
               THE CREATION OF THE NATIONAL SECURITY AGENCY



          This document describes the courting ruling that
          released to the public the order of President Harry S.
          Truman which created the super secret National Security
          agency. You may find this file of interest.


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          At 12:01 AM on the morning of November 4, 1952, a new
     federal agency was born. Unlike other such bureaucratic births,
     however, this one arrived in silence. No news coverage, no
     congressional debate, no press announcement, not even the whisper
     of a rumor. Nor could any mention of the new organization be
     found in the Government Organization Manual of the Federal
     Register or the Congressional Record. Equally invisible were the
     new agency's director, its numerous buildings, and its ten
     thousand employees.

          Eleven days earlier, on October 24, President Harry S Truman
     scratched his signature on the bottom of a seven-page
     presidential memorandum addressed to Secretary of State Dean G.
     Acheson and Secretary of Defense Robert A. Lovett. Classified top
     secret and stamped with a code word that was itself classified,
     the order directed the establishment of an agency to be known as
     the National Security Agency. It was the birth certificate for
     America's newest and most secret agency, so secret in fact that
     only a handful in the government would be permitted to know of
     its existence.

     - James Bamford, The Puzzle Palace (1982), page 15.

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                           LOUIS KRUH, Plaintiff
                                    vs.
                GENERAL SERVICES ADMINISTRATION, Defendant.

                                 75 C 909

         UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

                  421 F. Supp. 965; 2 Media L. Rep. 1286

                             October 20, 1976

     COUNSEL:  MEDOWAR & KROLL, 1808 W. Merrick Road, BY JEROME S.
MEDOWAR,
               ESQ., Merrick, N.Y. 11566 For Plaintiff

               DAVID G. TRAGER, ESQ., U.S. Courthouse, United States
               Attorney, Brooklyn, N.Y. 11201 Eastern District of New
York,
               BY GEORGE H. WELLER, ESQ., Assistant U.S. Attorney For
               Defendant

     NEAHER, District Judge.

          This is plaintiff's second action under the Freedom of
     Information Act (FOIA), 5 U.S.C. @ 552(a)(3), seeking to compel
     disclosure of a memorandum, dated October 24, 1952, from
     President Harry S. Truman to the Secretaries of State and Defense
     which established the National Security Agency (the Truman
     Memorandum). In the first action this court held that the
     document was exempt from disclosure because it was in fact
     classified "Top Secret," an exemption under 5 U.S.C. @
     552(b)(1),[n1] and that under EPA v. Mink, 410 U.S. 73 (1973),
     the court was precluded from making any inquiry into the
     reasonableness of the classification. Thereafter the statute was
     amended,[n2] permitting inquiry into the propriety of
     classification, and plaintiff once again attempted to obtain the
     document. He was again unsuccessful throughout the appropriate
     administrative levels, and has commenced the present action to
     compel production of the Truman Memorandum under FOIA as amended.

          n1   Before amendment, Exemption 1 of the FOIA read:

               "(b) This section does not apply to matters that are

                    (1)  specifically required by Executive order to
                         be kept secret in the interest of the
                         national defense or foreign policy;" 5 U.S.C.
                         @ 552(b)(1).

          n2   After amendment, Exemption 1 reads:

               "(b) This section does not apply to matters that are

                    (1)(A)    specifically authorized under criteria
                              established by an Executive order to be
                              kept secret in the interest of national
                              defense or foreign policy and (B) are in
                              fact properly classified pursuant to
                              such Executive order;" 5 U.S.C. @
                              552(b)(1), as amended.

          The matter is now before the court on (1) plaintiff's motion
     to compel production of the minutes of two meetings of the Inter-
     agency Classification Review Committee at which his first
     administrative appeal in his quest for the Truman Memorandum was
     discussed, Rule 37, F.R.Civ.P.,[n3] and (2) defendant's cross-
     motion for summary judgment denying disclosure of the Truman
     Memorandum, Rule 56, F.R.Civ.P. The summary judgment motion will
     be considered first, since a dispositive ruling would obviate the
     discovery motion.

          n3   Plaintiff seeks production of the Review
               Committee's complete minutes in order to establish
               his right to examine the Truman Memorandum,
               arguing their relevance because they reflect
               discussion about declassifying the Memorandum and
               lack of privilege because he asserts they are now
               public documents, having been disclosed to him in
               part in connection with his prior action.

