeominit te meetin ealled by Senator Cruvel whielt was aileged ty ospecnul. unatthorized aniimeie” Gul difdiigho), and for the purpose of reads the elassified! documents tr hits poesession. The Court from Che Distr! Courts rejection of this argument where tt was stated tliat: “Senator Gravel has steeested Cait the avathibiltty of funds for the construetion aod improvement of public Dniltiogs and erennds dues been affected by the necessary costs of the war in Vietnam and Chat therefore the deve Jop- ment and conduet of the wae is properly within the concern of his subcommittee fSemate Sabeommittee au Publie Works). The conrt rejects the Governments argument withatt de- tatled constderation of the merits of the Senator's position, an the basis of the eeneral rule restrieting judic ‘int PGuiry Info matters af lewishitive purpose and operations.) (oust States v. foe 332 Fo Supp. at 955 00000 Et has net heen stcestod by the Government that Che Sabeoumnittee itself iy unauthorized, ner Cit the war in Vietnam is an isue bevond the purview of congresstonab debate anid eden, Also the individual rights at stake in these proceedings are not those of a witness before a congressional cammurtiee or of a subject of a comuniftee’s investigation, bat any those of a congressman and ueniber of his personal stail whe fim ‘intimidation by Che exeentive’ 7 582 Fo Supp. at a6 quoted in (rarel v. Cnded States, AUS US. G06, G10 m6 Clary),
13 The sienifiennee of this langunee is that a canimittoc, or the Member thereaf, seem to enjavoa large measure of insihition from Mxecutive and Judicial inquiry tuto its proceedings. Tt wanld appear, therefore, that the proceedings of any committee with respeet fo a classified dectinent in its possession will not he questioned for purposes of assessing “regufarttiyv’ under the Speech and Debate Clause at least where (1) the committee itself is muthorized, or (2) the subject mutter of the clissified document ar perhaps the document. ttself is an issue within the constitutional purview of Congress, or (3) the rights of individuals are not threatened by the committee's proceedings. Leagan Riegats or Txpoivinvan Mesiees Were Reserser ta Doce tients on EXNeormation Recemen Frow Fornian Evissanies Althengh it might be useful in some cases, Co distingiish between infermation and doeuments received from foreign eniissaries whieh Wave heen classified by the United States government [see 50 ClS.C. ees, 788 (b) (e) and (8S ULS.C. sec, 798} and infortnation and docu ments which are etther unclassified or clissified by a foreign govern. ment without a reclassifiention by the United States, if is perhaps eptilly importint fe note generally Cait ander the Espionage and Censorship provisions of Che federnt ertminal code (IS USC. sees, Tr! 799) itis a ertmiml vet for any utmurtherized possessor of ani document “relating to (he untionnl defense’ either ty wilfaily to commitniente ar cause to be communiented Chat document to nny persen not entitled to receive it, o¢ 2) wilfully to cetain Che document ‘oad fail to deliver if to an officer of Che United Stites entitled to receive ie fsee TS ULS.C. sec 793 (e) |. Thus, under this prohibition both the sores and the elassifiention of the document are immaterial and any neanthorized possessor thereof faces grave risks. ftimay be concluded that where an individual member has received talocument or information from x foreign emissary, and where such tocnment or information may be within the intendment of applicable rriminal provisions, there would seem to be two alternatives under the preseut faw: 2) the member may use the document or information to theextent that his immunity from the criminal law under Che Speech stl Debate Chiuuse allows, or 2) he may comply with sections 4 (e) and sof Executive Order 11652, 37 Fed. eg. 5209 (1972), which provide ++ follows: (c) Information or Material Furnished by A Foreign Gorern- mont or Laternational Organization. Classified imformation or material furnished to the United States by a foreign govern- ment or international organization shall cither retain is original classifiention or be assigned a United States classi- fication. In either ease, the classification shall assure a degree of protection equivalent to that required by the government er infernational organization which furnished the infor- mifion or niaterial, _ (d) Classification, Responsibilities, A hhelder of classified information or material shall observe and respect the classi- fiention assigned by the originater. Hf the holder believes that there is an unnecessary classification, Chat the assigned classification is improper, or that the docnment is subject fo declassifieation ander this order, he stall se inform the 7 qro,4t Pa oe — ?  g
