HW 55157 OGC-94-52916 19 September 1994 MEMORANDUM FOR: David P. Holmes Deputy General Counsel . FROM: Robert J..Eatinger. Jr. “Assistant General Counsel Litigation Division, OGC- SUBJECT: DCI Sources and Methods Authority With Respect to JFK Assassination Records 1. Per your request, I have attached a copy of the President John F. Kennedy Assassination Records Collection Act of 1992 (ARCA), Pub. L. 102-526, 106 Stat. 3443-2458, reprinted at 44 U.S.C. § 2107 note. For your convenience, I have higriignhced the pertinent provisions that will aid in resronding to an inquiry regarding the statute's effect on the DCI's statutory authority to protect intelligence sources and metheds. 2. The clear language and intent of the law is to supersede statutes that prohibit disclosure of information, except for some irrelevant subject areas, such as tax records. The statute provides that "it shall take precedence over any other law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit" the disclosure of information subject to the Act. ARCA § ll(a). This language, taken with the provisions discussed below which limit the intelligence sources and methods that may be protected and set a strict procedural scheme. by which information is to be reviewed under the ARCA, effectively supersedes the DCI's National Security Act authority with respect to intelligence sources and methods information subject to the ARCA. 3. Section 6 of the ARCA provides the grounds for which the release of information may be "postponed." The statute contemplates that all information will eventually be released. Indeed, it specifies that all information will be made available to the public no later than 25 years after the passage of the ARCA (which occurred in October 1992) unless the president certifies that continued postponement is necessary. ARCA § 4(g) (2) (D). With respect to jntelligence-related information, ARCA allows postponement if: "(1) the threat to ... intelligence operations ... is of such gravity that it outweighs the public interest, and such public disclosure would reveal-- —BRIVEDEGED ALPTORNEY WORK PRODUCT AGENCY INFERNAL -USE-ONDE— DoclId: 327404537 Page 2?
HW 55157 SUBJECT: DCI Sources and Methods Authority With Respect to JFK Assassination Records (A) an intelligence agent whose identity currently requires protection; (B) an intelligence source or method which is currently utilized, or reasonably expected to be utilized, by the United States Government and which has not been officially disclosed, the disclosure of which would interfere with the conduct of intelligence activities; or (C) any other matter currently relating to ... intelligence operations ... the disclosure of which. would demonstrably impair the national security of the United States." ARCA § 6(1) (Emphasis added.) 4. The originating agency is to make the first review to identify information that meets the standards for postponement. ARCA § 4(c)(2)(D) (i). For CIA, this effort is being undertaken by the Historical Review Group, in consultation with the Directorate of Operations and other appropriate Agency components. Information the originating agencies identify for postponement must be transmitted to the Review Board. ARCA § 4(c) (2) (E). The Review Board "shall consider and render decisions on a determination by a Government office to seek to postpone the disclosure of assassination reccrds." ARCA § 7(i) (1). Specifically, the "Review Board shail consider and render decisions on ... whether an assassination record or particular information ina record qualifies for postponement of disclosure under the Act." ARCA § 7(i) (2) (B). 5. If the Review Board determines to order the disclosure of information that the originating agency feit met the criteria for postponement, it "shall notify the head of the originating body of its determination and publish a copy of the determination in the Federal Register within 14 days after the determination is made." ARCA § 9(c) (4) (A). If the information contained in an assassination record is "obtained or developed solely within the executive branch, the President shall have the sole and nondelegable authority to require the disclosure or postponement of ... the information under the standards set forth in Section 6." ARCA § 9(d)(1) (emphasis added). The President's decision must be certified to the Review Board within 30 days of _,the Review Boards determination. Id. Records postponed by the “president must be re-reviewed every 5 years. ARCA § 9(d) (2). DoclId: 327404537 Page 3
