Security Classification of Information: Table of Contents
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
The
first executive order (EO) dealing with classification was issued in 1940,
shortly after WWII began in
This
chapter reviews classification in the
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
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
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 (
The
Second Continental Congress established two "secret" committees, the "Secret
Committee" and the "Committee of Secret Correspondence." The Secret Committee
was established on
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
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
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
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
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
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
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
British
experiments in the 1870s on how to sink double-bottom ships, which were then
possessed only by
In the
1880s,
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
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.
Attention
is called to the penalties attaching to any infraction of the Official Secrets
Act.
This recommendation was subsequently adopted.[82]
Classification
in
Classification in the
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.
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.
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
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
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
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.
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 Defense Secrets Act presumed the existence of "national defense secrets" but did not further identify them except to indicate that they could be obtained by entering or being near a "vessel" or Army or Navy facility "connected with the national defense" and that they included documents, sketches, or photographs "connected with the national defense." This Act was mainly directed towards prevention of or punishment for espionage.
WORLD WAR I
Classification in the U. S. Army
Extreme care will be taken by all members of this
command in the treatment of "Confidential" and "Secret" matters. There appears
to be some carelessness in the indiscriminate use of the terms "Confidential"
and "Secret." These words sometimes appear on official publications which are
common property to our officers, but documents properly bearing these words
sometimes are seen on desks in the several offices convenient of access to visiting
officers, to clerks, orderlies and in some cases to the employees who clean and
care for the building.
Official information was defined as follows:[107]
In general terms, all matters passing through
official channels, verbal, written or printed, in the transaction of business
in this command are to be considered "Official" in the sense that they are not
to be discussed with any person except those to whom they come for
consideration or transmission. Any official matters to be released are so
designated by the Commander-in-Chief. This is authority which has not yet been
delegated to anyone.
Note the similarity of this definition to the British Army 1894 definition of "official" documents (see a previous subsection of this chapter).
The AEF General Order established three markings, as follows:[108]
The word "Secret" on a communication is intended to
limit the use or sight of it to the officer into whose hands it is delivered by
proper authority and when necessary a confidential clerk.
"Confidential" matter is restricted for use and
knowledge to a necessary minimum of persons, either members of this Expedition
or its employees;
Those [documents] which are for ordinary official
circulation and not intended for the public but the accidental possession of
which by the enemy would result in no harm to the allied cause [will be marked]
"For Official Circulation Only."
Those AEF regulations were patterned after French and British classification procedures. (The French used "Secret" and "Confidential" terminology; the British used those terms and also "For Official Use Only.") Note that, by implication of the definition of "For Official Circulation Only," documents marked Secret or Confidential contain information that concerns the national defense (i.e., would harm the allied cause).
The markings on the AEF documents were to be placed in the upper left hand corner of the document, using all uppercase letters for secret and confidential (i.e., SECRET or CONFIDENTIAL) and the first letter of a word in uppercase for the other marking (i.e., For Official Circulation Only). These markings were to be in "heavy face type sufficiently conspicuous to attract attention." For Secret documents, the word "SECRET" was to be printed in red. Secret and Confidential materials were to be kept under lock and key, except that, if Confidential matter was a necessary part of a collection of office records, then it could be kept in the office files, which were to be locked except during office hours.
Not to be taken into Front Line Trenches;
Not to be Reproduced;
Not to go below Division Headquarters; and
Not to go below Regimental Headquarters.
Shortly after the AEF's classification regulations were issued, the War Department adopted, on December 14, 1917, similar regulations to be applicable throughout the Army. It has been suggested that the time between the issuance of AEF General Order No. 64 (November 21, 1917) and the proposed issuance of the comparable War Department regulations (December 3, 1917) represents the time required for a copy of the Order to reach the United States from France via ship.[112],[113] The War Department guidance for the use of the markings "Secret," "Confidential," and "For official use only," (the AEF marking was "For Official Circulation Only") was as follows:[114]
A document or map marked "Secret" is for the
personal information of the individual to whom it is officially entrusted and
of those officers under him whose duties it affects.
A document or map marked "Confidential" is of less
secret a nature than one marked "Secret," but its contents will be disclosed
only to persons known to be authorized to receive them or when it is obviously
in the interest of the public service that they receive them.[****]
The information contained in a document or map
marked "For official use only" will not be communicated to the public or to the
press, but may be communicated to any person known to be in the service of the
United States, simply by virtue of his official position.
The December 14, 1917, regulations stated that the existence of Secret "documents or map will not be disclosed by the officer to whom it is entrusted, nor by his officers without the sanction of superior military authority." A document or map marked Secret was not to be taken into the front-line trenches in the theater of war. Documents and maps marked Secret or Confidential "will not be referred to in any catalogue or publication which is not itself a document marked ‘Secret' or ‘Confidential' as the case may be."[††††] A document marked both "Secret" and "Confidential" or "For official use only" was to be considered as "Secret" (i.e., the most restrictive marking was to be considered applicable).
Publishing official documents or information, or
using them for personal controversy, or for any private purpose without due
authority, will be treated as a breach of official trust, and may be punished
under the Articles of War, or under section 1, Title I, of the espionage act
approved June 15, 1917.[‡‡‡‡]
This has been said to be the first time that the War Department invoked a statute as authority for regulations to protect "defense information."[116] That author also suggested that "invocation of the Espionage Act of 1917 was considered advisable because so many officers of the war-time army were drawn from civilian life and therefore would not have the instincts of professionals."[117] Note that the Navy regulations of 1916 contained a similar warning with respect to the Defense Secrets Act of 1911.
Classification in the U. S. Navy
The Navy first instituted a system of protective (classification) marking for official information in February 1918, a few months after the AEF and the War Department had instituted such a system. The Navy's 1918 regulations defined three classes of correspondence and information, Secret, Confidential, and Nonconfidential, as follows:[118]
"Secret" matter is correspondence or information
which should be known only to the person addressed, or to other persons to whom
he is specifically authorized to communicate it. In war time, specifically,
that which relates to present or future defensive or offensive operations
against an enemy. This includes all current instructions to and reports from
operating forces, codes and ciphers, movement orders to vessels, all
correspondence which has to do with active operations against the enemy; and
any current information which, if known, would assist the enemy to determine in
advance the nature of offensive measures or weapons which the United States or
its allies were planning to use against him.
"Confidential" matter is correspondence or
information which would prove of value to an enemy (or in time of peace to a
foreign government), but which does not relate to measures or weapons which the
United States is preparing to use against him, and is not vital to the enemy.
"Nonconfidential" matter is correspondence or
information which relates to methods of procedure regularly followed, and to
other subjects, a full knowledge of which could, by no possibility, be of use
to the enemy.
The Navy regulations were significantly more detailed than the Army's with respect to describing information that should be classified, and its classification level. Note that the British Navy used "Non-confidential" sometime prior to 1913 (see a preceding subsection of this chapter).
