Jack Smith's Espionage Act Charges, Part 4: Eisenhower, 793(d), and private ownership of classified information
In a 1978 letter, the Archivist of the United States told Congress, “Harry Truman's and Dwight Eisenhower's most sensitive files were not transferred to custody of the respective library until their respective deaths.”1 Records of the Church Committee show that former National Security Advisor Gordon Gray related that, on at least one occasion, sensitive documents were retrieved (from the Fort Ritchie military base according to authors Gibbs and Duffy)2 and brought to Eisenhower’s post-presidential residence in Gettysburg.3 Testifying at a 1974 Congressional hearing, John Eisenhower related that on January 19, 1961 he and the White House janitors “picked up four safes of highly classified material which went to Fort Ritchie, and the other papers went to Gettysburg.”4
Michael Beschloss has written that “[e]x-President Eisenhower's White House documents were kept at Fort Ritchie--he had to apply for access to them.”5 He also wrote:
I was told long ago by Eisenhower's close aide General Andrew Goodpaster that in retirement, while writing memoirs, Ike insisted on keeping his papers at Fort Ritchie, Maryland, and carefully applying to the administration of his successor, JFK, when he wanted access to them.6
William Hopkins, former senior executive clerk of the White House, stated in an affidavit: “Certain files were sent to Gettysburg, Pennsylvania where President Eisenhower personally worked with them. These Gettysburg materials included his personal file, popularly refered [sic] to as the “Whitman Files.””7
Facsimiles of declassified materials, with stamps showing they belong to the Whitman file, are available on the State Department and Eisenhower Library websites:
National Intelligence Estimate, advance copy, 12/23/59
Assistant Secretary of Defense, Status of the Mobilization Base, 12/18/58
Chairman of the Joint Chiefs of Staff, Memorandum for the Secretary of Defense, 4/25/58
Director of Guided Missiles, Presentation to the NSC, 4/24/58
Discussion at the 202nd Meeting of the National Security Council, 6/18/54
Discussion at the 253rd Meeting of the National Security Council, 7/1/55
The National Study Commission on Records and Documents of Federal Officials reported that “the files maintained by President Eisenhower's personal secretary were retained by the General at his Gettysburg residence and were deposited in the Eisenhower Library only after his death.”8 In his affidavit in Nixon v. Administrator of General Services,9 John Eisenhower stated, “Upon the death of President Eisenhower in 1969 all of the Whitman files which had been in his possession in Gettysburg since the close of the administration were packed and shipped to the Eisenhower Library in Abilene, Kansas.”10
John Eisenhower told Congress in 1974 that after his father granted Lyndon Johnson’s request to see letters from David Ben-Gurion, John Eisenhower “returned to Gettysburg, found the documents President Johnson wanted and turned them over to him.”11
When John Eisenhower made it clear to DOD’s Timothy Stanley that the Secretary of Defense ought to request the memorandum or reporting telegram that may have been among his father’s papers,12 DOD chose not to press its luck.13 Paul Nitze makes clear that the DOD considered the putative telegram from the U.S. Ambassador to France, which was thought to mention the Ambassador’s “firm assurances that the United States nuclear deterrent could be counted upon to support its Western European allies,”14 to be a serious national security affair.15
The DOD did not resort to a demand notice under 793(d), the lawful possession subsection of the Espionage Act. Nor was a search warrant executed at the General’s Gettysburg farm. The DOD did not institute a replevin action through the Attorney General on the grounds that a telegram from an Ambassador belonged to the United States under federal records law.16 The Department of Defense was familiar with 793(d) notices, as its branches issue them when they decide they have improvidently sold surplus defense articles.17
Proceedings arising from 793(d) demand notices have described the equipment or transaction in question as “incorrectly cataloged,”18 “a mistake made by the Government employees at Dayton,”19 and “invalid for failure to demilitarize.”20
