SECURITY CLASSIFICATION REFORM

THURSDAY, AUGUST 1, 1974

HOUSE OF REPRESENTATIVES,

FOREIGN OPERATIONS AND

GOVERNMENT INFORMATION SUBCOMMITTEE

OF THE COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2154, Rayburn House Office Building, Hon. William S. Moorhead (chairman of the subcommittee) presiding.

Present: Representatives William S. Moorhead, John E. Moss, Bella S. Abzug, John N. Erlenborn, Paul N. McCloskey, Gilbert Gude, Ralph S. Regula, and Alan Steelman.

Also present: William G. Phillips, staff director; Norman G. Cornish, deputy staff director; L. James Kronfeld, counsel; and Stephen M. Daniels, minority professional staff, Committee on Government Operations.

Mr. MOORHEAD. The Subcommittee on Foreign Operations and Government Information will please come to order.

This morning, we conclude our hearings on H.R. 12004, a bill to amend the Freedom of Information Act, to establish a statutory security classification system. As I explained in my statement beginning these hearings 3 weeks ago, this legislation is based on recommendations unanimously adopted by the House Government Operations Committee last year in our investigative report on the classification system (H. Rept. 93-221). That report was based on several years of our hearing studies and investigations of classification issues, which built upon investigative work in this field done by our subcommittee during the 1950's and 1960's, under the chairmanship of Mr. Moss.

We have already had testimony, during these present hearings, from executive agencies most concerned with current security classification procedures under Executive Order 11652. We have heard from officials of the Interagency Classification Review Committee, the implementing agency established under the most recent Executive order, and we have heard from Members of Congress, the General Accounting Office, and a number of expert outside witnesses. So we have already received much valuable testimony, and a number of excellent suggestions for strengthening, clarifying, and improving the provisions of H.R. 12004.

As I indicated earlier, this legislation was drafted as a preliminary discussion vehicle for consideration here, by the executive branch, and by other interested citizens. After these hearings have been concluded, it is my intention to direct the staff to redraft the bill to incorporate the many valuable suggestions made by the witnesses and others who

have studied it. I hope that this task will be completed in time for introduction of a new version of the bill early in the 94th Congress. I trust that this new bill can then be informally circulated among the same groups for additional study, and that this subcommittee will then be in a position to move forward promptly in the next Congress toward the achievement of our ultimate objective: the enactment of an efficient, workable security classification system to protect those vital national security secrets which are really valid, while at the same time providing vigorous, independent and regulatory supervision of the system.

Today, our first witness will be Mr. William E. Colby, Director of the Central Intelligence Agency. He will be followed by Mr. James C. Goodale, executive vice president of the New York Times. The next witness will be Mr. Arthur M. Cox, a writer who has had many years of experience in this field. Other witnesses today will be Mr. Albert H. Becker, Office of Research Administration, Georgia Institute of Technology; and Mr. Charles L. Marshall, director of the classification division of the Atomic Energy Commission. Several of the last group of witnesses will be on the afternoon schedule.

I ask the indulgence of both the witnesses and our audience in a procedure that we may utilize later this morning. If, after 11 o'clock, a sufficient number of subcommittee members should be here, I would propose to suspend these hearings, and continue with the markup of pending privacy legislation, on which there is a tight time schedule if we are to get it passed by this Congress. We will then resume hearings on H.R. 12004 early in the afternoon today, picking up with the witnesses testifying when we suspended.

Mr. Colby, if you will proceed, sir, we would be delighted to hear

you.

STATEMENT OF WILLIAM E. COLBY, DIRECTOR, CENTRAL INTELLIGENCE AGENCY; ACCOMPANIED BY JOHN WARNER, GENERAL COUNSEL; AND LYLE MILLER, DEPUTY LEGISLATIVE COUNSEL

Mr. COLBY. Thank you, Mr. Chairman.