SUBJECT: DCI Sources and Methods Authority With Respect to JFK Assassination Records 6. I would be happy to discuss this further if you so desire. You might also want to contact John Pereira (x30373) since he has met with some or all of the Review Board members. Attachment HW 55157 DBocld:32404537 Page 4
HW 55157 SUBJECT: DCI Sources and Methods Authority w/Respect to JFK Assassination Records OGC-94-52916 DCI/OGC/RJEatinger:76105 (19 Sept 94) Original - Addressee .w/attach) (hand delivered) - OGC Registry (w/ettack) - Lit File - RBB (OGC/ILD) - C/HRG (J.Péereira-404 Ames) RJE - Soft File (w/attach) - RJE - Signer - PDP - KK -fyi - PAS-fyi ee ee t DoclId: 3274045357 Page 5
Assassination Records Review Board 600 E Street NW -« 2nd Floor - Washington, DC 20530 (202] 724-0088 + Fax: (202) 724-0457 CIA HAS NO O2ECTION To a | DECLASSIFICATION ANDO March 1, 1996 RELEASE OF CIA INEGRMATION IN THIS D cA Mr. John Pereira OCUMENT Director Historical Review Group Center for the Study of Intelligence Central Intelligence Agency Washington, D.C. 20505 - Dear John: A few months ago we madea request to the Department of Defense for, inter alia,” “Any available MOUs or MOAs defining command responsibilities and lines of authority, responsibility and accountability when individuals of the Central Intelligence Agency serve under ‘military cover,’ i.e., are employed and operate for the CLA while wearing the uniform of the armed services. (Applicable period of interest here is 1956-64.)” _ This letter is our official notification to you that we have made the above-stated request. We understand that the Agency was advised of this request by the Department of Defense at the time the request was made. We do, however, apologize for our inadvertent error in not having provided you witha contemporaneous notification. Sincerely, ' David G. Marwell ' Executive Director Boaro Memeers: John RA. Tunheim, Chair « Henry F. Graff « Kermit L. Hall - William L. Joyce - Anna K. Nelson Executive Oirecror: David G. Marwell HW 55157 Docld: 324045357 Page 6
HW 55157 i. [ ER 97-4962 ’ Assassination Records Review Board 600 E Street NW - 2nd Floor - Washington, DC 20530 (202) 724-0088 + Fax: (202) 724-0457 Mel L 1 a December 18, 1997 aaa . The Honorable George Tenet a ca HAS NO CBJ; ECTION 1O Director of Central Intelligence CLASS! SEO ey A ANBIOR The Central Intelligence Agency OShEASE Fah rnd MATION 7s Dear Director Tenet: In accordance with the President John F. Kennedy Assassination Records Collection Act of 1992, Iam writing to inform you that the Assassination Records Review Board has made additional formal determinations concerning the public disclosure of CIA records at its meeting on December 15, 1997. Enclosed is a list of the determinations that the Review Board has made. These decisions were premised _on several factors, including the historical interest in the  __.. documents and the absence of evidence that the release of the information would cause harm to the United States or to any individual. You have seven days to appeal these decisions to the President. You are invited to send your representative to the Review Board to examine our copies of the documents for nations have been made and to discuss the determinations with my staff. Enclosure cc: Mr. John Pereira eal / eae ony ~ eytty ie! > wo] a a Boaro Memsers: Joha R. Tunheim, Chair - Heary F. Graff - Kermit L. Hall « William L. Joyce - Anna K. Nelson Executive Dirnecroa: T. Jeremy Gunn - Oeputy Oirector: Thomas E. Samoluk DoclIda: 327404537 Page fF
HW 55157 - Office would contact the CIA liaison officer, who would f grant clearance. A record of| would probably be placed in the individual’s | SEE REEE Example of proposed summary/substitution | Original: P| recalls the following procedures for CIA employ ees The would request ge security file. Summary/substitution: . (NE B: Remaining original words in normal type; substituted language in bracketed bold italics) calls the following procedures for /a specific provider of official cover to provide cover] for CIA employees. [One office of the official provider of cover] would request [certain documents from a second office of the official provider of cover]. [That second office] would contact the CIA liaison officer, who would [provide requested information]. [The second office at the cover provider would take certain administrative steps]. A record [of the requested information] would [be maintained by the official cover provider]. cc: Sent on 18 February 1998 at 07:25:54 AM DocId: 32404537 Page 9 .