Though the Ninth Circuit suggested “a takings claim under the Fifth Amendment” is available,21 in AST/Servo Systems (as the Ninth Circuit itself noted)22 the Court of Claims ruled that “the Air Force's original sale was invalid,” “plaintiff is bound by the vice in that transaction” and “[s]ince plaintiff's right to the equipment was defective from the beginning, it cannot have just compensation or fair market value.”23 The Dubin cases employ the locutions “the possessor who has no right to keep possession of the property”24 and “plaintiff's title to and possession of this equipment were "completely vulnerable.’”25
The Court of Claims’ explicit rejection of “just compensation” in AST/Servo Systems hints that 793(d) may not extend beyond recovery of materials properly belonging to the United States. A 1948 Report of a Judicial Conference Advisory Committee lists Sections 5, 11, and 13 of the Atomic Energy Act of 1946 (which were codified at 42 U.S.C. §§ 1805, 1811, and 1813 at the time)26 among statutes that authorize eminent domain.27 But Congress did not extend that authorization to Section 10 (“restricted data”) of the Atomic Energy Act, nor did Congress add an eminent domain authorization to the Espionage Act when it fashioned 793(d) into its current form four years later. In non-Espionage Act litigation, the DOJ has claimed that Section 793 is one of the laws where “[t]he government’s property right in confidential or privileged information is implicitly acknowledged.”28
Would a 793(d) demand notice to Eisenhower for a putative State Department telegram about assurances on the nuclear deterrent have been lawful? Was there “mistake,” inadvertence, or “vice?” Was the General akin to “the possessor who has no right to keep possession of the property?”
Eisenhower reserved to himself and his son the gatekeeper’s power over sealed materials at his library (among them security-classified papers) and categorically barred “public officials” access to them.29 As the appellate panel in Nixon v. U.S. pointed out,30 the Archivist consented to the University of Michigan’s executory interest31 in Ford’s papers, which still include only partially declassified PDBs.32
The only judicially imposed limitation on the property rights of a former President relates to transfer. In Griffin v. U.S., the district court accepted the government’s argument against compensating Nixon’s estate for classified materials,33 judging that an executive order forbade transfer to “a member of the public.”34 The court divined such limitations on transfer or sale from Executive Order 11652, § 6 and 12, as well as from Executive Order 10865, § 2.35 By this logic, the same executive branch regulation should impinge on Ford’s property rights and void the University of Michigan’s executory interest in his classified papers. The district court’s opinion does not mention that the provisions it relies on in § 6 of Executive Order 11652 are “policies” to be followed in implementing directives (such as this National Security Council Directive).36 The directives implementing the policies in Section 6 “shall be binding on all Departments.” The order does not on its face make the policies cited by the district court mandatory within the Office of the President.
An example of non-Presidential private ownership of classified materials in the 1960s was Ted Sorensen, an advisor to President Kennedy, who received a tax deduction for donating his White House papers to the Kennedy library and consulted classified correspondence and memoranda as he worked on Kennedy:37
“Upon the announcement in early 1964 that I was leaving the White House, I was visited by the Assistant Archivist of the United States, an official of the General Services Administration. He informed me that the papers in my files that I had created and accumulated during the period of my service in the White House were regarded by both law and historical precedent as my personal property; and further, that I was entitled to make any use of those papers that I deemed appropriate, whether selling them as some former White House aides had done, writing books based on them as other former aides had done, or donating them to an appropriate educational institution-with a tax deduction on the value of the gift—as still others had done.”38
“Upon my signing, on February 14, 1964, a letter of intent to donate my papers to the Kennedy Library, the Archivist's Office sorted and packed my files, presumably leaving behind anything that was not mine, and transferred them to a GSA depository in the Boston area.
