ARRB-CIA ISSUES: COVER
Originator: CIA
Document date: 09/19/1994
Document type: PAPER - TEXTUAL DOCUMENT

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104-10332-10024)

AGENCY- INTERNAL USE ONLY

PRIVILEGED ATTORNEY WORK PRODSCT

CHRG

Barny

OGC -94-52916

19 September 1994

MEMORANDUM FÖR:

FROM:

SUBJECT:

David P. Holmes

Deputy General Counsel

Robert J. Eatinger. Jr.

Assistant General

Counsel

Litigation Division, OGC

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. I. 102-526, 106 Stat. 3443-3458, reprirted at

44 U.S.C. $

2107 note. For ycur convenience, I have higrlighted

the pertinent provisions that will ald in responding to an

• regarding the statute's effect on the DCI's statutory

authority to protect intelligence sources and methods.

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 § 11(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 intelligence-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--

PRIVILEGED ATTORNEY WORK PRODUCT

AGENCY - INTERNAL USE ONLY

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AGENCY - INTERNAL USE ONLY

PRIVILEGED ATTORNEY WORK PROL-CT

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 rethod 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 natioral security of the

United States."

ARCA § 6(1) (Emphasis

added.)

4. The originating agency is to make the first review to

iderify information that meets the standards for postponement.

ARCA § 4(C) (2) (D) (1) .

For CIA, this effort is being undertaken

by the Historical Review Group, in consultation with the

Directorate of Operations and other appropriate Agency

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 reccids." ARCA §

7 (i) (1). Specifically, the "Review Board sha'l consider and

render decisions on

... whether an assassination record or

particular information in a 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

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) .

2

PRIVILEGED ATTORNEY WORK PRODUCT

AGENCY - INTERNAL USE ONLY

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AGENCY - INTERNAL USE ONLY

PRIVILEGED ATTORNEY WORK PRODUCT

SUBJECT:

DCI Sources and Methods Authority With Respect to JFK

Assassination Records

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.

Kat

Hense ot

Attachment

3

PRIVILEGED ATTORNEY WORK PRODUCT

AGENCY - INTERNAL

USE

ONLY

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SUBJECT:

DCI Sources and Methods Authority w/Respect

to JFK Assassination Records

OGC-94-52916

DCI/OGC/RJEatinger: 76105 (19 Sept 94)

Original

1

1

1

- Addressee

w/attach) hand delivered)

- OGC Registry (w/attach)

• Lit File

- RBB (OGC/ILJ)

- C/HRG (J. Pereira-404 Ames)

RJE - Soft File

(w/attach)

-

RJE - Signer

PDP

KK - fyi

PAS-fy1

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k1(10

Assassination Records Review Board

600 E Street NW • 2nd Floor • Washington, DC 20530

(202) 724-0088 • Fax: (202) 724-0457

March 1, 1996

CIA HAS NO OPJECTION TO

DECLASSIFICATION AND/OR

RELEASE OF CIA INFORMATION

IN THIS DOCUMENT

Mr. John Pereira

Director

Historical Review Group

Center for the Study of Intelligence

Central Intelligence Agency

Washington, D.C. 20505

Dear John:

A few months ago we made a 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 CIA 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 with a contemporaneous notification.

Sincerely,

Lione

David G. Marwell

Executive Director

BOARD MEMBERS: John R. Tunheim, Chair • Henry F. Graff • Kermit L. Hall • William L. Joyce • Anna K. Nelson

EXECUTIVE DIRECTOR: David G. Marwell

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CONFIDENTIAL

Assassination Records Review Board

Review Guidelines

for Information Relating to Official Cover

This document sets forth the review guidelines for use by the Assassination Records Review Board

("Board" or "ARRB") and the Central Intelligence Agency ("CIA" or "Agency") for public release of

certain information concerning the identity, scope, details, and specific mechanisms of official cover

(hereafter "official cover details"). These guidelines have been officially adopted by the Board to serve the

public interest in 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.