The regulations stated that secret matter "must be opened, transmitted, and handled by an officer, and shall be at all times actually or potentially in the possession of commissioned officers only." Officers could delegate their responsibilities regarding Confidential matter. All Secret or Confidential correspondence had to be stamped as such on the first or cover sheet. Typing the words was not sufficiently conspicuous. The regulation also mentioned that the distinction between Secret and Confidential matter was a fine one and that "extreme care and constant thought should be applied to maintain secrecy as extensively and thoroughly as humanly possible. The importance and vital necessity of keeping the enemy in ignorance of plans and operations is too generally blindly and thoughtlessly disregarded."[119]
Pertinent Statutes
After the U.S. entry into World War I in April 1917, the Espionage Act of 1917[120] was passed, replacing the Defense Secrets Act of 1911. The prohibited methods of gathering information included overflights, and the categories of national defense information included information on aircraft and on code books and signal books, methods and categories which were not included in the 1911 Act.[§§§§] The 1917 Act made it unlawful to disseminate information relating to the "national defense" or "public defense." Like the earlier Defense Secrets Act, the Espionage Act presumed the existence of national defense information but only loosely identified that information. The main objective of those two acts was to punish spies. The 1917 Act was much more severe than the 1911 Act, allowing the death penalty to be imposed in time of war.
The Trading with the Enemy Act,[121] passed by Congress in 1917, contained a provision allowing the president to designate as secret certain patents whose publication might "be detrimental to the public safety or defense, or may assist the enemy or endanger the successful prosecution of the war."[122] A prior statute had given the commissioner of patents similar authority.[123] These statutes have been described as noteworthy with respect to classification of information because they represent the first direct statutory grant of authority to the executive branch to declare a type of information as secret,[124],[125] but they did not define that information. Further, those statutes were the first to permit the government to impose secrecy restrictions on privately developed information.123 No information-classification marking arrangements were promulgated to accompany this authority.123
POST WORLD WAR I UNTIL WORLD WAR II
Navy Classification Regulations of 1920
Navy Regulations of 1920 contained the same definitions of Secret, Confidential, and Nonconfidential as did the 1918 order.[126] Authority to open and handle secret matter, which had been limited to officers only, was broadened to include persons specifically so authorized by proper naval authority. Identity of such other persons was to be provided to the Director of Naval Intelligence. Officers being detached from a ship or station were to return all Secret or Confidential publications to the commanding officer. The prior regulation required return of such documents to the Bureau of Navigation because they were receipted from that bureau to the officer. The new regulations also required, for all Secret or Confidential matter issued by a bureau or office of the Navy Department, to have the following on the cover, title page, or other prominent place:[127]
(a) The classification of the publication (whether
secret or confidential)
(b) If possible, the length of time the publication
is to be considered "secret" or "confidential"
(c) The final disposition at the end of this stated
period
(d) What reports or returns are required
(e) The office or bureau having cognizance of the
publication and to whom the reports or returns required by (d) are to be
forwarded
This is the first mention in a system of classification markings of the specification, if possible, of the duration of classification.[*****] The 1920 regulations also stated that confidential and secret publications, except code and signal books, could be sent by registered mail.[128]
Army Classification Regulations of 1921
A document will be marked "Secret" only when the
information it contains is of great importance and when the safeguarding of
that information from actual or potential enemies is of prime necessity.
This definition described the information to be designated as Secret, rather than, as did the 1917 Army regulation, describe who was to have access to the information. This was a significant change from the 1917 regulation. The "access" requirement was continued in the 1921 regulations with a statement that documents marked Secret were "for the personal information and use of the officer to whom it is officially entrusted."[130]
The 1921 regulations specified who had the authority to place the "Secret" marking on a document and required that such authority be identified on the document. The marking also had to be dated and initialed by the officer affixing the marking.[†††††] Information as to the existence of the document, its location, and its contents was to be disclosed only to those whose duties "absolutely require that they have such information." Documents marked Secret "will not be referred to in any catalogue or publication which is not itself marked ‘Secret.' " Secret documents transmitted to another person were to be enclosed in an inner and outer cover. The outer cover was to be addressed in the usual way. The inner cover would be sealed and addressed in the usual way, would be plainly marked "Secret," and would contain a receipt form identifying the addressor, the addressee, and the document. The Secret marking could be cancelled by the authority who authorized it, or by higher authority, with the cancellation dated and initialed by the officer making the cancellation. All Secret marks on the document were then to be stricken out.
A document will be marked "Confidential" when it is
of less importance and of less secret a nature than one requiring the mark of
"Secret," but which must, nevertheless, be guarded from hostile or indiscreet
persons.
The regulations stated that a commissioned officer could mark a document Confidential, and the marking should designate the office held by that officer. Regulations as to information about the existence of a Confidential document, canceling its markings, etc. were similar to those applicable to Secret documents.
"For official use only" was defined in the 1921 Army regulations as follows:[131]
A document will be marked "For official use only"
when it contains information which is not to be communicated to the public or
to the press, but which may be communicated to any person known to be in the
service of the United States whose duties it concerns, or to persons of
undoubted loyalty and discretion who are cooperating in Government work.
The term "document" was defined in the 1921 Army regulations as applying "to printed, mimeographed, typed, photostated, and written matter, and to maps, drawings, and photographs."[132] A person who originated (initiated) a document "which, in his judgment, should be marked ‘Secret' or ‘Confidential' will take immediate steps to forward it to the authority competent to so mark it" following procedures for transmitting Secret documents.[133] Note that this regulation did not mention "For official use only" documents. Documents were not to be marked with more than one of the three classification markings, but if through error more than one of those markings was on a document, then the most restrictive marking was to be considered applicable.[134]
Navy Classification Regulations of 1932
The Naval Regulations of 1920 were reprinted, with changes, in 1932.[135] The regulations stated that "All naval publications, instructions, orders, reports, dispatches, and information, [emphasis added] communicated in any manner, may be classed as:[136]
(a) Secret.--Matter that relates to national policy or plans, or offensive or defensive measures against an actual or potential enemy, the disclosures of which would be highly inimical to the national interest;
(b) Confidential.--Matter of a less vital degree of secrecy than "secret," the disclosure of which would be prejudicial to the interests of the Government;
(c) Service.--Matter of concern to the Naval Establishment and which is not desired to be available to the general public;
(d) Nonconfidential.--All matter not included in the above three classes.
Secret, Confidential, and Service matter had to be marked as such. Marking was not required for Nonconfidential matter. Secret and Confidential publications generally had to have registration numbers distributed by the Chief of Naval Operations. Secret publications were normally to be sent by commissioned-officer messenger; but in some instances, they could be sent by registered mail within the continental United States.
