December 20, 1974
Page 41697
RECOMMENDATIONS ON HANDLING OF CLASSIFIED MATERIALS
Mr. MUSKIE. Mr. President, during the next session of Congress, we expect to consider legislation which could reform the Federal espionage laws.
Mr. William G. Florence, a consultant on security classification matters and a former director of security for the Department of the Air Force, has provided the insights of many years experience in the handling of classified materials in a letter to the chairman of the Senate Judiciary Subcommittee on Criminal Laws and Procedures, Senator McCLELLAN.
Mr. Florence sent a copy of this letter to me and I believe that his analysis merits careful consideration.
I ask unanimous consent that his letter be printed in the RECORD.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
WASHINGTON, D.C.,
November 27,1974.
Hon. JOHN L. McCLELLAN,
Chairman,
Subcommittee on Criminal Laws and Procedures,
U.S. Senate Committee on the Judiciary,
Washington, D.C.
DEAR SENATOR McCLELLAN: I deeply appreciate the letter of October 15, 1974 that you and Senator Hruska sent me in transmitting a copy of the revised draft bill on reform of the Federal Criminal Code.
This reply to your letter was delayed until Congress completed action on H.R. 12471 to amend 5 USC 552, commonly known as the Freedom of Information Act. One of the changes to that Act nullified a proposal in the draft bill to criminalize the disclosure of what is termed "classified information."
Sections 1111, 1121-1125, and 1128 of the draft bill regarding sabotage, espionage, and related offenses require extensive revision in order (a) to serve national defense requirements and (b) to support the First Amendment right of free speech. Those provisions are substantially the same as the comparable sections of the existing S. 1400, except for improvement in section 1122 on disclosing "national defense information." That is the bill that was written by the Department of Justice for introduction in 1973.
The objections to S. 1400 and my recommendations for changes that could have made it acceptable to all freedom loving Americans were given to your Subcommittee when I testified May 9, 1974. My prepared statement regarding S. 1400 applies equally to the proposals which have been carried forward in this new draft bill. The statement begins on page 6910 of Part X of your Subcommittee's report of hearings on S. 1 and S. 1400. The following comments update that statement.
Section 1111.– Sabotage – Erroneously numbered 1011 in the draft:
Delete the item "classified military projects" in 1111 (a) (1) (C) (1).
The word "classified" has no practical meaning in the draft statute.
The fact that someone inserted this item in the proposed bill shows how completely many people can be deceived into believing that the mere existence of a so-called security classification designation on a project automatically proves the project to be of such great importance that nobody should ask about its identity or its value to the defense of this nation.
It would seem that any intent of your Subcommittee to provide the death penalty for sabotage, according to section 2401, would be coupled with firm insistence that the offense could be publicly explained in plain English as an evil warranting that punishment.
Additional comments about the outmoded military security classification system currently promulgated in Executive Order 11652 appear under section 1124.
Section 1121.– Espionage:
This section would replace 18 USC 793 (a)-(c) and 794 (a)-(b). But it would substitute some confusing language for clear provisions of law which have been interpreted by the Supreme Court and which have served the defense needs of this nation since 1917.
The proposed replacement of an intent or reason to believe that some information "is to be used" for an evil purpose with "knowing that . . . information may be used" for an evil purpose would change the thrust of existing law. A "may be" type of offense could not justify the death penalty that would be provided by section 2401 and is now provided in 18 USC 794 (a) and (b).
The proposed replacement of "injury of the United States" with "prejudice of the safety or interest of the United States" as the basis for prosecuting an accused would extend existing law beyond Constitutional limits.
My statement of 9 May 1974 contains recommendations for revising section 1121, including (a) continuation of the current court-tested and understandable term "information relating to the national defense" instead of the proposed new short-hand term "national defense information," (b) deletion of the proposal in (b) (1) (B) to define certain information rather than evil intent as being a basis for the death penalty or life imprisonment, and (c) continuation of law in 18 USC 794 (b) for an intent to communicate information to an enemy in time of war.
Section 1122.– Disclosing National Defense Information:
This section would replace the disclosure offenses of 18 USC 793 (d) and (e), which apply to persons lawfully having possession of specified things and information and persons having unauthorized possession of such specified things and information.
To assure continuation of effective law and keep it within Constitutional limits, 1122 (a) should be changed to read substantially as follows:
(a) Offense. A person is guilty of an offense if, knowing that information relating to the national defense may be used to the injury of the United States, or to the advantage of a foreign power, he communicates such information to a person who he knows is not entitled to receive it.