1. 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 Agency shall be

able to demonstrate that it has taken affirmative action to prevent the disclosure of such information in the

past and that release here would cause identifiable damage to the national security.

2. 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:

identification of the official cover provider,

specific locations used for official cover, and

identity, scope, details and mechanisms of any particular official cover

3. 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.

4. Moreover, 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 Agency having a higher standard of proof of damage to the national security.

5. For any information postponed pursuant to these Guidelines, the Agency agrees to provide a

summary or substitution which preserves the content and relevance of the postponed information.

Neither these guidelines nor the release of documents pursuant to these guidelines shall be deemed

to constitute an official Executive Branch acknowledgment of the identity, scope, details, and specific

mechanisms of official cover in other information disclosure law matters.

For the Assassination Records Review Board:

CONFIDENTIAL

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CONFIDENTIAL

SECRET

Example of proposed summary/substitution

Original:

Flynn recalls the following procedures

The

would request

Office would contact the CIA liaison officer, who would

grant clearance. A record of

security file.

for CIA employees,

The

The

would then

would probably be placed in the individual's

Summary/substitution:

(NB: Remaining original words in normal type; substituted language in bracketed bold italics)

Flynn recalls the following procedures for la 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

CONFIDENTIAL

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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 and 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 lout 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

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GUAn's DRAFT

2.

3.

DRAFT DRAFT DRAFECIAL COLLECTIONS

February 20, 199 ELEASE IN FULL

ARRB Staff Guldelines for Review of Records Involving Of @ial Cover

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.")

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

information in the pat and hafiase hero wores identials damagu to

national security.

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.orthe

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.

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.

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Central intelligence Agency

CIA SPECIAL COLLECTIONS

RELEASE IN FULL

2000

Washington, D. C. 20505

DRAFT

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.

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.

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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:

• 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 unclassified summary or substitution which

preserves the general content and relevance of the postponed

information.

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T. Jeremy Gunn,

Esquire

7. It is the intent of the Executive Branch that neither

the review guidelines nor the release of documents pursuant to

these guidelines shall be deemed to constitute an official

Executive Branch acknowledgment of the identity, scope, details,

and specific mechanisms of official cover in other information

disclosure law matters.

8.

It is the understanding of the Executive Branch that no

release under the authority of the JFK Act shall be

deemed to constitute official executive acknowledgment in other

information disclosure law matters unrelated to the Act.

Your acknowledgment of receipt and concurrence below would

be greatly appreciated.

Sincerely yours,

Lee S. Strickland

Chief, Information Review Group

Receipt and general agreement acknowledged

in my capacity as Executive Director,

Assassination Records

Review Board:

T. Jeremy Gunn

Date

3

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12/23/97

09:5j.

ALTIUN :

COPIES

M

INR

ATION

10:

s/S

LA

WIIS/

d sa

OZUZ 047 1558

STATE A

002/003

Assassination Records Review Board

600 E Street NW. • 2nd Floor • Washington, DC 20530

(202) 724-0088 • Fax: (202) 724-0457

9722779

December 18, 1997

The Honorable Madeleine K. Albright

Secretary of State

2201 C Street, NW

Washington, DC 20520

Dear Secretary Albright

In accordance with the President John F. Kennedy Assassination Records Collection Act

of 1992, I am writing to inform you that the Assassination Records Review Board has

made additional formal determinations concerning the public disclosure of State

Department 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

which determinations have been made and to discuss the determinations with the

Review Board staff.

Executive Director

Enclosure

CC:

Ms. Margaret Grafeld, Director, Office of Information Resources, Management

Programs and Services, Department of State

BOARD MEMBERS: John R. Tunheim, Chair • Henry F. Graff - Kermis L. Hall • William L. Joyce • Anna K. Nelson

EXECUTIVE DIRECTOR: T. Jeremy Gunn : DEPUTY DIREcTOR: Thomas E. Samoluk

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vJ.iy

STATE A

JATION

REC

Assassination Records Review Board

600 E Street NW • 2nd Floor • Washington, DC 20530

(202) 724-0088 • Fax: (202) 724-0457

EVISW

December 22, 1997

HAND DELIVERY

DEC 22 F=."

