Mr. PHILLIPS. I would like to correct what appears to be a misinterpretation of one of the provisions of H.R. 12004. On page 8 of your testimony in the last paragraph, you say that:

"If enactment of H.R. 12004 resulted in the recision of Executive Order 11652, as I assume it would"-and that is correct, of course"the protection of exemption one of the Freedom of Information Act would be gone."

The Freedom of Information Act which now provides for withholding of information subject to classification under the Executive order would be amended to substitute "statute" for "Executive order,' so that the same provisions would apply. It may not be clear from a cursory reading of the bill, but that is the clear intent.

So that even a document that was declassified would still be subject to additional withholding if it could be justified under the Freedom of Information Act under the (b) (1) exemption, just to clarify that one point.

Mr. COLBY. Thank you.

Mr. PHILLIPS. My final question has to do with the draft amendment to the National Security Act of 1947, which is circulating within the executive branch and which your agency was kind enough to furnish us for study prior to these hearings. I think this draft was originally circulated through OMB in January of 1974.

Have there been changes to this draft since that date?

We understand from testimony from the Justice Department and from the State Department that there have been some questions raised about certain provisions. There have been discussions with the Justice Department, for example. They recognize the nature of your problem and they are trying to work out some other language.

Could you give us a brief status report on this draft bill?

Mr. COLBY. This was a bill that we developed in the Agency because we felt we needed something. According to the rules of the executive branch, we sent it to the Office of Management and Budget for clearance to present it to the Congress. They did send it to the other departments. There were certain reactions, questions, objections to parts of it, and so forth.

We have discussed with the other departments and we have discussed with the Office of Management and Budget the provisions and the various objections. We have not yet come down to a firm recommendation. There are a couple of critical features to this bill that are a little bit novel, frankly. One of them is that this bill as I recommended it would only apply to people who are in the Government in some conscious way. It would not apply outside the Government, and there has been some misinterpretation of this in the press accounts. I might add, that somehow I would have the authority to get an injunction against newspapers.

Mr. PHILLIPS. The prior restraint problem?

Mr. COLBY. Yes. That would not be true, because in order to get an injunction there would have to be a violation of the subsection and the subsection applies only to the people who are in the Government. It could not apply to the media and I could not get an injunction against the media under this act. I do not think it is a good idea that I be able to get that. I think that the obligation should run only against the em

ployees and not against the press. I do not believe in any prior restraint of the press.

Mr. PHILLIPS. And you do not feel that the present provisions of section 1905 of title 18 provide enough protection for your particular problem?

Mr. COLBY. No, they do not because I do not think they apply to our kind of information, the intelligence sources and methods. It is a different area of information.

The second area I might point out that is also a change is the requirement that before any prosecution I have to be prepared to demonstrate to a judge in camera that there is a reasonable basis for the classification. It is an attempt to resolve the dilemma between exposing a lot of sensitive information in order to prosecute, which has led to the nonprosecution of certain matters in the past, and still meet the necessity that there be some judicial review of whether the material is properly classified or not. This was an attempt to resolve this dilemma in a fashion which would both protect the accused and protect the sensitive intelligence so that it would be exposed only to the judge and to the defense counsel and so forth.

Mr. PHILLIPS. Mr. Chairman, I will now yield to Mr. Kronfeld, our counsel.

Mr. KRONFELD. Mr. Colby, as I understand the language of your proposed legislation, the in camera review of the determination to classify would only reach the question of whether your determination was arbitrary or capricious. It would not be a standard of reasonable

ness.

Is that the way the language still reads?

Mr. COLBY. I think that was an attempt to say they were reasonable. Mr. KRONFELD. The reason I bring this up is that this proposed language could possibly conflict with the Freedom of Information Act, which allows in camera review and allows the court to use a standard of reasonableness.

Now, my broad question is, what happens in the case where a freedom-of-information request is made by an individual to the agency which is challenged and goes to court?"

Which standard would the court be using-arbitrary and capricious or reasonable?

