Today, Col. Charles W. Hammond, USAF, came to the offices of the Subcommittee with a copy of the DICOM, formally requested by a March 27, 1973, letter from Subcommittee Chairman William S. Moorhead to Col. George Dalferes, Office of the Secretary. He handed it to me without reference or comment as to the fact that chapters 11-18 had been removed from the manual.

Upon inquiry, Colonel Hammond stated that he believed that the decision to remove the last two sections of the manual had been made by the former Defense Intelligence Agency Director, General Bennett, when the manual was first requested and delivered for review to the Subcommittee office in Sepember 1971. Colonel Hammond further stated that he thought he was delivering to us today for inspection the same portions of the manual which had been delivered to the Subcommittee in September 1971.

I would like to be apprised of the precise reasons for the removal of these pages from the documents requested by the Subcommittee Chairman.

We are faced with the drafting of legislation to define the precise extent of information which can properly be withheld by the Executive from the legislative branch, and it would be extremely helpful if we can have a candid understanding of the policies and procedures, as well as the reasoning behind such policies and procedures, governing DoD's response to requests of this kind.

I would like to add that Colonel Hammond's forthright handling of this matter has met the highest standards, and I in no way mean to criticize any aspect of DoD's conduct thus far revealed.

A question arose during our review of the manual as to whether or not the manual or documents brought over by Mr. Rady Johnson in September 1971 included reference to the termination of clandestine agents. It is the recollection of Mr. Cornish of the Subcommittee staff that the copy of the manual reviewed in September 1971 contained reference to the terminology "termination with extreme prejudice," a term used by Mr. Osborn in his testimony before the Subcommittee.

It is therefore requested that you review your records and determine by the control number the precise copy of the document inspected in September 1971 to ascertain whether or not such language was included anywhere in this document.

Sincerely,

PAUL N. MCCLOSKEY, Jr.,
Member of Congress.

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., April 23, 1973.

Hon. PAUL N. MCCLOSKEY,

U.S. House of Representatives,
Washington, D.C.

DEAR MR. MCCLOSKEY: Your letter of April 5, 1973 to Vice Admiral de Poix, Director, Defense Intelligence Agency, concerning the DIA Manual No. 58-11 (DICOM) has been referred to me for reply.

In accordance with your request, the Department reviewed its records to determine whether the document shown to the Subcommittee Chairman on Foreign Operations and Government Information on September 23, 1971, is the same document that was furnished you on April 5, 1973. Because of the passage of time, it is no longer possible to trace the precise copy through the control number. However, we have no reason to believe that the document shown to Congressman Moorhead in 1971 was different from the document submitted to you. In both instances, the Department of Defense representatives who offered these documents for inspection had been informed that Parts III. and IV. (which cover Chapters 11-18) had been removed from the Manual. Furthermore, the two Subcommittee Staff members present when you reviewed the Manual were cognizant of the fact that those sections had been deleted when it was shown to Congressman Moorhead, as well as the reasons therefor.

Regarding the suggestion that the copy furnished in 1971 referred to "termination with extreme prejudice," it is believed that this term is attributable solely to K. Barton Osborn's testimony. The term is not used in the Manual furnished you, and does not appear in Parts III. and IV. of the Manual.

As for the reasons why Parts III. and IV. were not forwarded to the Committee, it is my understanding that Mr. Rady Johnson, then the Assistant to

the Secretary for Legislative Affairs, advised Congressman Moorhead at their meeting on September 23, 1971 that these portions of the Manual had been omitted because of their "extreme sensitivity," and that Congressman Moorhead accepted this response. In any event, we have no record that the Subcommittee Chairman made any further request following these discussions.

As to the sensitivity of the document, I am informed that Colonel Hammond has already discussed this with you. Upon reviewing the matters with respect to Congressman Moorhead's 1971 request, I find that the decision to delete Parts III. and IV. was made following consultation between Mr. Richard Helms, former Director of the Central Intelligence Agency, and Lieutenant General Bennett, then Director of the Defense Intelligence Agency, because of the sensivity of the material.

During my testimony before the House Subcommittee on Government Operations and Government Information in May 1972, I pointed out to the Committee that when it was necessary to provide to the Congress extremely sensitive material, it would be furnished solely to the Congressional Committee having primary jurisdiction over the matter. Your attention is invited to Part 8 of the Hearings, "U.S. Government Information Policies and Practices-Problems of Congress in Obtaining Information from the Executive Branch" before a Subcommittee of the Committee on Government Operations, House of Representatives.

