• PARTMENT OF STATE Washington O C 0520 17 JUL 1975 CONFIDENTIAL MEMORANDUM TO T - Mr Maw FROM L - Monroe Leigh SUBJECT Legal Protection of Sensitive Foreign Policy Materials Attached is a memorandum of law prepared by my Special Assistant Michael Sandler relating to the protection of sensitive foreign policy materials contained in the Nixon tapes monitored conversations of the Secretary and memoranda from foreign governments The principal conclusions are as follows 1 Nixon Tapes The Nixon tapes are currently the subject of some complex litigation and a congressional statute the Presidential Recordings and Materials Preservation Act of 1974 P L 93-526 Under the statute all of the Nixon tapes would be transferred into the custody and control of the GSA Administrator Under proposed procedures for processing the tapes the GSA Administrator contemplates that special archivists would be designated to review the tapes These archivists would be under instruction to select out any tapes which are not yet classified and which may have a national security impact and to send such tapes to the NSC for possible classification In addition the proposed procedures would also give the GSA Administrator the exclusive authority over declassifying the tapes We believe these procedures may not be adequate to prevent unwarranted disclosure and should be revised Prior presidential papers as far as we know did not include tapes of meetings between the President and CONFIDENTIAL --- DECLASSIFIED - -- Authority NND t b · i I i I CONFIDENTIAL -2- high foreign officials From the standpoint of protecting the tapes the optimal solution would be to have additional regulations issued which would retain in the Office of the President control over access to the more sensitive foreign policy tapes even though physical custody may be with the GSA Administrator In the court litigation former President Nixon is seeking to have the Presidential Recordings and Materials Act declared unconstitutional but we believe the statute will be upheld Nixon also seeks a declaration that he holds title to the tapes and papers If however the statute is upheld it by its very terms would vest title in the United States subject to rights of the former President to personal as opposed to gpverrunental papers Even if the statute's constitutionality is not upheld a preliminary opinion in the litigation would indicate · that the former President does not own tapes of conversations with foreign officials Nixon v Sampson 389 F Supp 107 D D C 1975 In companion litigation Jack Anderson and·others are seeking access to some of the Watergate tapes under the Freedom of Information Act A court decision on these questions would undoubtedly have · a bearing on attem ts to obtain access to other tapes -- 2 Monitored Conversations In a letter of February 27 1975 to the Secretary Senator Weicker asks if the Secretary taped and or had your secretary make stenographic notes of both your incoming and outgoing telephone calls Senator Weicker indicated that he had obtained such infonnation in interviews with Charles Colson Similar information has come out in depositions in the Halperin v Kissinger wiretap case Assuming memoranda or notes are made of the Secretary's telephone conversations there would seem to be two sets of legal concerns 1 whether in response to a formal congressional request executive privilege could be asserted with respect to such notes and memoranda and 2 whether requests under the Freedom of Information Act FOIA could be restricted CONFIDENTIAL _ J ECLASSlFIED --- - 1 Authority NN 2 t 'h • CONFIDENTIAL -3- As discussed in Part IV of the attached memorandum an assertion of executive privilege would be lega'lly justified to the extent that the monitored conversations contained foreign policy or other national security materials However there may be political objections to this course With respect to an FOIA request for notes of the monitored conversations Part II of the attached memorandum points to a number of ticklish problems To the extent that these notes have been generated or kept on the premises of the State Department or to the extent that they have been used in connection with Department of State work they would probably be deemed to be agency records subject to FOIA provisions--although an argument could be made that the notes if intended and used only for personal purposes should be deemed to be personal papers If the notes are agency records one could ··only protect the records under one of the specific exemptions of the FOIA--i e whether the notes have been properly classified whether they are intraagency memoranda which contain opinions used in the policy-making process etc For this reason the notes should be reviewed and if appropriate classified 3 Memoranda from Foreign Governments We understand that the Government of Israel has given the_ Secretary certain memoranda The legal protection of these memoranda pose the fewest problems of any of the materials discussed These memoranda may already be deemed to be classified under Section 4 C of E O 11652 which protects materials already classified by a foreign government The safest course however ' would be to have the memoranda immediately reviewed --- for classification Attachment Memorandum of Law Drafted L MDSandler kp x22149 7 16 75 CONFIDENTIAL --- ---I t II CONFIDENTIAL •7 I • MEMORANDUM OF LAW Legal Protection of Sensitive Foreign Policy Materials in the Custody of the President and Secretary Summary There are a number of sensitive foreign policy materials currently in the possession of the President or Secretary which may become the subject of court litigation and congressional attempts to obtain their disclosure These materials include 1 the Nixon tapes and papers which contain or refer to Presidential conversations with foreign heads of state and other foreign dignitaries 2 notes and ·memoranda relating to the phone conversations which the Secretary allegedly had monitored which involve foreign policy matters and which are the subject of a letter from Senator Weicker and 3 memoranda given in confidence to the Secretary by the Government of Israel and other foreign governments There are a number of legal avenues available for preventing disclosure of such materials 1 Control and Custody of the Nixon Tapes ana Papers A cross fire of litigation and congressional legislation casts some shadow over future control of sensitive foreign policy materials contained in the Nixon tapes and papers At present most if not all of the sensitive foreign policy and national security records among the Nixon materials are in the custody of the Counsel to the President A court order still · in effect prevents all persons having custody of the Nixon materials from transferring disposing or otherwise disclosing the contents of such materials This court order is expected to be lifted later this year or early in 1976 when a U S district court determines the constitutionality of the Presidential Recordings and Materials Act of 1974 ·· CONFIDENTIAL ·- __ _ - CONFIDENTIAL -2- That statute if found to be constitutional would require all federal employees to transfer into the custody and control of the GSA Administrator all of the Nixon papers and sound recordings The GSA Administrator has already proposed regulations and procedures for processing and restricting public access to these Nixon materials Public access would be denied to materials presently having a national security classification As for other sensitive materials archivists appointed by the GSA Administrator would be instructed to have these forwarded to the NSC for determination as to whether they should be classified Problems with this proposal are that the GSA and not the White House would appear to have control over access to and any future declassification of these materials also procedures for initial screening of the tapes by GSA archivists do not include a supervisory role for NSC or other White House personnel The proposed GSA regulations therefore appear to be in need of revision Sensitive foreign policy materials reputedly make up a minute portion of the approximately 42 million items of the Nixon