Chapter
2.
CLASSIFICATION IN THE UNITED
STATES
PRIOR TO WORLD WAR II
World
War II (WWII) had a major effect on the classification and control of
information in the United States.
Throughout most of our country’s early history until WWII, the government’s
concern with protecting information had been mostly limited to a relatively
small amount of information closely related to military and diplomatic matters.
The breadth and depth of security classification of information in the United
States significantly expanded during and
after WWII. For example, not until WWII was secrecy widely imposed by the
government on scientific and technical information. Since WWII, it has not been
unusual for scientific and technical information to be classified by the government.
The
first executive order (EO) dealing with classification was issued in 1940,
shortly after WWII began in Europe. The first statute
dealing with information classification, the Atomic Energy Act, was enacted in
1946 shortly after WWII ended. That statute defines “Restricted Data,” which is
the most stringently protected category of classified information that
currently exists in the United States.
This
chapter reviews classification in the United
States preceding WWII (before EOs dealing
with classification of information and before the Atomic Energy Act). Control
of “defense information” by the U.S. Army and Navy in peacetime began to be
implemented, although not significantly, shortly after the Civil War. Such
control proceeded slowly, and it was not until after the U.S.
entered World War I (WWI) that all the basic elements of a security
classification of information system and an information-protection system were
incorporated into Army and Navy regulations. The system that was adopted by the
U.S. borrowed
heavily from the British and French systems as they existed in 1917, especially
the British system. Therefore, one
subsection in this chapter discusses the British classification system as it
developed from about 1853 until 1914. The French system is also briefly
discussed in another subsection. The changes in the Army and Navy’s
classification systems from the end of WWI until the start of WWII are
discussed in some detail in this chapter. (The fact that Army and Navy
regulations issued in certain years are mentioned in this chapter is not meant
to indicate that similar regulations were not issued in other years.) The Army
and Navy classification systems as they existed at the start of WWII were the
foundation for the classification and information-protection systems used
during the Manhattan Project. They also provided the foundation for the first
EO on classification of information. Subsequent chapters discuss classification
under EOs and under the Atomic Energy Acts of 1946 and 1954.
COLONIAL TIMES THROUGH THE CIVIL WAR
Restrictions
on the dissemination of information related to the military and its operations
have existed since the beginnings of our country. During the Revolutionary War,
the 1775 Articles of War prohibited unauthorized correspondence by soldiers of
the Continental Army with an enemy.[1]
Those wartime regulations were directed primarily to military personnel and
were limited to the control of military information. They were probably taken
from similar British Army and Navy regulations.[2]
Further, “laws of war” that have been accepted for millennia have always
allowed harsh penalties for civilian spies in times of war.[3]
This is, in essence, governmental control of civilians with respect to military
information possessed by those civilians (i.e., government protection of
national defense information possessed by civilians). Penalties imposed on
spies presuppose that there is certain information (i.e., “national defense” or
“national security” information) that, when provided to an enemy, would cause
damage to the nation. Government censorship has also been established during
times of war.
