[Executive Orders]
EX. ORD. NO. 10865. SAFEGUARDING CLASSIFIED INFORMATION WITHIN
INDUSTRY
Ex. Ord. No. 10865, Feb. 20, 1960, 25 F.R. 1583, as amended by
Ex. Ord. No. 10909, Jan. 17, 1961, 26 F.R. 508; Ex. Ord. No. 11382,
Nov. 28, 1967, 32 F.R. 16247; Ex. Ord. No. 12829, Sec. 203(g), Jan.
6, 1993, 58 F.R. 3479, provided:
WHEREAS it is mandatory that the United States protect itself
against hostile or destructive activities by preventing
unauthorized disclosures of classified information relating to the
national defense; and
WHEREAS it is a fundamental principle of our Government to
protect the interests of individuals against unreasonable or
unwarranted encroachment; and
WHEREAS I find that the provisions and procedures prescribed by
this order are necessary to assure the preservation of the
integrity of classified defense information and to protect the
national interest; and
WHEREAS I find that those provisions and procedures recognize the
interest of individuals affected thereby and provide maximum
possible safeguards to protect such interests:
NOW, THEREFORE, under and by virtue of the authority vested in me
by the Constitution and statutes of the United States, and as
President of the United States and as Commander in Chief of the
armed forces of the United States, it is hereby ordered as follows:
Section 1. When used in this order, the term ''head of a
department'' means the Secretary of State, the Secretary of
Defense, the Secretary of Transportation, the Secretary of Energy,
the Nuclear Regulatory Commission, the Administrator of the
National Aeronautics and Space Administration, and, in section 4,
the Attorney General. The term ''head of a department'' also means
the head of any department or agency, including but not limited to
those referenced above with whom the Department of Defense makes an
agreement to extend regulations prescribed by the Secretary of
Defense concerning authorizations for access to classified
information pursuant to Executive Order No. 12829 (set out below).
Sec. 2. An authorization for access to classified information
pursuant to Executive Order No. 12829 (set out below) may be
granted by the head of a department or his designee, including but
not limited to, those officials named in section 8 of this order,
to an individual, hereinafter termed an ''applicant'', for a
specific classification category only upon a finding that it is
clearly consistent with the national interest to do so.
Sec. 3. Except as provided in section 9 of this order, an
authorization for access to a specific classification category may
not be finally denied or revoked pursuant to Executive Order No.
12829 (set out below) by the head of a department or his designee,
including, but not limited to, those officials named in section 8
of this order, unless the applicant has been given the following:
(1) A written statement of the reasons why his access
authorization may be denied or revoked, which shall be as
comprehensive and detailed as the national security permits.
(2) A reasonable opportunity to reply in writing under oath or
affirmation to the statement of reasons.
(3) After he has filed under oath or affirmation a written reply
to the statement of reasons, the form and sufficiency of which may
be prescribed by regulations issued by the head of the department
concerned, an opportunity to appear personally before the head of
the department concerned or his designee including, but not limited
to, those officials named in section 8 of this order for the
purpose of supporting his eligibility for access authorization and
to present evidence on his behalf.
(4) A reasonable time to prepare for that appearance.
(5) An opportunity to be represented by counsel.
(6) An opportunity to cross-examine persons either orally or
through written interrogatories in accordance with section 4 on
matters not relating to the characterization in the statement of
reasons of any organization or individual other than the applicant.
(7) A written notice of the final decision in his case which, if
adverse, shall specify whether the head of the department or his
designee, including, but not limited to, those officials named in
section 8 of this order, found for or against him with respect to
each allegation in the statement of reasons.
Sec. 4. (a) An applicant shall be afforded an opportunity to
cross-examine persons who have made oral or written statements
adverse to the applicant relating to a controverted issue except
that any such statement may be received and considered without
affording such opportunity in the circumstances described in either
of the following paragraphs:
(1) The head of the department supplying the statement certifies
that the person who furnished the information is a confidential
informant who has been engaged in obtaining intelligence
information for the Government and that disclosure of his identity
would be substantially harmful to the national interest.
(2) The head of the department concerned or his special designee
for that particular purpose has preliminarily determined, after
considering information furnished by the investigative agency
involved as to the reliability of the person and the accuracy of
the statement concerned, that the statement concerned appears to be
reliable and material, and the head of the department or such
special designee has determined that failure to receive and
consider such statement would, in view of the level of access
sought, be substantially harmful to the national security and that
the person who furnished the information cannot appear to testify
(A) due to death, severe illness, or similar cause, in which case
the identity of the person and the information to be considered
shall be made available to the applicant, or (B) due to some other
cause determined by the head of the department to be good and
sufficient.