HW 55157 URGENT FAX PLEASE HAND DELIVER to Peggy Grafeld, room 1512 Peggy, as I mentioned, the judge and jeremy came to visit our office director yesterday .... very pleasant ... and everybody said the right thing about “working together.” things continue to move forward quickly. | attached is the ARRB’s “review guidelines” received last night and our what will be our hand-written slight suggested modifications ... and ... most important ... our interpretive memo. our lawyers have reviewed &nd find them legally identical. THE BOTTOM LINE IS THAT THIS AGREEMENT PRESERVES THE SECRECT RE OFFICIAL COVER AND THERE WILL BE NO OFFICIAL ACKNOWLEDGEMENT OF ANY SPECIFIC COVER AS A RESULT OF A RELEASE OF EXECUTIVE BRANCH DOCUMENTS BY THE ARRB. let me know soonest your thoughts (out Friday COB is target)... especially if you want anything included in our memo (the review guidelines belong to them so the thought was suggest as few changes as possible AND put any clarifying language we want in our interpretive memo). lastly, as for the second “legal” memo for Calder/Kennedy Signature, we can also incorporate any changes but my sense is the staff and Board are fairly comfortable with it so it does not appear to be of overarching necessity to make changes. - thanks, ‘Lee Strickland Voice: (703) 613-1289 | URGENT FAX PLEASE HAND DELIVER to Peggy Grafeld, room 1512 DoclId: 324045357 Page 10
Gon n's Dear v DRAFT DRAFT-ORAE a , February 20, 1998 BA tAL, COLLECTIONS EASE Fay FULL i ARRB Staff Guidelines for Review.of Records Invotving @ffigial Cover j 1. Substitute language or a summary will be used for all postponements. The. substitutions will preserve the context and relevance of the information. (E.g., “official cover" or “location” or “details of cover arrangements.") . 2. For Congressional documents. Cover information will be released unless the information explains details of the scope of official cover or important details about the mechanisms of official cover that is not generally known to the public. Information shall not be released if the Executive Branch shall be able to . demonstrate that it has taken affirmative action to prevent.the disclostire of such information in the past and that release here would cause Identifiable damage to national security. 3. For Executive Branch documents and “derivative” documents. Information generally will be released except a. the substitute language “official cover" will be used for the actual official cover; , b. substitute language will be used in lieu of the details of official.cover.or the... specific locations of cover facilities: c. the cover status of certain high-profile individuals will be released when disclosure has previously been permitted by affirmative official acts of the Executive Branch of the US govemment; d. cover status of other individuals will be disclosed only to the extent that - they are important to the assassination story and they will be handled in a Way similar to other key issues on a case-by-case basis; and e. information disclosing that a cover arrangement was not employed shall be released unless the information reveals or would reasonably imply the existence of otherwise postponable information. 4. The Review Board shall continue to retain the final authority to make “formal determinations" within the meaning of the JFK Act. Although these Guidelines describe the approach the Board intends to follow, whenever a document Presents an issue that is not resolvable under these guidelines or to the extent that a document presents a difficult issue under these guidelines, the issue shall be brought to the Review Board's attention for its formal determination. HW 55157 DBocld:32404537 Page 11
CiA SPECIAL COLLECTIONS _ Central Intelligence Agency RELEASE LY PULL 2000 3 April 1998 T. Jeremy Gunn, Esquire Executive Director Assassination Records Review Board 600 E Street, NW Suite 207 ; Washington, D.C. 20530 Dear Mr. Gunn: Re: Release or Postponement of “Official Cover” Information This letter is intended to confirm our understanding of the recent “review guidelines” promulgated by the Assassination Records Review Board (“Board” or “ARRB”) for public release of certain information concerning the identity, scope, details, and specific mechanisms of official cover (hereafter “official cover details”). This understanding is based on the prefatory negotiations between our respective staffs and reflects the agreement of all concerned agencies and departments within the Executive Branch. Please note that we have included a classified addendum which presents examples of some of the following _ understandings. HW 55157 1. It is the intent of the staff of the Board and the federal agencies that these guidelines should serve the public interest by making the complete Story of the JFK assassination available while protecting from official disclosure information which would be harmful to the national security and is properly classified under Executive Order 12958. 2. Information in documents originated by the Congress (most often in the context of personal statements to committees or committee staffs) which sets forth official cover details shall be presumptively released unless it sets forth specific information not generally known to the public or the Executive Branch is able to demonstrate that it has taken affirmative action to prevent the disclosure of similar or identical information in another context in the past and that release here would cause identifiable damage to the national security. Docld:327404537 Page 12
T. Jeremy Gunn, Esquire 3. Information in documents originated by the Executive Branch (including those designated by the parties as quasi- executive branch documents which reflect extracts from the records of the Executive Branch) which sets forth official cover details shall be presumptively postponed to the extent that it concerns: o identity or identification of the official cover provider, ¢ specific locations used for official cover, and scope, details and mechanisms of any particular official cover. 4. Information in such documents which the Executive Branch has. taken an affirmative act to officially disclose or allow to be disclosed shall be presumed to be releasable; however, in no event shall extrinsic evidence by inference or deductive reasoning be deemed to qualify for this provision. 5. Further, information in such documents which relates to individuals who are considered important to the story of the assassination shall, consistent with past practice, be considered for release on an individual basis with the Executive Branch having a higher standard of proof of damage to the national security. 6. For any information postponed pursuant to the review guidelines, the concerned Executive Branch agency or department agrees to provide an unclassifikad summary or substitution which preserves the general content and relevance of the postponed information. HW 55157 DBocld:32404537 Page 13