•· • DEPARTMENT OF STATE ACTION MEMORANDUM S S LIMITED OFFICIAL USE December 23 1976 NODIS TO The Secretary FROM L - Monroe Leigh Telecons Problem There has been quite a lot of press interest in your telecons See transcript of yesterday's press briefing Tab 4 The Washington Post and the New York Times Tab 5 have publicized my legal opinion to you on the telecons Tab 6 Bob Funseth has made a copy of the opinion available to the press After learning that the telecons are not going to the Library of Congress with your other papers the American Historical Association's attorney Bob Herzstein of Arnold Porter told Larry that his client would bring a lawsuit with respect to the telecons before the end of the year In light of these developments i t is essential that you now focus again on the alternatives available for disposition of the telecons Discussion The principal concern is the lawsuit The American Historical Association intends to bring suit to assure that the telecons will be preserved Their second objective would be to seek scholarly LIMITED OFFICIAL USE • - I LIMITED OFFICI AL USE • 2 - access to the telecons within a reasonable period In seeking these objectives the Association will undoubtedly contend that many or all of the telecons are government records and that at least some of them reflect government actions or decisions that are not expressed in other government records Both the initiation of such a suit and interim court orders during several years of litigation can have very immediate consequences for your use of the telecons The major concerns are these 1 The impetus for a suit by the American Historical Association seems to be that you are retaining the telecons in your personal possession instead of depositing them with the Library of Congress or some other institution with an interest in preserving these papers The attorney for the Association indicated that h was pleased about the Library of Congress donation but that it is the fate of the telecons which would lead his client to start litigation before the end of the year The filing of a suit in the next week or two will focus more press attention on the telecons By contrast depositing the telecons at the Library of Congress could well end press speculation and also stop the proposed American Historical Association suit -- although there may still be litigation by other groups 2 If a suit is brought the first step a plaintiff would take is to secure an interim order to protect the telecons If the telecons are in your possession the court might be more likely to order you to deliver the telecons to the court where they would be placed under seal Although you would undoubtedly be given access to them it would not be convenient access Also it is conceivable though in my opinion not probable that the court would allow-opposing counsel access in some limited fashion However if the telecons were at the Library of Congress the court · if a suit were filed would almost certainly allow them to remain at the Library subject to restrictions on removal LIMITED OFFICIAL USE • LIMITED OFFICIAL USE - ti- - 3 - • 3 The ultimate outcome of a suit could be affected by the arrangements you have made for the telecons If they are placed at the Library of Congress under conditions similar to those applicable to your main donation to the Library a court may be more inclined to conclude that scholarly and government interests are adequately protected than if the papers are placed in some private vault Alternatives The ·following alternatives are listed without recommendation but Larry and I would like to discuss them with you at your earliest convenience A A separate donation to the Library of Congress which precludes disclosure of any telecon that mentions any person still living -- in addition to being closed for 25 years or 5 years after your death whichever is later See Tab 1 This would probably head off the American Historical Association suit Even if a suit is brought it would probably give you convenient access while avoiding a court order that requires the telecons to be delivered to the court It could incline a court toward a final decision in your favor A separate donation would comport to some extent with our earlier statements Tab 4 which indicated that the telecons would not be covered by ·the original Library of Congress donation A separate donation based on whether a person mentioned in a telecon was still living would reflect conc rn for the privacy and reputations of others LIMITED OFFICIAL USE 1 Authority VNQ - DECLASSfi im ·_• ' • LIMITED OFfICIAL USE - 4 - • B A separate donation to the Library of Congress which would provide a longer period than the first donation -- e g 35 years or 5 years after your death whichever is later See Tab 2 Increasing the period of nondisclosure beyond 25 years would at first glance appear to increase the protection for the telecons But since historical groups are interested in future access by scholars an increase in the time •period would be less likely to diffuse a lawsuit An assessment should be made of how sensitive the telecons are in relation to other materials at the Library -and of whether there are more than marginal benefits in imposing