tapes and papers 2 Freedom of Information Act It is almost certain that under the 1974 amendments to the FOIA requests from citizens for foreign policy records will be made In fact FOIA requests have already been made by Jack Anderson and others with respeet to other portions of the Nixon tapes and papers The primary statutory defense to such requests is that to the extent the foreign policy materials are deemed to be records of the President and of his immediate staff they are not agency records within the meaning of the FOIA This defense-might also be available to materials held by Secretary Kissinger · at his White House office and used exclusively in his advising of the President This defense however may be lost with respect to the Nixon tapes and papers when transferred to the GSA unless GSA custody is made subject to direct Presidential control of the foreign policy materials CONFIDENTIAL • CONFIDENTIAL -3- For materials which are agency records as opposed to Presidential papers the FOIA sets forth certain exemptions from disclosure The exemption most directly related to foreign policy information is that for records which have been properly classified The problem however is that many of the materials of concern here notes on monitored conversations foreign government memoranda have not been fonnally classified and physically marked We recommend that where feasible a review of the materials in question be undertaken to determine if they should now be classified We are of the view the materials can be classified subsequent to their preparation but this is a close question and is now being litigated Also any classification must be consistent with E O 11652 and the NSC directives and or State Department regulations thereunder As for memoranda given to the Secretary by a foreign government it would be prudent to have these · physically classified even though a good argument can be made that memoranda submitted in confidence by foreign governments need not be specially classified to avoid FOIA disclosure As· for Nixon tapes and papers that may be transferred to the GSA subsequent classification of those materials pursuant to GSA regulations would exempt those materials from FOIA disclosure at least for the near future There is also· a FOIA exemption for privileged· or confidential information which although primarily directed at information given the Government by businesses and individuals might apply to memoranda supplied by a foreign state and perhaps also to some of the Secretary's personal records The Secretary's personal records may also be covered by the FOIA exemption for intra-agency memoranda which reflect policy-making deliberations Beyond the FOIA statutory defenses the President would be reduced to asserting executive privilege against court orders for in camera review and for production of the materials under FOIA CONFIDENTIAL w0 ---------------- - -- - ' I I CONFIDENTIAL • -4- 3 Privacy Act of 1974 We are of the view that the Privacy Act which comes into effect on September 28 1975 will not provide an effective vehicle under which foreign policy materials could be sought The act applies only to files a which contain personal data and information and b which are readily retrievable because cross-indexed to an individual's name social security number or similar identifying code Although the Nixon papers and tapes may one day be cross-indexed by the GSA they apparently would not constitute a system of records pertaining to individuals within the meaning of the act The same of course would presumably be true of any notes on monitored conversations of the Secretary as well as memoranda from foreign governments 4 Executive Privilege It is our view that all diplomatic communications which are sensitive because ··of their potential foreign policy impact could be ultimately be made the subject of a claim of executive privilege Under the Supreme Court's standards in United States v Nixon when privilege is claimed with respect to an area in which the President has constitutional preeminence as in the conduct of foreign relations the claim of privilege should be recognized It is our view that if executive privilege must be resorted to it would be judicially recognized as an appropriate basis for denying requests for the -release of foreign policy materials either to FOIA litigants or to Congress Discussion I OWNERSHIP OF THE TAPES The most vexing of the legal questions relating to possible disclosure are those concerning who owns and controls the Nixon tapes To the extent control over the tapes is placed outside the Office of the President the practical and legal means for preventing unauthorized disclosures diminish The·tapes CONFIDENTIAL - · nJlCLASSIFiEn-·-Ac J# d ty NNo f1S €l z -f I CONFIDENTIAL -s- • ownership question is now the subject of some deliciously complex court litigation complicated by a congressional statute The primary events in this litigation have been as follows 1 On August 29 1974 following a request by the Counsel to President Ford Philip Buchen Deputy Attorney General Laurence Silberman now Ambassador to Yugoslavia issued a preliminary opinion that Presidential materials and tape-recorded conversations were to be regarded as the property of former President Nixon but that the Government had a right to use the materials for ongoing governmental purposes This view was reaffirmed in a final opinion from Attorney General Saxbe on September 6 1974 2 Also on September 6 1974 at about the time Attorney General Saxbe's opinion was released Richard Nixon signed a letter to GSA Administrator Arthur · Sampson offering to deposit all of my Presidential historical materials with the Administrator pursuant to the provisions of the Presidential Libraries Act of 1955 44 u s c §§ 2101 2107 and 2108 This 1955 statute authorizes the GSA Administrator to accept for deposit historical materials of a fo1 1ner President subject to restrictions agreeable to the Administrator as to their use The term historical materials is defined as including sound recordings ·of a President or of a former President As contemplated by the statute the letter from Nixon to GSA Administrator Sampson stated numerous restrictions concerning the storage and use of these materials-e g that they were to be stored in California that access to the depository required a key to be kept by Nixon The Administrator accepted these restrictions in writing on September 7 1974 In Nixon's view this acceptance constituted an acknowledgement that all of the President materials were now personal materials belonging to Nixon Indeed the agreement states that all legal and equitable title and custody remained in Mr Nixon CONFIDENTIAL - f ' I c·oNFIDENTIAL -6- 3 On Septa ber 12 1974 following adverse reaction from both the press and the Special Prosecutor's Office concerning the Nixon-Sampson agreement Mr Buchen agreed not to allow any of the Nixon presidential materials to be transferred from their then present location pending discussions with lawyers representing Nixon and the Special Prosecutor At that time the materials happened to be at the White House many in the Old Executive Office Building During the next month the materials were apparently segregated at the White House according to whether they contained nationai security foreign policy or other sensitive information Such materials including all the tapes and documents relating to conversations with foreign heads of state and foreign dignitaries were placed under the personal custody of Mr Buchen in the Old Executive Office Building Most of the remaining Nixon materials were placed _under GSA Administrator Sampson's custody but nevertheless stored in the Old EOB The status and location of these materials remains essentially unchanged today 4 Between October 17 1974 an d October 21 1974 a spate of lawsuits was brought by Nixon Jack Anderson and two public interest groups against the GSA Administrator Mr Bucnen and the Director of the Secret Service The Nixon suit sought an injunction to compel compliance with the agreement contai ed in the Nixon-Sampson letter of September 6 Nixonalso sought to enjoin defendants from p rmitting the Special