Mr. Strobe Talbott.

Deputy Secretary of State

Department of State

Washington, D.C. 20520

Dear Mr. Talbott:

I am writing in response to your December 17, 1997 security-classified letter to

Assassination Records Review Board Chairman John R. Tunheim. Inasmuch as the

Executive Director is the statutorily designated liaison of the Review Board to Federal

agencies, I am taking the liberty of responding to you directly....

Your letter identified State Department interests in several records that are scheduled

for an upcoming Review Board meeting. Although the Review Board is well aware of

the general interest that you describe in your letter, the Board has not received evidence (or

argument) from the State Department regarding the particular records at issue. Even if the

Board were to agree with the general propositions stated in your letter, it is not clear

that the opening of the documents at issue would release any information that is not

already effectively in the public domain.

The Review Board strongly urges the Department of State to provide evidence that is

specific to the documents at issue. I would be pleased to make arrangements for your

designated representative to review the specific records so that he or she might provide

evidence that would assist the Review Board in its decisions.

incerely

1. Jeremy

Executive Director

BOARO MEMBERS: John R. Tunheim, Chair • Honry F. Graff • Kermit L. Hall - William L. Joyce • Anna K. Nelson

EXECUTIVE DIRECTOR: T. Jeremy Gunn • DepuTY dIrector: Thomas E. Samoluk

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SECRET

CENTRAL INTELLIGENCE AGENCY

WASHINGTON, D.C. 20505

EXECUTIVE DIRECTOR

}

ER 97-57.38

26 November 1997

The Honorable John Raymond Tunheim

Chairman

Assassination Records

Review Board

600 E. Street N.W.

Washington, D.C.

Dear Judge Tunheim:

(C) I have just received informal word of the

decisions the JFK Board made at its 17 November 1997

meeting. Most of the Board's decisions--those relating to

the CIA presence in Warrenton, CIA's involvement in various

•non-governmental organizations, and the details of CIA

funding of the Cuban Revolutionary Council--are very

welcome. I must, however, urge the Board to reconsider its

decision to release documents in a form that would reveal

the Agency's use of

(C)

We stand behind the position that we have

presented in writing and in discussions with the Board on

previous occasions.

I would welcome an opportunity to have

a senior CIA representative meet with the Board at your

convenience to explain why the Agency considers this

information so sensitive and to answer any questions you may

have. Meanwhile, I offer the following summary of our .

fundamental concerns.

CL BY :

CL REASON:

DECL ON:

DRV FROM:

2217297

1.5

(c)

X1

COV 2-87

SECRET

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Judge Tunheim

clearly illustrates the purpose behind the Director's

statutory obligation to protect intelligence methods from

unnecessary and inappropriate disclosure.

(S)

(S)

continues to be an

important intelligence method. Its use is undiminished

since the 1960s, and it will remain essential for the

foreseeable future.

I urge the Board to reconsider its

recent decision insofar as it concerns the Agency's use of

In this regard, we will be

forwarding a more comprehensive memorandum addressing the

damage issue prior to the next Board meeting, and we would

also like to offer the Board the opportunity for a personal

appearance by a senior CIA representative should that be

appropriate.

Sincerely,

Daid Lo, Cang

2

SECRET

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SECRET

Judge Tunheim

Distribution: ER 97-5738

Orig - Addressee

1 - GC

1 - D/CSI

- ADDA

- ADDO

1

- C/DO/OCC

- Linda Cipriani (OGC)

1

1

- John Pereira

• (CSI)

- Barry Harrelson (CSI)

- EA/Chrono

1

- ER

SECRET

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