Some of
the first instances of civilian governmental control of information in the America
were by the Continental Congresses (1774–1789). Members of the First
Continental Congress (1774) were requested to keep the proceedings secret, in
accordance with the following resolution, which was passed by that Congress on September 6, 1774, its second day of
business:
Resolved, That the doors be
kept shut during the time of business, and that the members consider themselves
under the strongest obligations of honour, to keep the proceedings secret,
untill [sic] the majority shall direct them to be made public.[4]
However,
at the end of the First Continental Congress, its proceedings were ordered to
be published.[5]
The
Second Continental Congress also requested its members to keep the proceedings
secret. A resolution nearly identical to that adopted by the First Continental
Congress was passed on May 11, 1775,[6]
the second day of business of the Second Continental Congress. A more detailed
resolution to that effect was passed on November
9, 1775, as follows:
On motion made, Resolved,
That every member of this Congress considers himself under the ties of virtue,
honor and love of his country not to divulge directly or indirectly any matter
or thing agitated or debated in Congress before the same shall have been
determined, without leave of the Congress; nor any matter or thing determined
in Congress which a majority of the Congress shall order to be kept secret and
that if any member shall violate this agreement he shall be expelled this
Congress and deemed an enemy to the liberties of America and liable to be
treated as such and that every member signify his consent to this agreement by
signing the same.[7]
This Congress also, at
an early date (July 25, 1775),
authorized a committee to “revise” the “Journals of the Congress, and prepare
it for the press.”[8]
Apparently, not all of those proceedings were initially made public, since in
November 1775 the Congress authorized further publication of its proceedings
and asked the committee responsible for this matter “to examine whether it will
be proper yet to publish any of those parts omitted in the journal of the last
session.”[9]
Later, the proceedings of each day’s meeting began to be reviewed and revised
by the Congress on the following day and sent to the press.,[10]
Congress began to publish its proceedings on a periodic basis in 1777,[11]
with weekly publication in 1779.[12]
The
Second Continental Congress established two “secret” committees, the “Secret
Committee” and the “Committee of Secret Correspondence.” The Secret Committee
was established on September 18, 1775,[13]
and dealt mainly with the purchase of weapons, ships, and other war
materials—“national defense” matters. The Committee of Secret Correspondence
was established on November 29, 1775,[14]
for the purpose of corresponding with “friends” in other parts of the
world—“foreign relation” matters. This committee later became known as the
“Committee for Foreign Affairs.”[15]
Thus, at an early date, the Second Continental Congress had established
committees dealing with national defense and foreign relations and had
acknowledged the importance of secrecy in certain military and diplomatic
activities. Those activities, usually the responsibility of a government’s
executive branch, were the responsibility of the Continental Congress because
at that time there was no executive branch of our government.
The
Articles of Confederation, proposed by the Continental Congress in 1777 and
ratified by all the colonies by 1781, explicitly recognized the need to keep
secret certain information concerning military and diplomatic activities. Those
articles specifically excluded from publication in the journal of the
Continental Congress those parts of their proceedings “relating to treaties,
alliances, or military operations, as in their judgment require secrecy”[16]
(that is, those matters normally handled by a government’s executive branch).
The Articles of Confederation did not provide for an executive branch of
government. Although the Continental Congress gradually established a policy of
openness in its proceedings, this openness did not extend to all its
activities. A separate, secret journal was kept for congressional votes and
official actions on certain matters.11
The
secrecy of communications to the Continental Congress from its envoys to Europe
was initially determined by the Congress on a case-by-case basis.[17]
Then, in 1784, the Congress decided that this correspondence should be secret
until authorized for release by the Congress:
Ordered, That all letters
from the ministers of these United States in Europe, be considered, at all
times, as under an injunction of secrecy, except as to such parts of them as
Congress shall, by special permission, allow to be published or communicated.[18]
Perhaps this was the
first application of the “born classified” principle in the United
States.
The
1787 Constitutional Convention determined that its proceedings were to be
protected by secrecy.[19]
The delegates believed that “secrecy was needed to protect the convention from
outside pressures until a complete plan could be developed.”[20]
It has been reported that General Washington, the presiding officer of the
convention, reprimanded the convention’s delegates when one delegate was
careless with a copy of the convention’s proceedings (i.e., it was found on the
floor of the convention hall) and endangered the secrecy rule.[21]
The Constitutional Convention’s records were finally published in 1819, as
directed by an 1818 joint resolution of Congress.[22]
The
U.S. Constitution mentions secrecy only once. Article I, Sect. 5, authorizes
the House and Senate to publish the journal of their proceedings, “excepting such
Parts as may in their Judgment require Secrecy.” This section was derived from
a similar provision in the Articles of Confederation, as mentioned earlier.