Mr. COLBY. Well, I think the arbitrary and capricious was an attempt to express what reasonableness meant. But I think the key word that we are after is that there be a reasonable basis for the classification, but that the court not de novo decide whether it is a good thing or not to be classified. That gets into the whole problem of explaining why it is classified and all the nuances of the intelligence business, and it is an attempt to short circuit that and yet give a judicial review.

So I do not stand or fall on the standard of arbitrary or capricious at all. The reasonableness is the key word in there and the other was an attempt to define what that meant.

Mr. KRONFELD. Thank you.

Mr. PHILLIPS. I have no further questions, Mr. Chairman.

Mr. Moss. Mr. Cornish?

Mr. CORNISH. Thank you, Mr. Chairman.

Mr. Director, on March 27, 1973, the CIA informed the New York Times that it was undertaking the declassification review of the basic collection of Bay of Pigs documents held within the Agency. As I understand it, the newspaper has not received any other message from the CIA on that matter since the 27th of March 1973, and I wondered has that fallen between the cracks or are you just about finished with that?

I would think perhaps it would be reasonable to expect an interim report anyway.

Mr. COLBY. Well, there is one interim report. It does not help the record much, quite frankly, Mr. Cornish. But on July 26, 1973, a year ago, we told them-the New York Times-that we had not forgotten them and that we were working on it. This, as you can imagine, is an enormous chore. This is what I was referring to earlier, the amount of documentation on the Bay of Pigs, and the way this was phrased in this encompassing way really involves literally thousands of documents. The individual documents have to be looked at:

Does Mr. Martinez' name reveal a source or does it not?

This whole process has to be gone through, and it is an agonizing process, quite frankly, and we have not had that many people working on it, and that is about where we stand. We are still working on it.

Mr. CORNISH. Do you have any rough idea of how long it will take? Mr. COLBY. I am afraid I do not.

May I file a response to that for the record, because it is a legitimate question?

Mr. Moss. Without objection, the record will be held open at this point to receive the response.

[The information referred to follows:]

Status report on the declassification of CIA documents on the Bay of Pigs incident:

The request by the New York Times for the documents having to do with the Bay of Pigs incident was favorably acted upon by the CIA Information Review Committee, which directed that the material be reviewed for possible declassification under Executive Order 11652. Although these materials are voluminous and are dispersed in the custody of several different Agency offices, it has been directed that the review be expedited within available resources.

Mr. COLBY. I am frankly not trying to dodge something, but it is a terrible chore.

Mr. CORNISH. I am personally interested because I was in Cuba at the time of the Bay of Pigs. So I am waiting with bated breath. Mr. COLBY. We will try to keep your name out of it. [Laughter.] Mr. Moss. Further questions?

I would like to retain in the record at this point a reservation for the submission of any additional written questions to you, Mr. Colby and your associates, and a reservation for the responses to those questions. Mr. COLBY. It will be a pleasure, Mr. Chairman.

Mr. Moss. There being no further questions, we thank you very much for your appearance. We look forward to the material requested for this record in order that it can expedite the work of this committee. Thank you very much.

I believe that it might be advisable at this time for the committee to adjourn until 1:30, at which time we will proceed with the balance of the witnesses on the schedule and attempt to move it along so that

41-898 0-74 -26

we can conclude our work this afternoon. The committee will stand adjourned until 1:30, when we will convene again in this room.

[Whereupon, at 12:05 p.m., the subcommittee adjourned, to reconvene at 1:30 p.m., the same day.]

AFTERNOON SESSION

Mr. MCCLOSKEY [presiding]. Ladies and gentlemen, the committee will come to order, and under that rare occasion when a Republican will be chairing, I hope you will not be offended, Mr. Goodale. Mr. GOODALE. Not at all, Mr. Chairman.

Mr. MCCLOSKEY. Please proceed.

STATEMENT OF JAMES C. GOODALE, EXECUTIVE VICE PRESIDENT, THE NEW YORK TIMES; ACCOMPANIED BY FELIX BELAIR, JR., WASHINGTON STAFF CORRESPONDENT; AND ERIC M. FREEDMAN, THE NEW YORK TIMES LEGAL DEPARTMENT

Mr. GOODALE. Mr. Chairman, I am appearing here today with Felix Belair of our Washington Bureau. He has specific information on the requests we have made under E.O. 11652.