Sincerely,

J. FRED BUZHARDT.

Mr. MCCLOSKEY. The first is a letter dated July 27 to the Director of Legislative Liaison of the Air Force from me asking for access to a study entitled "Corona Harvest," concerning the effect of the aerial bombardment of Southeast Asia, which was then published, I believe, in the Air Force Times.

A response from General Giraudo dated September 3 stated, "I regret that it would not be productive to provide access to the Corona Harvest papers.

Executive privilege was not claimed in that case, was it, sir?
Mr. BUZHARDT. No, sir.

Mr. MCCLOSKEY. On what basis, then, did General Giraudo refuse to make available to me materials on Corona Harvest?

Mr. BUZHARDT. Let me say, personally, I have not discussed this with General Giraudo.

Mr. MCCLOSKEY. Was this ever brought to your attention before this day?

Mr. BUZHARDT. Not to my knowledge, but let me address that if you will, and when you look at the bill, you will see it will bear out what I say.

Mr. MCCLOSKEY. Before you answer, let me try to make my question precise.

You have indicated that there is no problem in furnishing information to the Congress, because the President has said that you will furnish information unless executive privilege is claimed. I cite this example as a case where information was not furnished, and executive privilege was not claimed. We are somewhat interested in how we might remedy this practice.

Mr. BUZHARDT. Let me say, Mr. McCloskey, if I may address it. When the President speaks of furnishing information to the Congress, he is speaking of Congress as an entity, as a legal institution which acts through its committees, but not through its individual Members.

Your request was made as an individual Member for a classified document. I suspect that the answer would have been different had it come from a committee through its chairman.

Mr. MCCLOSKEY. In that situation the Defense Department would not hesitate to deny information to an individual Congressman, but if a committee were to request it

Mr. BUZHARDT. Let me say that I hope that we would hesitate in any case to deny information to an individual Congressman. We might hesitate, we might in the final analysis do it, but we would certainly hesitate.

Mr. MCCLOSKEY. Mr. Buzhardt, is there an internal document in the Defense Department that describes your internal procedures for handling requests from individual Congressmen?

Mr. BUZHARDT. No, sir. There is not.

Mr. MCCLOSKEY. There is no manual, no standard operating procedure?

Mr. BUZHARDT. No, sir. They are handled basically under the Freedom of Information Act, as implemented by DOD Directive 5400.7. However, the response to all congressional inquiries is also given by the procedural requirements of DOD Directive 5400.7.

Mr. MCCLOSKEY. On a case-by-case basis?

Mr. BUZHARDT. Yes, sir.

Mr. MCCLOSKEY. Let me go to the second example. I have a letter from myself dated May 19, 1971, and responded to by the Assistant Secretary of Defense, Mr. Dennis J. Doolin, on June 11, 1971, in which this statement is made: "I have reflected on your various requests for photographs of villages in Laos. It is neither feasible nor useful to go beyond these steps to furnish extended photography of Laos."

I had requested specific photographs. Would your answer to the first example raised be the same; namely, that because this was an individual Congressman asking for photographs, it was treated differently than a committee's request?

Mr. BUZHARDT. Again, I don't recall discussing the case with Mr. Doolin. I suspect it would, and I suspect the photographs were actually shown to committees.

Mr. MCCLOSKEY. The third example, Mr. Buzhardt, is a letter that I addressed to the head of the Defense Intelligence Agency on April 5, 1973, and the response came from you personally in this case, dated April 23, 1973.

Here we had requested the Defense Intelligence Manual No. 58-11, referred to as DICOM. In this case, you state in your letter that it was the decision of the Lieutenant General, then Director of DIA, and Mr. Richard Helms, former Director of the CIA, that because of the sensitivity of the third and fourth parts of that manual, you would furnish-previously this was to the full committee-to Mr. Moorhead, and subsequently to me, only the first two parts of that manual.

Here was a request by a chairman of a committee, and yet the decision was made to give the committee only roughly half of the manual that was requested. What was the basis for that, sir?

Mr. BUZHARDT. The basis is this, sir, as to the two portions which were not provided to the committee-they involved sources and methods of intelligence collection, and the authority to make the determination to disclose them to anyone-is vested by statute in the Director of the Central Intelligence. It is not ours to give. It's that simple. We don't have the authority to make that decision.

Mr. MCCLOSKEY. The men in charge of DIA, an Army lieutenant general, participated in the decision according to your letter.