Comments under section 1121 above and those in my statement of 9 May 1974 regarding the proposed use of (a) "prejudice of the safety or interest of the United States" instead of "injury of the United States," (b) the short-hand term "national defense information" instead of the court-tested and understandable term "information relating to the national defense," and (c) the word "authorized" instead of "entitled" apply here.
Section 1123. – Mishandling National Defense Information:
This section is intended to combine (a) the offenses in 18 USC (d) and (e) regarding willful retention of information, (b) the offenses in 18 USC 793 (f) involving negligence, and (c) a new proposal to make it a criminal offense for a person, being in "authorized" possession or "authorized control" of so-called national defense information, to recklessly violate a duty imposed upon him by some statute, order, regulation or rule designed to safeguard such information.
To assure continuation of effective law and keep it within Constitutional limits, extensive revision of section 1123 substantially as recommended in my 9 May 1974 statement would be required.
It is emphasized that, among other essential changes, 1123 (a) (1) (D) should be eliminated entirely. Bureaucrats would be given authority to allege criminality on the part of millions of people who might handle an item of information in a manner different from some order, regulation or even a rule. This would include people working for civilian contractors as well as all other individuals in or out of the government who become subject to such order, regulation or rule.
It is of special importance to note that 1123 (a) (1) (D) and other subsections would criminalize individuals without any requirement whatsoever to show that an alleged violation of a procedural matter of other alleged offense could affect the national defense, or even prejudice the safety or interest of the United States.
Section 1124. – Disclosing Classified Information
This section and section 1124 of S. 1400 are substantially the same. The Department of Justice indicated to your Subcommittee that, as part of S. 1400, this section would simply combine the provisions of the following existing statutes regarding the disclosure of so-called classified information to any person "not authorized" to receive it: 18 USC 798, 50 USC 783 (b), and 42 USC 2274 and 2277.
However, that is not entirely factual. The truth about the relationship of those statutes to classified information and the difference between them and section 1124 is explained in my 1974 statement.
I suggest that for the reasons given in my previous statement:
(1) The existing provisions of 18 USC 798 regarding the unlawful disclosure of cryptographic information and communications intelligence "specifically designated by a United States Government agency for limited or restricted dissemination or distribution" should be continued as a separate section of the criminal code.
(2) The provisions of 50 USC 783(b) regarding disclosures by federal personnel to foreign agents and Communists of information designated by the President or an agency head for protection is no longer necessary to serve national defense needs. Under the new Freedom of Information Act amendments, the previous unchallengeable status of a "classified" designation ceased to exist. The offense involved actually is included in section 1122 on disclosing information relating to the national defense.
(3) The provisions of 42 USC 2274 and 2277 should remain unaffected as currently applicable to atomic energy "restricted data." If your Subcommittee determines that offenses involving disclosures of "restricted data" should be taken from the Atomic Energy Act and put in the espionage provisions of the criminal code, the definitions and related text in its entirety should be moved.
The fatal flaw of section 1124 is the assumption of its authors that the administrative placement and retention of a Top Secret, Secret or Confidential security classification marking on an item of information under procedures provided in Executive Order 11652 automatically gives that information a degree of importance that overrides our Constitutional right of free speech. That is a hoax, which was exposed in my statement of 9 May 1974.
The newly developed language in the October draft of section 1124 about (a) some government agency insuring that other government agencies "lawfully" classify information, and (b) some people in the Executive branch certifying that an item of information was "lawfully subject to classification" when it was disclosed is just so much rhetoric.
Under Executive Order 11652 there now exists the Interagency Classification Review Committee. It is represented by the Executive branch as having responsibility for insuring adherence to the classification procedures and restrictions in the Executive order. The committee's members are drawn from agencies of the Executive branch. They cannot possibly stop or change classification actions specified by heads of agencies.
As an indication of the false philosophy of secrecy that could be expected of Executive branch agencies in certifying an item of information "was lawfully subject to classification at the time of the offense," I submit the attached response of 29 August 1974 by the Department of Defense to a query from the House of Representatives Freedom of Information Committee as to whether the Confidential classification on some non-classified information was really authorized under Executive order 11652. (Attachment 1) You will note that DoD retained the classification marking on the information even though it is actually identified as being non-classified.