The
delegates to the Constitutional Convention assumed that secrecy was necessary
for certain military and diplomatic information. They provided for secrecy in
national security affairs by giving the leading role in those matters to the
president, “whose activities would not in the ordinary course be made public.”[23]
Since Congress was generally expected to publicize its proceedings, the
Constitution’s framers thought that an explicit congressional power of secrecy
should be mentioned in connection with its special activities concerning
foreign relations and military matters, hence the provisions of Article I,
Sect. 5.23 In the debates during the framing of the Constititution
and preceding its adoption, proponents of the wording that was finally approved
maintained that the “exceptions” to normal publication of the proceedings
encompassed only military and diplomatic information, as was explicitly stated
in the Articles of Confederation.[24]
Since
our nation was founded, presidents have used their implied Constitutional
authority to control the dissemination of information related to national
defense and foreign relations. The Supreme Court and Congress have acknowledged
this implied authority as necessary for presidents to execute their
responsibilities under Article II, Sect. 2, of the Constitution as
commander-in-chief of the nation’s armed forces and as the chief executive
responsible for the conduct of foreign relations.[25]
An early instance of a president’s use of this authority to restrict the
dissemination of information occurred in January 1790, when President
Washington transmitted information about negotiations with some southern tribes
of Indians to Congress as a “confidential communication.”[26]
Later that year the president sent to the Senate a proposed secret article to a
treaty with the Creek Indian nation.[27]
Subsequently, it was not unusual for certain military or diplomatic
communications to be designated as “confidential.”[28]
Executive
departments of the government have controlled the access to their documents by
authority of “housekeeping” statutes. Statutes establishing those departments
generally provided a legal basis for them to control (e.g., withhold from the
public) and preserve their records, papers, and other documents.[29]
The first executive department, the Department of Foreign Affairs (later
renamed the Department of State), was established by statute on July 27, 1789.[30]
Section 4 of that statute stated that the Secretary for the Department of
Foreign Affairs shall “be entitled to have the custody and charge of all
records, books and papers in the office of Secretary for the Department of Foreign
Affairs.” Other similar statutes were enacted, as necessary, when additional
executive departments were created. Those were combined into one statute in
1875, which was last amended in 1966 and is now codified at 5 U.S.C.
Sect. 301.
This statute serves only as a basis to control access to some information, not
to classify that information. Further, this statute does not serve as the basis
for an exemption to a Freedom of Information Act (FOIA) request for
information.
Between
the Revolutionary War and the Civil War, certain governmental documents were
given special markings to aid in restricting their distribution. Governmental
use of the terms “Secret,” “Confidential,” and “Private” has been traced back
to the War of 1812.[31]
As mentioned earlier, President Washington designated some documents as
“Confidential” or “Secret” as early as 1790, and other terms were also probably
used prior to 1812. However, those words were used in their ordinary language
meaning to advise the recipient of a document that the information contained
therein was sensitive. Such usage had been common for a long time in private,
commercial, and governmental correspondence. Those words were not used as part
of a governmental security classification of information system.
Even during
the Civil War, there was no official system of secrecy.[32]
Most of the control of information during the Civil War appears to have been
limited to the “war zones,” which were within the jurisdiction of military
commands. Sometimes, reporters were allowed easy access to military secrets,
and at other times severe measures were taken to preserve or emphasize secrecy.
In some instances, newspapers were seized or suppressed by the Union Army.[33]
One general was advised by President Lincoln on how to deal with control of
information as follows:
You will only arrest
individuals and suppress assemblies or newspapers when they may be working
palpable injury to the military in your charge, and in no other case will you
interfere with the expression of opinion in any form or allow it to be
interfered with violently by others. In this you have a direction to exercise
great caution, calmness, and forbearance.[34]
This quotation indicates
that restricting the dissemination of information was not a matter to be
implemented casually by the government. Although President Lincoln suspended
habeas corpus and authorized censorship of mail and suppression of some
newspapers, most information concerning the war was readily available to the
public, as Lincoln indicated in his second inaugural address when he said, “The
progress of our arms, upon which all else chiefly depends, is as well known to
the public as to myself.”32
The
mid-19th century, around the time of the Civil War, was a turning point in the
application of the technologies of the industrial revolution to warfare,,[35],[36]
which led to concerns about protecting this information from dissemination to
adversaries. According to one author, protecting information on military
technologies was not important before the 1860s because prior to that time it
had not been demonstrated that new scientific and technical advances would
significantly change the means and ways of waging war.[37]
However, by the mid-19th century, earlier technological developments of the
industrial revolution, for example, the steam engine, advances in iron and
steel metallurgy, and the establishment of a machine industry, began to find
significant military applications. Those developments led to much-improved
weapons systems (e.g., armored warships, steam propulsion, propellers,
breech-loading naval guns and artillery, slow-burning powder, nitrocellulose
explosives, and mass-production methods), which were products of scientific
research and increased industrial strengths. Some of those new developments,
such as railroads, telegraphy, observation balloons, and electrical firing of
explosives were used to great effect during the Civil War. The development and
effective use of mines by the South in the Civil War was a particularly
effective new technology that was adopted by European nations during and after
that war. Thereafter the recognition that military advantages from those
developments would be diminished if essential information concerning them was
acquired by an enemy became increasingly widespread.