Mr. Chairman, I welcome the opportunity to testify today on H.R. 12004, introduced by you and others, to replace with a statutory classification system the existing system established by Executive Order 11652, and to discuss the operations of this Executive order within. the Central Intelligence Agency.

Mr. MOORHEAD. Mr. Colby, just for a moment, I want to make a statement. This will be off the record.

[Discussion off the record.]

Ms. ABZUG [presiding]. Would you continue, please?

Mr. COLBY. Madame Chairman, at the outset, I want you to know that, while we in the intelligence profession do have some special security needs, we fully recognize that the bedrock of our system of government is an open society and an informed public.

In a report issued last year, your committee stated that:

there is an unquestioned need for Federal agencies to avoid the release or dissemination to the public of certain sensitive types of information, the safeguarding of which is truly vital to protecting the national defense and to main

tain necessary confidentiality of dealings between our country and foreign nations.

The necessity to safeguard certain truly vital foreign intelligence secrets has been recognized by the Congress in its direction to the Director of Central Intelligence in the National Security Act of 1947 to protect intelligence sources and methods from unauthorized disclosure.

There are special problems involved in protecting intelligence sources and methods which I believe bear directly upon H.R. 12004 and Executive Order 11652. These problems flow from the very nature. of intelligence information-its substance and the means by which it is obtained.

The flight characteristics of a foreign fighter plane, the accuracy and numbers of a foreign ballistic missile, or the plans and capabilities of a foreign country in the economic or political fields are examples of substantive intelligence information. Very often such intelligence information can be a benefit to this Nation only if our potential adversary is unaware that we have such knowledge. On this basis, such substantive intelligence information is deserving of protection as affecting our Nation's vital interests.

But inherent in the substantive information itself are clues to the means through which it was obtained-intelligence sources and methods. Unless these means are protected, countermeasures can be mounted to nullify or impair collection efforts. It was this concern, I believe, which led to the statutory directive that the Director of Central Intelligence is responsible for protecting intelligence sources and methods from unauthorized disclosure.

Clearly a secret agent operating abroad in a hostile climate must be protected, not only to enable him to continue to supply intelligence, but also because the freedom and lives of individuals may be at stake. MS. ABZUG. May I interrupt the witness, please? I would like to vield the Chair to the senior member, Mr. Moss, while your testimony is proceeding, sir.

Mr. Moss [presiding]. Thank you. I apologize for being late, but you may continue. I will catch up as we go along.

Mr. COLBY. Thank you, Mr. Chairman.

The exposure of an agent obviously ends his immediate usefulness. It may or may not expose his subagents and any networks for collecting information he may have established. Finally, it may affect our ability to obtain assistance from others. Credibility in protecting our sources is the sine qua non of the intelligence profession.

Foreign intelligence services and security agencies are also positive contributors to our intelligence and counterintelligence programs abroad, and continued cooperation often depends upon confidence that the existence of the relationship will be protected.

Revelation of methods of technical intelligence collection may result in countermeasures to mislead or obstruct methods of collection and render ineffective costly programs.

While a particular piece of intelligence information by itself may not be revealing of sensitive sources and methods, accumulation of bits of intelligence information may well eventually lead back to the sources or methods relied upon for its collection.

In view of these considerations, I believe Congress acted wisely when in the 1947 National Security Act it identified a focal point to assume the responsibility to protect against the unauthorized disclosure of sensitive intelligence sources and methods.

Recently I testified before the Intelligence Subcommittee of the House Armed Services Committee on H.R. 15845, which amends the charter of the Central Intelligence Agency in the National Security Act of 1947. One amendment in that bill would reinforce the charge in the original act by requiring the Director to develop appropriate plans, policies, and regulations for the protection of intelligence Sources and methods. In that testimony I pointed out that I do not believe the present statutes provide sufficient measures to enforce this responsibility, and that proposals are under consideration in the executive branch to remedy this weakness.

