# Opposition Brief — United States v. Weatherhead > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0280%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 1063 ## Text tik . , ee eee =, ~ ° ata peat os oe : ~~ et a St - > : ~ ee ae ~ ak ete i, ae . - .2 Pr. 4° - 3 ee Vm ae Ca * ” er * ae oh Nas #4 " * "gy, R ( ' “a : pe ¢, Ag. i OF CERTIORARI “ ~? be CHARLES ANprew G , D.C, 20005 .: > -Washin (202) 220-9600 - * A; UNITED STATES AND UNITED STAT oe ¥e : 4 Aer its : w Aisha: ait 1a | ppeals ,WRIT Coorsn, Carvin & RosentHat, PLLC oe of the United States nit ‘ AMERIC , ay 4 - ; No : = q +e oS A,” aay rn : of For’ A Writ Of Certiorari . To The United States Coutt*Of A For The Ninth Circuit 4 FF ON TO PETITION ott : 7 ak: . ss Bor ° *- 4 * . 3 *> GRR ERI ONES ead ~ ee es ' “ atid — UNITED STATES pe Supre DEPARTMENT. OF i ; a i, ef * > } EES, . : 4 ly ERE ¥ . OPPOSITI 5’ PY ‘at HH ef > ¥! a ory o.% a , . Pa “en s F 4 x or 5 = a . . ew D> le - - . Pas es oF ~ ~ . " SP a a a ~ a‘, . : > * « a A *. m% 2 Re F Po y® 7 . ‘. a atten ao. ba . ’ x ibs > ili . a ee “by * oo wo > ee ie “x S th Bet Lt. tai” wae any P-2F ».-9, “~ eo. P ~ . “= o- , . ma. ° ' rp ‘o. i¢e = - Fs! po es Se ° AS #. ao, x -3* ' : a a wr In addition, the First Amendment dictates that prelim- inary hearings in criminal cases are presumptively open to the public. Press-Enterprise Co. v. Superior Court, 464 US. 501 (1984). As this Court has noted, public access plays a significant positive role in the functioning of preliminary criminal proceedings, by “enhancling] both the basic fair- ness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Id. at 508. This principle applies with equal force to extradition hear- ings and foreign extradition documents. See In re Romeo, No. 87-0808RC, 1987 U.S. Dist. LEXIS 12595 (D. Mass. May 1, 1987). Not only does the public have an interest in open extradition proceedings within the context of the criminal justice system; “the extent to which and the manner in which the Executive Branch adheres to its treaty obliga- tions is a matter of legitimate public concern.” Id. at *9 (citing Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986)). Thus, unlike many diplomatic communications, extradition communications are often destined for release to the courts and criminal defendants and this fact is known to (and desired by) the governments that exchange them. Thus, the Ninth Circuit correctly rejected a categori- cal rule exempting extradition communications from dis- closure under the FOIA. 'S If this information regarding “specialty” was contamed in the July 28, 1994, letter at issue in this case, there can be no argument that, at a minimum, the portion of the letter addressing specialty must be disclosed. 28 Contrary to the discussion in the petition, Pet. at 26-29, the Ninth Circuit nowhere held that only harm flowing from the disclosure of the content of information, as opposed to harm from the act of disclosure itself, is cognizable under the Clinton Order. Rather, the court of appeals expressly left open the question whether a cate- gorical approach is forbidden for all categories of classifia- ble material under the Clinton Order: “While we do not preclude the possibility that the government might be able in some circumstance to establish an inherently damaging category of information, we need not decide that question now, because the government did not meet its burden of establishing the justification for such a category in this case.” Pet. App. 14a-15a. Thus, the Ninth Circuit's opinion stands only for the narrow proposition that the release of “government-to-government communications” or “extra- dition communications” cannot categorically be presumed to cause harm to the national security. Given the changes wrought by the Clinton Order, this holding is undoubtedly correct. Nowhere does the Ninth Circuit purport to limit all cognizable harms to those flowing exclusively from disclosure of the contents of a particular document.'* '© Although this broader issue was not passed upon by the Ninth Circuit, and is therefore not properly presented by this case, the district court did squarely hold, we believe correctly, that the Clinton Order restricts classification harm to damage from the disclosure of the content of information. The Clinton Order eliminated the “mosaic” theory of classification by deleting that portion of the Reagan Order that permitted classification based on harm from unauthorized disclosure of information “either by itself or in the context of other information.” Resp. App. 7a. Compare Reagan Order § 1.3(b), Resp. App. 7a. with Clinton Order § 1.2(a)(4), Pet. App. 68a. Harm from exogenous context, therefore, can no longer provide grounds for classification. Harm must flow from the disclosure of “information, to include the sensitivity, value, and utility of that information.” Pet. App. 68a. While “sensitivity, value, and utility,” are not exclusive, they nonetheless must be read in the 29 Finally, the Ninth Circuit held that nothing extraordin- ary about the content or context of this document justified withholding it under Exemption 1: “We have reviewed the letter in camera, and carefully considered its contents, including the ‘sensitivity, value, and utility’ of the infor- mation contained therein. The letter is, to use Mr. Ken- nedy’s term, ‘innocuous.’ ” Pet. App. 17a (quoting Clinton Order § 1.1(1)), Pet. App 67a-68a. The letter pertains to a criminal case now final for several years.'”