          Defendant seeks summary judgment on the ground that the
     Truman Memorandum is exempt from disclosure under Exemption 3 of
     FOIA, which provides for non-disclosure of "matters that are
     specifically exempted from disclosure by statute," 5 U.S.C. @
     552(b)(3). Exemption 3 evidences a Congressional judgment that,
     despite the general intent of FOIA to open up to the public
     information concerning the public business, certain secrecy
     statutes should nonetheless remain in force. These are statutes
     which specifically restrict access to governmental records on the
     basis of Congressional decisions that the confidentiality of
     certain information in certain agencies is essential to protect
     the public interest. Administrator, FAA v. Robertson, U.S. , 95
     S.Ct. 2140, 2146-47 (1975).

          The government, unfortunately for plaintiff, has pointed to
     just such a statute, one which by its terms negates any
     requirement to make disclosure of information about the National
     Security Agency. It reads:

          "[Nothing] in this Act or any other law... shall be
          construed to require the disclosure of the organization
          or any function of the National Security Agency, of any
          information with respect to the activities thereof, or
          of the names, titles, salaries, or number of the
          persons employed by such agency." Pub. L. No. 86-36, @
          6, 73 Stat. 63 (1959).

          Although a specific aim of P.L. 86-36 was to exempt the
     National Security Agency from the U.S. Civil Service Commission's
     requirements of disclosure of personnel data and other
     information, it is manifest that this was in aid of a broader,
     overriding purpose; i. e., that no law shall require disclosure
     of the highly sensitive organizational and functional matters or
     activities of that Agency. This would necessarily include such a
     law as FOIA. The 1974 amendments of FOIA would not alter such an
     exemption.[n4]

          n4   A conforming amendment to the "Government in the
               Sunshine Act," Pub. L. No. 94-409, enacted
               September 13, 1976, effective 180 days from
               enactment, amends Exemption 3 of FOIA so as to
               exempt from disclosure matters

               "(3) specifically exempted from disclosure by statute
                    (other than section 552b of this title), provided
                    that such statute (A) requires that the matters be
                    withheld from the public in such a manner as to
                    leave no discretion on the issue, or (B)
                    establishes particular criteria for withholding or
                    refers to particular types of matters to be
                    withheld..."

          The amendment - even if now in effect - would not change the
     outcome here. Section 6 of P.L. 86-36 specifically "refers to
     particular types of matters to be withheld"; namely, "the
     organization or any function of the National Security Agency, or
     any information with respect to the activities thereof...."

          Statutes which specifically exempt disclosure of documents
     under Exemption 3 need not precisely name the documents or
     describe the category in which they fall. Administrator, FAA v.
     Robertson, supra, 96 S.Ct. at 2147. Thus, the statute which
     permitted the Administrator of the FAA to withhold information
     when, in his judgment, disclosure would adversely affect the
     interests of an objecting party and was not required in the
     interest of the public, 49 U.S.C. @ 1504, despite the breadth of
     the disclosure granted, was held to come within the purview of
     Exemption 3. Id. The function of this court's de novo inquiry
     when an agency asserts a right to withhold a document based on
     Exemption 3 is to determine "the factual existence of such a
     statute, regardless of how unwise, self-protective, or
     inadvertent the enactment might be." EPA v. Mink, supra, 410 U.S.
     at 95 n. * (Stewart, J. concurring).

          The plain language of P.L. 86-36 renders it unnecessary to
     tarry long with plaintiff's criticism of defendant's affidavits
     as conclusory and therefore insufficient to establish an
     exemption. Contrary to plaintiff's contentions, those affidavits
     do not merely recite the statutory language.[n5] The Davis
     affidavit, inter alia, states that the Truman Memorandum
     establishes a mechanism within the National Security Council to
     establish policy for and advise the President of activities of
     the intelligence community, outlines the mission of the National
     Security Agency and details the responsibilities of the Director.
     In like fashion, the Allen affidavit relates that, under the
     Memorandum, the National Security Agency was created as a
     separately organized agency within the Department of Defense and
     the Secretary of Defense was designated Executive Agent for the
     conduct of communications intelligence and security activities.
     Clearly these matters refer to the function, organization or
     activity of the Agency and, under P.L. No. 86-36, are not
     required to be disclosed. Exemption 3 of FOIA therefore permits
     defendant to withhold the Truman Memorandum from public scrutiny.

          n5   The affidavit of the Staff Secretary of the
               National Security Council states:

               "6.  The seven-page, October 24, 1952 Memorandum from
                    the President to the Secretaries of State and
                    Defense is the foundation upon which all past and
                    current communications intelligence activities of
                    the United States Government are based. It was
                    classified TOP SECRET, but was downgraded to
                    SECRET on September 18, 1975, as described above.
                    The text of the 1952 Memorandum was incorporated
                    almost verbatim in a subsequent National Security
                    Council Intelligence Directive (NSCID No. 9). Much
                    of the substance is contained in the currently
                    active NSCID 6 which details present activities
                    and responsibilities of the Intelligence
                    Community.

