proceeding Judge Gesell dismissed the suit on October 20, 1976. Plaintiffs then filed their appeal. With the election of President Carter and the appointment of new national -security officials the then Chief of the Information and Privacy Section and -attorneys in the CIA agreed on the need for a re-evaluation of the position which had been taken by the persons responsible for national security determinations within the Carter Administration. In January or February of 1977 the Chief of the Information and Privacy Section orally requested the CIA to initiate such a review. The result of that review was the determination that the fact that CIA was involved in the Glomar Explorer Project could be publicly released consistent with national security requirements. I hope that the foregoing statement answers the Subcommittee's concerns. Inasmuch as this case is still in litigation, documents other than the extensive briefs and pleadings on the public record cannot be provided at this time. Mr. Paul Figley of our Information and Privacy Section, or I would be happy to discuss this matter further if you feel it necessary. Very truly yours, BARBARA ALLEN BABCOCK, Assistant Attorney General. Hon. GERHARD A. GESELL, DEPARTMENT OF JUSTICE, Washington, D.C., July 15, 1977. Judge, U.S. District Court for the District of Columbia, U.S. Courthouse, Washington, D.C. DEAR JUDGE GESELL: The Attorney General has asked me to look into the circumstances surrounding the Civil Division's handling of the case of Military Audit Project v. Turner. The Attorney General is concerned in view of Your Honor's comments regarding improper conduct of government counsel, particularly in connection with representations made to the Court regarding the government's position. It appears that government counsel, at the time this action was originally brought, urged that the fact of the involvement of the Central Intelligence Agency and/or the Department of Defense in the Glomar Explorer project could not be made known. The position urged upon the Court at that time was taken by the Department of Justice because the then Assistant to the President for National Security Affairs had determined that this course was warranted by national security considerations. I understand that the government's position at that time had been cleared by the National Security Council and was consistent with actions taken by President Ford in refusing to disclose the involvement of the CIA in what was then a story widely reported in the press. After the October 20, 1976, Order was entered dismissing the action, the plaintiff appealed. During the pendency of the appeal and in light of the passage of time, changing circumstances and the fact that a new Administration had taken office in the interim, the Chief of the Civil Division's Information and Privacy Section, early in 1977, requested the CIA to ascertain the views of the new Assistant to the President for National Security Affairs concerning the issue as to whether the fact of CIA's past involvement in the Glomar Explorer program still required protection from disclosure on national security grounds. After considering the matter, appropriate Executive Branch officials charged with responsibility for advising the President on national security matters determined that the disclosure at this time that the CIA had been involved in the Glomar program would not, in their judgment, damage the national security. That determination, of course, undercut the position previously asserted by the government that the fact of CIA involvement in the Glomar program could not be publicly disclosed. The altered position of those charged with national security matters prompted the Department of Justice to file the Motion to Remand in the Court of Appeals. I can appreciate the Court's concern any time counsel, and particularly counsel representing the government, make conflicting representations on the same issue before the courts. As I am sure you know, many of our efforts in the Department are directed toward preventing that problem from occurring. In this instance, however, it appears that the change in administrations and differing perceptions of our national security interests and needs are at the bottom of this unfortunate conflict in representations of government counsel. I am satisfied, after considering these circumstances, that there was no intention or effort on the part of government counsel to mislead the Court or to be anything less than candid about the government's position. I trust the foregoing will serve to satisfy the concerns Your Honor has expressed regarding this matter. I shall be happy to attempt any further clarification of this matter in any way that Your Honor might desire. Yours very truly, BARBARA ALLEN BABCOCK, [Exhibit 39c] ABOUREZK LETTER REQUESTING NATIONAL SECURITY COUNCIL EXPLANATION OF GLOMAR LITIGATION Mr. ZBIGNIEW BRZEZINSKI, November 16, 1977. Assistant to the President for National Security Affairs, National Security Council, Old Executive Office Building, Washington, D.C. DEAR MR. BRZEZINSKI: As part of its recent oversight hearings on the Freedom of Information Act, the Administrative Practice and Procedure Subcommittee requested an explanation from the CIA of its June 1977 shift in position in the Military Audit Project v. Turner FOIA case concerning CIA involvement in the Glomar Explorer project. The CIA submitted a response November 1st. It indicated that, while National Security Council officials originally concurred with the CIA's refusal in 1975 and 1976 to acknowledge CIA participation in the project, that no longer was the case under the new Administration. In an effort to obtain a clearer understanding of the government's unusual actions in this FOIA suit, the Subcommittee would like detailed information on the NSC's role in supporting the CIA's original stance, and in shifting that