i OPTIONAL FORM NO. 10 é $010—-106 $ . MAY 1962 EDITION GSA GEN. ‘REGNNO. 27 UNITED STATES GOVERNMENT , Assoc. Div M, d 1 - Mr. J. B. Adams © Be aD en \ emoranaum 1 - Mr. J. A, Mintz Asst Dis wy Admin, } . a) [ . Comp. Syst. — ro MR. W. R. WANNALL ype? pate: April 24, 1975 pues _é 1 -Mr. J.B. Hotis . sf FROM :MR, W. of tear L - Mr. W. R. Wannall eI Fae. CP nnn LS . 1 - Mr. W. O. Cregar Loboratory .. Plan. & Eval. sumect: SENSTUDY 75 SEK Act 6 (1) (B) cn a i engnes ogee an mee cae - oo Seba. This memorandum reports the receipt of a legal (/ Dict memorandum prepared Sl Office of the General ge Counsel, Central Intelligence Agency, entitled "Authority of : Congress to Release Classified Data."' Copies of this legal {J}, memorandum have been furnished to Mr. Anthonin Scalia, Assistant Attorney General, and Mr. James A. Wilderotter, Associate Counsel to the President. Memorandum Cregar to W. R. Wannall dated 4/14/75 discussed an article contained in the 4/10/%5 edition of "The Washington Post" wherein Senator Frank Church, Chairman of the Senate Select Committee, stated he reserved the right to make public any documents the Committee received. This memorandum also noted that Mr. James Wilderotter, Associate Counsel to the President, advised that The White House was preparing a letter to Senator Church recognizing that Congress can, at its discretion, declassify material it receives, but strongly urging that such declassification action not be taken unilaterally by the Senate Select Committee without approval of the agency originating the information. ae As an aid to the preparation of such a letter, the Office of CIA's General Counsel has prepared a paper entithed "Authority of Congress to Release Classified Data." Copy attached. we It was made available to all members of the Ad Hoc Coordinating < y/ Group for Congressional Review of the Intelligence Committee for (5° information and any comments recipients desired to make.,. —, ACTION: For information. _ Ap ReGrldl b2 -/ [G6 BIS Enclosure 44 MAY 15 1975 0, of) 62-116395 AX Ve we gs WOC:ekw (6) $s jo rometr "83 Salvo tas pesolem, Fe FH eee os iF regates no Serine OO8MES + ga MAY 27 is7 Sh : HW 55075 Docld:329895352 Page ? . t - |
ey - DIRECTOR Qe INTELLIGENCE . @ ‘ “ rn Ad Hoe Staff 17 April 1975 MEMORANDUM FOR: Members of the USIB Ad Hoc Coordinating Group This is being furnished you at - : ; Dr. Clarke's request. = . a Harriett D. Mowitt | Executive Secretary Attachment 2 6B AaNY US . : ; apa HW 55075 Docld:32989532 Page 3
MEMORANDUM FOR: Antonin g . : * ‘ . Assistant™ 4 ‘Attached is a hurriedly done legal memorandum entitled "Authority of Congress to Release rttorney General Office of Legal Counsel Classified Data." I would welcome your comments on this so that a finished document could be made available to the variou VNO. Jqy REPLACES FORM 10-101 G54 WHICH MAY BE yseo. . MEMORANDUM FOR: “Attached i isa hurriedly done legal ‘memorandum entitled "Authority of ‘Congress to Release Classified Data." wit ., would welcome your comments on .* : ‘: this so that a finished document - fo . could be made available t . | :agencies concerned.: °,. NO. 10] REPLACES FORM 10-103 4 WHICH MAY B£ USED. . @& . soe ’ . , vs . . . far AW 53075" ‘DocId: 32989532 gengies concerned, A ae ere me ET Oe oa TRIN RCRNRERE oT eg eS J ames A, Wilderotter, Esq.. tte . Associate Counsel to the ° President. - (47d (472
il Maxch 1975 FFINDL/L aun SarMeOR nenmines eomeanee | . oo ; . ae ee EES Cos a MEMORANDUM FOR: General Counsel a Das Desde “Sree Ae e SUBJECT — ' :.Authority of Congress to Release Classified Data . 1, Ihave found no express authority for Congress to publicly release - information classified by the executive branch pursuant to an Executive ‘order issued by the President. Moreover, on a number of occasions Congress _ ' | has mandated that matters pertaining to national Gefense or foreign policy be kept secret. . So _ Dot rn a ~Congress has made it a crime for one lawfully having possession, _‘access or control of documents relating to national defense or infor- mation relating to the national defense which the possessor has _ reason to believe could be used to the injury of the United States . or to the advantage of any foreign nation to communicate, deliver, . or transmit same to any person not entitléd to receive it. 18 ~US.CA, 793¢d), - an ~-Congress has made it a crime to , disclose to an “unauthorized per- _ son or publish any classified information obtained by the processes of communications intelligence. 