Army Classification Regulations of 1935
A document is marked "Restricted" when it contains
information regarding research work or the design, development, test,
production, or use of a unit of military equipment or a component thereof which
it is desired to keep secret. Such information is considered as affecting the
national defense of the United States within the meaning of the Espionage Act
(U.S.C. 50:31,32).
A further description of the "Restricted" classification is found in Changes No. 3, dated February 12, 1935, to Army Regulation 850-25, Types of Equipment Used by the United States Army, dated July 15, 1931. The 1935 changes concerned technical committees and safeguarding and disclosing information regarding research and development work and military equipment. Those changes included the following:
(1) Whenever the chief of an arm or service which is
charged with a research project or the design, development, test, and
production of a unit of military equipment or component thereof, shall
determine that the maintenance of secrecy regarding any such project is
sufficiently important to the national defense of the United States to warrant
it, he may declare it a "Restricted" project. Information regarding a
"Restricted" project will be considered information affecting the national
defense within the meaning of the provisions of the Espionage Act (secs. 1 and
2, Title I, act June 15, 1917 (40 Stat. 218; U. S. C. 50: 31, 32; secs. 2181
and 2182, M. L., 1929)), the pertinent provisions of which are . . . .
. . .
(2) When a project has been declared a "Restricted"
project, the chief of the arm or service responsible for the project will take
the necessary steps to inform all such persons concerned, including
non-Government employees of such action.
(3) Information regarding a "Restricted" project may
be communicated only to persons in the military or naval service of the United
States (including civilian employees) whose duties it concerns and to American
citizens of undoubted loyalty and discretion who are cooperating in the work on
this project.
. . .
(6) During the period that a project has a
restricted status, all documents, such as drawings, specifications, contracts,
correspondence, etc., containing technical information regarding it will be
identified by being marked substantially as follows:
RESTRICTED
Notice.-This document contains
information affecting the national defense of the United States within the
meaning of the Espionage Act (U. S. C. 50:31, 32). The transmission of this document
or the revelation of its contents in any manner to any unauthorized person is
prohibited.
Documents referring to a "Restricted" project, but
which do not contain technical information regarding it need not be so
identified.
This admonitory marking for "Restricted" information might be the first U.S. use of such a marking. It was perhaps used to emphasize the fact that "Restricted" information affected the national defense. It was perhaps thought not necessary to use this admonitory marking for the other classification markings (e.g., "Secret") because it was assumed to be obvious that documents containing such markings concerned the national defense.
The Army may have created the "Restricted" classification to use specifically for technical information that needed to be classified. If such documents were classified "Secret," the then-existing regulations would stringently limit their distribution. Such regulations may have prohibited distribution of such documents to contractors. Therefore, perhaps the "Restricted" classification and accompanying distribution regulations were created so that "Restricted" documents could be provided to contractor personnel needing access to them to assist the Army programs. This hypothesis is based on an explanatory note to the War Department Chief of Staff with respect to proposed changes in the 1935 version of AR 330-5 (see below). That note mentioned that a complete revision of the section on safeguarding Secret documents was necessary to permit divulging Secret information to persons not in the Government service "if the term ‘secret' is to be applied to technical information."[140]
The section of the 1935 Army regulations that concerned military maps and photographs also indicated the appropriate classification level for those maps and photographs.[141] The classification levels "Secret," "Confidential," and "For official use only" were described with respect to their application to war plans, layout of permanent defense works and naval bases and adjacent terrain, layout of radio stations, aviation centers, supply bases, arsenals, proving grounds, topographic maps, etc., both in the continental United States and at overseas locations. Notification to the War Department was required when military maps and photographs were classified or reclassified.[142] (Note that this may be the first use of the term "reclassification" in an Army classification regulation.)
The 1935 regulations required that documents marked Secret or Confidential be stamped with those markings at the top and bottom of each page.[143] There was no comparable requirement for marking "Restricted" or "For official use only" documents.
Army Classification
Regulations of 1936
In 1936, the Army classification regulations were significantly revised. The Navy had formally requested, in December 1932 and in January 1935, that the War Department "establish a single standard of security requirements for the two services in handling and safeguarding secret and confidential documents."[144] One reason for the change was that in 1935 the Army started to use the term "Restricted" for marking documents. The Navy had been using that for some years, but with a meaning different from the Army's definition of that term. The Navy used "Restricted" as equivalent to the Army's "For official use only." In its 1936 revision of AR 330-5, the Army discontinued the use of "For official use only" as a classification marking and established a definition of "Restricted" consistent with the Navy's definition (i.e., the Army's new definition of "Restricted" was essentially the same as its prior definition of "For official use only"). A discussion of the Army's major 1936 changes to AR 330-5 is given in the following paragraphs.
The 1936 Army regulations[145] defined "registered publication," and "short title" as well as "document." The definition for document was expanded slightly from prior definitions.
In this pamphlet the word "document" will be
understood to apply to printed, mimeographed, typed, photostated, and written
matter, and to maps, drawings, sketches, notes, blueprints, photographs,
photographic negatives, and similar matter.
A "registered document" was a classified document that was assigned a register number for document accountability and inventory purposes. A "short title" was an unclassified title given to a classified document for reasons of security and brevity. Such title had to include an abbreviated designation of the office of origin.
A document will be classified and marked "Secret"
only when the information it contains is of such nature that its disclosure
might endanger the national security, or cause serious injury to the interests
or prestige of the Nation, an individual, or any governmental activity, or be
of great advantage to a foreign nation.
A document will be classified and marked
"Confidential" when the information it contains is of such nature that its
disclosure, although not endangering our national security, might be
prejudicial to the interests or prestige of the Nation, an individual, or any
governmental activity, or be of advantage to a foreign nation.
A document will be classified and marked
"Restricted" when the information it contains is for official use only or of
such a nature that its disclosure should be limited for reasons of
administrative privacy, or should be denied the general public.
The 1936 Army regulations broadened the definitions of Secret and Confidential to include non-defense information as one of the types of classifiable information. For the first time, "national security" was specifically mentioned as a reason for classifying information. By implication, foreign policy information seemed to be included within the new definitions of classifiable information. Note especially that disclosure of Confidential information would not endanger national security. Note also that the definitions of Secret and Confidential included consideration of harm to an individual.
A commissioned officer could mark a document Confidential or Restricted, but authority to mark a document Secret was more stringently limited. Document originators were to make "every effort" to "word each document so that the least restrictive classification may be assigned consistent with the proper safeguarding of the contents (emphasis added)." The originator was also to consider the ultimate distribution of the document when originating that document:[146]
The probable distribution to be given the document
must be considered by the originator in order that widespread dissemination may
neither disclose information which must be safeguarded, nor place such a burden
upon recipients that proper safeguards are neglected because of too great a
volume of overclassified matter.