? The fact that the British wish the letter to remain confidential is plainly not sufficient, in and of itself, to satisfy the government's burden under the Clinton Order. This Court's review is clearly not warranted simply to examine or correct the conclusion of the Ninth Circuit based upon its in camera review of one document. context of the doctrine of ejusdem generis. See, e.g., Arcadia v. Ohio Power Co., 498 U.S. 73, 84 (1990); Cleveland v. United States, 329 US. 14, 18 (1946). All three of these listed “sources” of harm relate exclusively to the content of the information. Moreover, the President's signing statement states unequivocally that the new order focuses on “whether or not the specific information otherwise meets the strict standards for classification.” Resp. App. 27a (emphasis added). Still, while the Solicitor General is quite mistaken in his reading of the Clinton Order, resolution of this issue is not necessary to this case and therefore must await further litigation applying FOIA Exemption 1 to the Clinton Order. '7 We note that even Judge Silverman, the dissenting judge below, who also viewed the letter in camera, could not see any harm in disclosure. “I am not a diplomat, | don’t know the intricacies of the geopolitical situation at the time, but I looked at the letter today and, honestly looking at it, | can't tell what it is that makes it top secret.” Transcript of Oral Argument, Weatherhead v. United States, No. 96-36260 (9th Cir, Apr. 8, 1998), at 34 (Statement of Judge Silverman). ° 30 la C. This Case Constitutes a Poor Vehicle To Address the Issues Raised in the Petition. 4TH DOCUMENT of level 1 printed in FULL format. The unique facts of this case make it a poor vehicle for . Public Papers of the Presidents the announcement of any general principles of FOIA law April 2, 1982 —or to address the interaction of the new Clinton Order o with FOIA Exemption 1. First, the district court found that CITE: 18 Weekly Comp. Pres. Doc. 422 this letter did not qualify as “foreign government informa- tion” because it was not exchanged with an expectation of LENGTH: 5828 words confidentiality. Pet. App. 33a (“There is no showing in this HEADLINE: National Security Information record of a contemporaneous expectation of confidentiality with respect to the letter.”). Second, the case involves HIGHLIGHT: extradition communications, which are sui generis in the Executive Order 12356. field of diplomatic exchange in that they are often BODY: intended (or required) to be revealed to the courts of Table of Contents requesting and extraditing countries. Third, it appears that a : Page a portion of this letter has already been revealed to a federal district court in Oregon to effectuate the British emanate oe assertion of the doctrine of specialty. Finally, the fact that Part 1. Original Classification 423 this document was not classified until almost a year after a 1.1 Classification Levels 423 FOIA request was made, may color the analysis. See Pet. 1.2 Classification Authority 423 App. 76a (placing certain additional restrictions on classi- 13 Classification Categories 424 fication decisions made after receipt of a FOIA request). 14 Duration of Classification 425 1.5 Identification and Markings 425 CONCLUSION 1.6 Limitations on Classification 425 Because the Ninth Circuit is the first court of appeals Part 2. Derivative Classification 426 in the nation to apply the Clinton Order under FOIA 2.1 Use of Derivative 426 Exemption 1, because it was undoubtedly correct in refus- Classification. ing to erect categorical presumptions for diplomatic com- 2.2 Classification Guides 426 munications under the new Clinton Order, and because ; Part 3. Declassification and 426 the facts of this case present a poor vehicle for review, the Downgrading petition for certiorari should be denied. 3.1 Declassification Authority 426 Respectfully submitted, 3.2 Transterred Information 426 Cc Cc * 3.3 Systematic Review for 427 Feared | ac Bes Declassification. Coorun, Casven & Rosenmiat, rac 3.4 Mandatory Review for 427 1500 K Street, N.W., Suite 200 Declassification. oan ites” 20005 “Counsel of Record 2a Part 4. Safeguarding 428 4.1 General Restrictions on 428 Access. 4.2 Special Access Programs 428 4.3 Access by Historical 428 Researchers and Former Presidential Appointees. Part 5. Implementation and Review 429 5.1 Policy Direction 429 5.2 Information Security 429 Oversight Office. 5.3 General Responsibilities 429 5.4 Sanctions 430 Part 6. General Provisions 430 6.1 Definitions 430 6.2 General 430 nl Editorial Note: The page numbers in the original text have been changed to those of this publication Executiver [sic] Order National Security Information This Order prescribes a uniform system for classify- ing, declassifying, and safeguarding national security information. It recognizes that it is essential that the public be informed concerning the activities of its Gov- ernment, but that the interests of the United States and its citizens require that certain information concerning the national defense and foreign relations be protected against unauthorized disclosure. Information may not be classified under this Order unless its disclosure reason- ably could be expected to cause damage to the national security. 3a Now, by the authority vested in me as President by the Constitution and laws of the United States of Amer- ica, it is hereby ordered as follows: Part 1 Original Classification Section 1.1 Classification Levels. (a) National security information (hereinafter “clas- sified information”) shall be classified at one of the fol- lowing three levels: (1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security. (2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security. (3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security. (b) Except as otherwise provided by statute, no other terms shall be used to identify classified informa- tion. (c) If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified pending a determination by an original classi- fication authority, who shall make this determination within thirty (30) days. If there is reasonable doubt about the appropriate level of classification, it shall be safe- guarded at the higher level of classification pending a 4a determination by an original classification authority, who shall make this determination within thirty (30) days. Sec. 1.2 Classification Authority. (a) Top Secret. The authority to classify information originally as Top Secret may be exercise [sic] only by: (1) the President; (2) agency heads and officials designated by the President in the Federal Register; and (3) officials delegated this authority pursuant to Section 1.2(d). (b) Secret. The authority to classify information originally as Secret may be exercised only by: (1) agency heads and officials designated by the President in the Federal Register; (2) officials with original Top Secret classification authority; and (3) officials delegated such authority pursuant to Section 1.2(d). (c) Confidential. The authority to classify informa- tion originally as Confidential may be exercised only by: (1) agency heads and officials designated by the President in the Federal Register; (2) officials with original Top Secret or Secret classi- fication authority; and (3) officials delegated such authority pursuant to Section 1.2(d). 