Prosecutor and the FOIA defendants to have access to the materials because such access would be in violation of Fourth Amendment rights and an executive privilege vesting in Nixon Jack Anderson and the public interest claimants of course sought access to many of the Watergate-related materials under the Freedom of Information Act FOIA They also sought a declaration that the materials are property of the United States and 11 records within the meaning of the FOIA The Special Prosecutor intervened in these suits to establish a right of access to some of the materials CONFIDENTIAL CONFIDENTIAL -7- 5 On October 21 Judge Richey issued a temporary restraining order which prohibited the Nixon materials from being disposed of physically transferred or disclosed The effect of this order was to freeze custody of the more sensitive Nixon materials including all tapes and foreign policy documents in Mr Buchen That order is still in effect today 6 On December 9 1974 the Congress passed and on December 19 President Ford signed into law the Presidential Recordings and Materials Preservation Act P L 93-526 That statute requires all federal employees to deliver original tape recordings and Presidential historical materials of the Nixon Administration to the GSA Administrator who is required to receive and retain complete possession and control over them The statute also provides that if the courts should subsequently hold that the statute deprived Nixon or any individual of ··private property without just compensation just compensation should thereafter be paid to Nixon or other individual involved If held to be constitutional the statute would require the transfer of all of the Nixon tapes and papers to the GSA Administrator As indicated under Point I I of this memorandum such a transfer might increase the risks of disclosure under the FOIA · 7 On December 20 1975 former President Ni on brought a second suit this one to enjoin enforcement of the Presidential Recordings and ·Materials Preservation Act of 1974 on grounds of unconstitutionality Nixon then sought to have Judge Richey give priority to this new suit over all other litigation relating to the Nixon papers and tapes Nixon also requested that a three-judge court be convened to consider the constitutionality of the statute When these requests were denied Nixon on January 28 1975 petitioned the U S Court of Appeals for a writ of mandamus directing Judge Richey to give priority to the case challenging the statute and to convene a three-judge court CONFIDENTIAL 1· - - - --- »BCLASSlFIED- utbority tvND f b - ' -i '· I CONFIDENTIAL -8- I 8 On January 31 1975 apparently at 2 00 in the morning Judge Richey issued an opinion in the original litigation that had been filed in October 1974 Nixon v Sampson 389 F Supp 107 D D C 1975 Specifically Judge Richey's opinion held a That materials generated created produced or kept by public officials in the administration and performance of the powers and duties of a public office belong to the Government and may not be considered the private property of the official 389 F Supp at 107 b That ownership of such materials by a former President would be inconsistent both with the constitutional theory of the Presidency that the powers of the Presidency do not extend to any individual beyond his term of office and with the emoluments clause Art II Sec I Cl 6 which limits the compensation of the President during his term of office Id at 136 c That a former President's assertion of ownership to approximately 42 million items of material would impair the ability of his successor in office to carry out the constitutional obligations of the office of the Presidency particula rly where such materials contain information vital to the ongoing af·fairs of the nation Id at 139 d There is no legal precedent on point that would support a claim by a fonner President to the governmental papers and materials generated during his term of office e Apart from Presidents Kennedy and Johnson most former Presidents have adhered to the view that governmental materials from their presidencies belong to the Goverrunen CONFIDENTIAL · j I - ---- - ·------ - - - - -___ ail CONFIDENTIAL -9- f The Presidential Libraries Act of 1955 44 U SoC §§ 2101 2107 and 2108 was designed to protect and preserve for historical study papers of former Presidents particularly personal papers and did not sanction or acknowledge personal ownership of governmental pa pers by a former President g That executive privilege can only be asserted by the present holder of the office of the Presidency and not by a former President h That Jack Anderson and others would be entitled to access to those tapes and materials which constituted agency records under the FOIA however the term agency records ·included only materials of the Executive Office of the President as distinguished from materials of the President and his immediate staff the private claimants were also entitled to a declaration as to which of the presidential materials are agency records within the meaning of the FOIA i That the fonner President is entitled to protection from disclosure of purely private materials in the tapes and documents and that when a dispute arises on whether a particular material is private the court would conduct an in camera inspection to determine whether-· such materials are indeed private or otherwise invade the former President's personal privacy Judge Richey did not reach any decision concerning the constitutionality of the recent Presidential Recordings and Materials Preservation Act which was being challenged in the other Nixon suit He did however conclude that the Act abrogated the Nixon-Sampson letter agreement and all rights thereunder 389 F Supp 124-25 CONFIDENTIAL -- I ' I CONFIDENTIAL -10- 9 On January 31 1974 on the same morning that Judge Richey issued his opinion the U S Court of Appeals issued a brief order staying Judge Richey from issuing any order mandate or declaration relating to the merits of the October litigation on grounds that priority should have been given to Nixon's second suit challenging the constitutionality of the Presidential Materials Preservation Act Subsequently it was ordered that a three-judge court be impaneled to hear the constitutional issues in that case 10 A three-judge court has'been impaneled composed of U S District Judge Aubrey Robinson and U S Court of Appeals Judges McGowan and Tamm Depositions and related discovery are taking place during the summer It is conte plated that briefs will be filed in August and September A hearing and oral argument is tentatively scheduled for September 22 which means that a decision will probably ·not come down before December at the earliest The court may redecide all the points raised before Judge Richey as well as the questions concerning the scope and constitutionality of the Presidential Recordings and Materials Preservation Act of 1974 It is predicted though not with certainty that the court will reach and adopt most of the points in Judge Richey's opinion As for the disposition of sensitive foreign policy materials among the Nixon-· tapes and papers the most important of Judge Richey's conclusions was as follows · To allow any former President to remove the documents papers tapes and other materials which contain information vital to the ongoing affairs of the nation would be totally disruptive to the office of the Presidency and would impair the ability of his successor in office to properly carry out the duties and powers of the office • • • 389 F Supp at 1391 CONFIDENTIAL ' I I J I CONFIDENTIAL • -11- This reasoning rests on constitutional considerations--that depriving the current President of these materials would infringe upon his exercise of constitutional powers and duties On the constitutionality of the 1974 Act a number of outcomes are conceivable If the threejudge court finds that the entire 1974 Act is unconstitutional but that Nixon still does not own the tapes and materials the materials would then remain at the disposition of President Ford A much more likely outcome is that the court will conclude that the 1974 Act is valid When and if this occurs Judge