"Secret" and "Confidential" documents will be
habitually kept in locked safes or other suitable locked containers when not
required for immediate use. The most secure storage space available, which
should be at least a three-combination safe, will be assigned to the storage of
secret and confidential codes, ciphers, war plans, defense projects, and other
registered publications.
All registered documents were subject to semiannual accountings, on June 30 and December 31 of each year.[150] When the classification of a registered document was changed, the office of record was to notify all recipients of that document of that change.
Navy Classification Regulations of 1938
Secret matter is matter of such a
nature that its disclosure might endanger the national security, or cause
serious injury to the interests or prestige of the Nation or any Government
activity thereof.
Confidential matter is matter of such a nature
that its disclosure, while not endangering the national security, would be
prejudicial to the interests or prestige of the Nation or any Government
activity thereof.
Restricted matter is of such a nature
that its disclosure should be limited for reasons of administrative privacy;
or, is matter not classified as confidential
because the benefits to be gained by a lower classification outweigh the value
of the additional security obtainable from the higher classification.
Note that these three designations are now referred to as "categories" of classified information. Previously, they were referred to as "classes" of information. Note also, especially, that the definition of Restricted includes a "balancing" evaluation, where security is balanced against other applicable factors. Also, note that the Army 1936 definition of Secret included serious injury to the interests or prestige of "an individual" and "or be of great advantage to a foreign nation," items that were omitted from the Navy definition of Secret. Those same items were in the Army definition of Confidential, but not in the Navy's definition of that term. Also, the Navy definition of Confidential used the phrase "would be prejudicial," whereas the Army's definition of Confidential used the phrase "might be prejudicial."
The originator of matter was responsible for its proper initial classification. When matter was reclassified to a less restrictive category, the reclassifier was required to notify custodians of the matter. Secret information was to be disclosed only to those persons in the naval establishment or in government service whose official duties required such knowledge, unless under conditions of absolute necessity others must be informed. Confidential information could be disclosed to Naval officers whose duties rendered it advisable that they have such information, to other persons in the naval establishment whose duties required knowledge of such information, to persons in the government service who must be informed, and to others when special circumstances made such disclosure of benefit to the Navy.[157] Also:
The disclosure of information, classified or unclassified,
that might aid a foreign power or which, for reasons of public policy, should
not be disclosed to persons not of the Military or Naval Establishments, is
prohibited except under circumstances specifically authorized by these
regulations.[158]
The regulations also stated that "an officer, by virtue of his commission alone, is not authorized to have knowledge of secret or confidential matter."[159] The term "documents" was to "embrace physical matter in the nature of publications (books, booklets, pamphlets, codes, ciphers), charts, blueprints, letters, messages, photographs, photographic negatives, sketches, plans, maps, writings, notes, and other like matter."[160]
Navy Classification
Regulations of 1940
Navy regulations of 1940 were essentially the same as those of 1938.
Army Classification Regulations of 1941
Army regulations of 1941[162] contained several changes from their 1936 regulations. The definition for "document" was significantly expanded to include engineering data and "correspondence and plans relating to research and development projects." When classified information was distributed to persons not subject to military law, they were to be informed that the information "affects the national defense of the United States within the meaning of the Espionage Act and that its transmission to an unauthorized person is prohibited."[163] The specific wording to be on such documents was given in Sect. II.17.b:
This document contains
information affecting the national defense of the United States within the
meaning of the Espionage Act, 50 U.S.C., 31 and 32, as amended. Its
transmission or the revelation of its contents in any manner to an unauthorized
person is prohibited by law.
Documents or materiel requiring classification "will be assigned the least restrictive classification consistent with the proper safeguarding of the information or materiel concerned. Overclassification will be avoided."[164] The definition of Secret[165] omitted reference to injury to an individual, but reference to an individual was retained in the definition of Confidential.[166] Examples were given for items to be classified as Secret, Confidential, and Restricted.
Typewritten matter in Secret documents transmitted within inner and outer covers "will be protected by a cover sheet, or by a method of folding, from direct contact with the inner cover."[167] After the recipient opened the inner cover, "the inner cover will be destroyed by burning if the subject matter of the inclosure has been in contact therewith."[168] The regulations required that "At every headquarters an inspection will be made each day immediately before the close of business to insure that all secret and confidential documents and cryptographic devices have been properly put away."[169]
Pertinent Statutes
The Congress, in January 1938, passed a statute that made it unlawful "to make any photograph, sketch, picture, drawing, map, or graphical representation" of certain "vital military or naval installations or equipment" defined by the president in the interests of national defense, without first obtaining permission from proper authority.[170] This Act appears to be similar in intent to the 1869 Army regulation mentioned earlier and to have evolved from that regulation; other Army regulations of 1897 and 1908; and the 1898, 1911, and 1917 statutes also mentioned previously. Table 2.1 gives the chronology of, and legal authorities for, the control of information under those regulations and statutes.
Table 2.1. Chronology of, and legal authorities for, the control of information, 1869--1938
1869 Limited
information control by the War Department about certain fortifications began.
"Commanding
officers of troops occupying the regular forts built by the Engineering
Department will permit no photographic or other view of the same to be taken
without the permission of the War Department." General Orders, No. 35,
Headquarters of the Army, Adjutant General's Office, April 13, 1869.
1897 Additional
restrictions were imposed on written and pictorial descriptions about certain
Army lake and coastal defenses.
"Neither
written nor pictorial descriptions of [the lake and coastal defenses of the
United States] 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." General
Orders, No. 9, Headquarters of the Army, Adjutant General's Office, March 1,
1897.
1898 A
statute made War Department regulations for the protection of harbor defenses
or fortifications applicable to civilians.
"Be it enacted by the Senate and House of
Representatives of America in Congress assembled, That any person who shall
willfully, wantonly, or maliciously trespass upon, injure, or destroy any of
the works or property or material of any submarine mine or torpedo, or
fortification or harbor defense system owned or constructed or in process of
construction by the United States, . . . or shall knowingly, willfully or
wantonly violate any regulation of the War Department that has been made for
the protection of such mine, torpedo, fortification or harbor-defense system
shall be punished . . . by a fine of not less than one hundred nor more than
five thousand dollars, or with imprisonment for a term not exceeding five
years, or with both, in the discretion of the court." 30 Stat. 717 (1989), July
7, 1898.
1908 Army
promulgated regulations concerning "photographic or other views" and "written"
and "pictorial descriptions" on "permanent works of defense."
"The
taking of photographic or other views of permanent works of defense will not be
permitted. 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."a
1911 A
statute on espionage and the protection of information recorded in a variety of
forms of expression on an expanded list of "national defense" facilities was
enacted (Defense Secrets Act of 1911).
"Be it enacted by the Senate and House of
Representatives of America in Congress assembled, That whoever, . . . when
lawfully or unlawfully upon any vessel, or in or near any [navy yard, naval
station, fort, battery, torpedo station, arsenal, camp, factory, building,
office, or other place connected with the national defense], without proper
authority, obtains, takes, or makes, or attempts to obtain, take, or make, any
document, sketch, photograph, photographic negative, plan, model, or knowledge
of anything connected to the national defense to which he is not entitled; . .