It was certainly obvious that such information should be protected from an
actual enemy, but it is of interest that after the Civil War some nations
became concerned about protecting such technological information in peacetime.[38]
Another
factor in applying technology to warfare was the increased participation of
scientists in the development of weapons systems.
In earlier days of modern science, most scientists had generally been averse to
using their expertise to develop weapons of war.[39]
However, this began to change in the late 18th century.
The French mobilized their scientists and engineers during the French
Revolution, and during the wars that occurred shortly thereafter, to assist in
developing and producing weapons.[40]
This was, perhaps, the first significant use of scientists, as scientists, to
help in a war. In March 1863, during the Civil War, the National Academy of
Sciences was granted a federal charter with a responsibility to provide expert
scientific advice to the government, some of which presumably would be of use
in warfare.
POST-CIVIL WAR UNTIL WORLD WAR I
Classification in Britain, 1853-1914
As mentioned in the first part of this chapter, all of
the essential elements of a security classification of information system,
including an information-protection system, were not adopted by the U.S. Army
and Navy until some months after the U.S.
entered WWI in April 1917. Although some elements of such a system had
gradually been implemented by the Army and Navy after the Civil War, a complete
system was not in place until after WWI had started. That system, when established, borrowed
heavily from British and French systems, especially the British system.
The
first “formal or organized” use of a security classification of information
marking by a governmental entity was said to be by the British War Office
during the Crimean War (1853-1856).[41]
Starting in 1853, that War Office compiled a series of documents for use by the
Cabinet and marked most of those documents as “Confidential,” “Private
Confidential,” or “Secret and Confidential.”[42]
This use of a specified marking represents one element of a security
classification of information system. However, no other element of such a
system (e.g., with respect to allowed recipients, document handling, etc.) accompanied
those marked documents.
British Army regulations were published from time to time
as Queen’s Regulations and Orders for the
Army (QROA) or King’s Regulations and
Orders for the Army (KROA). The first use of “confidential” in such a
publication was in 1868 with respect to the duties of an officer to turn over
to his successor “all official books and documents, confidential and
otherwise.”[43]
That same issue of the QROA directed Commanding Officers to:[44]
. . . prevent [his
subordinates] publishing information relative to the numbers, movements, or
operations of troops . . . any officer or soldier will be held personally
responsible . . . for placing information beyond his control so that it finds
its way into unauthorized hands.
This
regulation designated certain information as sensitive and specified punishment
(discipline) for not following the regulations concerning protection of that
information. These are two more of the elements of a security classification of
information system, but were not otherwise part of such a system. Another
section of the 1868 British Army regulation specified who should have access to
official information: “Access to official records is only permitted to those
who are entrusted with the duties of the office or department to which they
belong, . . . .”[45]
This “need-to-know” limitation is another element of a security classification
of information and information protection system.
The new
developments in weapons technology in the mid-19th century were initially not
especially protected.[46]
Mines and torpedoes were the first new weapon technologies to be recognized as
representing a significant advance in warfare such that information about them
was worthy of special protection.[47]
The first use in Britain,
in peacetime, of a security classification of information marking on a document
concerned with military equipment development was said to be an 1866 report on
mines and torpedos.[48]
The
torpedo, or “fish-torpedo” or “automobile torpedo” as it was sometimes called,
was said to be the “greatest secret of the immediate post-Civil War period.”[49]
It was invented by an English engineer, R. Whitehead, who sold the secrets of
its manufacture and use to France,
Austria, Britain,
and other countries. British manufacture of this torpedo was said to be carried
out under such secrecy that “the entire principle of the invention is known
only to the three or four officials who superintend its construction.”[50],
British
experiments in the 1870s on how to sink double-bottom ships, which were then
possessed only by Britain,
provide another example of protecting information on weapons technology. The
presence of observers from other nations at those experiments caused a public
outcry in England
because those observers, some of whom represented potential enemy nations,
could thereby learn the vulnerabilities of British ships.[51]
One response was an 1878 proclamation by Queen Victoria
that forbade the export of torpedoes or related materials.[52]
However, the information on how to construct such hardware was not controlled.