Richey's original restraining order would be lifted and under the Act Mr Buchen would have to deliver all tapes and sensitive documents into the possession and custody of the GSA Administrator As discussed in greater detail in Parts II A and C of this memorandum a surrender of custody could have serious FOIA risks under proposed regulations issued by the GSA As a possible but not very politic alternative President Ford could instruct Buchen not to deliver the more sensitive foreign policy and national security materials If Congress or a private litigant then sought to compel such delivery the President could assert executive privilege see Part IV of this memorandum • One further complicating factor on June 11 1975 Mr Buchen Assistant Attorney General Irwin Goldbloom and GSA Administrator Sampson apparently met to discuss the possibility of requesting a In addition to claiming that the Act takes his property without just compensation Nixon is also claiming that a the statute is either ex post facto or a bill of attainder in violation of Art I _Sec 9 Cl 3 of the Constitution and that b the statute violates an executive privilege vesting in former Presidents CONFIDENTIAL CONFIDENTIAL • -12- modification of Judge Richey's restraining order so as to permit all of the tapes and materials to be transferred from the E O B to a GSA administered facility The materials are apparently taking up too much room in the E O B To the extent Mr Buchen surrendered direct control over the tapes one would have to confront the Freedom of Information Act problems discussed below II FREEDOM OF INFORMATION ACT DEFENSES The Freedom of Information Act FOIA presents the most serious of the risks of disclosure not only as to the Nixon tapes but also for the memoranda and records kept by the Secretary These risks have been increased by the 1974 amendments to the FOIA which strengthen the FOIA provisions on de novo judicial review of rejected FOIA requests and limit the _exemption available to classified materials A · What is an Agency Within the Meaning of FOIA The Freedom of Information Act 5 u s c § 552 applies only to agencies and agency records Do records held by the President and by the Secretary constitute agency records The leading case on the question of what is an agency is Soucie v David 448 F 2d 10 7 D C Cir 1971 which was decided before the 1974 amendments That case involved a request for records held by the Office of Science and Technology which was in the Executive Office of the President The court held that for purposes of the Admihistrative Procedure Act including FOIA an agency is any administrative unit with substantial independent authority in the exercise of specific functions and concluded that the Office of Science and Technology was included within this definition 448 F 2d at 1073 CONFIDENTIAL ' CONFIDENTIAL • -13-· The court however was very careful to distinguish between administrative units which were simply part of the Executive Office of the President and those that were part of the President's immediate staff For example the court noted that it need not determine whether Congress intended the APA to apply to the President id at 1073 and referred to a House Report concerning the Office of Science and Technology OST which said that the Office was to function as a distinct entity and not merely as part of the President's staff id at 1074 The court then added · If the OST's sole function were to advise and assist the President that might be taken a an indication that the OST is part of the President's staff and not a separate agency Id at 1075 In addition to advising the President the OST had also been delegated by Congress the duty of gathering information on federal scientific programs available to the legislature Extending the rationale of Soucie v David it would appear that records controlled directly by the President himself or by his immediate staff would not constitute agency records Moreover to-· the extent that any records under the d rect control of Secretary Kissinger were originated and are kept at the White House and are used exclusively in advising the President and not in the-work of the NSC staff such records may fall within the presidential exemption implied in Soucie v David Justice Department officials have expressed the view that the NSC is an agency for FOIA purposes CONFIDENTIAL CONFIDENTIAL • -14- In t e 1 74 amendments to FOIA Congress added a n w d 7finitio of he term agency That definition provides in pertinent part e For purposes of this section the term agency as defined in section 551 1 of this title includes any executive department or other establishment in the Executive Branch of the government including the Executive Office of the President or any independent regulatory agency rs u s c § 552 3 In the conference report to the 1974 amendments the conferees stated specifically that this definition was intended to affirm the result reached in Soucie v David and then added the following significant sentence The term I agency is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President Senate Report No 93-1200 93rd Cong 2nd Sess at 15 1974 Conference Report This language should seemingly be read in light of-the opinion in Soucie v David which indicated that two groups of presidential advisers were excluded from the term agency a members of the President's immediate staff and b units in the Executive Office which simply advised and assisted the President and which did not perform other functions delegated by Congress But that kept from cf Judge Richey's statement in Nixon v Sampson records of the executive agencies and departments in the inner White House Office may not be immune FOIA disclosure 389 F Supp at 147 · I CONFIDENTIAL ' I • -15- This of course raises the question of how to characterize materials originated or kept in the office of the Secretary of State Are such records necessarily the records of the Department of State There is no judicial or legislative authority on this point It would seem however that a characterization of such records would depend on the content and use of the records To the extent that the materials contained foreign policy information or that persons other than the Secretary were permitted to read the records or that the records were used so as to permit the Secretary or others to arrive at departmental policies or decisions the records could well be viewed as those of an agency On the other hand an argument could be made that if the Secretary intended to keep the records for his personal use if he limited access to himself and if he segregated them into files marked personal then the materials should perhaps be viewed as personal rather than agency records In the absence of any precedent such conclusions·must be tentative With respect to the Nixon tapes and papers a problem will arise when and if custody of the materials is transferred'to the GSA Administrator as is apparently desired by Philip Buchen or as contemplated by the Presidential Recordings and Materials Preservation Act of 1974 and the proposed GSA regulations thereunder If direct c ustody and control is surrendered it is likely that the tapes and materials will be deemed to be records of the GSA and hence agency records under FOIA rather than records of the President or his immediate staff It would therefore be desirable to retain the tapes and sensitive foreign policy documents at the White House if the bulk of the 42 million items of material from the Nixon presidency is to be transferred But if the tapes etc are to be moved also to a GSA facility perhaps limiting access to or CONFIDENTIAL _ l II • CONFIDENTIAL -16- i' control over t em to the President's Counsel would reserve a claim that the tapes are still presidential in nature and not GSA records To accomplish th· the proposed GSA regulations would have to be revi d If deemed to e · 11 agency records the next step would be_t determine whether the records in question are specifically exempted from disclosure by the FOIA B Exemption for Records Properly Classified Assuming records held by the President and by the Secretary are deemed to be records of an agency the FOIA is applicable