The GSA then sent to my home in Massachusetts certain of those papers that I had selected as necessary background materials for my book. The GSA collected them from me upon completion of my manuscript, and the entire lot of my papers was then transmitted to the John F. Kennedy Library, to which I donated them.”39
“…I removed 67 cartons of papers, documents and files of all kinds (7 cartons of which were "classified") from my office in the White House upon my departure in February of 1964. I drew upon this material, keeping some of it in my own home, in writing the book KENNEDY, published in 1965. The classified material included copies of the Kennedy-Khrushchev correspondence, the transcript of their summit meeting at Vienna, secret memoranda and directives relating to the Cuban missile crisis, Berlin, Laos and Congo crises, and the Bay of Pigs, as well as other Presidential letters and memoranda of conversations.”40
“The government, speaking through the National Archives, asked me as the lawful owner of these papers to donate them to the United States of America for eventual deposit in the John Fitzgerald Kennedy Library; and the government, acting through the Internal Revenue Service, recognized that these were my property in granting a tax deduction for this gift. The legislative history of the Presidential Libraries Act of 1955 and the Federal Property and Administrative Services Act of 1949 made clear that these were my papers to dispose of as I saw fit, much as Sherman Adams, Samuel Rosenman, Clark Clifford and a great many others had done before me.”41
Declassified materials from the Theodore C. Sorensen Personal Papers at the Kennedy Library include:
Memorandum for the Director, CIA Office of National Estimates, 10/23/62 (declassified 10/01)
Soviet Capabilities and Intentions to Orbit Nuclear Weapons, National Intelligence Estimate Number 11-9-63, 7/15/63 (sanitized 1/12)
Sorenson’s affidavit and testimony do not indicate how he stored the material in his home. Provisions of Executive Order 10501, as amended,42 when Sorensen left the White House included rules on safekeeping and storage in Section 6:
“The possession or use of classified defense information or material shall be limited to locations where facilities for secure storage or protection thereof are available by means of which unauthorized persons are prevented from gaining access thereto.”43
“As a minimum, Top Secret defense information and material shall be stored in a safe or safe-type steel file container having a three-position dialtype combination lock, and being of such weight, size, construction, or installation as to minimize the possibility of unauthorized access to, or the physical theft of such information and material.”44
“Accountability and Dissemination” rules were in Section 7:
“Knowledge or possession of classified defense information shall be permitted only to persons whose official duties require such access in the interest of promoting national defense…”45
In the 1970s, the Solicitor General’s Office saw no legal impediment to the State Department transferring ownership of non-record telephone summaries to Henry Kissinger,46 though both Kissinger’s lawyer47 and a footnote in Stevens’ partial dissent and partial concurrence48 indicate the summaries included classified information.
Hur tells us that “during the Poindexter litigation in 1989 and 1990, after Mr. Reagan's presidency, the Department of Justice took the position in public court filings that the diaries were both "currently classified" and Mr. Reagan's "personal records" that were not in the Archives' possession.”49
Classified information non-disclosure agreements contemplate that an “authorized official”50 or an ”appropriate official”51 could determine that classified information is not government property. While these non-disclosure agreements require that exceptions be made ”in writing,”52 the statutory prohibition on government employees passing classified information to foreign government officials or agents does not apply when “specifically authorized by the President” (or other senior officials) without any prescription that such authorization be in writing.53
If the State Department can transfer classified material to an individual, the President evidently has that authority. Since any transfer or alienation of classified material to a private individual at the President’s direction would have none of the vulnerabilities that have been identified in the Court of Claims’ 793(d) jurisprudence, such transfers may be irrevocable and not subject to 793(d) demand notices.
Submission to Additional Subcommittee Questions, p. 171, available in Presidential Records Act of 1978 (Hearings before a Subcommittee on Government Operations, House of Representatives) (pp. 164-72)
The Presidents Club: Inside the World’s Most Exclusive Fraternity, Nancy Gibbs and Michael Duffy, 2012, p. 142
Summary of Interview with Gordon Gray, 7/4/75, p. 6 in Miscellaneous Records Of The Church Committee (p. 70 of pdf): “After the Bay of Pigs, Gray called President Eisenhower and offered to show him all of the memos that Gray had prepared on Presidential meetings on Cuba. Gray said that John Eisenhower obtained the memos and brought them to Gettysburg. Gray and President Eisenhower reviewed the memos.”