5a (d) Delegation of Original Classification Authority. (1) Delegations of original classification authority shall be limited to the minimum required to administer this Order. Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority. (2) Original Top Secret classification authority may be delegated only by the President; an agency head or official designated pursuant to Section 1.2(a)(2); and the senior official designated under Section 5.3(a)(1), pro- vided that official has been delegated original Top Secret classification authority by the agency head. (3) Original Secret classification authority may be delegated only by the President; an agency head or offi- cial designated pursuant to Sections 1.2(a)(2) and 1.2(b)(1); an official with original Top Secret classification authority; and the senior official designated under Sec- tion 5.3(a)(1), provided that official has been delegated original Secret classification authority by the agency head. (4) Original Confidential classification authority may be delegated only by the President; an agency head or official designated pursuant to Section 1.2(a)(2), 1.2(b)(1) and 1.2(c)(1); an official with original Top Secret classification authority; and the senior official designated under Section 5.3(a)(1), provided that official has been delegated original classification authority by the agency head. (5) Each delegation of original classification author- ity shall be in writing and the authority shall not be 6a redelegated except as provided in this Order. It shall identify the official delegated the authority by name or position title. Delegated classification authority includes the authority to classify information at the level granted and lower levels of classification. (e) Exceptional Cases. When an employee, contrac- tor, licensee, or grantee of an agency that does not have original classification authority originates information believed by that person to require classification, the infor- mation shall be protected in a manner consistent with this Order and its implementing directives. The information shall be transmitted promptly as provided under this Order or its implementing directives to the agency that has appropriate subject matter interest and classification authority with respect to this information. That agency shall decide within thirty (30) days whether to classify this information. If it is not clear which agency has classi- fication responsibility for this information, it shall be sent to the Director of the Information Security Oversight Office. The Director shall determine the agency having primary subject matter interest and forward the informa- tion, with appropriate recommendations, to that agency for a classification determination. Sec. 1.3 Classification Categories. (a) Information shall be considered for classification if it concerns: (1) military plans, weapons, or operations; (2) the vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security; 7a (3) foreign government information; (4) intelligence activities (including special activ- ities), or intelligence sources or methods; (5) foreign relations or foreign activities of the United States; (6) scientific, technological, or economic matters relating to the national security; (7) United States Government programs for safe- guarding nuclear materials of facilities; (8) cryptology; (9) a confidential source; or (10) other categories of information that are related to the national security and that require protection against unauthorized disclosure as determined by the President or by agency heads or other officials who have been delegated original classification authority by the President. Any determination made under this subsection shall be reported promptly to the Director of the Informa- tion Security Oversight Office. (b) Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security. (c) Unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security. (d) Information classified in accordance with Sec- tion 1.3 shall not be declassified automatically as a result of any unofficial publication or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information. Sec. 1.4. Duration of Classification. (a) Information shall be classified as long as required by national security considerations. When it can be determined, a specific date or event for declassifica- tion shall be set by the original classification authority at the time the information is originally classified. (b) Automatic declassification determinations under predecessor orders shall remain valid unless the classification is extended by an authorized official of the originating agency. These extensions may be by individ- ual documents or categories of information. The agency shall be responsible for notifying holders of the informa- tion of such extensions. (c) Information classified under predecessor orders and marked for declassification review shall remain clas- sified until reviewed for declassification under the provi- sions of this Order. Sec. 1.5 Identification and Markings. (a) At the time of original classification, the