Of special significance to your Subcommittee is the response in Attachment 1 that was made to the query whether the Department of Defense could establish policy and procedures of such effectiveness as to limit the assignment of a security classification to information the disclosure of which should subject an individual to prosecution. The answer, in effect, was "no."
I also submit the following partial results of a study I am making of the application of the Executive order 11652 security classification system to industry and academic institutions. Based on interviews and inquiries of numerous organizations with about 2500 Government classified contracts totalling over $1.2 billion:
(1) Most contractual information now being classified could not qualify for secrecy under the "damage to national security" classification criteria of Executive Order 11652.
(2) Government people do not understand how unrealistic their classification requirements are for technical information.
(3) Exemption of classified documents from the Executive order's declassification schedule of 10-8-6 years results in perpetuating classifications. About 85% of classified contract information is exempted from declassification for 15 to 30 years.
Your Subcommittee should cease the effort to use a security classification marking system as a means of specifying an offense under law, especially since every classification marking assigned by the Executive branch has now become subject to legal challenge and judicial examination as to its validity in relation to requirements of national defense.
Section 1125. – Unlawfully Obtaining Classified Information:
This section is intended to carry forward the purpose of 50 USC 783(c). That statute now makes criminal an action by a foreign agent or a Communist to obtain or receive so-called classified information which federal personnel are prohibited from disclosing to them under 50 USC 783 (b).
The offense really is espionage, which is covered in section 1121. The purpose of providing for prosecution without challenging the validity of the security classification marking on an item of information has now been overtaken by the new amendments to the Freedom of Information Act.
Therefore, section 1125 should be eliminated.
Section 1128 – Definitions for Sub-chapter C:
My statement of 9 May 1974 about the objectionable definitions proposed in S. 1400 applies to the proposed definitions in this draft bill. Specifically, the suggested definition of "authorized," "classified information," "national defense information, "communicate," and "restricted area" should be deleted.
If the term "information" must be defined, I urge that the following, which reflects the dictionary definition plus many years of usage by the Department of Defense, would be most appropriate:
Information means knowledge which can be communicated by any means, including knowledge which can be obtained from a document or other thing.
The proposal to say that "information" includes "property" should be deleted.
Section 2401. – Death Sentence:
My final comment on this October 1974 draft of a new Federal Criminal Code is that:
(1) The phrase "danger to the national defense" should replace "danger to national security" in section 2401 (a) (1) (B), and
(2) The phrase "protection of the national defense" should replace "protection of the national security" in section 2402(b).
If the death sentence is to be imposed for an offense under sections involving treason, sabotage, or espionage, let us make clear that the defense of this nation is what would justify such punishment.
Sincerely,
WILLIAM G. FLORENCE.
OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE,
Washington, D.C.,
August 29, 1974.
Hon. WILLIAM S. MOORHEAD,
Chairman, Subcommittee on Foreign Operations and Government Information,
Committee on Government Operations,
House of Representatives,
Washington, D.C.
DEAR MR. CHAIRMAN: By letter, dated August 12, 1974, I was requested by the Subcommittee staff to furnish responses to 13 questions for inclusion in the hearing record for the hearings on H.R. 12004.
I am pleased to furnish herewith the information requested.
Please let me know if I can be of further assistance in this matter.
Sincerely,
D. O. COOKE,
Deputy Assistant Secretary of Defense.
Enclosure: Questions 5 and 12 are appended to this copy of the DOD response.
QUESTION NO. 5 AND DOD RESPONSE TO HOUSE OF REPRESENTATIVES FREEDOM OF INFORMATION COMMITTEE
Question 5: With reference to instructions in paragraph 2-314, DOD 5200.1-R, for classifying compilations of information:
A. May documents containing only non-classified information be marked with a classification?
B. If it is intended that a document must contain some information bearing a classification if the document is to be given a classification, why does the Department of Defense distribute under a Confidential marking the non-classified information in the "Technical Abstract Bulletin Indexes" that is published by the Defense Documentation Center, Defense Supply Agency?
[COPY APPENDED TO THIS DOD RESPONSE]
C. Why encumber DOD 5200.1-R with a paragraph that could be used as a basis for putting a classification marking on non-classified information such as is contained in the Defense Documentation Center Bulletin Number 74-15, 19 July 1974.