Eisenhower testimony, 10/4/74, in The "Public Documents Act": Hearings Before the Subcommittee on Printing of the Committee on House Administration, 1974, p. 75
Hopkins Affidavit in *Nixon v. Administrator of General Services*, 6/30/75, ¶ 16, printed in GSA Regulations to Implement Title I of the Presidential Recordings and Materials Preservation Act: Hearings Before the Subcommittee on Printing, 1975, p. 245
Nixon v. Administrator of General Services, 408 F. Supp. 321 (D.D.C. 1976)
Affidavit of John Eisenhower, ¶ 25, p. 8, 6/30/75, Nixon v. Administrator of General Services, C.A. No. 74-1852, printed as Appendix to Interview with Tim Stanley (p. 48 of pdf)
Testimony of John Eisenhower, 10/4/74, in The "Public Documents Act": Hearings Before the Subcommittee on Printing of the Committee on House Administration, 1974, p. 81
see Affidavit of John Eisenhower, ¶ 23 (pp. 4-5), 6/30/75, and Affidavit of John Eisenhower Exhibit B, Memorandum for the Record, 1/18/62, Nixon v. Administrator of General Services, C.A. No. 74-1852, printed as Appendix to Interview with Tim Stanley (pp. 47-8, 51-2 of pdf)
Affidavit of Paul Henry Nitze, 7/17/75, ¶ 8, pp. 4-5 in Nixon v. Administrator of General Services, C.A. No. 74-1852, Appendix to Interview with Tim Stanley (pp. 56-7 of pdf)
Affidavit of Paul Henry Nitze, 7/17/75, ¶ 6, p. 3 in Nixon v. Administrator of General Services, C.A. No. 74-1852, Appendix to Interview with Tim Stanley (p. 55 of pdf)
Affidavit of Paul Henry Nitze, 7/17/75, ¶ 9, p. 6 in Nixon v. Administrator of General Services, C.A. No. 74-1852, Appendix to Interview with Tim Stanley (p. 58 of pdf)
Records Disposal Act of 1943, as amended, and the Federal Records Act of 1950 (p. 6 of pdf)
See Dubin v. United States (“Dubin I”), 289 F.2d 651, 653 (Fed. Cir. 1961); Dubin v. United States (Dubin II), 363 F.2d 938, 939 (Fed. Cir. 1966); AST/Servo Systems, Inc. v. United States, 449 F.2d 789, 789-90 (Fed. Cir. 1971); Davinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1121 (9th Cir. 2019); Matter of Williams, 1992 WL 194742 (Comptroller General, July 24, 1992)
Matter of Williams, 1992 WL 194742 (Comptroller General, July 24, 1992): “Mr. Williams successfully bid on two lots of goods, each of which contained a device which had been incorrectly cataloged. Had they been properly cataloged, neither device would have been permitted to be sold, since each, or parts thereof, were restricted in availability to the public and necessary for national defense.
Later that year, the Navy learned of its error. Because the devices had national defense components which had not been properly disposed of, the Navy retrieved these devices from Mr. Williams under authority of the Espionage Act of 1948, as amended, 18 U.S.C. Secs. 792 to 799 (1988), and a proper receipt was given to him.”
Dubin v. United States (“Dubin I”), 289 F.2d 651, 654 (Fed. Cir. 1961): “Assuming, then, for present purposes, that the devices did relate to the national defense, the plaintiff, though lawfully in possession because of a mistake made by the Government employees at Dayton, had no right to keep possession of the property, and his keeping it, after its surrender had been demanded, would have been a serious crime.”
AST/Servo Systems, Inc. v. United States, 449 F.2d 789, 792 (Fed. Cir. 1971): “For these reasons, and on the assumption that 18 U.S.C. § 793 (d) and (e) cover these Guidance Sets, we hold that the Air Force's original sale was invalid for failure to demilitarize, and that plaintiff is bound by the vice in that transaction. In this posture, the measure of recovery is that conceded by the defendant — plaintiff's out-of-pocket expense. Since plaintiff's right to the equipment was defective from the beginning, it cannot have just compensation or fair market value.”
Davinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1127 (9th Cir. 2019): “DaVinci could proceed in the Court of Federal Claims under the Tucker Act through a takings claim under the Fifth Amendment.”
Davinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1126-27 (9th Cir. 2019): “Applying principles of contract law, the court held that the plaintiff could not recover "just compensation" because the original Air Force sale was a mistake, thereby voiding the original contract, id . at 791–92, but that the plaintiff could seek actual out-of-pocket costs, id . at 792.”