In the
1880s, Britain
further recognized the need to protect weapons technology. In awarding
contracts to produce a new design of torpedo, the British Admiralty awarded
separate contracts, to different companies, for the different torpedo
components.[53]
The rationale was that this separation (i.e., compartmentalization) would
prevent any single nongovernmental employee from knowing all the information
required to build the torpedo. The chance that a foreign government could
obtain this information was thereby diminished.[54]
In
February 1889, the British Army issued “Orders to Regulate Admission to the
National Defences, Position-Finding Stations, and Submarine Mining and Torpedo
Establishments.”[55]
The guiding principles were “Those who have no business in the works should be
denied access to them” and “Generals and other Commanding Officers are
responsible that no unauthorized persons gain admission.”[56]
These were said to be the first British actions to protect facilities related
to the national defense in peacetime.[57]
Note that the first British Official Secrets Act (“Official Secrets Bill”) was
passed a few months later in August 1889. That Act included prohibitions
concerning making sketches of English fortresses, ships of war, camps, etc.[58]
British
Army regulations of 1892 used the word “secret” for the first time, in a
section of the regulations concerning correspondence:[59]
Correspondence
. . . will be dealt with by the Director of Military Intelligence . . . . Confidential or semi-official
communications should be enclosed in an inner envelope, marked secret or
confidential, according to the nature of the contents, and addressed to the
Director of Military Intelligence.
Meanings for the words secret or confidential were
not provided. However, it is of interest that the regulation provided direction
in wrapping these communications - ‘enclosed in an inner envelope.’ In 1893,
regulations provided that “all letters of a confidential nature are to be
marked “confidential” both on the letter itself and on the envelope; and all
confidential plans or other documents forwarded separately as enclosures or
otherwise, are to be similarly treated.”[60]
British
Army regulations of 1894 are said to mark a turning point in classification
markings. Those 1894 regulations also contained the first formal reference to
“Secret” as a classification marking:[61]
All
letters of a secret or confidential nature (See Section XXII, paragraph 1) are
to be marked “Secret” or “Confidential” as the case may be. Such letters should
be enclosed in two envelopes, of which the inner one only should be marked
“Secret” or “Confidential” and the outer one should be inscribed with the
address only. Confidential plans and other documents are to be similarly
treated.
Clarification of the meanings of the words was
found in Section XXII, paragraph 1, of those regulations:
1. The
term “document” includes books, maps, letters, papers, and drawings. All
official documents are in a sense private, and can only be dealt with on the
responsibility of the individual charged with them, but their privacy varies
with their contents, and when special privacy is necessary they will be
inscribed “Secret” or “Confidential.”*
A document marked “Secret” is intended only
for the personal instruction of the individual by whom in due course it may be
received, and its contents are only to be disclosed to those whose duties
require that they should be aware of them. It must be kept in the personal
custody of the recipient and under lock and key.
A
document marked “Confidential” is of a privileged nature. The contents are only
to be disclosed to authorised persons, or in the interests of the public
service.
No secret or confidential documents are to be
used by any individual for private purposes, literary or otherwise, nor are
they to be referred to in any catalogue or publication which is not of itself a
secret or confidential document. Every secret document issued from
head-quarters will bear two numbers, of which one, on the left hand lower corner
of the cover or first page, is the particular mark of the document, and the
other, at the top of the cover or first page, is the serial number of the
copies issued of that document. By these two numbers every copy can be
identified. Every officer to whom a secret document is issued will be required
to give a receipt for it on Army Form A 2,000.
*All
such expressions as “Very Confidential,” “Strictly Confidential,” &c., are
to be discontinued.
All persons were required to be familiar with the
British Official Secrets Act of 1889.[62]
Other parts of the 1894 Army regulations specified how documents were to be
handled and mailed and, with the mention of the punishment of the Official
Secrets Act, constituted a complete security classification of information
system for the British Army.[63]
[Assuming that the regulations specified who had authority to affix the
markings to documents.]
A
system of receipts for classified documents was added to the 1898 British Army
regulations.[64]
A reference to the Navy appeared in 1904:[65]
A
confidential document issued by the Admiralty, marked “Not to be communicated
to officers below the position of C.O. of His Majesty’s Ships” is to be treated
as “Secret” if issued to officers of the Army, and must be so endorsed upon
receipt.