position last summer. In that regard, please forward to the Subcommittee an annotated chronology of NSC involvement in the case since the request was filed in April 1975. In addition, please provide copies of all documents relating to the suit, including any pertaining to the CIA's reversal of its position last June. On behalf of the Subcommittee, I would appreciate receiving the material by November 28th. If you have any questions about this request please contact me or have your staff contact Irene Margolis at the Subcommittee at 224-5617. Thank you for your cooperation in this matter. Sincerely, JAMES ABOUREZK, Chairman, Subcommittee on Administrative (Exhibit 39d) NSC EXPLANATION OF GLOMAR LITIGATION THE WHITE HOUSE, Washington, D.C., February, 3, 1978. Hon. JAMES ABOUREZK, DEAR SENATOR ABOUREZK: I have considered carefully your request for detailed information relating to the NSC's role in CIA's decisions concerning publie acknowledgment of its role in the Glomar Explorer Project. I have no problem in providing you with access to the documents which record the decisions of senior NSC officials on this subject but do not feel that it would be proper for your subcommittee to read internal NSC staff memoranda or documentation of the advice I was given by others on this subject. As a matter of principle, provision of this latter category of information could undermine the integrity of the NSC system and Executive Branch decisionmaking process. I am also concerned about the security of these documents which contain sensitive information regarding CIA operating procedures and other material which is classified on a restricted basis. I would, therefore, like to follow the procedure of having these materials made available to you through the Senate Select Committee on Intelligence which has the proper facilities for the storage and handling of such documents. Assistant to the President for National Security Affairs, National Security Council, Old Executive Office Building, Washington, D.C. DEAR MR. BRZEZINSKI: Your letter of February 3 arrived while I was away during the recess; hence my delay in responding. I appreciate your willingness to cooperate with the Subcommittee's inquiry relating to the NSC's role in CIA's decision concerning public acknowledgement of its role in the Glomar Explorer Project. I was surprised, however, at the procedure the NSC unilaterally undertook for transmitting the documents requested by the Subcommittee in connection with this inquiry. It was my understanding, from my conversation with your assistant, David Aaron, that the requested material would be delivered directly to me and that after reviewing the documents, I would inform you if anything further was required. At no time was there any discussion of providing the material through the Senate Select Committee on Intelligence. Indeed, I would have never agreed to such an arrangement. Let me stress that such an arrangement is totally unacceptable. The Subcommittee on Administrative Practice and Procedure has an independent authority and jurisdiction and I will not enter into any agreement which abrogates that responsibility. Furthermore, when the Select Committee was established, it was expressly acknowledged that: "Nothing in this resolution (S. Res. 400) shall be construed as prohibiting or otherwise restricting the authority of any other Committee to study and review any intelligence activity to the extent that such activity directly affects a matter otherwise within the jurisdiction of such Committee." S. Res. 400 s 3(c). It was never intended that the Select Committee would be a clearinghouse for classified material requested by any other Committee of the Senate, especially when the information although classified is not necessarily intelligence information. In any event, the responsibility for determining what matters are appropriately before a Congressional Committee or Subcommittee clearly rests with Congress and not the Executive branch. Accordingly, please have delivered to my office the material which was forwarded to the Senate Select Committee on Intelligence. I can assure you that appropriate arrangements can be made to handle the material, consistent with the sensitivity of the information. Sincerely, JAMES ABOUREZK, Chairman, Subcommittee on Administrative Practice and Procedure. [Exhibit 40] EXECUTIVE ORDER 11652 ON CLASSIFICATION (50 U.S.C. 401) EXECUTIVE ORDER NO. 11652 Mar. 8, 1972, 37 F.R. 5209, as amended by Ex. Ord. No. 11714, Apr. 24, 1973, 38 F.R. 10245; Ex. Ord. No. 11862, June 11, 1975, 40 F.R. 25197 CLASSIFICATION AND DECLASSIFICATION OF NATIONAL SECURITY INFORMATION AND MATERIAL The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act [section 552 of Title 5, Government Organization and Employees] and in the current public information policies of the executive branch. Within the Federal Government there is some official information and material which, because it bears directly on the effectiveness of our national defense and the conduct of our foreign relations, must be subject to some constraints for the security of our Nation and the safety of our people and our allies. To protect against actions hostile to the United States, of both an overt and covert nature, it is essential that such official information and material be given only limited dissemination. This official information or material, referred to as classified information or material in this order, is expressly exempted from public disclosure by Section 552(b)(1) of Title 5, United States Code [section 552(b)(1) of Title 5, Government Organization and Employees]. Wrongful disclosure of such information or material is recognized in the Federal Criminal Code as providing a basis for prosecution. To ensure that such information and material is protected, but only to the extent and for such period as is necessary, this order identifies the