The Central Intelligence Agency is not a public information agency, but was established to provide our Government with information and assessments to assist in the formulation of policy decisions about developments abroad affecting the United States. Much of this material is necessarily classified, as it comes from sensitive intelligence sources. It is thus made available in classified form to the members of the executive branch concerned with these questions. Such material is also made available to the Congress in executive session to endeavor to assist the Congress in its role in decisionmaking under the American Constitution. To the extent feasible, moreover, the Agency's information is made available to the public, directly or indirectly, in a number of ways.

Where possible, the Agency identifies for public release information resulting from its efforts. A recent example was the China Atlas published in 1972 and an atlas on the Middle East published in 1973.

The Agency briefs appropriate committees of the Congress-the Foreign Affairs and Foreign Relations Committees, the Armed Services Committees and the Joint Committee on Atomic Energy-in executive session in order to provide the fruits of our Nation's intelligence investment. To the extent possible, such information is later cleared for publication. A recent example of this procedure was the detailed testimony on the economies of the Soviet Union and China provided to the Joint Economic Committee, which was published on July 19 after appropriate screening. We also fully brief the CIA oversight subcommittees of the Armed Services and Appropriations Committees on budget and operational matters.

We are completing a review of nearly 1,000 cubic feet of classified Office of Strategic Services records in the custody of the Archivist and over 90 percent of them are being declassified. Moreover, we have reviewed and declassified nearly 250 OSS films.

The Agency responds affirmatively whenever possible to requests for information under the Freedom of Information Act and Executive Order 11652. Of requests received and acted on in 1973, affirmative action was taken in 80 percent of the cases.

In our efforts to screen our information to decide what can be made available to the public, we must depend upon the training, background, and experience of professional intelligence officers to identify those

matters which might appear innocuous, but which could reveal to a foreign intelligence service our intelligence sources or methods.

With this background, I would now like to address myself to the provisions of H.R. 12004.

Very simply, H.R. 12004 would conflict severely with the responsibilities of the Director of Central Intelligence to protect intelligence sources and methods. Under the bill all secret and confidential information must be declassified in 2 and 1 years, respectively. A great deal of our intelligence product, even of our sources and methods, would not meet the standard under the language of the bill to be classified as top secret. All such information thus would be declassified in no more than 2 years. I would find it very difficult, in good conscience and in terms of practicality, to urge a foreign intelligence service or a strategically placed individual in a foreign government or a foreign country to cooperate with this Agency and to provide information in confidence if the law of this country required that such information be made available to the public 2 years later.

All top secret information would be declassified under the bill in 3 vears, unless it falls within one of several categories; one of which is information which would disclose intelligence sources and methods. But even this information could be declassified by the Classification Review Commission which the bill would establish. Moreover, the Commission could do so in the face of and notwithstanding a written detailed justification by the President himself "for the continuing safeguarding of such information based upon national defense interests of the United States of the highest importance." This would seem to raise constitutional questions, and it surely would impair my ability to protect intelligence sources and methods.

Under the bill, information may be classified only in the interest of "national defense." as contrasted with "national defense or foreign relations of the United States" as now provided by the Executive order. I believe it important that the bill be in terms which make it clear that the information which may be protected is not limited to strictly defense information.

The bill requires that the names and addresses of all persons authorized to classify must be furnished quarterly to the Classification Review Commission and, upon request, to any Member of Congress or the Comptroller General. This feature would hamper severely the operation of the intelligence-gathering function of this Agency, since it would serve to identify many employees whose duties and prospective duties require that their status as employees of CIA not be revealed. It would also be in conflict with the provision of the Central Intelligence Agency Act of 1949, which exempts the Agency from the provisions of any law which require publication or disclosure of certain information concerning Agency personnel.

The requirements for downgrading and declassifying existing information in the first and succeeding years after enactment would pose tremendous administrative burdens. The requirement to transfer to the Classification Review Commission information downgraded from top secret likewise would be administratively burdensome. Further, it would impinge on my responsibility to protect intelligence sources and methods.