18 U.S.C.A,. 798(a). ', =-Congress has made it a crime to photograph or sketch vital military or naval installations or equipment requiring protection against gen- ' eral dissemination of information. 18 U.S.C.A. 795. Itis also a” . crime to publish or disseminate photographs, maps, or drawings of . such defense installations without first obtaining permission of the: ) Sommanding ¢ officer or higher authority. 18 U. S.C As 797... uo --Congress, in order to prevent public disclosure of certain activities > has given various officials the power to keep confidential certain funds expended for national security or foreign relations purposes. Such authority is given, for example, to the President (22 U.S.C.A, 2364), to the Secretary of State (31 U.S.C.A, 107), and to the Director of ' Central Intelligence (50 U.S.C.A, 403j). ss - ~ | SOTS . Dold :32989532...Page- 5... yen
. we ve ar - . " . 4 * . > . . : é . eraky ne . . : 4 ee oS ‘ . -~Congress has provided that meetings of the Senate Committee on the Budget may be closed to the public if it is determined by a record vote of a majority of the members that the matter to be discussed a will disclose matters necessary to be kept secret in the _. interest of national defense or the confidential conduct of - ' the foreign relations of the United States. 2U.S.C.A, 190a-3, , an ~-Congress, after requiring that the Secretary of State transmit forth- | with to the Congress the text of any international agreement, other than a treaty, to which the United States‘is a party, goes on. to Pro- ‘ vide that . : ee . any such 1 agreement the immediate public disclosure of which would, in the opinion of the President, be prsj- ‘udicial to the national security of the United States shall not be so transmitted to the Congress but shall be trans- mitted to the Committee on Foreign Relations of the Senate ‘and the Committee on Foreign Affairs of the House of Rep- resentatives under an appropriate injunction of secrecy to _ be removed only upon due notice from the President. “ LUS.CA, 1l2b. ; : ; ~-Finally, Congress, in enacting the F veedom of Inforimation Act, a expressly exempted from disclosuré matters which are mo specifically authorized under criteria established ~ by an Executive ‘order to be kept secret in the interest ' | of national defense or foreign policy. 5 Us S.C “Ay 2 (5520) (1). ae 2. Despite this apparent lack of authority to release classified data and the existence of the above-mentioned statutes, Congress is constitutionally immunized, at least in part, against any consequences flowing from release and disclosure of classified information, Article I, § 6 of the Constitution ' States in respect to Senators and Representatives that: ‘ . ve for any Speech or Debate in ‘either House, they shall not be questioned in any other Place. 55075 Docld:32989532 Page 6 eet
3, A long line of Supreme Court cases, beginning with Kilbourn v. ay hompson, 103 U.S, 168 (9D), has held that the privilege or immunity : ¥elating to speech or debate should be given a broad and liberal construc- Hen. In Kilbourn the court stated: , ” It would be a narrow view of the Constitutional provision ' to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reporis . ‘presented in that body by its committees, to resolutions bens offered, which, though in writing, must be reproduced “in speech, and to the act of voting.... In short, to things generally done in a session of the House by one of its members in relation to the business before it. (At P . 