follow- ing information shall be shown on the face of all classi- fied documents, or clearly associated with other forms of classified information in a manner appropriate to the medium involved, unless this information itself would reveal a confidential source or relationship not otherwise evident in the document or information: 9a (1) one of the three classification levels defined in Section 1.1; (2) the identity of the original classification author- ity if other than the person whose name appears as the approving or signing official; (3) the agency and office of origin; and (4) the date or event for declassification, or the notation “Originating Agency's Determination Required.” (b) Each classified document shall, by marking or other means, indicate which portions are classified, with the applicable classification level, and which portions are not classified. Agency heads may, for good cause, grant and revoke waivers of this requirement for specified classes of documents or information. The Director of the Information Security Oversight Office shall be notified of any waivers. (c) Marking designations implementing the provi- sions of this Order, including abbreviations, shall con- form to the standars prescribed in implementing directives issued by the Information Security Oversight Office. (d) Foreign government information shall either retain its original classification or be assigned a United States classification that shall ensure a degree of protec- tion at least equivalent to that required by the entity that furnished the information. (e) Information assigned a level of classification under predecessor orders shall be considered as classified at that level of classification despite the omission of other 10a required markings. Omitted markings r-~+ be inserted on a document by the officials specifiec im Section 3.1(b). Sec. 1.6 Limitations on Classification. (a) In no case shall information be classified in order to conceal violations of law, inefficiency, or admin- istrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interest of national security. (b) Basic scientific research information not clearly related to the national security may not be classified. (c) The President or an agency head or official des- ignated under Sections 1.2(a)(2), 1.2(b)(1), or 1.2(c)(1) may reclassify information previously declassified and disclosed if it is determined in writing that (1) the infor- mation requires protection in the interest of national security; and (2) the information may reasonably be recovered. These reclassification actions shall be reported promptly to the Director of the Information Security Oversight Office. (d) Information may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of this Order (Section 3.4) if such classification meets the requirements of this Order and is accomplished personally and on a document-by-document basis by the agency head, the deputy agency head, the senior agency official designated under Section 5.3(a)(1), or an official with original Top Secret classification authority. lla Part 2 Derivative Classification Sec. 2.1 Use of Derivative Classification. (a) Derivative classification is (1) the determination that information is in substance the same as information currently classified, and (2) the application of the same classification markings. Persons who only reproduce, extract, or summarize classified information, or who only apply classification markings derived from source mate- rial or as directed by a classification guide, need not possess original classification authority. (b) Persons who apply derivative classification markings shall: (1) observe and respect original classification deci- sions; and (2) carry forward to any newly created documents any assigned authorized markings. The declassification date or event that provides the longest period of classi- fication shall be used for documents classified on the basis of multiple sources. Sec. 2.2 Classification Guides. (a) Agencies with original classification authority shall prepare classification guides to facilitate the proper and uniform devivative classification of information. (b) Each guide shall be approved personally and in writing by an official who: (1) has program or supervisory responsibility over the information or is the senior agency official designated under Section 5.3(a)(1); and 12a (2) is authorized to classify information originally at the highest level of classification prescribed in the guide. (c) Agency heads may, for good cause, grant and revoke waivers of the requirement to prepare classifica- tion guides for specified classes of documents or informa- tion. The Director of the Information Security Oversight Office shall be notified of any waivers. Part 3. Declassification and Downgrading Sec. 3.1 Declassification Authority. (a) Information shall be declassified or downgraded as soon as national security considerations permit. Agen- cies shall coordinate their review of classified information with other agencies that have a direct interest in the subject matter. Information that continues to meet the classification requirements prescribed by Section 1.3 despite the passage of time will continue to be protected in accordance with this Order. (b) Information shall be declassified or downgraded by the official who authorized the original classification, if that official is still serving in the same position; the originator’s successor; a supervisory official of either; or officials delegated such authority in writing by the agency head or the senior agency official designated pur- suant to Section 5.3(a)(1). (c) If the Director of the Information Security Over- sight Office determines that information is classified in violation of this Order, the Director may require the infor- mation to be declassified by the agency that originated the classification. Any such decision by the Director may 13a be appealed to the National Security Council. The infor- mation shall