“For Official Use Only” was introduced as a
classification marking in the British Army in 1909:[66]
The
information contained in a document or map marked “for official use only” is
not to be communicated to the press nor to any person not holding an official
position in His Majesty’s Service.
A British Army Order of 1914 removed documents
marked “for official use only” from those documents which might be referred to
only in a similarly classified document.[67]
That restriction still applied to secret and confidential documents.
Brief
mention will be made of classification of information in the British Navy. It
has been said that the British Navy [in the 19th century] “seemed always to be
behind the Army in accepting new ideas.”[68]
1879 Admiralty instructions mentioned “Secret” as a marking for Private Signals
(code) books,[69]
and “confidential Gunnery and Torpedo Books” were mentioned in 1887,[70]
which is perhaps the first statement of protection of “technical defense
information” in the British Navy.[71]
Earlier, in 1883, an Office Memorandum from the Secretary of the Admiralty had
provided detailed instructions with respect to preparation, labeling, and
record-keeping for confidential papers.[72]
Space on a document was provided for numbering that document, directions for
numbering were given, document distribution records were to be maintained,
recipients were personally responsible for protecting those documents, and
provisions were made for canceling a document’s marking (with the cancellation
being initialed by the person taking the action).[73]
General Order G 4356 of 1894 included a section that stated that “all
confidential books are to be carefully locked up when not in use.”[74]
Regulations listed in 1906 provided guidance regarding personnel who were to be
allowed access to documents with certain markings (“confidential” -- Commanding
Officers of His Majesty’s Ships only, and those officers above in rank; “for
the use of Officers in His Majesty’s Service only” -- Naval Officers; and “for
use in His Majesty’s Navy only” -- seamen performing signal duties).[75]
The Navy definition of “confidential” had first appeared in 1901 (Admiralty
Order M 17825) and had been used by the Army by 1902.[76]
The
classification systems of the British Army and Navy were incorporated into a
uniform system in 1913.[77]
The Navy classification markings “confidential,” “for the information of
Officers in His Majesty’s Service only,” “for use in His Majesty’s Navy only,”
and “non-confidential” were eliminated and replaced by the Army’s: “secret,” “confidential,”
and “for official use only.”[78]
Not only were the markings changed, but their definitions were changed from the
prior Navy use, where access to marked documents depended upon rank, to a
system where the definitions mentioned importance of the information contained
in the document (“Instructions on Defence Matters” vs. information of a less
confidential nature) as well as upon rank.[79]
The Navy committee recommending use of the Army’s marking system and new
definitions for the markings also recommended using different-colored paper for
the different classes of documents; however, that suggestion was vetoed by the
Army.[80]
The Navy committee also recommended printing on the title page of a classified
book the admonition:[81]
Attention
is called to the penalties attaching to any infraction of the Official Secrets
Act.
This recommendation was subsequently adopted.[82]
Classification
in France, 1900 -
1917
The
French Army and Navy document classification systems date from 1900 and were
little changed between that time and 1917.[83]
Two markings were used, “Secret” and “Confidentiel.” The instructions of the
French Navy were said to be more detailed and more stringent (a secret document
could not be copied) than those of the Army; also, in 1909 the Navy changed its
regulations from a system where receipt of classified documents was based on
rank to a system that classified a document based on its contents.[84] In 1913, it was discovered that French Courts
did not apply the French espionage laws to Confidential documents; therefore,
the Navy’s classification regulations were changed so that “Secret” was to be
applied to documents that directly affected the security of the state and only
to such documents.[85]
Classification in the U.S. Army, Civil War Until 1917
After
the Civil War, the U.S. Army and Navy initiated some activities that recognized
the importance of military information (“intelligence”). Military attachés were
assigned to many U.S. embassies. Formal Navy and Army intelligence branches were established
in 1882[86]
and 1885,[87]
respectively.
The
first peacetime governmental directives that were concerned with the protection
of information were issued in 1869. In that year, the Army issued an order
restricting the availability of certain information on Army forts. The
regulation prohibited photographs or other views of those forts except with the
permission of the War Department:[88]
Commanding
officers of troops occupying the regular forts built by the Engineer Department
will permit no photographic or other views of the same to be taken without the
permission of the War Department.