substantial· restrictions beyond the 25 years or 5 years after your death formula C -rn·c1·uae· the telecons under the original donation to the Library of Congress See Tab 3 This would provide most of the advantages of Alternative A It would leave unexplained why the telecons were not included in this donation in the first place D Maintai·n· our current position leaving open the possibility that the telecons would go to the Library in the future A lawsuit will probably be brought in the next week or so and retaining the telecons in your personal possession will probably gi e rise to the difficulties discussed above -- particularly a court order that would give the court or some government institution interim possession of the telecons LIMITED OFFICIAL USE ft DECLASSWiED - Authority VIVO 71 • • LIMITED OFFICIAL USE ' - 5 - It would emphasize our position that the telecons are personal papers and barring an unfavorable court decision would help r inforce the principle that an official is entitled to maintain personal records of his official conduct An assessment should be made of how sensitive the telecons are and of whether there are overriding advantages in not depositing these papers at the Library· of Congress · ·Rec·omrnendation That you meet with Larry and me on Friday Disapprove Approve Date· Time Attachments Tab T b Tab Tab Tab Tab 1 2 3 4 5 6 Draft Second Deed of Gift Alternative A Draft Second Deed of Gift Alternative B Original Deed of Gift Excerpt from yesterday's press briefing Recent newspaper articles on your papers Mr Leigh's legal opinion on the telecons Drafted by L MDSandler be fa5 12 23 76 x22149 Concurrence M - Mr Eagleburger substance LIMITED OFFICIAL USE DECLASSiF · Authority 1 J D flS- - AJ 1RNATIVE A SECOND DEED OF GIFT AND AGREEMENT Henry A Kissinger hereby donates to the United States of America to be held and administered by the Library of Congress and its officials as part of a collection of the papers of Henry A Kissinger papers consisting of transcribed secretarial notes of his telephone conversations In implementing this gift and a conditions to its donation Henry A Kissinger and the Library of Congress agree to the following 1 The terms and conditions of the Deed of Gift and Agreement executed on November 12 1976 by Henry A Kissinger and the Librarian of Congress First Deed of Gift are hereby incorporated by reference and extended to the present gift except as provided in paragraph 2 below 2 In addition to the period of time described in_paragraph 4 of the First Deed of Gift a paper shall not be available for public access if it mentions any person still living Witnessed and agreed to this December 1976 day of Henry A Kissinger Accepted and agreed to on be alf of the Library of Congress this day of December 1976 Daniel J Boorstin Librarian of Congress TJTERNATIVE B SECOND DEED OF GIFT AND AGREEMENT Henry A Kissinger hereby donates to the United States of America to be held and administered by the Library of Congress and its officials as part of a collection of the papers of Henry A Kissinger papers consisting of transcribed secretarial notes of his telephone conversations In implementing this gift and as conditions to its donation Henry A Kissinger and the Library of Congress agree to the following 1 The terms and conditions of the Deed of Gift and Agreement executed on November 12 1976 by Henry A Kissinger and the Librarian of Congress First Deed of Gift are hereby incorporated by reference and extended to the present gift except as provided in paragraph 2 below 2 Instead of the period of time described in paragraph 4 of the First Deed of Gift the applicable periofl shall be 35 years after the date of this Deed of Gift and Agreement or five years after the death of Henry A Kissinger whichever is later Witnessed and agreed to this December 1976 day of Henry A Kissinger ' Accepted and agreed to on behalf of the Library of Congress this day of December 1976 Daniel J Boorstin Librarian of Congress DECLASSIFIED ority t lN I 19S' § i - - I • DEED OF GIFT AND AGREEMENT • Henry A Kissinger hereby donates to the United States of A erica to be held and administered by the Library of Congress and its officials as a gift to the nation a collection of the papers relating to his years of government ser ice and other periods of his 1ife the Collection The Collection shall contain the papers described in a schedule to be prepared ·and attached hereto In implementing this gift and as conditions to its donation - Henry A Kissinger and the Library of Congress ·the Library agree to the following 1 Purposes This Deed of Gift and Agreement are undertaken in order to assure - a That the Collection may be preserved --· - for future historical and public use • b That national security information is protected c ' That Henry A Kissinger may have access to the Collection so that he may ' prepare a historical account of his years in government and so that he may in the future give information ·-··- --- --- -- • - • 2 - and tes imony th t may be requested of him concerning hi years in office · d That rights of privacy and the reputations of other persons may be protected for a reasonable time 2 Papers in the Collection Approval Government The Collection