D. What is the basis in Executive Order 11652 for the Classification Notice on page i of DDC Bulletin 74-15 to authorize individuals, including those outside the Executive Branch, to judge whether a compilation of two or more items of non-classified information merits a security classification?
Answer: A. It is the general policy of the Department, as spelled out in paragraph 2-314, DOD Regulation 5200:1-R, that a compilation of unclassified items should not be classified. However, as indicated in the answer to Question 4, there are rare and unusual circumstances in which the necessary added factor is introduced which would warrant classification. In no case, however, may a compilation of official public releases be classified. Moreover, paragraph 4-203 requires that in those cases where classification is required to protect a compilation of information, an explanation of the basis for such classification will be included on the document or in its text.
B. As stated on page i of Defense Documentation Center Bulletin Number 74-15, 19 July 1974, . TAB is also classified because it has been determined that an aggregation of otherwise unclassified items of RDT&E information as presented in TAB would provide a foreign nation with an insight into the war potential or the war or defense plans or posture of the United States.
Therefore, the unlimited distribution of total unclassified DOD RDT&E efforts would greatly facilitate the intelligence collection efforts of nations whose interests are inimical to those of the United States. Moreover, while some of the reports contained in the TAB are not classified, many of these are marked to show that distribution is controlled.
C. The answer to this question is contained in answers provided previously in Question 4 and Question 5.A., above.
D. The classification of a compilation of unclassified information is a rare and unusual occurrence and can only be accomplished by an authorized classifying official.
In the case of the TAB, classification principles must be applied on a "common sense" basis and those persons without classification authority are bound by the provisions of paragraph 2-600, "Tentative Classification." See also response to Question 8. Section 10, Executive Order 11652, specifies that, "in an exceptional case when a person or Department not authorized to classify information originates information which is believed to require classification, such person or Department shall protect that information in the manner prescribed by this order. Such persons or Departments shall transmit the information forthwith, under appropriate safeguards, to the Department having primary interest in the subject matter with a request that a determination be made as to classification." The Regulations of this Department are consistent therewith.
TECHNICAL ABSTRACT BULLETIN INDEXES
CLASSIFICATION NOTICE
Although individual entries in TAB Indexes are unclassified, this bulletin in its entirety is classified confidential primarily because it has been determined that an organized aggregation of a large body of research and development information warrants protection in the interest of national security. Although individual entries may be extracted from it on an unclassified basis, the same classification principle should be applied on a "common sense" basis to accumulations of individual extracts prepared and/or published by users of TAB Indexes. (See Note below)
Two factors supported the decision to publish TAB Indexes in classified form:
a. Its comprehensiveness, considering the very large number of DOD RDT&E documents indexed and/or listed in it and the detailed information provided with respect to these documents.
b. Its wide dissemination which makes it difficult to assure that, in unclassified form, it would not fall into unfriendly hands.
Note: The same factors must be considered in judging whether compilations of extracts from TAB Indexes merit a security classification: the number of unclassified entries in a single compilation, and the extent to which the compilation is to be disseminated. If either or both is so limited as to provide assurance to the compiler that the total does not warrant classification, then such compilations need not normally be classified, particularly if the extracts are considered to be individually of a low order of security sensitivity.
QUESTION NO. 12 AND DOD RESPONSE TO HOUSE OF REPRESENTATIVES FREEDOM OF INFORMATION COMMITTEE
Question 12: In the course of the Department of Defense testimony, the view was expressed that the existence of a classification marking on an item of information was not enough to show that unauthorized disclosure of such information should be made a crime. The question arises whether the Department of Defense could establish policy and procedures of such effectiveness as to limit the assignment of classification to information the unauthorized disclosure of which should subject an individual to criminal prosecution? If so, what would be the general nature of the departmental directive?
Answer: Under the criminal statutes, as they now read, the Government must establish that the unauthorized disclosure could endanger the national security. Under the terms of 18 U.S.C. 793 the Government must show that such a disclosure was done under the circumstances in which the individual has reason to believe that the information could be used to the injury of the United States or to the advantage of a foreign power. The security classification marking is only one piece of evidence tending to show an administrative determination that the information, if disclosed in an unauthorized manner, would endanger the national security. But there is no way a departmental directive could predetermine that the unauthorized disclosure should subject an individual to criminal prosecution. While a court might give some weight to the security classification marking, it still would require the Government to prove beyond a reasonable doubt that all of the elements of the criminal statute have been satisfied.