AST/Servo Systems, Inc. v. United States, 449 F.2d 789, 792 (Fed. Cir. 1971)
See Dubin v. United States (“Dubin I”), 289 F.2d 651, 655 (Fed. Cir. 1961): “If the possessor who has no right to keep possession of the property has come into its possession as a result of a mistake by Government officials in selling the property to him, he has an urgent equity in the direction of getting a refund of his direct out-of-pocket expenditures in the abortive transaction.”
Dubin v. United States (Dubin II), 363 F.2d 938, 942 (Fed. Cir. 1966): “It follows from section 793 that plaintiff's title to and possession of this equipment were "completely vulnerable." Dubin v. United States, supra. All that was required to destroy them was a demand for possession by a proper official.”
1948 Report of the Advisory Committee, printed as a note to Rule 71A Rules of Civil Procedure for the United States District Court as amended to December 31, 1958, Appendix to Title 28, p. 5195 (p. 93 of pdf)
Defendant’s Motion For A Protective/Sealing Order And For Return Of Federal Documents at 4, Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice, No. 1:05-cv-02078-EGS (July 7, 2006): “The government’s property right in confidential or privileged information is implicitly acknowledged in the criminal statutes which prohibit the misuse or mishandling of such information. See, e.g., 18 U.S.C. §§ 793 (information relating to national defense); 794 (same); 798 (classified information concerning codes); 952 (diplomatic codes and correspondence); 50 U.S.C. § 783 (communication of classified information to foreign government).”
Eisenhower 4/13/60 letter, §§ 5, 7(a), 8, pp. 3-4 (pp. 37-8 of pdf): “5. All papers and other documentary materials transferred to the United States pursuant to the foregoing shall be accessible at all reasonable times to me, my son, my representative, or to other persons authorized in writing by me or my son to have access to such papers.
[…]
7. Subsequent to the execution of this instrument, the Administrator of General Services shall have the papers that are transferred to the United States reviewed and shall place under seal the following classes of materials:
a. Papers that are security-classified pursuant to law or Executive Order, until such classification shall be removed.
[…]
8. Papers placed under seal shall not be made available to anyone or their contents divulged to anyone (including public officials) except (a) persons authorized under the terms of paragraph 5 above, and (b) officials and employees of the National Archives and Records Service when performing essential archival work processes on such papers under the supervision of the Administrator of General Services.”
Nixon v. U.S., 978 F.2d 1269, 1297 (D.C. Cir. 1992): “In 1976, President Ford offered his presidential papers to the United States in exchange for a presidential library. Letter from Gerald R. Ford to James B. Rhoads and Robben W. Flemming (Dec. 13, 1976), J.A. at 726-54. As part of the agreement, President Ford created an executory interest by which all right, title, and interest in the materials would shift to the University of Michigan if the United States failed to adhere to the conditions of donation. at 2. The United States accepted the donation and the conditions. at 7.”
Ford Donation Letter, 12/13/76: “Concurrently with acceptance of this offer of deposit, I convey to the United States of America all my rights, title and interest in the materials accepted for deposit, including my literary property rights in the unpublished portions of such materials, which deposit and conveyance are subject, however, to:
(i) the exclusions and reservations in Annex A and to the terms and restrictions that are stated in Annex B, and
(ii) the condition that in the event the United States does not abide by the aforesaid terms and restrictions, as determined by a court of competent jurisdiction, possession of the materials shall be transferred to, and all my rights, title and interest conveyed hereunder shall vest in, the University, subject to the same terms and restrictions.”
Griffin v. U.S., 935 F. Supp. 1, 9 (D.D.C. 1995): “The government also contends that plaintiffs should not be compensated for the "national security council files" or other classified materials that Court of Appeals held were "taken" under the Act. The government reasons that those materials could not have been transferred nor sold to members of the public when the Act became effective, so there was no market for them. Thus, if there was no market for them, they could not have a fair market value as a matter of law.”