Ef Tor Deenasstprcation oe Documents oN tin Possessian or ay TNorvinpwan Mesernin The question of the method by whieh an individual member tay dec Inssif'y a document in his possession seenis to vield (wo apprane les under (he present hav. First, the menber may effect a kind of “de. classification” by utilizing Che documents in vceordanes with) his privilege under the Speceh and Debate Clause, A member could, for example, rend from the classified document at a committee meeting us was done in Grarcl. Strictly spenking, of course, Chis protecied candies on the part of a member does not Cechaicully “dechissify' the document but it dees make the document public, effectively defeating the classification, Tlowever, experience indient el that such effective declassifiention may contribute to a marked reluetanee on the part of executive department officials Co tender restricted information in the future, A second alternative under present law fora member desiring to doclassify a document in his possession is to subsmit: the document to the appropriate government mithority. in aecardance with seetion | (d) of E.O. 11652 quoted supra. Section 5 of F.O. 11652 contains the weneral declassifieation and downgrading guidelines. (Tab 3]. I. Pespixa Brins aNp PROPOSALS FOR CONGRESSIONAL ADPACHINERY To Oversees Chasstriep PNeorwaTion ALATTERS Our earlier report. discussed a number of bills now pending, thut would effeet changes in severnl of the matters diseussed above. Al of the bills noted would amend Che Freedom of Information Actin ane way or another except for the proposed new Federal Criminal Cade provisions in S. 1400, for purposes of Chis supplemental report, mention ef two of the hills will prov idea basis for further considerntion and recommenda tier: by the Committee, During deliberation, the matter was discussed of the possible ostablishment ‘of inac hinery within the Senate for handlin: chossified information, Senator Gravel’s B HH, S. 1726, makes a nansher of proposals bearing on Congression: wloversight and participation. The bill proposes no mechuanism whereby two Congressional com: initfees would oversee all classification and declassiliention of govern ment documents. The proposal, contained in seetion FOS ef the pre- posed Public Information Act of 1975, mandates an automatic de- classification of all materials after a two-year period of classifie! status. Pf the materinis are thought to require a second two- yen perie:} of classifiention, the President ar ageney head elurged wit the deelesifiertien of such date must submit a detailed, weritte justifiention for the extension of lnccifiva tion for one addition: fwo-verr period, Such submission rast he anide ¢o the Serute Car: mittee on Government Operntions, the [louse O oniinittee on Covert nest Operstions and Cie ¢ ‘omptratler roneral of Che United State- The two Coneressional committees are also ehurved with public: fe tien of an anneal publie document containing all of the writte: justifications for continued classifiention pres sented to Chen, Exeepte: from this publie document are only those justifications which therm: selves are determined by the President or appropriate ageney head & be classified, Even these expected writings are available upon req: i rer ' = wert ce ers eee eee we ee ee oe
- io An necessary safeguard (o dechissifieation is provided: bw aking the Comptroller General an overseer of all ageney elasstiention and deelasstfiention. The Comptroller General would report semi-annually to bath the Senate Conimmittee on Government Operations and the House Comnittes on Government Operntions setting forth finding af all inquiries or investigations he would moke under the propased Act. The reports would be mnade no later than Maret ft, and September o, of encl: year, . The “Gravel” Bill would also create an Olfies of the General Counsel to the Congress. The duties of the General Counsel world presumably include advising the Senate Committee on Government Operations and the House Committee on Government Operations on the excepting of sone materials from autonimtie biennial decln-sifien- tien and the other supervisory decisions assigned to the committees by the proposed Act. Another bill, S. 1520, would establish a study commission which could make recommendations to the Congress in the classified infor- mation field “including the proper performance of its duties.” As previously observed, the Comimission’s charge world be similar to (hat undertaken by S. Res. 13, Finally, mention needs to he made again of S. 1142 introduced by Senator Muskie and IER. 5425, introduced by Congressman Moare- hend, These bills would strengthen the Freedom of Infarmation Act's disclosure provisions in’ several respects. The provision of special sivnificanee to the subjeet of ¢his memorandum, however, relates and refers directly to the classified information exemption of the AWink cose, Tt reads as follows: (2)(A) Notwithstanding subsection (b), any ageney shall furnish any information or records to Congress promptly upon written request Co the head of saeh ageney by the Sperker of the House of Representatives, the President of (he Senate, ar the chairman of any such committee, as (he ease may be, Vil—Recovumenpations oF THE Cownirres RECOMMENDATIONS 1. The Committee recommends a re-examination of the bread vrant of diseretion given by the Congress to the President and iniple- wented by Executive Order to classify and resteiel the use and icenlation of government documents. The Committee urges that a statutory framework for the classifiertion svsten: be set un and chat vedelines  speeifiently defining areas of National seenrity be © nbilished. cy The extent to whieh Congress has ceeded this authority. ta the twcentive is discussed from an historieal perspeetive in this report and !-enphisized in the Supreme Court dectsion ita Muriranmental Protee- fen Agency, etal, v. Alink, 410 US 73 (1973) wherein the Court held hat under existing law net even the courts could look beyond an renttive determination in this area. “Congress chose’, wrote Justices “Stewart, “to deeree blind acceptance of executive lint.” Inenneting (he Freedom of Information Act Congress created “an tecuption that provides no means fo questiaa an Executive decision  etnpandeennent Secret’, hawever ev nieal oiveapie, arecen corripd