204,) . ay The court, moreover, ‘has resisted erguments that an unworthy “purpose should destroy the privilege. In Tenney v. Brandhove, 341 U.S. 367 the court reaffirmed its earlier holding in Fleicher v. Peck, 6 Cranch _ 8 Q810), stating: " , . «that it was not consonant with our scheme of govern- ne ment for a court to inquire into the motives of legislators, Se " has remained unquestioned, (Atp Pp. 377. ) ‘Phe distance to which the court was 5 willing to go to 5 uphold this principle Was seen in United States v. Johnson, 383 U.S. 169 (1966). In that case ‘a former Congressman was convicted for conspiracy to defraud the U.S., in part on evidence that, in pursuance of a conspiracy designed to give assistance to certain savings and loan associations which had been indicted -- on mail fraud charges, he was paid to give a speech on the floor of the House. ’ Phe Supreme Court granted a new trial holding that a prosecution which draws in question the legislative acts of the defendant member of Congress ‘er his motives for performing them "necessarily contravenes the Speech or Debate Clause." (At P. 185. >... . be ee teeta 5, The court addressed the issue of classified information ‘ in Gravel Vv. ‘United States, 408 U.S. 606 (1972), a case which arose when Senator Gravel, Ghairman of t of the Subcommittee on Buildings and Grounds of the Senate Public - Works Committee, convened a night meeting of the Subcommittee and there read extensively from a copy of the Pentagon Papers which bore a Defense security classification of Top Secret - Sensitive. He then placed the entire 47 volumes of the study in the public record. Senator Gravel claimed that - Article I, section 6 protected him from criminal or civil liability and from ad S5Ts— “potdd:32969532-—Page: 1 era os entrant hemes ie an tear ween ne mene tenge Sapper
questioning elsewhere than in the Senate, with respect to the events occur- ‘ring at the Subcommittee hearing at which the Pentagon Papers were intro- duced into the public record. The court stated: u_,./T/o us this claim is incontrovertible," (Atp, 615, a” - “ 6, The court further noted that: The Speech or Debate Clause was designated to assure *- a co-equal branch of the government wide freedom of '. speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects ‘Members against prosecutions that directly impinge * upon or threaten the legislative process. We have no ‘doubt that Senator Gravel may not be made to answer-- either in terms of questions or in terms of defending '‘ himself from prosecution—-for the events that occurred at the subcommittee meeting. (Atp, 616. a. e, Fr rom the above, together with the positive L phrasing ¢ of Article 1, 5 6 of the Constitution, it would appear that any Member may make any state- ment he desires on the floor of the Congress or.in one of its committees. Such - _ Statement shall be absolutely privileged, notwithstanding that it was based on information secured from classified Central Intelligence Agency material either furnished the Member in confidence or containing any restrictive ‘notice as to use or dissemination. This privilege would operate if the Member “were to read the information verbatim into the record on the floor or into the record of hearings before a congressional committee. It would still be privileged when it appeared, verbatim, in the Congressional Record or in ' the published hearings of a congressional committee, The only sanction, ‘apart from the individual conscience and sense of responsibility of the Member, "would have to come from Congress itself, which has the power to discipline any Representative or Senator who improperly disclosed classified information. _ 8, One additional wrinkle might be noted, Although Congressmen would be immune from liability for introducing classified information into a committee report and immune from liability for ordering it printed and ‘disseminated to the public at large, the Public Printer and the Superintendent of Documents may not be immune from suit for printing and disseminating such reports to the public. The court examined this question in Doe v. McMillan, 412 U.S, 306(1973), a case in which petitioners claiméd that a report issued by the House Committee on the District of Columbia, containing 27 e eo Teena tahtheas nts et heen een aromerees perremecanmrene hirer ettrreeeupaeee: eee manatee rere ont any nevevemeytonnfnenateontn sn ennarane eece ey Dockd: 32989539 Page a ; . oot . : ee - a