Griffin v. U.S., 935 F. Supp. 1, 9 (D.D.C. 1995): “Here, the taking occurred on the day the PRMPA became effective. At that time, the national security materials were classified and subject to executive orders which would not allow a President to transfer ownership of them to a member of the public without violating the law.”
Griffin v. U.S., 935 F. Supp. 1, 9 (D.D.C. 1995): “The relevant documents controlling the handling of national security information and material on the date the Act became effective were Executive Order 10,865, 25 Fed. Reg. 1583 (1960), reprinted in 50 U.S.C. § 401, and Exec. Order No. 11,652, 37 Fed. Reg. 5209 (1972). These executive orders would have barred Mr. Nixon from selling classified materials or selling access to them. Section 6(A) of Executive Order 11,652 specifies that no person may be given access to classified material unless that person "has been determined to be trustworthy," and unless access to the material "is necessary for the performance of his duties." Section 6(C) provides that classified material "shall be used, possessed, and stored only under conditions which will prevent access by unauthorized persons or dissemination to unauthorized persons." Section 12 provides that persons outside the Executive Branch who are engaged in historical research projects, or who have previously occupied policy-making positions to which they were appointed by the President, may be granted access to classified material only if the head of the government department in which the information or material originated determines that access is "clearly consistent with the interests of national security," and takes appropriate steps to assure that "classified information or material is not published or otherwise compromised." Section 2 of Executive Order 10,865 similarly provides that only the head of a department or his designee may authorize access to classified material.”
Executive Order 11652, § 6, 37 FR 5209, 5215 (March 10, 1972) (p. 109 of pdf) [bolding added]: “SEC. 6. Policy Directives on Access, Marking, Safekeeping, Accountability, Transmission , Disposition and Destruction of Classified Information and Material. The President acting through the National Security Council shall issue directives which shall be binding on all Departments to protect classified information from loss or compromise. Such directives shall conform to the following policies:
(A) No person shall be given access to classified information or material unless such person has been determined to be trustworthy and unless access to such information is necessary for the performance of his duties.
(B) All classified information and material shall be appropriately and conspicuously marked to put all persons on clear notice of its classified contents.
( C ) Classified information and material shall be used, possessed, and stored only under conditions which will prevent access by unauthorized persons or dissemination to unauthorized persons.
(D) All classified information and material disseminated outside the executive branch under Executive Order No. 10865 or otherwise shall be properly protected.
(E) Appropriate accountability records for classified information shall be established and maintained and such information and material shall be protected adequately during all transmissions.
(F) Classified information and material no longer needed in current working files or for reference, or record purposes shall be destroyed or disposed of in accordance with the records disposal provisions contained in Chapter 33 of Title 44 of the United States Code and other applicable statutes.
(G) Classified information or material shall be reviewed on a systematic basis for the purpose of accomplishing downgrading, declassification, transfer, retirement and destruction at the earliest practicable date.”
Affidavit of Theodore Sorenson [Retyped from copy of original] ¶ 8 (pp. 6-8, pp. 26-28 of pdf), United States v. Russo and Ellsberg, No. 9373-(WMB)-CD Exhibit A in Nomination of Theodore C. Sorensen , Hearing before the Select Committee on Intelligence, 1977
Testimony of Theodore Sorenson at 31-2 (pp. 34-5 of pdf), in Nomination of Theodore C. Sorensen, Hearing before the Select Committee on Intelligence, 1977
Testimony of Theodore Sorenson at 31 (p. 34 of pdf), in Nomination of Theodore C. Sorensen, Hearing before the Select Committee on Intelligence, 1977
Testimony of Theodore Sorenson at 31 (p. 34 of pdf), in Nomination of Theodore C. Sorensen, Hearing before the Select Committee on Intelligence, 1977
Affidavit of Theodore Sorenson [Retyped from copy of original] ¶ 8 (pp. 7, p. 27 of pdf), United States v. Russo and Ellsberg, No. 9373-(WMB)-CD Exhibit A in Nomination of Theodore C. Sorensen , Hearing before the Select Committee on Intelligence, 1977
Affidavit of Theodore Sorenson [Retyped from copy of original] ¶ 8 (pp. 7-8, p. 27-8 of pdf), United States v. Russo and Ellsberg, No. 9373-(WMB)-CD Exhibit A in Nomination of Theodore C. Sorensen , Hearing before the Select Committee on Intelligence, 1977
Executive Order 10501 as amended, in Security Classification As A Problem In The Congressional Role In Foreign Policy, Congressional Research Service (1971), 118 Congressional Record 16050-16053 (May 5, 1972), pp. 17-20 of pdf
The version printed in the Congressional Record includes a brief 1967 amendment. see (Executive Order 11382, § 1, 32 FR 16247 (November 29, 1967), p. 5 of pdf:
“Section 1. Classified information. (a) Executive Order No. 10501 of November 5,1953, as amended, is further amended by—
(1) inserting “Department of Transportation” in the list of departments and agencies in subsection (a) of section 2 thereof after “Department of Labor” and
(2) deleting “Federal Aviation Agency” from that list. The Department of Transportation shall be deemed to have had authority for classification of information and material from April 1, 1967.”