remain classified, pending a prompt decision on the appeal. (d) The provisions of this Section shall also apply to agencies that, under the terms of this Order, do not have original classification authority, but that had such author- ity under predecessor orders. Sec. 3.2 Transferred Information. (a) In the case of classified information transferred in conjunction with a transfer of functions, and not merely for storage purposes, the receiving agency shall be deemed to be the originating agency for purposes of this Order. (b) In the case of classified information that is not officially transferred as described in Section 3.2(a), but that originated in an agency that has ceased to exist and for which there is no successor agency, each agency in possession of such information shall be deemed to be the originating agency for purposes of this Order. Such infor- mation may be declassified or downgraded by the agency in possession after consultation with any other agency that has an interest in the subject matter of the informa- tion. (c) Classified information accessioned into the National Archives of the United States shall be declas- sified or downgraded by the Archivist of the United States in accordance with this order, the directives of the Information Security Oversight office, and agency guide- lines. l4a Sec. 3.3. Systematic Review for Declassification. (a) The Archivist of the United States shall, in accor- dance with procedures and timeframes prescribed in the Information Security Oversight Office’s directives imple- menting this Order, systematically review for declas- sification or downgrading (1) classified records accessioned into the National Archives of the United States, and (2) classified presidential papers or records under the Archivist’s control. Such information shall be reviewed by the Archivist for declassification or down- brading [sic] in accordance with systematic review guide- lines that shall be provided by the head of the agency that originated the information, or in the case of foreign gov- ernment information, by the Director of the Information Security Oversight Office in consultation with interested agency heads. (b) Agency heads may conduct internal systematic review programs for classified information originated by their agencies contained in records determined by the Archivist to be permanently valuable but that have not 8 accessioned into the National Archives of the United tates. (c) After consultation with affected agencies, the Secretary of Defense may establish special procedures for systematic review for declassification of classified cry- tologic [sic] information, and the Director of Central Intelligence may establish special procedures for system- atic review for declassification of classified information pertaining to intelligence activities (including special activities), or intelligence sources or methods. 15a Sec. 3.4 Mandatory Review for Declassification. (a) Except as provided in Section 3.4(b), all informa- tion classified under this Order or predecessor orders shall be subject to a review for declassification by the originating agency, if: (1) the request is made by a United States citizen or permanent resident alien, a federal agency, or a State or local government; and (2) the request describes the document or material containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of effort. (b) Information originated by a President, the White House Staff, by committees, commissions, or boards appointed by the President, or others specifically provid- ing advice and counsel to a President or acting on behalf of a President is exempted from the provisions of Section 3.4(a). The Archivist of the United States shall have the authority to review, downgrade and declassify informa- tion under the control of the Administrator of General Services or the Archivist pursuant to sections 2107, 2107 note, or 2203 of title 44, United States Code. Review procedures developed by the Archivist shall provide for consultation with agencies having primary subject matter interest and shall be consistent with the provisions of applicable laws or lawful agreements that pertain to the respective presidential papers or records. Any decision by the Archivist may be appealed to the Director of the Information Security Oversight Office. Agencies with pri- mary subject matter interest shall be notified promptly of the Director’s decision on such appeals and may further l6a appeal to the National Security Council. The information shall remain classified pending a prompt decision on the appeal. (c) Agencies conducting a mandatory review for declassification shall declassify information no longer requiring protection under this Order. They shall release this information unless withholding is otherwise autho- rized under applicable law. (d) Agency heads shall develop procedures to pro- cess requests for the mandatory review of classified infor- mation. These procedures shall apply to information classified under this or predecessor orders. They shall also provide a means for administratively appealing a denial of a mandatory review request. (e) The Secretary of Defense shall develop special procedures for the review of cryptologic information, and the Director of Central Intelligence shall develop special procedures for the review of information pertaining to intelligence activities (including special activities), or intelligence sources or methods, after consultation with affected agencies. The Archivist shall develop special pro- cedures for the review of information accessioned into the National Archives of the United States. (f) In response to a request for information under the Freedom of Information Act, the Privacy Act of 1974, or the mandatory review provisions of this Order: (1) An agency shall refuse to confirm or deny the existence or non-existence of requested information whenever the fact of its existence or non-existence is itself classifiable under this Order. 