. shall be fined not more than one thousand dollars, or imprisoned not more
than one year, or both." 36 Stat. 1084, §1. March 3, 1911.
Table 2.1 (continued)
1917 Espionage
Act of 1917 replaced Defense Secrets Act of 1911. This 1917 Act included a
comprehensive description of the defense facilities covered and the forms of
expression regulated. However, the Act required "intent" to injure the United
States before obtaining information could be punished.
"Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled: . .
. That (a) whoever, for the purpose of obtaining information respecting the
national defense with intent or reason to believe that the information to be
obtained is to be used to the injury of the United States, or to the advantage
of any foreign nation, goes upon, enters, flies over, or otherwise obtains
information concerning any vessel, aircraft, work of defense, navy yard, naval
station, submarine base, coaling station, fort, battery, torpedo station,
dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone,
wireless, or signal station, building, office, or other place connected with
the national defense, owned or constructed, or in progress of construction by
the United States or under the control of the United States, or of any of its
officers or agents, or within the exclusive jurisdiction of the United States,
or any place in which any vessel, aircraft, arms, munitions, or other materials
or instruments for use in time of war are being made, prepared, repaired, or
stored under any contract or agreement with the United States, or with any
person on behalf of the United States, or otherwise on behalf of the United
States, or any prohibited place within the meaning of section six of this
title; or (b) whoever for the purpose aforesaid, and with like intent or
reason to believe, copies, takes, makes, or obtains, or attempts or induces or
aids another to copy, take, make, or obtain, any sketch, photograph,
photographic negative, blue print, plan, map, model, instrument, appliance,
document, writing, or note of anything connected with the national defense; . .
. shall be punished by a fine of not more than $10,000, or by imprisonment for
not more than two years, or both."
"Sect.
6. The President in time of war or in case of national emergency may by
proclamation designate any place other than those set forth in subsection (a)
of section one hereof in which anything for the use of the Army or Navy is
being prepared or constructed or stored as a prohibited place for the purposes
of this title; Provided. That he
shall determine that information with respect thereto would be prejudicial to
the national defense." 40 Stat. 217 (1917), June 15, 1917.
1938 A
statute was enacted prohibiting making photographs, sketches, or maps of vital
military and naval defensive installations and equipment, as defined by the
President. No intent to injure the United States was required.
"Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled,
That, whenever, in the interests of national defense, the President shall
define certain vital military and naval installations or equipment as requiring
protection against the general dissemination of information relative thereto,
it shall be unlawful to make any photograph, sketch, picture, drawing, map, or
graphical representation of such vital military and naval installations or
equipment without first obtaining permission of the commanding officer of the
military or naval post, camp, or station concerned, or higher authority, and
promptly submitting the product obtained to such commanding officer or higher
authority for censorship or such other action as he may deem necessary. Any
person found guilty of a violation of this section shall upon conviction be
punished by a fine of not more than $1,000 or by imprisonment for not more than
one year, or by both such fine and imprisonment." 52 Stat. 3, January 12, 1938.
aDallas Irvine, The Origin of Defense-Information Markings
in the Army and Former War Department, National Archives and Record
Service, unpublished manuscript, 1972, pp. 5-6.
REFERENCES
[*] It is not clear whether the resolution of Congress directed that the revised minutes be printed (e.g., for the use of Congress) or sent to the press (e.g., newspapers). The pertinent resolution and order are as follows: "Resolved, That on the meeting of Congress, half an hour every morning be employed in reading the corrected copy of the journal, till the whole is gone through." "Ordered, that the journal, as corrected, after being read, be transcribed, in order to be sent to the press" (Journals of the Continental Congress, 1774 1789, 3, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 427).
[†] The head of an executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public" (5 U.S.C. Sect. 301)
[‡] The period from 1840 to 1884 has been characterized as the "initial industrialization of war" (W. H. McNeil, The Pursuit of Power: Technology, Armed Force, and Society Since A.D. 1000, University of Chicago Press, Chicago, 1982, pp. 223-262). The American Civil War was characterized as the "first full-fledged example of an industrialized war" (McNeil, p. 242). During the latter part of the 19th century, the first military-industrial complexes were formed in Europe (McNeil, pp. 262-306).
[§] "After 1866 and 1870, everyone (the rival European nations) recognized that some newly won technical superiority might bring decisive advantage in war" (W. H. McNeil, The Pursuit of Power: Technology, Armed Force, and Society Since A.D. 1000, University of Chicago Press, Chicago, 1982, p. 292).
[**] H. D. Smyth has mentioned the gap, throughout much of history, between science (discovery, based on "scientific methods") and technology (use of empirical methods to "apply" the discoveries) [H. D. Smyth, "The Place of Science in a Free Society," Bull. At. Sci. 6, 180, 181 (1950)]. This situation changed in the latter part of the 19th century, when technological advances began to depend more upon those who also understood the science. By the time of World War I, chemists and physicists went directly from their peacetime laboratories into war work, such as gas warfare, sound ranging, wireless communication, etc. In World War II, fewer than 7 years elapsed between the time of a fundamental scientific discovery (nuclear fission) and its military application (the atomic bomb dropped on Hiroshima).
[††] Additionally, during the 18th and 19th centuries, the "civilized" traditions of warfare began to be severely eroded (B. and F. M. Brodie, From Crossbow to H-Bomb, Indiana University Press, Bloomington, Ind., 1973, pp. 100-101, 105, 106, 110, 118), and universal conscription, through which wars closely affected most of the populace of warring nations, including scientists and their families, began to be implemented (B. and F. M. Brodie, p. 101).
[‡‡] The first example of "compartmentalization" of information?
[§§] Actually, Britain couldn't control it, since the inventor of the modern torpedo, R. Whitehead, had factories in a location that was then controlled by Austria. Whitehead was selling those torpedoes to any and all purchasers, one of the first of which was Britain (E. Gray, The Devil's Device, Seeley, Service, London, 1975).
[***] The Department of Energy requires each Top Secret document and some Secret documents and other matter to be uniquely numbered and periodically inventoried [DOE M 471.2-1B, Classified Matter Protection and Control Manual, U.S. Department of Energy, Office of Security Affairs, Office of Safeguards and Security, Ch. II, Sects. 4.a, 4.c.(3), and 4.d, Washington, D.C., Jan. 6, 1999].
[†††] The Department of Energy used to have similar requirements for Secret and Top Secret documents. Approval of the originator is no longer generally required [DOE M 471.2-1B, Ch. II, Sect. 5.a(1)].
[‡‡‡] Double wrapping of classified documents is currently a Department of Energy requirement for documents transmitted outside a facility (DOE M 471.2-1B, Ch. II, Sect. 6.c).