The substance of the 1869 Army order
concerning information on Army forts was continued in other regulations until
1897, when worsening relations with Spain, prior to the Spanish-American War, led to an
expansion in the scope of those regulations.[89] In
March 1897, an Army order was issued that included restrictions on who could
visit lake and coastal defense facilities , as well as restrictions on
information (including photographs and other views) about those facilities that
was included in earlier orders:[90]
No
person, except officers of the Army and Navy of the United States, and persons
in the service of the United States employed in direct connection with the use,
construction or care of these works, will be allowed to visit any portion of
the lake and coast defenses of the United States, without the written authority
of the Commanding Officer in charge.
Neither
written nor pictorial descriptions of these works will be made for publication
without the authority of the Secretary of War, nor will any information be
given concerning them which is not contained in the printed reports and
documents of the War Department.
Note that in 1889 the British Army had issued an
order regulating admission to similar facilities.
This U.S. Army Order of March 1897
was revised slightly in August 1897. Revisions included a statement that
special authority granted by the Secretary of War to visit these defense works
was “limited to United States Senators and members of Congress, their public
duties requiring them to take official action on matters connected therewith,
and to the Governor (or his Adjutant General) of the State in which the works
are located, as commander-in-chief of the local militia instructed there.”[91]
Revisions also required that other permission to visit these facilities be
“only given for proper military reasons” or “only as may be warranted for good
and sufficient military reasons.” The 1869 regulation and its successors were applicable
only to the armed services and their internal documents and
communications.
In October 1907, the Army’s Chief
of Artillery sent a letter to The Adjutant General, War Department, concerning
the use of the word “confidential.”[92]
The letter called attention to the “considerable confusion and
misunderstanding” that existed concerning confidential publications and
communications. “The result of this is that officers receiving ‘Confidential’
communications must, of necessity, use their own judgment as to what extent the
information therein shall be guarded; and there is great difference of opinion
in this matter.” The letter suggested some plan be devised by which:
(a) Confidential communications should be classified
according to the nature of their contents and the degree of confidentiality
that is to be observed.
(b) Whenever practicable to do so, a time limit
should be affixed after which communications or publications will no longer be
considered confidential.
(c) An annual return should be made by officers of
all confidential publications in their possession on which no time limit has
been placed, or upon which the time limit has not expired.
The letter also suggested the
following classes of confidential communication:
Class I. For the sole information of the person to
whom it is addressed, unless some military necessity should exist for its being
communicated to others, in which case the person to whom it is addressed
assumes responsibility for such communication.
Class II. For the sole information of commissioned
officers of the Army, Navy, and Marine Corps, unless some military necessity
should exist for its being communicated to others, in which case the person to
whom it is addressed assumes responsibility for such communication.
Class III. For the sole information of officers,
enlisted men of the Army, Navy, and Marine Corps, and civilian employees of the
United States, unless some military necessity should exist for its being
communicated to others, in which case the person to whom it is addressed
assumes responsibility for such communication.
Class IV. Semi confidential, the only restriction
being that it will not be given to the public or to the press.
Thoughtful
discussion appears to have ensued following the Chief of Artillery’s
communication. A November 12, 1907,
memorandum for the Acting Secretary of War reviewed the situation.[93]
The suggestion of fixing in advance a time limit for considering a document as
confidential was thought to be impracticable. The suggestion of annual returns
(annual inventory) was thought to be not necessary and would complicate
matters. Some of the other suggestions were adopted in a War Department
circular issued on November 21, 1907.
That circular provided the following regulations with respect to use of the
word “confidential” and related matters.[94]
1. Hereafter the word “confidential” will not be
placed on any communication from the War Department, except where the
subject-matter is intended for the sole information of the person to whom
addressed. If some military necessity should exist therefor [sic] the contents
of such a communication may be made known to others, but the person to whom the
communication is addressed must assume all responsibility for taking such
action.
2. When the contents of any publication, document,
communication, map, drawing, or blueprint are intended for the information of a
certain class or classes of individuals and not for the public at large it will
not be marked confidential, but a statement printed or written, indicating to
whom the contents may be disclosed will be furnished. Persons receiving such a
publication, document, communication, map, drawing, or blueprint will exercise
due care that its contents are not imparted to any unauthorized person.