               "7.  The 1952 Memorandum establishes a mechanism within
                    the National Security Council to establish policy
                    for and to advise the President of these
                    activities. It directs the reorganization of the
                    United States Communications Intelligence Board
                    (USCIB), including its composition,
                    responsibilities, and procedures and further
                    defines its authority. The Memorandum also
                    outlines the mission of the National Security
                    Agency and details the specific responsibilities
                    of its Director.

               "8.  Release of this detailed description of the
                    organization, functions and procedures of the
                    United States Government with regard to the
                    conduct of this sensitive activity, much of which
                    is still valid today, could cause serious damage
                    to the national security. Such details would
                    increase the possibility of penetration of or
                    interference with such United States activities by
                    a potential adversary so as to limit the
                    effectiveness of our activities. It might also
                    severely limit the amount of information available
                    to the United States, information which is vital
                    to the careful, deliberate, analytical process of
                    decision- making in the area of national security
                    policy and could also affect adversely our ability
                    to act quickly, decisively and with the
                    expectation of success in a crisis situation."
                    Affidavit of Jeanne W. Davis, [*] [*] 6-8.

          The affidavit of the Director of the National Security
     Agency recites:

               "4.  The subject of this Memorandum is 'Communications
                    Intelligence Activities.' It deals with the
                    conduct of communications intelligence activities
                    and primarily with the organization, functions and
                    activities of the National Security Agency. This
                    Memorandum remains the principal charter of the
                    National Security Agency and is the basis of a
                    number of other classified documents governing the
                    conduct of communications intelligence activities
                    and the operations, functions activities of the
                    National Security Agency.


               "6.  Disclosure of this Memorandum would reveal
                    information concerning the current organization,
                    functions and activities of the National Security
                    Agency and the current conduct of communications
                    intelligence activities. I believe that foreign
                    nations are not aware of certain specific
                    information relating to these matters and that
                    disclosure would thus be prejudicial to the
                    defense activities and conduct of foreign affairs
                    of the United States." Affidavit of Lt. Gen. Lew
                    Allen, Jr., [*] [*] 4, 6.

          Accordingly, defendant's motion for summary judgment is
     granted and plaintiff's motions are denied in all respects.

          SO ORDERED.

                      /s/ EDWARD R. NEAHER / U.S.D.J.


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          Here is the document that Judge Neaher stated could
     n-o-t be disclosed. Read it carefully and try to determine
     what, if anything, merits such a top clearance on this
     material. This is typical of the government. There is
     nothing in this document that could not be printed in
     the front page of the Wall Street Journal.


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                                                  A 20707 5/4/54/OSO
                                                  NSA TS CONTL. NO
73-00405
                                                  COPY: D321

                                                  Oct 24 1952

     MEMORANDUM FOR:     The Secretary of State
                         The Secretary of Defense

     SUBJECT:  Communications Intelligence Activities

          The communications intelligence (COMINT) activities of the
     United States are a national responsibility. They must be so
     organized and managed as to exploit to the maximum the available
     resources in all participating departments and agencies and to
     satisfy the legitimate intelligence requirements of all such
     departments and agencies.

          I therefore designate the Secretaries of State and Defense
     as a Special Committee of the National Security Council for
     COMINT, which Committee shall, with the assistance of the
     Director of Central Intelligence, establish policies governing
     COMINT activities. and keep me advised of such policies through
     the Executive Secretary of the National Security Council.

          I further designate the Department of Defense as executive
     agent of the Government, for the production of COMINT
     information.

          I direct this Special Committee to prepare and issue
     directives which shall include the provisions set forth below and
     such other provisions as the Special Committee may determine to
     be necessary.

     1.   A directive to the United States Communication Intelligence
          Board (USCIB). This directive will replace the National
          Security Council Intelligence Directive No. 9, and shall
          prescribe USCIB's new composition, responsibilities and
          procedures in the COMINT fields. This directive shall
          include the following provisions.

          a.   USCIB shall be reconstituted as a body acting for and
               under the Special Committee, and shall operate in
               accordance with the provisions of the new directive.
               Only those departments or agencies represented in USCIB
               are authorized to engage in COMINT activities.

          b.   The Board shall be composed of the following members:

               (1)  The Director of Central Intelligence, who shall be
                    the Chairman of the Board.

               (2)  A representative of the Secretary of State.

               (3)  A representative of the Secretary of Defense

               (4)  A representative of the Director of the Federal
                    Bureau of Investigation.