[§§§]Note that this statute
encompassed ships as well as fixed facilities. Previous War Department
regulations encompassed only fixed facilities--fortifications and coastal
defenses. However, maybe there were similar Naval Department regulations
concerning ships. Another possibility is that the Navy did not bother with
similar regulations because it is not effective to prohibit sketching or
photographing ships in port, since they will subsequently sail on the open seas
where they can be observed by an adversary.
[****] British Army regulations of 1894 had the following definition of Confidential: "A document marked ‘Confidential' is of a privileged nature. The contents are only to be disclosed to authorised [sic] persons, or in the interests of the public service." Queen's Regulations and Orders for the Army, 1894, Sect. XXII, par. 1, as cited in "CONFIDENTIAL" -- The Beginning of Defense-Information Marking, Andrew Patterson, Jr., Sterling Chemistry Laboratory, Yale University, New Haven, Conn., 1980, unpublished manuscript, p. 115. Hereafter cited as "Patterson."
[††††] It is of interest to note that a very similar admonition had appeared in British Army regulations in 1894. "No secret or confidential documents are . . . to be referred to in any catalogue or publication which is not of itself a secret or confidential document." Queen's Regulations and Orders for the Army, 1894, Sect. XXII, par. 1, as cited in Patterson, p. 115.
[‡‡‡‡] It is interesting to note that British Army regulations of 1868 concerning access to official information state that use of official documents in "personal controversies" would be treated as a "breach of offical trust." As stated in Patterson, p. 109, citing Queen's Regulations and Orders for the Army, 1868, Sect. 29, par. 1470. Reference 172 in Pattersons's manuscript also refers to "personal controversies" in which official documents were not to be used.
[§§§§] Whereas the 1911 Act was the first to mention ships (previous regulations mentioned only fixed facilities), even though ships had been important instruments of war for millenia, the 1917 Act recognized the significance of airplanes shortly after they were used in warfare.
[*****] Note that such a time limit was suggested in 1907 by the Army's Chief of Artillery, but this suggestion was not implemented by the War Department (see earlier, this chapter).
[†††††] Identity of the classifier (name or personal identifier and position title), name and address of the organization preparing the document and the date of preparation, and designation of the guide or source document and the date of such document are currently required by the Department of Energy to be placed on documents containing Restricted Data or Formerly Restricted Data [DOE M 4721.2-1B, Ch. II, Sects. 3.a(2), 3.b, and 3.j(3)]
[1] Articles of War, Continental Congress, Art. 28, adopted June 30, 1775 by the Continental Congress, Journals of the Continental Congress, 1774-1789, Vol. 2, 1775, May 10-September 20, Library of Congress, Washington, U.S. Government Printing Office, Washington, D.C., 1905, p. 116. Punishment for violation of this prohibition was made more severe (the death penalty was imposed) by revisions to the Articles of War on November 7, 1775. Journals of the Continental Congress, 1774-1789, Vol. 3, 1775, September 21-December 30, p. 331.
[2] Andrew Patterson, Jr., "CONFIDENTIAL"--The Beginning of Defense-Information Marking, Sterling Chemistry Laboratory, Yale University, New Haven, Conn., unpublished manuscript, April 30, 1980, p. 6. Hereafter cited as "Patterson." Dr. Patterson was on the chemistry faculty of Yale University and became interested in defense-information markings through a prior interest in undersea mine warfare. Dr. Patterson kindly provided me with a copy of this unpublished manuscript in late 1989, for which I am much indebted.
[3] Patterson, Ibid.
[4] Journals of the Continental Congress, 1774-1789, 1, 1774, U.S. Government Printing Office, Washington, D.C., 1904, p. 26.
[5] Journals of the Continental Congress, 1774-1789, 1, 1774, U.S. Government Printing Office, Washington, D.C., 1904, pp. 101-102.
[6] Journals of the Continental Congress, 1774-1789, 2, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 22.
[7] Journals of the Continental Congress, 1774-1789, 3, 1775, U.S. Government Printing Office, Washington, D.C., 1905, pp. 342-343.
[8] Journals of the Continental Congress, 1774-1789, 2, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 208.
[9] Journals of the Continental Congress, 1774-1789, 3, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 393.
[10] Journals of the Continental Congress, 1774-1789, 3, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 427.
[11] D. W. Hoffman, Governmental Secrecy and the Founding Fathers, Greenwood Press, Westport, Conn., 1981, p. 14. Hereafter cited as "Hoffman."
[12] Journals of the Continental Congress, 1774-1789, 13, 1779, U.S. Government Printing Office, Washington, D.C., 1909, p. 5.
[13] Journals of the Continental Congress, 1774-1789, 2, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 253.
[14] Journals of the Continental Congress, 1774-1789, 3, 1775, U.S. Government Printing Office, Washington, D.C., 1905, p. 392; Secret Journals of the Acts and Proceedings of Congress, 2, Thomas B. Wait, Boston, 1820, p. 5.
[15] Journals of the Continental Congress, 1774-1789, 7, 1777, U.S. Government Printing Office, Washington, D.C., 1907, p. 274.
[16] Articles of Confederation, Art. 9, Para. 7.
[17] Hoffman, p. 16.
[18] Journals of the Continental Congress, 1774-1789, 26, 1784, U.S. Government Printing Office, Washington, D.C., 1928, pp. 331-332.
[19] M. Farrand, ed., The Records of the Federal Convention of 1787, Vol. I, Yale University Press, New Haven, Conn., 1911, pp. 15-17.
[20] Hoffman, p. 21.
[21] M. Farrand, ed., The Records of the Federal Convention of 1787, Vol. III, Yale University Press, New Haven, Conn., 1911, pp. 86-87.
[22] The Public Statutes at Large of the United States of America, R. Peters, Ed., 3, Charles C. Little and James Brown, Boston, 1846, p. 475. Resolution of March 27, 1818.
[23] Hoffman, p. 33.
[24] Hoffman, p. 37.
[25] See, for example, Totten v. United States, 92 U.S. 105 (1875); U.S. v. Reynolds, 345 U.S. 1 (1952); Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981); 5 U.S.C. §552(b)(1); 50 U.S.C. §783(b).
[26] J. D. Richardson, A Compilation of Messages and Papers of the Presidents, 1789-1897, Vol. I, U.S. Government Printing Office, Washington, D.C., 1896, p. 71. Hereafter cited as "Richardson."
[27] Richardson, pp. 76-77.
[28] Hoffman, p. 70.
[29] See, for example, "Reform in the Classification and Declassification of National Security Information: Nixon Executive Order 11,652," Iowa Law Rev. 59, 110-143 (1973-1974), pp. 111-113.
[30] 1 Stat. 28 (July 27, 1789).