information to be protected, prescribes classification, downgrading, declassification and safeguarding procedures to be followed, and establishes a monitoring system to ensure its effectiveness. Now, therefore, by virtue of the authority vested in me by the Constitution and statutes of the United States, it is hereby ordered: Section 1. Security Classification Categories. Official information or material which requires protection against unauthorized disclosure in the interest of the national defense or foreign relations of the United States (hereinafter collectively termed "national security") shall be classified in one of three categories, namely "Top Secret," "Secret," or "Confidential," depending upon the degree of its significance to national security. No other categories shall be used to identify official information or material as requiring protection in the interest of national security, except as otherwise expressly provided by statute. These classification categories are defined as follows: (A) "Top Secret." "Top Secret" refers to that national security information or material which requires the highest degree of protection. The test for assigning "Top Secret" classification shall be whether its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security. Examples of "exceptionally grave damage" include armed hostilities against the United States or its allies; disruption of foreign relations vitally affecting the national security; the compromise of vital national defense plans or complex cryptologic and communications intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security. This classification shall be used with the utmost restraint. (B) "Secret." "Secret" refers to that national security information or material which requires a substantial degree of protection. The test for assigning "Secret" classification shall be whether its unauthorized disclosure could reasonably be expected to cause serious damage to the national security. Examples of "serious damage" include disruption of foreign relations significantly affecting the national security; significant impairment of a program or policy directly related to the national security; revelation of significant military plans or intelligence operations; and compromise of significant scientific or technological developments relating to national security. The classification "Secret" shall be sparingly used. (C) '"Confidential.” “Confidential" refers to that national security information or material which requires protection. The test for assigning "Confidential" classification shall be whether its unauthorized disclosure could reasonably be expected to cause damage to the national security. Sec. 2. Authority to Classify. The authority to originally classify information or material under this order shall be restricted solely to those offices within the executive branch which are concerned with matters of national security, and shall be limited to the minimum number absolutely required for efficient administration. Except as the context may otherwise indicate, the term "Department" as used in this order shall include agency or other governmental unit. (A) The authority to originally classify information or material under this order as "Top Secret" shall be exercised only by such officials as the President may designate in writing and by: (1) The heads of the Departments listed below; (2) Such of their senior principal deputies and assistants as the heads of such Departments may designate in writing; and (3) Such heads and senior principal deputies and assistants of major elements of such Departments, as the heads of such Departments may designate in writing. Such offices in the Executive Office of the President as the President may designate in writing. Central Intelligence Agency. Energy Research and Development Administration. Department of State. Department of the Treasury. Department of Defense. Department of the Army. Department of the Navy. Department of the Air Force. United States Arms Control and Disarmament Agency. Department of Justice. National Aeronautics and Space Administration. Agency for International Development. (B) The authority to originally classify information or material under this order as "Secret" shall be exercised only by: (1) Officials who have "Top Secret" classification authority; (2) Such subordinates as officials with "Top Secret" classification authority under (A) (1) and (2) above may designate in writing; and (3) The heads of the following named Departments and such senior principal deputies or assistants as they may designate in writing. Department of Transportation. Federal Communications Commission. Export-Import Bank of the United States. Department of Commerce. United States Civil Service Commission. United States Information Agency. General Services Administration. Department of Health, Education, and Welfare. Civil Aeronautics Board. Federal Maritime Commission. Federal Power Commission. National Science Foundation. Overseas Private Investment Corporation. Nuclear Regulatory Commission. (C) The authority to originally classify information or material under this order as "Confidential” may be exercised by officials who have "Top Secret” or “Secret” classification authority and such officials as they may designate in writing. (D) Any Department not referred to herein and any Department or unit established hereafter shall not have authority to originally classify information or material under this order, unless specifically authorized hereafter by an Executive order. Sec. 3. Authority to Downgrade and Declassify. The authority to downgrade and declassify national security information or material shall be exercised as follows: (A) Information or material may be downgraded or declassified by the official authorizing the original classification, by a successor in capacity or by a supervisory official of either. |