to those records and one must' turn as a first line of defense to the express exemptions set forth in paragraph b of the statute The first of these exemptions are for records which are properly classified pursuant to Executive Order 11652--which is the executive order which sets · forth the criteria and procedures for classifying records The controlling statutory language--that a record be in fact properly classified --was added under the 1974 amendments As discussed under point E below the 1974 amendments also permit district courts to review records in camera to determine whether they have indeed been properly classified In this part of the memorandum our concern is what constitutes a properly classified record This question can only be answered under the provisions of Executive -· Order 11652 11 With respect to the substantive ·content of a record Section 1 of Executive Order 11652 provides for the classification only of national security information--material whose unauthorized disclosure could reasonably be expected to cause exceptionally Note that Judge Richey's stayed opinion in Nixon v Sampson suggests that even if transferred the materials might remain presidential 389 F Supp at 1 6-47 CONFIDENTIAL - -- -- - ·-- -- ------ ---- - ·-· II 1 1 ' l I CONFIDENTIAL ff i 1 • -17- ' gra 7e damage to the national security Top Secret serious damage to the national security Secret or damage to the national security Confidential Under Executive Order 11652 national security c nsiderations are the only bases for the classification of a record The potential for an adverse foreign policy impact arising from the disclosure of certain information is however a national security consideration within the meaning of E O 11652 See also Uniform State AID USIA Security Regulations §§ 911 1 911 2 and 911 3 I Presumably any classification of the Nixon tapes or other records of concern here would meet these substantive standards if a classification decision ever had to be defended The problem however is that the necessary steps to classify the tapes and records in question have apparently not been taken If the tapes and records were formally classified at the time they were prepared there would ·be little procedural objection to the classification But can the tapes and records be classified at a time substantially after their original preparation Can they be classified after some ne has requested their production under FOIA And if such ex post facto classifications are valid can the tapes and records now be classified en masse or must be reviewed one by one -- 1 Classifying a Record After it Has Been Prepared Section 4 A of Executive Order 11652 provides that each classified document shall show on its face its classification • • • whether it is subject See however point F below which discusses a new FOIA requirement that an agency must make available all reasonably segregable portions of a recor from which exempt e g classified matter has been deleted CONFIDENTIAL CONFIDENTIAL • -18- to or exempt from the General Declassification Schedule and also the office or origin and the date of preparation and classification • • • • The latter term concerning the date of preparation and classification suggests that the processes of preparation and classification are distinct and that each may be undertaken at a different time If this is indeed the case then there should be no objection if one were now to classify tapes and records held by the President and the Secretary On May 17 1972 the National Security Council issued a directive 37 F R 10053 pursuant to Section 6 of E O 11652 which authorizes the issuance by the NSC of binding·directives relating inter alia to the making of classified material Part IV of that directive provides At the time of origination each document or· other material containing classified information shall be marked with its assigned security classification and whether it is subject to or exempt from --the General Declassification Schedule This suggests that in order for a record to be properly classified it must be classified at the time of its origination On the other hand the directive then goes on to state The person who signs or finally approves a document or other material containing -classified information shall be deemed to be the classifier Although Section 4 A refers only to documents it might be argued that the term should be broadly construed as covering all classifiable materials CONFIDENTIAL Ui1 I '• • • CONFIDENTIAL -19- The latter sentence seems to imply that a document has not been classified until and unless the appropriateness of classifying the document has been reviewed and the record has been signed or · approved In other words classification involves more than simply marking a document Where documents are not marked at the time of their 0 origination the directive states only that-- Should the classifier inadvertently fail to mark a document using one of the formulae specified in the directive the document shall be deemed to be subject to the General Declassification Schedule The directive does not say that Jailure to mark a record at the time of its origination ipso facto precludes a subsequent classification of the record In dealing with this complex problem of subsequent classification one must also take into account the State Department's classification regulations which ere promulgated pursuant to Section 7 B 1 of E O 11652 and which may be applicable to the classification of records kept by Secretary Kissinger Section 912 1 of the Uniform State AID USIA Security Regulations provides in pertinent part Any person who originates a classified document has the responsibility to assign the appropriate classification at the time the document is prepared The final classification and declassification schedule however must be approved by an official with the appropriate level of classifying authority This language again suggests that the classification process is not complete until the appropriateness of a CONFIDENTIAL r · ---- ---- p ECLASSIFIED Authority No - -- -tt l z CONFIDENTIAL • -20- I cla s ficati n has beep 7e iewed and approved by an official having the requisite classifying authority I The re son for this circuitous discussion is that there is no court qecision on the question of whether records can be classified long after their origin l preparation Perhaps the entire problem can be avoided at least as to memoranda from the Israeli and other foreign governments by a broad reading of Section 4 C of E O 11652--which seems to indicate that some materials received from·foreign governments are inherently classified Classified information or material furnished to the United States by a foreign government or international organization shall either retain its original classification or be assigned a United States classification In either case the classification is assured a degree of protection equivalent to that required by the foreign government or international organization which furnished the information or material Emphasis supplied In other words if the information or material is classified by the· foreign government a new act of· Moreover the requirement that a classification be assigned at the time a document is prepared may suggest a distinction between the origination and preparation of a document--particularly in the case of unwieldy materials such as a library of tapes or a file drawer of notes on conversations until the raw tapes or notes are collated indexed or otherwise organized the tapes or notes might not be deemed to have been prepared for purposes of even assigning an initial classification As discussed under point C below the proposed GSA processing procedu es for the Nixon tapes and papers contemplate future NSC classification of sensitive materials not yet classified CONFIDENTIAL CONFIDENTIAL • -21- classification within the United States is not necessary What does classification by a f · government entail It is probably safe to oreign general princi le that all foreign states e c s a that conversations by their heads of state as well as memoranda they supply to our Secretary of State shall be guarded on · t t · • a