3. The following publications will not be considered
confidential in the future: [Five documents were identified. Were those the
first “official” declassifications?]
4. Mimeographs, bulletins, printed circulars, or
blueprints, marked “confidential,” which have been issued in the past by the
different bureaus of the War Department for distribution to certain officers,
are for the use of officers and enlisted men and civilian employees of the United States when necessary in
connection with their work. [Was this the first “bulk” declassification?]
This War Department circular was mostly concerned with using
the “confidential” marking to limit a document’s distribution (i.e., to specify
who could read it) and not to “classify” its contents.
In
1912, the War Department provided regulations for marking and safeguarding
certain documents, mostly concerning coastal defenses and other fortifications,
as “Confidential.” Documents so marked were to be kept under lock, to be
uniquely numbered,
to be periodically inventoried,* and not to be copied except by the
issuing office,[95],[96]
These regulations possibly reflect the earliest use of a numbering system and
periodic inventory requirements for classified United States documents.
(British Army regulations of 1894 required that Secret documents be numbered.
See a previous subsection.)
A May 19, 1913, memorandum from the
Office of the Judge Advocate General, War Department, prescribed packaging
requirements for confidential communications.[97]
Those requirements applied to all confidential communications including those
transmitted by mail, telegraph, or messenger. The communication was to be
double wrapped or enclosed, with the inner “sealed envelope or wrapper
addressed in the usual way, but plainly marked CONFIDENTIAL in such manner that
the notation may most readily be seen when the outer cover is removed.” The
outer envelope or wrapper was to be addressed in the ordinary manner, with no
indication of the nature of its contents. (British Army regulations of 1894
specified similar wrapping requirements.)
In
1916, further regulations of the War Department described “double wrapping” of
confidential communications.
The inner envelope was to be marked “CONFIDENTIAL.” The outer wrapper was to be
addressed in the normal manner, with no special notation indicating its
contents.[98]
Classification in the U. S. Navy, Civil War Until 1917
Confidential publications were
mentioned in a 1909 Navy General Order regarding “the care, distribution, and
disposition of the confidential publications relative to target practice and
engineering instructions.”[99]
These publications are issued confidentially and are
not to pass out of the hands of officers. Under no circumstances will the
contents of these publications be explained or divulged to persons not
regularly connected with the naval service. It is desired that all features of
the present system of training be held as confidential, and therefore it is
directed that foreigners or persons not directly connected with the naval
service be given as little information as is consistent with professional
etiquette.
Officers receiving copies of such publications were to sign
receipts and return them to the appropriate Navy office (Bureau of Navigation).
Copies of such publications, when mailed, were to be sent by registered mail.
An officer’s copies of confidential publications were to be returned to the
Bureau of Navigation when the officer left the Navy.
Almost
identical wording was in regulation changes issued in September 1916, except
that a provision was added to explicitly warn resigning officers of the
provisions of the national defense secrets act.[100]
This was the first mention in Naval regulations of possible prosecution under
the Defense Secrets Act of 1911.[101]
However, the Navy regulations issued prior to 1918 used “confidential” in the
ordinary meaning of the term and not as part of a system of classification
markings.
Pertinent U.S.
Statutes, Civil War Until 1917
In 1898, Congress enacted a statute that
established a penalty for damaging fortifications or harbor-defense systems, or
interfering with their operation, or violating any War Department regulations
made for the protection of such systems.[102]
The penalty was a fine ($100-$5000) or imprisonment (not more than 5 years) or
both. Thus, penalties for violating the previously mentioned Army regulations
protecting information on forts and harbor-defense facilities were now
applicable to civilians as well as to military personnel.
Congress
enacted the Defense Secrets Act,[103]
An Act to Prevent the Disclosure of
National Defense Secrets, in 1911. This statute was quite similar in
content to the British Official Secrets Act of 1889,[104]
which, in August 1911, was replaced by the British Official Secrets Act of
1911.[105]
This Defense Secrets Act imposed penalties on anyone who attempted to obtain
“information respecting the national defense, to which he is not lawfully
entitled,” including taking photographs or making sketches of ships or
facilities “connected with the national defense . . . without proper
authority.”
Penalties were also imposed for communicating such information to unauthorized
individuals, with significantly higher penalties for such communications to a
foreign government. The
Security Classification of Information: Table of Contents