shall consist of a personal papers of Henry A Kissinge Personal Papers and b copies of government papers of which there is an origina1 or record copy in government files Governme nt Papers The Personal Papers shall include -· Kissinger' s __ _ handwritten notes priv te letters papers dating from Henry A years at Harvard University and similar materials The copies of Go ernrnent Papers are those which Henry A Kissinger ' worked on or reviewed during his government service and which authorized ofificials have approved for inclusion in the Collection Preexisting government privileges with respect to copies of Government Papers in the Collection shall not be affected by this gift -··------·- _____ ------ -- •--- ---·- _ - - • 3 - 3 - Delivery of Papers • Personal Papers in the Collection will be deliveied to the Library within three months after the date this Deed of Gift and Agreement is signed Copies of Government Papers to be included in the Collection will be delivered to the Library·after they are reviewed by govern- ' ment officials with authority over the records to assure that no original or record copies are included in the Collection and will be delivered to the Library within three months after the date this Deed of Gift and Agreement is signed Following each delivery of papers to the Library the Library shall send to Henry · Kissinger ·a written acknowledgment of thedelivery 4 Future Public Access to Personal Papers Per onal papers shall be made available for public access but not until 25 years after the date of this Deed of Gift ana Agreement or until five years after the death of Henry A Kissinger whichever is later ____ •··· s • - Future Public Access to Copies of ·Government Papers - • 4 - The copies of Government Papers in the Collection shall be available for public access but not until the period of time provided in paragraph 4 has elapsed however such papers shall not be r·· available for public access unless the or ginating agency has determined tha a paper contains no classified or restricted information 6 Use l_ Henry A Kissinger Henry A Kissinger shall have unrestricted ccess to all papers in the Collection during his lifetime The Library shall make available to Henry A Kissinger working space where he may use the Collection and other materials of the Library - - A research assistant or assistants engaged by Henry A Kissinger shall be given access to the Collection provided they have appropriate and current governmentapproved security clearances •-- ------ -·- -- •· • 5 - Future Public Access to Copies of ·Government Papers - • 4 - The copies of Government Papers in the Collection shall be available for public access but not until the period of time provided in paragraph 4 has elapsed however such papers shall not be available for public access unless the or ginating agency has determined that a paper contains no classified - or restricted information 6 Use EX_ Henry A Kissing·er Henry A Kissinger shall have unrestricted ccess to all papers in the Collection during his lifetime The Library shall make available to Henry A Kissinger working space where he may use the -- Collection and other materials of the Library I - A research assistant or assistants engaged by Henry A Kissinger shall be given access to the Collection provided they have appropriate and current governmentapproved security clearances ·-·-------------- ----· - • • 7 se - 5 - • Others During Interim Period Until the period described in paragraph 4 has elapsed ·access to the Collection shall be limited a to such employees of the Library as may be jointly approved by the Librarian of Congress and Henry A Kissinger b to persons who have received the written permission of Henry A Kissinger and c after the death of 1 enry A Kissinger to persons who have received the written permission of a committee to be named in Henry A Kissinger's will Henry A Kissinger shall during this period be promptly notified by the Library of Congress of any requests claims or legal _actions -· -· relating to papers in the Collection No person may have access und r this paragraph to any classified paper in the ' Collection unless he has an appropriate and current government-approved security clearance commensurate with the classification of the paper • 8 Additions • - 6 - Henry A Kissinger may in the future donate additional personal papers and materials to be added to the Collection Such additional parsonal papers and materials shall be governed by this Deed of Gift and Agreement Their delivery shall be accompani•J d or preceded by a letter or statement signed by Uenry A Kissinger and the Library shall send to Henry A Kissinger a written acknowledgment of each delivery Witnessed and agreed to this 12th day of November 1976 Henry A Kissinger Accepted and agreed to on behalf of the Library i of Co grcss this 12th day of November 1976 Daniel J Boorstin Librarian of Congress • • DEPI RTMENT OF STATE • DPC 239 TRP NSCRIPT OF Dll ILY NEWS BRIEFING WEDNESqJW -1§_£ E IBgR 22 1976 12 50 P --· --------- n ON THE RECORD UNLESS OTHERWISE NOTED 0 'S beg r o i - t u - him r r y Christmas at 965-1867 should have in front of you a press release entitled U i l' econs truction Assistance to Lebanon This pr ss