               (5)  The Director of the National Security Agency.

               (6)  A representative of the Department of the Army.

               (7)  A representative of the Department of the Navy.

               (8)  A representative of the Department of the Air
                    Force.

               (9)  A representative of the Central Intelligence
                    Agency.

          c.   The Board shall have a staff headed by an executive
               secretary who shall be appointed by the Chairman with
               the approval of the majority of the Board.

          d.   It shall be the duty of the Board to advise and make
               recommendations to the Secretary of Defense, in
               accordance with the following procedure, with respect
               to any matter relating to communications intelligence
               which falls within the jurisdiction of the Director of
               the NSA.

               (1)  The Board shall reach its decision by majority
                    vote. Each member of the Board shall have one vote
                    except the representatives of the Secretary of
                    State and of the Central Intelligence Agency who
                    shall each have two votes. The Director of Central
                    Intelligence, as Chairman, will have no vote. In
                    the event that the Board votes and reaches a
                    decision, any dissenting member of the Board may
                    appeal from such decision within 7 days of the
                    Special Committee. In the event that the Board
                    votes but fails to reach a decision, any member of
                    the Board may appeal within 7 days to the Special
                    Committee. In either event the Special Committee
                    shall review the matter, and its determination
                    thereon shall be final. Appeals by the Director of
                    NSA and/or the representatives of the Military
                    Departments shall only be filed with the approval
                    of the Secretary of Defense.

               (2)  If any matter is voted on by the Board but -

                    (a)  no decision is reached and any member files
                         an appeal;

                    (b)  a decision is reached in which the
                         representative of the Secretary of Defense
                         does not concur and files an appeal; no
                         action shall be taken with respect to the
                         subject matter until the appeal is decided,
                         provided that, if the Secretary of Defense
                         determines, after consultation with the
                         Secretary of State, that the subject matter
                         presents a problem of an emergency nature and
                         requires immediate action, his decision shall
                         govern, pending the result of the appeal. In
                         such an emergency situation the appeal may be
                         taken directly to the President.

               (3)  Recommendations of the Board adopted in accordance
                    with the foregoing procedures shall be binding on
                    the Secretary of Defense. Except on matter which
                    have been voted on by the Board, the Director of
                    NSA shall discharge his responsibilities in
                    accordance with his own judgment, subject to the
                    direction of the Secretary of Defense.

               (4)  The Director of NSA shall make such reports and
                    furnish such information from time to time to the
                    Board, either orally or in writing, as the Board
                    my request, and shall bring to the attention of
                    the Board either in such reports or otherwise any
                    major policies or programs in advance of their
                    adoption by him.

          e.   It shall also be the duty of the Board as to matters
               not falling within the jurisdiction of NSA;

               (1)  To coordinate the communications intelligence
                    activities among all departments and agencies
                    authorized by the President to participate
                    therein;

               (2)  To initiate, to formulate policies concerning, and
                    subject to the provision of NSCID No. 5, to
                    supervise all arrangements with foreign
                    governments in the field of communications
                    intelligence; and

               (3)  to consider and make recommendations concerning
                    policies relating to communications intelligence
                    of common interest to the departments and
                    agencies, including security standards and
                    practices, and, for this purpose, to investigate
                    and study the standards and practices of such
                    departments and agencies in utilizing and
                    protecting COMINT information.

          f.   Any recommendation of the Board with respect to the
               matters described in paragraph e above shall be binding
               on all departments or agencies of the Government if it
               is adopted by the unanimous vote of the members of the
               Board. Recommendations approved by the majority, but
               not all, of the members of the Board shall be
               transmitted by it to the Special Committee for such
               action as the Special Committee may see fit to take.

          g.   The Board will meet monthly, or oftener at the call of
               the Chairman or any member, and shall determine its own
               procedures.

     2.   A directive to the Secretary of Defense. This directive
          shall include the following provisions:

          a.   Subject to the specific provisions of this directive,
               the Secretary of Defense may delegate in whole of in
               part authority over the Director of NSA within his
               department as he sees fit.

          b.   The COMINT mission of the National Security Agency
               (NSA) shall be to provide an effective, unified
               organization and control of the communications
               intelligence activities of the United States conducted
               against foreign governments, to provide for integrated
               operational policies and procedures pertaining thereto.
               As used in this directive, the terms "communications
               intelligence" or "COMINT" shall be construed to mean
               all procedures and methods used in the interception of
               communications other than foreign press and propaganda
               broadcasts and the obtaining of information from such
               communications by other than intended recipients, but
               shall exclude censorship and the production and
               dissemination of finished intelligence.