(b) Executive Order No. 10865 of February 20, 1960, as amended, is further amended by striking out the words “Administrator of the Federal Aviation Agency”, “Deputy Administrator of the Federal Aviation Agency”, and “Federal Aviation Agency” and inserting in place thereof “Secretary of Transportation”, “Under Secretary of Transportation”, and “Department of Transportation”, respectively.
Executive Order 10501, as amended, § 6, in Security Classification As A Problem In The Congressional Role In Foreign Policy, Congressional Research Service (1971), 118 Congressional Record 16051 (May 5, 1972), p. 18 pdf
Executive Order 10501, as amended, § 6(a) in Security Classification As A Problem In The Congressional Role In Foreign Policy, Congressional Research Service (1971), 118 Congressional Record 16052 (May 5, 1972), p. 18 of pdf
Executive Order 10501, as amended, § 7(a) in Security Classification As A Problem In The Congressional Role In Foreign Policy, Congressional Research Service (1971), 118 Congressional Record (May 5, 1972), p. 19 of pdf
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, p. 40: “With respect to the question of whether or not these were personal property when created, we believe that the legal adviser was incorrect. We believe that those were the property of the agency. We do, however, accept that part of the legal adviser’s opinion which seemed to say that at the end of the usefulness of those notes, after the extracts were prepared, if they were properly prepared, then because they would be non-record material under the records management program, the agency would be free to dispose of that property by allowing Dr. Kissinger to retain it.”
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, pp. 8-9: “In that opinion, the legal adviser considered the agency regulations, government practice and then analogous judicial opinions, and he concluded that "these particular papers are personal and may be retained by you when you leave office." But as a precaution to assure that the government’s records were complete, the legal adviser recommended that Dr. Kissinger review and make extracts of any discussion of significant policy decisions or actions not otherwise reflected in the official files, and this was done.
Now, Dr. Kissinger donated all of the papers subject to deeds of gift which restrict access to the collection and these restrictions were designed to protect the classified information in the notes and the other records and the privacy rights.”
Kissinger v. Reporters Committee,, 445 U.S. 136, 162 n.2 (1980): “Also, it is not clear how many of the summaries, even if subject to FOIA, would be exempt from production because they contain either classified or purely personal information. See 5 U.S.C. § 552 (b)(1) and (b)(6).”
Hur Report at 239
Standard Form 312, ¶ 7: “I understand that all classified information to which I have access or may obtain access by signing this Agreement is now and will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law.”
Form 4414, ¶ 8: “I understand that all information to which I may obtain access by signing this Agreement is now and will remain the property of the United States Government unless and until otherwise determined by an appropriate official or final ruling of a court of law.”
Standard Form 312, ¶ 8; “Unless and until I am released in writing by an authorized representative of the United States Government, I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter.”
Form 4414, ¶ 9: “Unless and until I am released in writing by an authorized representative of the Department or Agency that last provided me with access to SCI, I understand that all conditions and obligations imposed on me by this Agreement apply during the time I am granted access to SCI, and at all times thereafter.”