17a (2) When an agency receives any request for docu- ments in its custody that were classified by another agency, it shall refer copies of the request and the requested documents to the originating agency fos pre cessing, and may, after consultation with the originating agency, inform the requester of the referral. In cases in which the originating agency determines in writing that a response under Section 3.4(f)(1) is required, the referring agency shall respond to the requester in accordance with that Section. Part 4 Safeguarding Sec. 4.1 General Restrictions on Access. (a) A person is eligible for access to classified infor- mation provided that a determination of trustworthiness has been made by agency heads or designated officials and provided that such access is essential to the accom- plishment of lawful and authorized Government pur- poses. (b) Controls shall be established by each agency to ensure that classified information is used, processed, stored, reproduced, transmitted, and destroyed only under conditions that will provide adequate protection and prevent access by unauthorized persons. (c) Classified information shall not be disseminated outside the executive branch except under conditions that ensure that the information will be given protection equivalent to that afforded within the executive branch 18a (d) Except as provided by directives issued by the President through the National Security Council, classi- fied information originating in one agency may not be disseminated outside any other agency to which it has been made available without the consent of the originat- ing agency. For purposes of this section, the Department of Defense shall be considered one agency. Sec. 4.2 Special Access Programs. (a) Agency heads designated pursuant to Section 1.2(a) may create special access programs to control access, distribution, and protection of particularly sensi- tive information classified pursuant to this Order or pred- ecessor orders. Such programs may be created or continued only at the written direction of these agency heads. For special access programs pertaining to intel- ligence activities (including special activities but not including military operational, strategic and tactical pro- grams), or intelligence sources or methods, this function will be exercised by the Director of Central Intelligence. (b) Each agency head shall establish and maintain a system of accounting for special access programs. The Director of the Information Security Oversight Office, consistent with the provisions of Section 5.2(b)(4), shall have non-delegable access to all such accountings. Sec. 4.3 Access by Historical Researchers and For- mer Presidential Appointees. (a) The requirement in Section 4.1(a) that access to classified information may be granted only as is essential 19a to the accomplishment of authorized and lawful Govern- ment purposes may be waived as provided in Section 4.3(b) for persons who: (1) are engaged in historical research projects, or (2) previously have occupied policy-making posi- tions to which they were appointed by the President. (b) Waivers under Section 4.3(a) may be granted only if the originating agency: (1) determines in writing that access is consistent with the interest of national security; (2) takes appropriate steps to protect classified information from unauthorized disclosure or compro- mise, and ensures that the information is safeguarded in a manner consistent with this Order; and (3) limits the access granted to former presidential appointees to items that the person originated, reviewed, signed, or received while serving as a presidential appointee. Part 5 Implementation and Review Sec. 5.1 Policy Direction. (a) The National Security Council shall provide overall policy direction for the information security pro- gram. (b) The Administrator of General Services shall be responsible for implementing and monitoring the pro- gram established pursuant to this Order. The Administra- tor shall delegate the implementation and monitorship 20a functions of this program to the Director of the Informa- tion Security Oversight Office. Sec. 5.2 Information Security Oversight Office. (a) The Information Security Oversight Office shall have a full-time Director appointed by the Administrator of General Services subject to approval by the President. The Director shall have the authority to appoint a staff for the office. (b) The Director shall: (1) develop, in consultation with the agencies, and promulgate, subject to the approval of the National Secu- rity Council, directives for the implementation of this Order, which shall be binding on the agencies; (2) oversee agency actions to ensure compliance with this Order and implementing directives; (3) review all agency implementing regulations and agency guidelines for systematic declassification review. The Director shall require any regulation or guideline to be changed if it is not consistent with this Order or implementing directives. Any such decision by the Direc- tor may be appealed to the National Security Council. The agency regulation or guideline shall remain in effect pending a prompt decision on the appeal; (4) have the authority to conduct on-site reviews of the information security program of each agency that generates of [sic] handles classified information and to require of each agency those reports, information, and other cooperation that may be necessary to fulfill the Director's responsibilities. If these reports, inspections, or 2la access to specific categories of classified information would pose an exceptional national security risk, the affected agency head or the senior official designated under Section 5.3(a)(1) may deny access. The Director may appeal denials to the National Security Council. The denial of access shall remain in effect pending a prompt decision on the appeal; (5) review requests for original classification authority from agencies or officials not granted original