I am delighted to appear here today to present the views of the New York Times with respect to amendments that have been proposed to the Freedom of Information Act.

Mr. Harding F. Bancroft, vice chairman of the Times, has previously set forth before the Senate subcommittees on Intergovernmental Relations, Separation of Powers, and Administrative Practices and Procedure, the unhappy experiences of the Times as of April 1, 1973, under the Freedom of Information Act and under Executive Order 11652.

To avoid duplication, I would like, with the committee's permission, to have his remarks included in the record.

Executive Order 11652 became effective on June 1, 1972. The order called for the automatic declassification of most documents within no more than 10 years. Certain materials were exempted, but the public was given the right to request a mandatory review of these cases.

On June 4, 1972, the Times sent out the first of the 51 declassification requests we eventually directed to 5 Government agencies. All the material we requested was at least 10 years old, and in many cases much older than that. After months of persistent effort to surmount an ingeniously designed series of bureaucratic obstacles, we finally obtained action on 5 of our 51 requests, or just under 10 percent.

One of the ones which we did not obtain a satisfactory response on was the Bay of Pigs material referred to earlier this morning by Mr. Colby, and I understand he may wish to amend our record in that regard. And we, of course, will accept that. But the fact of the matter is we have still to receive the material.

I have here a complete chronology of those requests, which I should also like to make part of the record. They are described in greater detail in Mr. Bancroft's earlier statement.

Originally, the Times was hopeful that Executive Order 11652 would help to carry out President Nixon's announced intention to "lift

the veil of secrecy which now enshrouds altogether too many papers written by employees of the Federal establishment." We assigned one of our senior Washington reporters, and as I mentioned, he is here, Mr. Belair, on my left, to spend full time filing and pursuing requests. He summarized his experience the other day by saying, "It was so completely unproductive, and so darn expensive that there wasn't any point to it." He has long since returned to other duties, and we have, in his words, "dropped the whole thing as a fruitless exercise." As of today, we have not even received the courtesy of status reports on requests that have been pending for 18 months or more.

In addition, Mr. Bancroft's testimony pointed out several examples of our inability to obtain information under the Freedom of Information Act.

In short, our experience to the present day in obtaining declassification of documents-as well, in fact, in obtaining other information under the Freedom of Information Act-has been one of frustration and disappointment. To the extent the act was designed to lift the veil of secrecy described by President Nixon, we can only conclude that it has failed.

In our view, this experience has somber implications for a democratic society. Accordingly, we applaud the fact that Congress is considering amending the Freedom of Information Act in an effort to insure that it comes closer to accomplishing its original aims. In particular, we are pleased with the thrust of H.R. 12004. We believe that overclassification of information by the Government approaches the level of the scandalous. For example, it has recently become public knowledge that Secretary of Defense Laird told President Nixon in June of 1971 that 98 percent of the Pentagon Papers could have been declassified. Accordingly, we believe the concept of the appointment of a Classification Review Commission is a most useful one. And we are pleased that nothing proposed in the legislation attempts to restrict the press in any manner, either directly or indirectly, in its efforts to inform the public. For while we believe that a more rational system for the classification of documents is desirable, you will understand, of course, that as responsible publishers we must continue to make our own decisions what to print.

We do, however, have certain reservations with respect to H.R. 12004 which we should like to share with you. Our first concern is a matter of omission. The bill establishes a Classification Review Commission. Any congressional body or the Comptroller General may request the Commission to order the transmittal of classified material from an executive agency, and the Commission is given the power to enforce its order by subpena. Should the Commission turn down a request for the transmission of classified material, Congress and/or the Comptroller General are entitled to take the matter to court.

But private citizens, such as the Times, are given far less protection. It is true that the Commission-upon the vote of three of its nine members-is required to investigate citizens' allegations of improper classification and publish reports of its findings. But private citizens are not granted court review of adverse Commission decisions.