CIA Overreach? 22-Year-Old FOIA Request for 1958 Document Withheld in Full

Recently the National Archives sent the National Security Archive a decision letter on a Freedom of Information Act request that the present author filed in 1994.  It might not be the Archive’s oldest request at NARA that remains in play, but it is certainly among them.  The CIA’s denial of one of the requested documents raises serious doubts about the quality of the declassification review it provides for records at NARA. It also raises questions about the role of the National Archives in the declassification of archival records.

The request was for documents from the State Department decimal files on Anglo-American nuclear relations, including basing issues, during the late 1950s.  Many of the documents requested had been declassified during the 1990s, but some agencies take their time in reviewing records and in this instance the Central Intelligence Agency was the laggard.  According to the National Archives’ letter, the CIA had withheld in its entirety tab 40B from box 3199 of the decimal file series for 1955-1959.  The withdrawal sheet for tab 40B describes it as a 7-page report with an attachment described as “Fr Murphy, et al. to the President, et al.,” dated 7 June 1958, classified top secret. According to the National Archives’ letter, the CIA’s exemption was based on the FOIA’s statutory exemption (B) (3), in this case 50 U.S.C. 403 (g), “which protects the organization and staff of the Central Intelligence Agency.”

Already Declassified?

It is difficult to be sure exactly what the withheld document is because it is stored in a vault at the National Archives in College Park, MD.  Nevertheless, the subject matter of the decimal file in which the withdrawn document had once resided, the fact that it was signed by Deputy Under Secretary of State Robert Murphy, and that the addressee was President Dwight D. Eisenhower strongly suggest that Tab 40B is the text of the agreement on  “Procedures for the Committing to the Attack of Nuclear Retaliatory Forces in the United Kingdom,” which Murphy had negotiated with Sir Patrick Dean, a British career diplomat, who was then chairman of the UK’s Joint Intelligence Committee.  The addressees on that agreement were the President and the Prime Minister and it is signed by Murphy and Dean. The agreement was declassified in full by the Dwight D. Eisenhower Library in late 1999.

“Procedures for the Committing to the Attack of Nuclear Retaliatory Forces in the United Kingdom.”

The purpose of the agreement was to assure that if war with the Soviet Union broke out, a “mutually understood procedure” would assure that British nuclear forces and U.S. nuclear forces based in the United Kingdom went into action “with the minimum delay.” At the behest of President Eisenhower and British Prime Minister Harold Macmillan, Murphy negotiated the arrangements with Dean (who probably was the lead British negotiator because he had all of the necessary security clearances and “need to know” on sensitive nuclear and intelligence issues).  During the negotiations, the CIA was kept informed, but played no role otherwise.  The Agency was kept in the loop because the agreement provided a role for U.S. intelligence authorities in the event that the interagency CIA-chaired National Indications Center received intelligence information that provided warning of an attack.  If intelligence received an advance “strategic warning,” the U.S. would pass the information to both the British and the Canadian Joint Intelligence Committees. That was consistent with the Tripartite Alert procedure that London, Ottawa, and Washington had negotiated in 1957.  In the event of a surprise attack or tactical warning that a bomber or missile strike was on its way, presumably the British and the Canadians would have already been aware of the circumstances.

The rest of the agreement relates to procedures for the use of nuclear weapons.  While incoming Prime Minister Macmillan had, like his predecessors, sought a commitment by Washington on the use of U.S. nuclear forces based in the United Kingdom, Murphy-Dean was not a binding agreement.  A joint decision to use forces would depend on “the circumstances at the time.”

The ISCAP release.

The Murphy-Dean agreement has been the subject of historical research and writing and declassification requesting. What was likely the first scholarly discussion was by Stephen Twigge and Len Scott in their book, Planning Armageddon: Britain, the United States and the Command of Western Nuclear Forces, 1945-1964 (Amsterdam: Harwood Academic Publishers, 2000).  Twigge and Scott had access to a partly declassified copy of the agreement at the Eisenhower Presidential Library in Abilene, KS; from that version, U.S. government reviewers had excised “Formerly Restricted Data,” such as references to U.S. nuclear weapons that had been made available to the Royal Air Force.  The Interagency Security Classification Appeals Panel (ISCAP) released a somewhat fuller version (although with some variations in text) of the agreement during the 1990s, but significant portions, including sections on tactical and strategic warning procedures, remained classified as FRD.  The brief passages concerning the British and Canadian intelligence committees were declassified in their entirety. In any event, the U.S. excisions were moot because Twigge and Scott found material in the British National Archives that enabled them to reconstruct the agreement in its entirety (including subsequent amendments) and publish it in their book.

Unbeknownst to Twigge and Scott (and certainly to the present writer), in late 1999, by the time their book had gone to press the agreement had been declassified in full.  The copy at the Eisenhower Library is the 6-page signed agreement (the 7-page withheld copy in the National Archives probably includes a cover memorandum to the Secretary of State or the President perhaps with a recommendation to approve the attached agreement).   In 1999, when the Defense Department and the Energy Department reviewed the document from the Eisenhower Library they no longer had objections to full declassification, probably because they were no longer treating the fact that the United States had deployed nuclear weapons to the United Kingdom as secret under the Atomic Energy Act.  Apparently no other agency, including the Central Intelligence Agency, lodged any objections to declassification of the brief passages of intelligence interest.

Unjustified Denial

CIA declassifiers were very likely unaware of the declassification history when it reviewed this writer’s 1994 request and exempted tab 40B in its entirety.   Yet, if indeed the exempted document is the Murphy-Dean agreement, why the Agency’s declassification reviewers felt compelled to deny it is perplexing.  Worse still, there are plainly no direct references to the CIA’s “organization or staff,” which was the declared basis for the denial.  In any case, the Agency could easily have excised the few lines mentioning the National Indications Center and the British and Canadian intelligence committees; they are a minor element of the text.  By denying the report in its entirety, the CIA has significantly exceeded its authority; the content of the Murphy-Dean agreement has nothing to do with classified intelligence information, it relates only to intelligence sharing arrangements that have been declassified for years.  If the CIA has indeed denied the Murphy-Dean agreement, it places the quality of its declassification review process under heavy doubt because the decision is so unsound.

A Proposal

This is hardly the first occurrence of an incorrect classification decision concerning an archival document. What makes this kind of problem possible is that the National Archives serves as the executor of agency decisions, yet its staff has no power to lodge an objection, much less prevent or discourage agencies from overreaching.  Such problems could be managed, however, if archivists at the National Declassification Center, which is lodged at NARA, had the authority to intervene when they believe that an agency decision needs to reconsider its judgments.  In that case, an archivist could ask for a justification of the decision. If she is not persuaded, an NDC committee could undertake a quality review to decide whether the agency is making a reasonable case and order further review if necessary.  The NDC is unlikely to take such action on its own; it would probably require a decision by the Archivist of the United States or even the Information Security Oversight Office to grant such authority.