confidential basi·s • p erh aps th is e p 7c a 1O in and of itself constitutes a 11 clas 1f1 cat1on by the foreign government we certainly cannot expect a foreign government to adhere to our procedural formalit es in classi fyin a record g The more certain approach would of course be to have the memoranda immediately reviewed and' where appropriate marked with a classification A similar review should also be -made·of any notes on monitored conversations kept by the Secretary Along these lines one could request the President to issue a new executive order which would amend Section 4 C of E O 11652 to clarify that for purposes of Section 4 C communications from foreign heads of state and information or material given in confidence by a foreign government shall be deemed to be classified unless the foreign government expresses a contrary intent Cf Wolfe V Froehlke· 358 F Supp 1318 D D C 1973 As mentioned above failure to classify a record at the time it was originated will subject the record to possible automatic declassification in from six to ten years after the record was originated under the General Declassification Schedule NSC Directive of May 17 1972 Part IV A 37 F R 11053 E O 11652 Section S A The Secretary however could specifically exempt material furnished by foreign governments and other sensitive foreign policy materials from this Schedule E O 11652 Section 5 B 1 and 3 CONFIDENTIAL • CONFIDENTIAL -22- I 2 Classifying After an FOIA Request is Presented The legal arguments supporting subsequent classification of a tape or record suffer some attenuation when classification is attempted after an FOIA request has been made Classification in these circumstances might give rise to a claim that the classification was made not in accordance with any ordinary review to determine the appropriateness of a classification but simply to frustrate FOIA requirements Such a shift in the equities in favor of the FOIA applicant might induce a court to conclude a that a·reasonable opportunity to review the tape or record for purposes of assigning a classification has elapsed and that b the tape or record has therefore not been properly classified within the meaning of the FOIA Again there is no authority on point The problem will have to be met in any effort to classify Nixon tapes or materials for which FOIA requests are currently outstanding--such as by Jack Anderson see Part I above As for records kept by the Secretary he problem can be avoided by now undertaking a review of those records 3 Classifying Documents En Masse If an immediate review of the tapes and records is to be undertaken must someone engage in the __ painstaking work of reviewing the tapes and records one by one or can certain categories of tapes and records be classified en masse without an item-byitem review A major obstacle to en masse classification is that such a wholesale approach may be inconsistent with some of the arguments discussed above--i e the argument that a government agency cannot waive its right to classify a record until an authorized official has had an opportunity to review the-record to det rmine whether a classification is appropriate By assigning a classification en masse the opportunity to review argument may become fortuitous · CONFIDENTIAL ' ------------- CONFIDENTIAL -23- On the other hand one might contend that since some of the materials are extremely unwieldy or bulky e g the tapes and the Secretary's notes of conversations and since some of these clearly contain national security information it would be consistent with E O 11652 to make an interim classification of such materials pending a more detailed review One might for example simply affix a classification marking to the front of each document and reel of tape that clearly contains some national security information such a classification would of course be a qualified one applicable on1y to national security information contained in the tapes or records In sum it would be desirable now to classify the foreign policy--national security materials contained in tapes memoranda or other records in the custody of the President or Mr Buchen or of - the Secretary Again proper classification of the tapes etc would exempt them from disclosure under the FOIA even if the tapes and materials were held t o be agency records 5 U S C § 552 b 1 • To other possible FOIA exemptions we now turn C Exemptions for Materials Covered by Other Statutes Paragraph b 3 of the FOIA exempts matters ' that are • • • specifically exempted from disclosure by some other statute Ironically one statute that may be pertinent here is the Presidential Recordings and Materials Preservation Act of-1974 relating to the tapes and other materials of the Nixon presidency See NSC directive of May 17 1972 Part IV B which provides that the classification of a document shall be conspicuously marked or stamped at the top and ottom of the outside of the front cover if any on the title page if any on the first page - on the back page and on the outside of the back cover if any CONFIDENTIAL J • CONFIDENTIAL • -24- Section 103 of the Act directs the GSA Administratior to issue regulations to prevent inter alia access to Ithe recordings and materials by unauthorized persons Section 104 then directs the GSA Administrator to issue regulations governing public access to the tapes and materials however such regulations must take into account inter alia the need to prevent general access • • to information relating to the Nation's security P L 93-526 § 104 a 3 Thus to the extent the GSA regulations will preclude access to foreign policy materials involving national security disclosure under the Presidential Materials Act and hence under the FOIA would be prevented The GSA Administrator has issued proposed regulations relating to public access to the Nixon tapes and materials The proposed regulations would restrict access to 11 national security classified ·- information which is defined to mean- • • • any matter which is security classified under existing law and has been or should be designated as such This definition assumes that materials may be classified even though the formalities of marking records as classified have not been complied with The ·reason for this is that the GSA in processing the Nixon tapes and p pers contemplates a procedure for marking materials that are not yet ostensibly classified To cite a specific area of restriction any papers or White House tapes which contain national security information must be protected from disclosure in accordance with Executive Order 11652 During the review process archivists will identify all materials bearing national security classification markings for segregation from other materials being prepared for public access In addition archivists CONFIDENTIAL - JjECLASSIFI ED -· · - - • 4 i11illrity N 1 2 f 5'1 b I • CONFIDENTIAL • -25- will identify and lay aside any materials containing information which appears to be related to national security for later review by the National Security Council If such materials are deemed to contain national security information they will be marked appropriately and segregated GSA Report to Congress on Title I Presidential Recordings and Materials Preservation Act at C-5 March 1975 The success of this processing in•protecting sensitive foreign policy materials will therefore depend on the awareness and competence of the archivists selected Perhaps these archivists should be briefed in advance by NSC or State Department staff as to what types of materials to send to the NSC In the alternative an NSC or State representative could supervise the processing Returning to FOIA considerations should a tape or• document be set aside by an archivist and then formally designated as classified by the NSC it would seem to be exempted from disclosure under the FOIA as protected under another statute D Exem2tion for Privileged and Confidential Material Section b 4 of the FOIA exempts materials that are- trade secrets and commercial or financial information obtained from any person and privileged or confidential • ' This exemption has generally been viewed as one designed to prevent information given to