16 that decision might have been’ The Committee suggests that the mechinery be setup for questioning in an orderly aumuter hese eyecitive decisions to chissify for reasons of National security, and we trge Che Government Operations Committee to vive priority con. sideration to bills now pending before tt and discussed herein designe: to neranptish this objective. We nuke no detiiled eviltation of those bills, leaving that to Che judement of the substantive committee but urve (hata complete overhaul of Che clissifieation system be under trken at the enritest possible Cine, Hf. The question of procedures to be followed by a member who tas classified documents in bis possession, prior fo his disclosure of these documents, was discussed by the Comittee. The Committee recommends that individual members who live such doedients and wish to diselase them, consult with the Senate Ethies Comunittee prior Co stich disclosure, Tho Conmnittee wishes fe make it clear that although it tends cansultation with the [thies Comrnittee, any deflerminntion by the Bthies Committee would net be binding on the menrber, The renson for the recourmendation of consultation is Co permit a nreniber the opportanity. of getting the additional Ganking and preeedent- availiable fo him before making a final decision regarding disclosure Hit. At the cequest of Senator Cranston, the Contaitttoe diserssed providing Che Senate the overall sums requested: for each separate intelligense aveney. The release of such sums would provide meurher- with the iminimal information they should have about our tntelligente operations, Sach information would adso end the practice of inflating certtin budget figures so as to hide intelligenre costs, and would iu sure that all members will know the tric cost of exch budget item they must vole upon. Accordingly, the Committee recommends that the Appropriations Cominittee tlemize in the Defense Department Appropriations bill the Catal sims proposed to be appropriated for intelligence nelivitics JZ by cach of the following agencies: Central Intelligence Agency, Dee fense [Intelligence Agency, National Security Ageney, National Re- connaissance Offices and any separate intelligence units within the \Army, Navy, and Air Force. The Committee does not request. Chart ans fine ttenws be reveuled, The Committee also recommends that the committee reports ind exte the total number of personnel ta be employed by enehy of tle above agencies. The Committee does not request aay information about thetr duties, VeCE
Onn Conaress . SENATE Repowr Ist Session No, 93-467 ’ 1 a AUTHORIZING APPROPRIATIONS, FISCAL YEAR 1974, FOR MILITARY PROCUREMENT, RESEARCIL ANT DEVELOPMENT, ACTIVE-DUTY AND RESERVE STRENGTH, MILITARY TRAINING STUDENT LOADS, AND FOR OTHER PURPOSES Octonrn 16, 1973.—Ordered to be printed Mr. Syartneton, from the committee of conference, submitted the following CONFERENCE REPORT (To accompany ILR. 9286] The committee of conference on the disagreeing votes of the two Houses on the amendment. of the Senate te the bill (IL.R. 9286) to suthorize appropriations during the fiscal year 1974 for procurement of nirernft, missiles, naval vessels, tracked combat vehicles, torpedoes, ancl other weapons, and research, development, test. and evaluation for the Armed Forces, and to prescribe the authorized personnel strength far ench active duty component and of the Selected Reserve of each reserve component of the Armed Forces and (he military training ttudent loads, and for other purposes, having met, after full and free conference. have agreed to recommend and do recommend to their respective Flouses as follows: That. the House recede from its disagreement to the amendment of the Senate and agree to the same with an amendment as follows: Tn lien of the matter proposed to be inserted by the Senate amend- ment insert tho following: TITLE 1—PROCUREMENT Lote 101, Funds are hereby authorized to be appropriated during the i. WV year 1974 for the use of the Armed Forces of the United States “r procurement of aircraft, missiles, naval vessels, tracked combat “Nteles, torpedocs, and other weapons asx authorized by lar, in smounts as follows : Aireraft For aircraft: for the Army, $168N00.000; for the Navy and. the Vireing Corpa, §2.912.600,000 of which. amount not ta ercced 8693,100,- ‘hall he available for an. F-t4 aircraft. program. of not leas than vreraft, subject to na inerease being made in the eviling price of