[31] Dallas Irvine, Origin of Defense-Information Markings in the Army and Former War Department, draft unpublished manuscript, The National Archives, Washington, D.C., Nov. 1971, p. 44. The author would like to express his appreciation to Dr. Edwin Alan Thompson, former director of the Records Declassification Division, National Archives, for providing a copy of Mr. Irvine's unpublished manuscript. The materials provided by Dr. Thompson contained copies of documents collected by Mr. Irvine, including the Army and Navy classification regulations and associated materials cited later in this chapter. Hereafter cited as "Irvine."
[32] Cox, p. 34. A. M. Cox, The Myths of National Security: The Peril of Secret Government, Beacon Press, Boston, 1975, p. 34.
[33] J. R. Wiggins, Freedom or Secrecy, rev. ed., Oxford University Press, New York, 1964, p. 95.
[34] J. G. Randall, Constitutional Problems Under Lincoln, rev. ed., Peter Smith, Gloucester, Mass., 1963, p. 508.
[35] W. H. McNeil, The Pursuit of Power: Technology, Armed Force, and Society Since A.D. 1000, University of Chicago Press, Chicago, 1982, p. 146.
[36] G. Hartcup, The War of Invention, Brassey's Defence Publishers, London, 1988, pp. 1-3.
[37] Patterson, pp. 9-14.
[38] Patterson, pp. 9-10.
[39] See, for example, B. and F. M. Brodie, From Crossbow to H-Bomb, Indiana University Press, Bloomington, Ind., 1973, pp. 9-11, 90, 103, 123. Hereafter cited as "Brodie."
[40] Brodie, pp. 106-107.
[41] Patterson, p. 105.
[42] Patterson, Ibid.
[43] Patterson, p. 107, citing Queen's Regulations and Orders for the Army, HMSO, London, 1868, Sect. 5, Para. 184.
[44]
Patterson, p. 108, citing Queen's
Regulations and Orders for the Army, 1868, Sect. 7, Part III, Para. 363.
[45] Patterson, p. 108, citing Queen's Regulations and Orders for the Army, 1868, Sect. 29, Para. 1470.
[46] R. Eells and P. Nehemkis, Corporate Intelligence and Espionage, MacMillan, New York, 1984, p. 35. Hereafter cited as "Eells and Nehemkis."
[47] Patterson, p. 11.
[48] Patterson, p. 16.
[49] Patterson, p. 37.
[50] Patterson, p. 39, citing Broad Arrow, X, p. 430, Apr. 5, 1873.
[51] Patterson, pp. 46-47.
[52] Patterson, p. 50, citing London Gazette, Supplement, No. 24573, p. 2633, (Thursday, Apr. 18, 1878).
[53] Patterson, p. 54, citing Broad Arrow, XXXIX, p. 789 (Dec. 10, 1887).
[54] Eells and Nehemkis, p. 37.
[55] Patterson, p. 110.
[56] Patterson, p. 111.
[57] Patterson, p. 112.
[58] Patterson, p. 55.
[59] Patterson, p. 112, citing Queen's Regulations and Orders of the Army, 1892, Sect. XXI.
[60] Patterson, p. 113, citing Queen's Regulations and Orders of the Army, 1893, Sect. XXI, Para. 11.
[61] Patterson, p. 114, citing Queen's Regulations and Orders of the Army, 1894, Sect. XXI, para. 11.
[62] Patterson, p. 114, citing Queen's Regulations and Orders of the Army, 1894, Sect. V, Para. 52A. The Official Secrets Act was "An Act to Prevent the Disclosure of Official Documents and Information," Law Reports, 52 and 53 Vict. 1889, Chap. 52, pp. 269-272.
[63] Patterson, p. 116.
[64] Patterson, p. 117.
[65] Patterson, p. 117, citing King's Regulations and Orders of the Army, 1904, para. 2112.
[66] Patterson, p. 118, citing Army Orders, London, HMSO, 1910, AO 133/1909, dated May 1, 1909.
[67] Patterson, p. 119, citing Army Orders 16 of January 1914.
[68] Patterson, p. 121.
[69] Patterson, p. 123, citing Queen's Regulations and Admiralty Instructions, 1879, Ch. XLVII, Para. 1885.
[70] Patterson, p. 124, citing Queen's Regulations and Admiralty Instructions, 1887, App. XXXVII.
[71] Patterson, p. 124.
[72] Patterson, p. 124A.
[73] Patterson, p. 124A.
[74] Patterson, p. 125.
[75] Patterson, pp. 126-127, citing King's Regulations and Admiralty Instructions, HMSO, London, 1906, Art. 1844, Ch. XLVII.
[76] Patterson, p. 127.
[77] Patterson, p. 129.
[78] Patterson, pp. 129-130 and Table I, citing Report of the Committee on the Issue, Care, and Custody of Confidential Books, 1913.
[79] Patterson, p. 130.
[80] Patterson, p. 132.
[81] Patterson, p. 131.
[82] Patterson, p. 132.
[83] Patterson, p. 134.
[84] Patterson, pp. 136-137.
[85] Patterson, p. 139.
[86] Patterson, p. 98.
[87] Patterson, p. 95.
[88] General Orders, No. 35, Headquarters of the Army, Adjutant
General's Office, Washington, D.C., Apr. 13, 1869.
[89] Patterson, p. 142.
[90] General Orders, No. 9, Headquarters of the Army, Adjutant General's Office, Washington, D.C., Mar. 1, 1897.
[91] General Orders, No. 52, War Department, Adjutant General's Office, Washington, D.C., Aug. 24, 1897.
[92] Letter from Brig. Gen. Arthur Murray, Chief of Artillery, to The Adjutant General, War Department, untitled, Oct. 3, 1907.
[93] Memorandum for the Acting Secretary of War, from Major General Wm. P. Duvall, General Staff, Assistant to Chief of Staff, War Department, Nov. 12, 1907.
[94] Circular, No. 78, War Department, Washington, D.C., Nov. 21, 1907, Item II.
[95] H. C. Relyea, "The Presidency and the People's Right to Know," Chapter 1 in The Presidency and Information Policy, ed., H. C. Relyea, Proceedings of the Center for the Study of the Presidency, 4 (1), 1981, p. 11.
[96] H. C. Relyea, "The Evolution of Government Security Classification Policy: A Brief Overview (1775-1973)," pp. 842-884, in Government Secrecy, Hearings Before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, U.S. Senate, 93d Congress, 2d Sess., 1974, p. 848. Hereafter cited as "Relyea-1974."
[97] Memorandum, Office of the Judge Advocate General, War Department, Washington, D.C., May 19, 1913.
[98] Relyea-1974, p. 850.
[99] General Order, No. 36, Navy Department, Washington, D.C., Aug. 20, 1909.
[100] Changes in Navy Regulations and Naval Instructions, No. 7, Sect. 713, Navy Department, Washington, D.C., Sept. 15, 1916.