classification authority and, if deemed appropriate, rec- ommend presidential approval; (6) consider and take action on complaints and sug- gestions from persons within or outside the Government with respect to the administration of the information security program; (7) have the authority to prescribe, after consulta- tion with affected agencies, standard forms that will pro- mote the implementation of the information security program; (8) report at least annually to the President through the National Security Council on the implementation of this Order; and (9) have the authority to convene and chair inter- agency meetings to discuss matters pertaining to the information security program. Sec. 5.3. General Responsibilities. Agencies that originate or handle classified informa- tion shall: 22a (a) designate a senior agency official to direct and administer its information security program, which shall include an active oversight and security education pro- gram to ensure effective implementation of this Order; (b) promulgate implementing regulations. Any unclassified regulations that establish agency information security policy shall be published in the Federal Register to the extent that these regulations affect members of the public; (c) Establish procedures to prevent unnecessary access to classified information, including procedures that (i) require that a demonstrable need for access to classified information is established before initiating administrative clearance procedures, and (ii) ensure that the number of persons granted access to classified infor- mation is limited to the minimum consistent with opera- tional and security requirements and needs; and (d) develop special contingency plans for the pro- tection of classified information used in or near hostile or potentially hostiie areas. Sec. 5.4 Sanctions. (a) If the Director of the Information Security Over- sight office finds that a violation of the Order or its implementing directives may have occurred, the Director shall make a report to the head of the agency or to the senior official designated under Section 5.3(a)(1) so that corrective steps, if appropriate, may be taken. 23a (b) officers and employees of the United States Gov- ernment, and its contractors, licensees, and grantees shall be subject to appropriate sanctions if they: (1) knowingly, willfully, or negligently disclose to unauthorized persons information properly classified under this order or predecessor orders; (2) knowingly and willfully classify or continue the classification of information in violation of this Order or any implementing directive; or (3) knowingly and willfully violate any other provi- sion of this Order or implementing directive. (c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified informa- tion, or other sanctions in accordance with applicable law and agency regulation. (d) Each agency head or the senior official desig- nated under Section 5.3(a)(1) shall ensure that appropri- ate and prompt corrective action is taken whenever a violation under Section 5.4(b) occurs. Either shall ensure that the Director of the Information Security Oversight Office is promptly notified whenever a violation under Section 5.4 (b)(1) or (2) occurs. Part 6 General Provisions Sec. 6.1 Definitions. (a) “Agency” has the meaning provided at 5 USC 552(e). 24a (b) “Information” means any information or mate- rial, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government. (c) “National security information” means informa- tion that has been determined pursuant to this Order or any predecessor order to require protection against unauthorized disclosure and that is so designated. (d) “Foreign government information” means: (1) information provided by a foreign government or governments, an international organization of govern- ments, or any element thereof with the expectation, expressed or implied, that the information. the source of the information, or both, are to be held in confidence; or (2) information produced by the United States pur- suant to or as a result or a joint arrangement with a foreign government or governments or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence. (e) “National security” means the national defense or foreign relations of the United States. (f) “Confidential source” means any individual or organization that has provided, or that may reasonably be expected to provide, information to the United States on matters pertaining to the national security with the expectation, expressed or implied, that the information or relationship, or both, be held in confidence. (g) “Original classification” means an initial deter- mination that information requires, in the interest of 25a national security, protection against unauthorized dis- closure, together with a classification designation signify- ing the level of protection required. Sec. 6.2 General. (a) Nothing in this Order shall supersede any requirement made by or under the Atomic Energy Act of 1954, as amended. “Restricted Data” and “Formerly Restricted Data” shall be handled, protected, classified, downgraded, and declassified in conformity with the pro- visions of the Atomic Energy Act of 1954, as amended, and regulations issued under that Act. (b) The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight office, shall render an interpretation of this Order with respect to any question arising in the course of its administration. (c) Nothing in this Order limits the protection afforded any information by other provisions of law. (d) Executive Order No. 12065 of June 28, 1978, as amended, is revoked as of the effective date of this Order. (e) This order shall become effective on August 1, 1982. Ronald Reagan The White House, April 2, 1982. [Filed with the Office of the Federal Register, 2°52 p.m., April 2, 1982] LANGUAGE: ENGLISH 26a 67TH DOCUMENT of Level 2 printed in FULL format. Public Papers of the Presidents April 17, 1995 CITE: 31 Weekly Comp. Pres. Doc. 