government agencies in confidence by individuals or companies See Grumman Aircraft Engineering Corp v Renegotiation Board 425 F 2d 578 D C Cir 1970 Benson v General Services Administration 289 F Supp 590 W D Wash 1968 affirmed 415 F 2d 878 9th Cir 1969 • It CONFIDENTIAL • • CONFIDENTIAL -26- has been said that the policy underlying this provision is to encourage individuals and businesses to continue giving confidential information to the Go ernment and that the provision must be read arrowly in accordance with this policy Soucie v David supra The legislative history however suggests that the term privileged or confidential states -a separate category of materials which is to be broadly construed For example the provision could be read as follows The provisions of this ·section shall not be applicable to matters that are • • privileged or confidential on this point the House report states It would include information customarily subject to the doctor-patient lawyerclient or lender-borrower privileges • • Moreover where the Government has obligated itself in good faith not to disclose documents or information which it receives it should be able to honor -such obligations Arguably if the Government has obligated itself in good faith to accept documents or communications in confidence from foreign governments or other nonu s sources such·a commitment might be exempted as privileged or confidential Again it must be kept in mind that the case law has thus far 1·imited this exception to situations where commercial secrets or an individual's privacy are invo-lved - ' One further point the Secretary might be able to contend that his own notes and memoranda contain personal reflections about other persons Portions of materials which contain su h refle9tions may be protected und r the confidential and privileged exemption The remainder of the materials however would not be protected See point E below CONFIDENTIAL I - - CLASSIFiEo--•--- - u1b ty VNQ tfs • CONFIDENTIAL • -27- E Exemption for Inter and Intra-Agency Policy Memoranda Paragraph b 5 of the FOIA exempts matters that are inter-agency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the ag ncy In discussing the scope and purpose of this provision the House report states Agency witnesses argued that a full and frank exchange of opinions would be impossible if all internal communications were made public They contend ·and with merit that advice from·staff assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to 'operate in a fish bowl ' The courts in applying this exemption have formulated a test opinions and advice expressed in a policy-making process by members of an agency staff are covered by the exemption whereas purely factual materials are not See Stern v Richardson 367 F Supp 1316 D D C 1973 Stokes v Brennan 476 F 2d 699 5th Cir 1973 To put it another way it is a process of deliberation or of policy making which is protected under this exemption and not mere factual data Soucie v David supra - No court has had occasion to extend this exemptiop to records other than staff reports memoranda etc But at least some of the tapes and materials in the custody of the President or Secretary presumably reflect processes of deliberation and of foreign policy making This should be true of any written notes of monitored telephone converations between the Secretary and other persons at policy-making levels CONFIDENTIAL l· • CONFIDENTIAL -28- F In camera Inspections and Disclosure of Segregable Matter Assuming that a tape or document is deemed to be an agency record and assuming also that the tape or document qualifies for protection unde 7 one of the exemptions discussed above there ·are still two more hurdles to cross--one procedural in camera inspections and the other substantive the segregable matter requirement In Camera Inspections At the time the FOIA was first enacted in 1967 there was considerable uncertainty as to how far a court could go in reviewing an agency's claim that certain material was exempted from disclosure The act stated simply that the courts shall determine the matter de novo and the burden is on the agency to sustain its action As for materials exempted because classified the Supreme -Court held that U S district courts could not make in camera inspections of classified documents for purposes of separating out any non-secret components Mink v Environmental Protection Agency 410 U S 73 1973 · The 1974 amendments to the FOIA eliminated much of thi_s uncertainty by increasing judicial authority to conduct in camera inspections The act now provides -· IT he court shall determine the matter de n ovo and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in Subsection b of this section and the burden is on the agency to sustain its action 5 U S C § 552 a 4 B 11 A The conference report however states that II in camera examination need not be automatic and that before a court orders in camera inspection the Government should be given the opportunity to establish by means CONFIDENTIAL r • ' CONFIDENTIAL -29- of testimony or detailed affidavits that the documents are clearly exempt from disclosure Senate Report No 93-1200 at 9 The conference report then goes on to state IT he Executive departments responsible for national defense and foreign policy matters have unique insights into what dve 7se effects might occur as a resu t of public disclosu e of a particular classified record Accordingly the conferees expect that federal courts in making de novo determinations in Section 552 b 1 cases under the Freedom of Information law will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record Id at 12 This would appear to indicate that gf an FOIA request were made for the tapes or records held by the President or Secretary and if a refusal to disclose such tapes or records were made by the xecutive branch an in camera judicial inspection might be resisted by presenting affidavits attesting 1 that the records and tape 7 contain national security andt'oreign policy matters and 2 that the rtapes -or recordsl have been properly classified or that ey fall under' 1 ome other FOIA exemption _If the affidavits were to be rejected by a court and if appeals were to no avail executive privilege would be the last line of defense see Part IV below_ J Segregable Matter Although information in a document may qualify for one of the FOIA exemptions it does not necessarily mean that the entire document will be grotected from disclosure 'aragraph b provides_ Any reasonably segregable portion of a record shall be provided to any person requesting such CONFIDENTIAL I CONFIDENTIAL -30- record after delet· exempt under th l on of the portions which are is subsection The courts are em o only with respectptwered to make detenninations not O to any part th n entire record but also as resist partial e 0 5 u s c § 552 a 4 B To matter rule t 1 sc osures under this segregable the course ut executive branch would have to·follow affidavits t ined above--i e submitting sworn privilege 0 th e court and or asserting executive i· III PRIVACY ACT DEFENSES The Privacy Act of 1974 will come into effect September 28 1975 Conceivably someone might 1 1 ea r quest under the act seeking access to information relating to him and contained in tapes or records in the custody of the President or Secretary In our view the Privacy Act would be of no vail to persons seeking disclosure of foreign policy materials contained in tape recordings memoranda or other records The primary purpose of the Privacy Act is to permit an individual to determine what records pertaining to him are collected maintained used or disseminated by an agency P L 93-579 § 2 b As this statement of congressional purpose· indicates the act applies only to records about the individual making a request Significantly not all information about an individual is obtainable under the act The act permits access only to information which is contained ' The term individual is defined to mean a citizen of the United States or an alien lawfully admitted for permanent residence 5 U S C § 552a a 2 Justice has tentatively taken the position that the term individual would not include corporations ' CONFIDENTIAL DECLASSIFIED Authority NND ' 1 h u I CONFIDENTIAL -31- in a 11 system defined to mean a r of records wh ic h in turn is the ind - oup of records retrievable by the name of other vi al_or by some identifying number symbol or 5 0 entifying particular assigned to the individual 11 tio· • • § 44 2a a 5 In other words the informan m st be in a file or other collection which is cross-indexed to the individual's identity so that it ay be 7adily retrieved by officials seeking J forma ion on the individual In addition such a file must contain personal data or information about the individual 5 u s c § 552a 4 1 SC Presumably neither the tapes nor the other aterials in the custody of the President or Secretary is cross-indexed--and hence retrievable--according to an individual's identity nor are they a system of records pertaining ·to information about individuals In our view the fact that the President or Secretary _discusses a particular individual in a policy-making context would not convert a recording or memorandum of the conversation into a record of personal information about the individual IV EXECUTIVE PRIVILEGE As a last line of defense in protecting sensitive foreign policy or national security information the Such a cross-index however may come ·into existence when and if the Nixon papers and tapes are processed by the GSA under the Presidential Recordings and Materials Preservation Act of 1974 In addition if the tapes and other records were properly classified and hence exempted under paragraph b 1 of the FOIA they would also be exempted from disclosure under the Privacy Act 5 u s c § 552a k 1 However not all FOIA exemptions are carried over into the Privacy Act For example the Privacy Act does not specifically exempt materials protected under other statutes--such as the Nixon papers would be through GSA processing under the Presidential Materials Preservation Act of 1974 see Part II-C of this memorandum CONFIDENTIAL DECLASSIFIED Authority tJND 'fi b CONFIDENTIAL -32- President fo h' assert ' ims7l or for the Secretary could executive privilege The privilege is generally considered to be available only against ot er_b anch of the Government i e Congress or He Judiciary and not against private individuals w7ver once a private individual resorts to litigation to obtain access to information or records the privilege may be asserted against the process of a court e g a subpoena 7 The availability of the privilege to protect diplomatic and foreign policy information was recognized in the most recent and authoritative decision on executive privilege United States v Nixon 418 U S 683 1974 Four times during the course of its opinion in the Nixon case the court emphasized that the case before it did not involve a subpoena seeking the production of diplomatic or · military information As the court noted Nixon had raised no more than a generalized claim of public interest and confidentiality of non-military and non-diplomatic discussions 418 U S at 707 In dictum the court indicated that an assertion of executive privilege to protect diplomatic secrets involved an exercise of the President's Article II duties under the Constitution He does not place his claim of privilege on the ground they are military or·diplomatic secrets As to these areas of Article II duties the courts have traditionally shown the utmost deference to Presidential responsibilities 418 U S at 710 The court also observed The need for confidentiality even as to idle conversations • • in which reference might be made concerning • foreign statesmen is too obvious to call for further treatment 418 U S at 715 CONFIDENTIAL DECLASSIFIED Authority Jl 'D f- b_ I J CONFIDENTIALITY -33W th respect to th tion the court ci e r tectio of diplomatic informaS s Corp 333 U S Air Lines v Waterman said that the s l0 3 111 1948 where it was nullify a t ' courts should not review and perhaps that the io s of the executive taken on information resident ha d obtained as the nation's organ for fore· that ign a ff airs Then the court indicated th a cl im of executive privilege which relates to e 7Xerc1se of a President's powers to conduct foreign affairs had constitutional underpinnings N owh ere 1 n · the Constitution - as we have noted earlier is there any explicit reference to a privilege of confidentiality yet to the extent this interest relates to the effective discharge of a President's powers it is constitutionally based 418 U S at 711 In light of the foregoing an assertion of ·executive privilege against either congressional or judicial action relating to most of the materials of concern here would in our view be judicially recognized Presidential conversations with foreign heads of state the Secretary's conversations which lead to foreign policy decisions the acceptance of With respect to the protection of military information from court review see United States v Reynolds 345 U S 1 10 1953 which is also discussed in United States v Nixon The court also stated Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art II powers the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties 418 U S at 705 CONFIDENTIAL f DECLASSIFIED Authority NND ' ft b CONFIDENTIAL -34memoranda from fo an exercise ot threJ gn overnments--each involve powers under Art·eiPresident•s foreign ·relations with res ect ice II thus a clabn of privilege with th p t th se materials would be consistent States Ve cN°1 st itutional theory outlined in United • ixon fr dA clai of executive privilege with respect to e om of information act requests as discussed in art II-F of this memorandum raises an additional problem If the President or Secretary declined to make certain records available under one of the exemptions stated in the statute a court would have the authority to make an in camera inspection of the records in order to determine de nova whether such records should have been made available If the court declined to rely on affidavits and representations concerning the records and insisted instead on an in camera inspection the President could attempt to prevent such an inspection by asserting executive privilege Ironically however the Supreme Court in the United States v Nixon provided for in camera inspection of records for which a privilege had been claimed 418 U S at 714-16 and provided that the district court could segregate privileged from non-privileged material 418 U S at 715 n 21 This suggests that the courts are the final arbiters of-the scope and extent of executive privilege however the United States v Nixon decision was specifically limited to the facts of that case Therefore it is not clear where courts can generally-conduct in camera inspections to determine whether a claim of privilege is proper On the other hand if an in camera inspection were conducted a court would presumably conclude that the claim of privilege was appropriate with respect to sensitive foreign policy materials and therefore find it unnecessary to determine whether the records in question qualified under one of the FOIA exemptions CONFIDENTIAL DECLASSIFIED Authority NND ' ft b • CONFIDENTIAL • -35- A third situation in which executive privilege could come into play is where Congress itself sought access to some of the foreign policy materials discussed in this memorandum In fact Senator Weicker has written to the Secretary about the alleged monitoring of the Secretary's telephone conversations and there have been congressional requests for copies of the Nixon-Thieu letters Although there has been no court decision on point recognizing a claim of executive privilege against a congressional request the availability of such a claim is widely recognized and was obliquely acknowledged in United States v Nixon 418 U S at 705-06 In sum to the extent that executive privilege is claimed to protect sensitive communications in the area of foreign relations--an area in which the President's constitutional preeminence has been recognized by the Supreme Court--the claim of privilege will undoubtedly be legally recognized 'lbere may however be practical reasons for not asserting the privilege Drafted L MDSandler kp x22149 7 15 75 DECLASSIFIED Authority NND f1 b