[101] Irvine, p. 42.
[102] 30 Stat. 717 (1989), July 7, 1898.
[103] 36 Stat. 1084 (Mar. 3, 1911).
[104] Jack Robinson, "The British Official Secrets Act, an Examination," J. Natl. Class. Mgmt. S oc., 8, 88-110 (1972), p. 89.
[105] Ann Rogers, Secrecy and Power in the British State, A History of the Official Secrets Act, Pluto Press, London, 1997, p. 23.
[106] General Orders, No. 64, Headquarters, American Expeditionary Forces, Sect. I.1, France, Nov. 21, 1917.
[107] Ibid., Sect. I.2.
[108] Ibid.
[109] Ibid., Sect. 4.
[110] Ibid., Sect. 5.
[111] W.L. Brown, "The Interagency Classification Review Committee, Past and Future," J. Natl. Class. Mgmt. Soc. 11, 8-14 (1975), p. 9.
[112] Irvine, p. 30.
[113] Patterson, pp. 154-155.
[114] Compilation of Orders, Changes No. 6, Sect. 176.1 - .3, War Department, Washington, Dec. 14, 1917.
[115] Ibid., Sect. 176.4
[116] Irvine, p. 31.
[117] Irvine, p. 31.
[118] General Order, No. 370, "Correspondence and Information," Navy Department, Washington, D.C., Feb. 20, 1918.
[119] General Order, No. 370, §8.
[120] 40 Stat. 217, 218 (June 15, 1917), codified at 18 U.S.C. §§793, 794.
[121] Trading with the Enemy Act of October 6, 1917, Ch. 106, 40 Stat. 411.
[122] Trading with The Enemy Act of October 6, 1917, Ch. 106, §10(i), 40 Stat. 422.
[123] Act of October 6, 1917, Ch. 95, 40 Stat. 394.
[124] Relyea-1974, p. 852.
[125] H. C. Relyea, "Shrouding the Endless Frontier--Scientific Communications and National Security: The Search for Balance," pp. 75-124 in Striking a Balance: National Security and Scientific Freedom, ed. H. C. Relyea, American Association for the Advancement of Science, Washington, D.C., May 1985, p. 81.
[126] United States Navy Regulations, 1920, Chap. 52, Art. 2005, U.S. Government Printing Office, Washington, D.C., 1920, pp. 685-686.
[127] United States Navy Regulations, 1920, Art. 123, Sect. (2), p.37.
[128] United States Navy Regulations, 1920, Art. 123, Sect. (6), p. 38.
[129] Army Regulations, No. 330-5, "Documents - ‘Secret,' ‘Confidential,' and ‘For Official Use Only,' " U.S. War Department Washington, D.C., Jan. 22, 1921, Sect. I, Par. 2.
[130] Army Regulations, No. 330-5, Sect. II, Par. 3(a), 1921.
[131] Army Regulations, No. 330-5, Sect. IV, Par. 9, 1921.
[132] AR 330-5, Sect. I, Par. 1, 1921.
[133] AR 330-5, Sect. V, Par. 12, 1921.
[134] AR 330-5, Sect. V, Par. 13, 1921.
[135] United States Navy Regulations, 1920, Reprinted 1932, United States Government Printing Office, Washington, D.C., 1932.
[136] United States Navy Regulations, 1920, 1932 reprinting, Art. 75 1/2, Par. (1), p. 25.
[137] United States Navy Regulations, 1920, 1932 reprinting, Art. 76, Par. (9), p. 26.
[138] United States Navy Regulations, 1920, 1932 reprinting, Ch. 52, Art. 2005, Par. (7), p. 686.
[139] Army Regulations, No. 330-5, "Documents - ‘Secret', ‘Confidential', ‘For Official Use Only', and ‘Restricted,' " U.S. War Department, Washington, D.C., Feb. 12, 1935, Sect. V, Par. 11.
[140] Appendix A, "Summary of Changes in AR 3350, As Revised," to Revision of AR 330-5, Documents, Memorandum for War Department Chief of Staff from the Military Intelligence Division, G-2, War Department General Staff, Jan. 3, 1936.
[141] AR 330-5, 1935, Sect. VI.
[142] AR 330-5, 1935, Sect. IV, Par. 14.
[143] AR 330-5, 1935, Sect. VII, Par. 20.
[144] Revision of AR 330-5, Documents, Memorandum for War Department Chief of Staff from the Military Intelligence Division, G-2, War Department General Staff, Jan. 3, 1936.
[145] Army Regulations, No. 330-5, "Documents - ‘Secret,' ‘Confidential,' and ‘Restricted,' " War Department, Washington, D.C., Feb. 11, 1936.
[146] AR 330-5, 1936, Sect. II, Par. 4.
[147] AR 330-5, 1936, Sect. II, Par. 11.
[148] AR 330-5, 1936, Sect. II, Par. 10.
[149] AR 330-5, 1936, Sect. IV, Par. 16.a.
[150] AR 330-5, 1936, Sect. IV, Par. 17.
[151] AR 330-5, 1936, Sect. IV, Par. 16(b).
[152] AR 330-5, 1936, Sect. IV, Par. 18.
[153] AR 330-5, 1936, Sect. IV, Par. 31.
[154] United States Navy Regulations, 1920, Reprinted 1938, U.S. Government Printing Office, Washington, D.C., 1939.
[155] United States Navy Regulations 1920, 1938 reprinting, Art. 75 1/2, Par. (1)(a), p. 25.
[156] United States Navy Regulations 1920, 1938 reprinting, Art. 75 1/2, Par. (1)(b), p. 25(1).
[157] United States Navy Regulations 1920, 1938 reprinting, Art. 75 1/2, Par. (4), pp. 25(2)-25(3).
[158] United States Navy Regulations 1920, 1938 reprinting, Art. 75 1/2, Par. (5)(b), p. 25(3).
[159] United States Navy Regulations 1920, 1938 reprinting, Art. 75 1/2, Par. (5)(e), p. 25(3).
[160] United States Navy Regulations 1920, 1938 reprinting, Art. 76, Par. (1)(a).
[161] United States Navy Regulations 1920, 1938 reprinting, Art. 76, Par. (1)(b).
[162] Army Regulations, No. 380-5, "Safeguarding Military Information," War Department, Washington, D.C., June 18, 1941.
[163] AR 380-5, 1941, §I.4.a.
[164] AR 380-5, 1941, §I.7.
[165] AR 380-5, 1941, §I.8.a.
[166] AR 380-5, 1941, §I.9.a.
[167] AR 380-5, 1941, §II.18.a(3).
[168] AR 380-5, 1941, §II.18.a(4)(b).
[169] AR 380-5, 1941, §II.20.d.
[170] Act of January 12, 1938, Ch. 2, §§1-5, 52 Stat. 3, codified at 18 U.S.C. §§795, 796, and 797.