633 LENGTH: 616 words HEADLINE: Statement on Signing the Executive Order on Classified National Security Information BODY: Today | have signed an Executive order reforming the Government's system of secrecy. The order will lift the veil on millions of existing documents, keep a great many future documents from ever being classified, and still maintain necessary controls over information that legitimately needs to be guarded in the interests of national security. In issuing this order, | am seeking to bring the system for classifying, safeguarding, and declassifying national security information into line with our vision of Ameri- can democracy in the post-Cold War world. This order strikes an appropriate balance. On the one hand, it will sharply reduce the permitted level of secrecy within our Government, making available to the Ameri- can people and posterity most documents of permanent historical value that were maintained in secrecy until now. On the other, the order enables us to safeguard the information that we must hold in confidence to protect our Nation and our citizens. We must continue to protect information that is critical to the pursuit of our national 27a security interests. There are some categories of informa- tion - for example, the war plans we may employ or the identities of clandestine human assets - that must remain protected. This order also will reduce the sizable costs of secrecy - the tangible costs of needlessly guarding docu- ments and the intangible costs of depriving ourselves of the fullest possible flow of information. This order establishes many firsts: Classifiers will have to justify what they classify; employees will be encouraged and expected to challenge improper classi- fication and protected from retribution for doing so; and large-scale declassification won't be dependent on the availability of individuals to conduct a line-by-line review. Rather, we will automatically declassify hundreds of millions of pages of information that were classified in the past 50 years. Similarly, we will no longer tolerate the excesses of the current system. For example, we will resolve doubtful calls about classification in favor of keeping the informa- tion unclassified. We will not permit the reclassification of information after it has been declassified and disclosed under proper authority. We will authorize agency heads to balance the public interest in disclosure against the national security interest in making declassification deci- sions. And, we will no longer presumptively classify certain categories of information, whether or not the specific information otherwise meets the strict standards for classification. At the same time, however, we will maintain every necessary safeguard and procedure to 28a assure that appropriately classified information is fully protected. Taken together, these reforms will greatly reduce the amount of information that we classify in the first place and the amount that remains classified. Perhaps most important, the reforms will create a classification system that Americans can trust to protect our national security in a reasonable, limited, and cost-effective manner. In keeping with my goals and commitments, this order was drafted in an unprecedented environment of openness. We held open hearings and benefitted from the recommendations of interested Committees of Congress and nongovernmental organizations, groups, businesses, and individuals. The order I have signed today is stron- ger because of the advice we received from so many sources. I thank all those who have helped to establish this new system as a model for protecting our national security within the framework of a Government of, by, and for the people. William J. Clinton The White House, April 17, 1995. LANGUAGE: ENGLISH LOAD-DATE: May 16, 1995 29a Case Control No. 9502026 Requester: Weatherhead Ms. Rachel Webb British Embassy 3100 Massachusetts Avenue, N.W. Washington, D.C. 20008 Dear Ms. Webb: We have received a request under a provision of U.S. law for release of the enclosed document. Before complying with this request, we would appreciate the concurrence of your government in the release of the document. Should your government wish to release only a part of this material, please indicate with brackets the portions you wish withheld. In responding to our letter, please refer to the case control number shown above and return the document to us. Thank you for your cooperation. Sincerely, Joseph P. Leahy Liaison Officer Office of Freedom of Information, Privacy, and Classification Review Enclosure: One document; total pages two. KENNEDY DECLARATION CIVIL ACTION NO. 95-0519 EXHIBIT 1 [LOGO] British Embassy Washington 3100 Massachusetts Ave., N.W. Washington D.C. 20006-3600 Telephone: (202) Facsimile: (202) 898-4241 898-4255 Mr Joseph P Leahy Liaison Officer Office of Freedom of Information Privacy & Classification Review State Department Dear Mr. Leahy, DECLASSIFICATION REQUEST: CASE CONTROL NUMBER 9502026 I am writing in response to your letter dated 4 August. The Foreign and Commonwealth Office have reviewed the attached document and after careful consideration, are unable to agree to its release. The Home Office have advised that the normal line in cases like this is that all correspondence between Governments is confidential unless papers have been formally requisitioned by the defence. In this particular case, requests from representa- tives of the defendants for sight of the letter have already been refused on grounds of confidentiality. Our Library and Records Department would also be con- cerned about the precedent set by releasing even part of the letter since any such development would quickly 3la become common knowledge amongst lawyers dealing with extradition matters. Yours Sincerely, Rachel Webb Rachel Webb KENNEDY DECLARATION CIVIL ACTION NO. 95-0519 EXHIBIT 2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0280%3A04. Public record. Not legal advice.