release summarizes the results of ' ' the visit of Ghassail eini who is as you know the personal emissary of PResident Sarkis The statement ticipated in the talks s ' those officials who par- It re· ffirms U S Goverm lent support of the territorial integrity national unity of Lebanon sove-eignty · ' and It makes the point that the u s Goverr llent is · ' for Lebanon planning a PL 480 Title I Food Aid Progr • of $20 million subject to appropriate consult tions with · the Congress '·• This will be in addition to the total of $19 '- million in humanitarian aid which we have already provide •• • 9 Q is He is getting a little more specific He today two or three possibj_lities for this And what I am asking you ence _ ' r you don't don-' t perhaps think you know what he said today · but you certa know th t he has been to sec the ' Secretary li re these Bri tis 11 ideas British-American ideas or what ' T·t is a Richard ntl sion and essentially · the British are going to be discussin r- possible new ideas in Africa ·But we have been in the· losest of con- ' fo ' s ul ta ti on with the British as they prepared mission both in London and in Washington e t_l is But tlie wission itself is a British mission it is not a joint British mission u s ____ Q Can I ask you about another subject A Yes Q The papers the Secretary's papers which are going to the Library of Congress could you clarify for me what is going there and what is not What is going to be withheld and what will happen to those papers and whose property are they and so forth 1 • ••• 10 A There are no official papers -- it is not correct to say any official papers are being withheld Not all official papers are included in the collection that was presented to the LibrarJ of Congress There are more documents that remain in the State Department In any case there are no original documents being transferred to the Library of Congress They are only copies • Q Now what are the documents Leaving aside now original a d copies what documents original or copies are not being -- in_ w at category do they fall the papers that are not going to the Library of Congress A There are no official papers being excluded The only thing that_ I_ as not t __ sent thabare ipai s6n lr papers of the Secretary are the transcribed secretarial notes of his telephone conversations Q All right that is the only group A Yes Q Those transcribed secretarial notes are notes of conversations with what foreign officials newsmen -- I don't know A They are as I described them know how complete they are I do not 11 Q All right let me back up · Is the State Departi-ncnt taking the position that the transcribed 11otes of the Sec 2 etary 1 s conversations with newsmen arc his personal property A 'I'he position of the Legal 1' dviser which he supports vi th l egal precedents as wel l as regulations·· · of the O -li3 and this judgment has been supported by the J- '- ' Justice DepartmGnt is that secretc1 rial notes of t e lephone conversations are personal papers and are not official papers Q All right Is t here a precedent for a Secretary of State having a secretary record convers ations · that the Se cretary of State is ho ving with ne -rnrr en Has anyone e lse done that before do you know A I dp_ I _ _ _ -__kn_ow that necessarily i t i s correct as you have described it that he has transcripts of the convers atio ns with n ewsmen - -- - - -· I d o know t 1-iat practically ·- - - -- every senio·r official in this town as well as in many private organizations and who knows may be even news organizations have their secretaries listen on telephone calls to make notes of possiblo actions this is an unusual practice I do not think • •• 12 O All right And in those cases you are confident or Mr Leigh is confident or the Justice Department is confident those transcripts or those notes are the personal property of the resident of the office A Of the Secretary Q Of the official A And may be retained when he leaves office Q May be retained when he leaves office Okay Are they within the reach of the Freedom of Information Act A No not his personal papers Q Are they classified documents A No Q Then on what basis -- just private A On the judgment that they are personal papers Q Now when the secret_ary -- and I am --- property talking about the woman with the stenographic pad takes those notes is she working for the United States C J0vernment or is she working for the Secretary as a private individual -·-----·-- · • _ • 13 A She working for the United States iiS Goverm 1ent • ·• Q A nd still they are personal A Yes And again I would cite that this is a cor u- on practice in 'le edcral Government for Cabinet Officers a d senior officials to have secretaries make notes of telephone conversations Q Let me a k one last thing a d I will let · - · - '• · ' Are conversatiom with foreign officials '· Ambassa - dors _ visiting Ni is rs -- are they similarly re9orded # • · • • · ••• · • •• • • y se_cr t ry - · _ · __ • · the Secretary's · - A ·'· •• -•·' •- • • ' --- o _not now how c mplete t is but obyiously that would be included • '- · - - - • · ----- Q And those are his personal possessions A The tel phone conversations ight Q 1 nd one last thing you can gi • 1a_ me no