(b) Whenever procedures under paragraphs (1) or (2) of subsection
(a) of this section are used (1) the applicant shall be given a
summary of the information which shall be as comprehensive and
detailed as the national security permits, (2) appropriate
consideration shall be accorded to the fact that the applicant did
not have an opportunity to cross-examine such person or persons,
and (3) a final determination adverse to the applicant shall be
made only by the head of the department based upon his personal
review of the case.
Sec. 5. (a) Records compiled in the regular course of business,
or other physical evidence other than investigative reports, may be
received and considered subject to rebuttal without authenticating
witnesses, provided that such information has been furnished to the
department concerned by an investigative agency pursuant to its
responsibilities in connection with assisting the head of the
department concerned to safeguard classified information within
industry pursuant to this order.
(b) Records compiled in the regular course of business, or other
physical evidence other than investigative reports, relating to a
controverted issue which, because they are classified, may not be
inspected by the applicant, may be received and considered provided
that: (1) the head of the department concerned or his special
designee for that purpose has made a preliminary determination that
such physical evidence appears to be material, (2) the head of the
department concerned or such designee has made a determination that
failure to receive and consider such physical evidence would, in
view of the level of access sought, be substantially harmful to the
national security, and (3) to the extent that the national security
permits, a summary or description of such physical evidence is made
available to the applicant. In every such case, information as to
the authenticity and accuracy of such physical evidence furnished
by the investigative agency involved shall be considered. In such
instances a final determination adverse to the applicant shall be
made only by the head of the department based upon his personal
review of the case.
Sec. 6. The head of a department of the United States or his
representative, may issue, in appropriate cases, invitations and
requests to appear and testify in order that the applicant may have
the opportunity to cross-examine as provided by this order.
Whenever a witness is so invited or requested to appear and testify
at a proceeding and the witness is an officer or employee of the
executive branch of the Government or a member of the armed forces
of the United States, and the proceeding involves the activity in
connection with which the witness is employed, travel expenses and
per diem are authorized as provided by the Standardized Government
Travel Regulations or the Joint Travel Regulations, as
appropriate. In all other cases (including non-Government
employees as well as officers or employees of the executive branch
of the Government or members of the armed forces of the United
States not covered by the foregoing sentence), transportation in
kind and reimbursement for actual expenses are authorized in an
amount not to exceed the amount payable under Standardized
Government Travel Regulations. An officer or employee of the
executive branch of the Government or a member of the armed forces
of the United States who is invited or requested to appear pursuant
to this paragraph shall be deemed to be in the performance of his
official duties. So far as the national security permits, the head
of the investigative agency involved shall cooperate with the
Secretary, the Administrator, or the head of the other department
or agency, as the case may be, in identifying persons who have made
statements adverse to the applicant and in assisting him in making
them available for cross-examination. If a person so invited is an
officer or employee of the executive branch of the government or a
member of the armed forces of the United States, the head of the
department or agency concerned shall cooperate in making that
person available for cross-examination.
Sec. 7. Any determination under this order adverse to an
applicant shall be a determination in terms of the national
interest and shall in no sense be a determination as to the loyalty
of the applicant concerned.
Sec. 8. Except as otherwise specified in the preceding provisions
of this order, any authority vested in the head of a department by
this order may be delegated to the the (sic) deputy of that
department, or the principal assistant to the head of that
department, as the case may be.
Sec. 9. Nothing contained in this order shall be deemed to limit
or affect the responsibility and powers of the head of a department
to deny or revoke access to a specific classification category if
the security of the nation so requires. Such authority may not be
delegated and may be exercised only when the head of a department
determines that the procedures prescribed in sections 3, 4, and 5
cannot be invoked consistently with the national security and such
determination shall be conclusive.
MODIFICATION OF EXECUTIVE ORDER NO. 10865
Ex. Ord. No. 10865, Feb. 20, 1960, 25 F.R. 1583, as amended, set
out above, when referring to functions of the Atomic Energy
Commission is modified to provide that all such functions shall be
exercised by the Secretary of Energy and the Nuclear Regulatory
Commission, see section 4(a)(1) of Ex. Ord. No. 12038, Feb. 3,
1978, 43 F.R. 4957, set out under section 7151 of Title 42, The
Public Health and Welfare.
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