Mr. BUZHARDT. He secured the determination from the Director of Central Intelligence, because he is the contact point.

Mr. MCCLOSKEY. You see, this example would seem to indicate that the executive branch, without claiming executive privilege, is still not adhering to the policy that Mr. Nixon laid down when he said that without the claim of executive privilege, the information will be furnished.

In your letter, you don't refer to any claim of executive privilege on the DICOM, do you?

Mr. BUZHARDT. NO.

Mr. MCCLOSKEY. So no executive privilege was claimed, was it?
Mr. BUZHARDT. No, sir.

Mr. MCCLOSKEY. Is it fair to say that the procedure established by the President was followed in that case?

Mr. BUZHARDT. Yes, sir.

We did not have control over the information. We can only provide to you, from the Department of Defense, that information that we control.

Mr. MCCLOSKEY. I understand that in this particular case, the joint decision was perhaps in the hands of the CIA; but at least the CIA then, in this particular case, did not follow the directive laid down by the President.

Did they?

Mr. BUZHARDT. I am not sure on that case. We have a problem here, and this is a very difficult problem. Let me say, where you have involved the statutory authority of the Director of Central Intelligence, I think, it would be better to discuss that in executive session at some point, and far better with him than with me.

But we do have a peculiar statute involved in this. I think it's an anomaly, that the protection of this type of information is not vested in the President of the United States, but in the Director of Central Intelligence by statute.

Mr. MCCLOSKEY. Mr. Buzhardt, let me go back to an earlier point. here, if I am not overstepping my bounds. The DICOM is a Defense Department manual, it is not a CIA manual. Is that not correct?

Mr. BUZHARDT. It is, but the information therein relates to sources and methods of intelligence collection, and the Director of Central Intelligence has a great deal of authority. In fact, he has the exclusive authority over this type of information even though it is handled by the Defense Department. He nevertheless has overriding authority.

Mr. MCCLOSKEY. I want to make very sure of your answer to this. Your testimony is that this Army manual, the DICOM 58-11, which is used in the Army Intelligence School to train Army officers, is not within your power to release to the Congress by law.

Is that your testimony?

Mr. BUZHARDT. Yes, that is my testimony.

Mr. MCCLOSKEY. What is the statute upon which you base that opinion, sir?

Mr. BUZHARDT. It's in the National Security Act of 1947 as amended. I forget the exact provision. I would be glad to supply it. That gives the Director of Central Intelligence the responsibility to protect information concerning the sources and methods of U.S. intelligence.

The Director of Central Intelligence has two jobs: one, as the Director of CIA; and the other as Director of Central Intelligence. As Director of Central Intelligence he has responsibilities and authorities across the board with reference to anybody in the Government that collects information.

One of my assistants here just handed me section 102, Mr. McCloskey.

Mr. MCCLOSKEY. Section 102 of the National Security Act?
Mr. BUZHARDT. Yes, of 1947, as amended.

Mr. MCCLOSKEY. I want to ask you this question then, without being unfair. Perhaps your assistants would want to help on this one.

Is there any other example to your knowledge in which information. within the control of the Department of Defense cannot be released except by the acquiescence of some other agency of Government?

Mr. BUZHARDT. Except in those cases where the President has claimed executive privilege, or a case which we have reason to believe that he might claim executive privilege if asked. In those cases, in accordance with his memorandum, we have to refer to it.

Mr. MCCLOSKEY. I think I would concur in the executive privilege question. But aside from executive privilege or information you might not want to release until such time as you have consulted with the President to determine if you were going to use executive privilege and other than this intelligence manual and matters related to the protection of the intelligence collection, are there any other examples, to your knowledge, in the law where defense information would be excluded from release at a proper request from a congressional committee because of the exercise of control by an agency other than the Department of Defense?

Mr. BUZHARDT. No, not to my knowledge. There might be occasions where we think it is a better part of judgment perhaps not to release it when requested, and we may go back to the committee, and reason with them or try to, or suggest an alternate means to provide the information.

Occasionally, we think because of the sensitivity of information it's much better to discuss with the committee a particular document. The committees have worked very well in that respect.

Mr. MCCLOSKEY. Thank you.

I think I have exceeded my time, Mr. Chairman, but I would like to establish one question if I may. These past examples in which individual Congressmen have requested information and have received letters such as the one from General Giraudo or Mr. Doolin-I will assume that if those questions are properly submitted by any appropriate congressional committee in the future, you see no problem at all with the Defense Department requesting full information and response