. documents relating to disciplinary problems of certain specifically named _ students, violated statutory, constitutional and common-law rights to pri- 7 vacy. The Supreme Court refused to determine whether dissemination to the public would serve the important legislative function -of informing the public concerning matters pending before Congress for the purpose of _ holding Members of Congress liable, However, it remanded the case to _ the Court of Appeals, in part to undertake just such a review in order to - determine whether the Public Printer and the Super mien dent of Documents, ; who were without blanket immunity, could be held liable. : 9. The discussion thus far has dealt only with congressional immunity _for releasing classified information in Congress, No such immunity exists .- in the case of disclosures made by congressmen outside of Congress. Thus, . in.Long v, Ansel, 69 F, 2d 386 (Ct. App., D.C, 1934), affd. 293 U.S. 76 — (1934), and in McGovern v. Martz, 182 F, Supp. 343 (us Dist. Ct., D.Cy 1960) it was held that if a Senator or Representative is alleged to have com- - 1... mitted libel by republishing and disseminating remarks made in the Congress, 7 Noun such republication and dissemination is not within the Speech or Debate “2°.” privilege even if such privilege would have been applicable to the original _ publication of the remarks, Again, in Gravel v. United States, 408 U.S. 606 . (1972), and in Doe v. McMillan, 412 U.S. ‘S. 306 (1973) the the court noted that the Speech or Debate Clause does not protect "4 private republication of documents introduced and made public at a committee hearing, alt though the hearing was unquestionably part of the legislative process. " an 10, From the above it is apparent that a Member j is not privileged to circulate CIA documents to his constituents, to the press, or by reading to a meeting or on radio or television. Such action could well make the member liable for prosecution under the espionage laws, but in any event would expose him to the same liability for these actions as any other citizen, As @ practical matter, however, the prosecution of a Member for unauthorized disclosure of classified CIA material, or r disciplinary action ‘by Congress - 8 | itself, is. very unlikely. SE . -EDMUND COHEN . Office of General Counsel Serhan cere cee sgnieertne ee fi “S807S —DoETT 32989332" ~page-9-~— ssteliaddadaiadamenteatammietenetentaememabeeere eee
Mr. J. B. Adams DATE: May 2, 1975 Matte Ident. \ Re 6 “« “Ag Inspection —___. 4 FROM : Tegal counséixii" # oP gn rod oS 2 MAT TON Saf te LS, é ‘OO aL a 13 ri A Pen ie -{ SUBJECT: ( SENSTUDY 75 . capri “0 wee: Inve TO . OPTIONAL FORM NO. 10 . 5010-106 ® MAY 1962 EDITION » GSA GEN. REG. NO. 27 . UNITED STATES . ee ‘and procedures for the captioned Committee. The rules cover Enclosure RE {(9 £65 ie -l.- Mr. Adams ie 6100 ya 2 1 - Mr. Wannall ENCEOSURE 4 1 - Mr. Mintz 6 MAY 20 1975 L —- Mr. Hotis 1 - Mr. Daly —_—_Nn 1 — Mr. Cregar Memorandum Ext. Affairs _— nal _ Telephone Rm. — Director Sec'y __ The April 29, 1975, Congressional Record — Senate, pages S 7054 through and including S 7056, sets forth rules such topics as the convening of meetings, meeting procedures, news media coverage, investigations, subpoenas, procedures related to the taking of testimony, procedures for handling classified or sensitive material, preparation for committee meetings, staff, and reporting of measures or recommendations. The key sections of these rules are subpoenas, investi- gations, and procedures related to taking of ‘testimony. Concerning the issue of subpoenas, subpoenas may be issued by the Chairman or any other member designated by him with the consultation of the Vice Chairman. Procedures relating to the taking of testimony provide that testimony shall be given under oath or affirmation. It a) also provid that a witness may be accompanied by counsel. | . Witnesses may also request that there be no news media coverage” of their testimony. Witnesses will also be given the opportunity of furnishing a statement prior to, and/or at the conclusion of his or her testimony. With regard to inspection and correction of testimony, witnesses will be allowed a reasonable opportunity to inspect their testimony, and corrections are permissible, but must be made in writing within five days of the availability of the transcript containing their testimony. Names of witnesses cannot be made public prior to their testimony unless authorized by the Chairman. Contempt procedures as set forth, require that after notice to all members of the Committee, and the affected person has had the opportunity to state in writing or in 7b a wh be |W (