          c.   NSA shall be administered by a Director, designated by
               the Secretary of Defense after consultation with the
               Joint Chiefs of Staff, who shall serve for a minimum
               term of 4 years and who shall be eligible for
               reappointment. The Director shall be a career
               commissioned officer of the armed services on active or
               reactivated status, and shall enjoy at least 3-star
               rank during the period of his incumbency.

          d.   Under the Secretary of Defense, and in accordance with
               approved policies of USCIB, the Director of NSA shall
               be responsible for accomplishing the mission of NSA.
               For this purpose all COMINT collection and production
               resources of the United States are placed under his
               operational and technical control. When action by the
               Chiefs of the operating agencies of the Services or
               civilian departments or agencies is required, the
               Director shall normally issue instruction pertaining to
               COMINT operations through them. However, due to the
               unique technical character of COMINT operations, the
               Director is authorized to issue direct to any operating
               elements under his operational control task assignments
               and pertinent instructions which are within the
               capacity of such elements to accomplish. He shall also
               have direct access to, and direct communication with,
               any elements of the Service or civilian COMINT agencies
               on any other matters of operational and technical
               control as may be necessary, and he is authorized to
               obtain such information and intelligence material from
               them as he may require. All instruction issued by the
               Director under the authority provided in this paragraph
               shall be mandatory, subject only to appeal to the
               Secretary of Defense by the Chief of Service or head of
               civilian department of agency concerned.

          e.   Specific responsibilities of the Director of NSA
               include the following:

               (1)  Formulating necessary operational plans and
                    policies for the conduct of the U.S. COMINT
                    activities.

               (2)  Conducting COMINT activities, including research
                    and development, as required to meet the needs of
                    the departments and agencies which hare authorized
                    to receive the products of COMINT.

               (3)  Determining, and submitting to appropriate
                    authorities, requirements for logistic support for
                    the conduct of COMINT activities, together with
                    specific recommendations as to what each of the
                    responsible departments and agencies of the
                    Government should supply.

               (4)  Within NSA's field of authorized operations
                    prescribing requisite security regulations
                    covering operating practices, including the
                    transmission, handling and distribution of COMINT
                    material within and among the COMINT elements
                    under his operations or technical control; and
                    exercising the necessary monitoring and
                    supervisory control, including inspections if
                    necessary, to ensure compliance with the
                    regulations.

               (5)  Subject to the authorities granted the Director
                    Central Intelligence under NSCID No. 5, conducting
                    all liaison on COMINT matters with foreign
                    governmental communications intelligence agencies.

          f.   To the extent he deems feasible and in consonance with
               the aims of maximum over-all efficiency, economy, and
               effectiveness, the Director shall centralize or
               consolidate the performance of COMINT functions for
               which he is responsible. It is recognized that in
               certain circumstances elements of the Armed Forces and
               other agencies being served will require close COMINT
               support. Where necessary for this close support, direct
               operational control of specified COMINT facilities and
               resources will be delegated by the Director, during
               such periods and for such tasks as are determined by
               him, to military commanders or to the Chiefs of other
               agencies supported.

          g.   The Director shall exercise such administrative control
               over COMINT activities as he deems necessary to the
               effective performance of his mission. Otherwise,
               administrative control of personnel and facilities will
               remain with the departments and agencies providing
               them.

          h.   The Director shall make provision for participation by
               representatives of each of the departments and agencies
               eligible to receive COMINT products in those offices of
               NSA where priorities of intercept and processing are
               finally planned.

          i.   The Director shall have a civilian deputy whose primary
               responsibility shall be to ensure the mobilization and
               effective employment of the best available human and
               scientific resources in the field of cryptographic
               research and development.

          j.   Nothing in this directive shall contravene the
               responsibilities of the individual departments and
               agencies for the final evaluation of COMINT
               information, its synthesis with information from other
               sources, and the dissemination of finished intelligence
               to users.

     3.   The special nature of COMINT actives requires that they be
          treated in all respects as being outside the framework of
          other or general intelligence activities. Order, directives,
          policies, or recommendations of any authority of the
          Executive Branch relating to the collection, production,
          security, handling, dissemination, or utilization of
          intelligence, and/or classified material, shall not be
          applicable to COMINT actives, unless specifically so stated
          and issued by competent departmental of agency authority
          represented on the Board. Other National Security Council
          Intelligence Directive to the Director of Central
          Intelligence and related implementing directives issued by
          the Director of Central Intelligence shall be construed as
          non-applicable to COMINT activities, unless the National
          Security Council has made its directive specifically
          applicable to COMINT.

     /s/ HARRY S. TRUMAN