instance of any previous Secretary of State who operated this way can you A I - cannot give· any -- I do not know· of any Secretary that has not _operated that way 0 Secre arJ of State - • • ' A 14 I would say in a general sense i t is my understanding that most senior officials in Washington do follow this practice Q Bob on the same point some personal papers were included in the collection donated to the Library of Congress A That is correct Q What is the basis for the Secretary's de- cision not to· incl_ude these telephone conversations A The ferson l papers that were included I th nk had direct relation to decisions that were made ' ---------- ------------ - -- I'do not believe that -- and I want to check on this -I I but I do not think that the telephone conversations them- -- selves record any specific actions or decisions that were taken on foreign policy questions Q Bob let me just pin tJ1is down what you are saying about the secretaries listening in Are you · saying that on every conversation that the Secretary of State makes there is someone listening on an extension noting transcribing what is happening 6 - W tlai e-·· ··- A I - not say on every conversation _ Q But usually when the Secretary of State - - ·------ -- ----- • • 15 is speaking on a phone there is a secretary listening on an extension and transcribing A Usually Q And isn't i t usually the case in fact isn't it always the case that the party to the conversation is not advised that what he thinks is a conversation with the Secretary of State is a conversation being transcribed without his knowledge for the personal retention of the Secretary of State as a private American citizen A I am not arare that in each conversation that this statement is made but again I think most people assume that when they are talking to someone like a cabinet officer there is a good chance that -an aide or a secretary is listening in on the call and making r notes for any possible follow-up action Q I am not so sure that everybody is that sophisticated iA In fact this is hb t nhe first tirae this · has been mentioned You know this subject came up at least a year ago on this practice Q So I take it if the Freedom of Information • • I l 16 • ct was filed the State Department would resist surrendering these •·I ' •' In fact 11at was the basis of the Legal A ADviser' s determination 1rhere was a request under the E'reedom of Information ACt which was not granted based on t 1-iis legal dctcnnination ·' ' Q But you would not argue national security A No Q - The argument is based Personal rights · ' -· • •• • A -- persona papers Q Bob t riere must be nu 111erous occasions in which Secretary Kissinger has conducted official business · •·•·· • over_ the phone with J r- bassador _Dobrynin and Ambassador Dinitz and such ' Under what oossible construction -w·ould · those be regarded as non-official private personal papers A ' ' Why don't we make available the text of the L gal l dviser' s opinion and see how many quastions t11at answers Q Does it address that kind of question A I think it docs And I will have that available this afternoon i • • • 17 Q None of the instances that Dill is describing in none of those instances are those papers copies or originals going to the Library of Congress A No st cretarial notes of telephone conver- sations none of those are included Q - A Nor will th y go to any archive or -- And ·I must say that as near as· I can datermine this kind of paper has never been included by any other Secretary of State when he has· transferred his documents Q Q the building - • will they ramain at the Stat Depart111ent No _ _ Nor •• • • · At some convenient time they_will leave · • ·• · _ - - • - --- A They belong to the Secretary Q And he can use this material in writing his memoirs and sci ling his remembrances commercially i A Thatis _correct Q I am just curious Are you saying that Secretary Rogers Secretary Rusk -- they followed the same practice and that they retained all of these secretarial notes of telephone conversations You described it as a common practice I am • • 18 just won dering whether the practice is common to this Administration of the last eight years or did it precede it A I think you will have to ask the people concerned directly Q So that the common practice relates only to what is current A It is my tL derstanding that this common practice certainly began in Washington before H0nry Ki_ssinger came here b at Henry Kissinger did not introduce the practice in American society either in gove1 -nment or in non-government of secretaries or staff aides listening in on telephone conversations and making notes for possible -- action Q But you don't know as a fact whether -SEcretary Rogers did or Sec etary Rusk ✓ A No Q Does the Legal Adviser's opinion discuss You would have to- ask them specifically the question of a person filing a Freedom of INformation request for the transcript of his own conversations with the Secretary A Is that what was at issue Let's wait until we --· 19 Q I t is a question of whose words 'A Yes Q Mr Funseth do you have any assessr lent on the Egyp ti an-Lebanese sorry Egyptia11-Syrian po litical corrment 1 No Q Nothing A No 0 Al l right sir thank you The briefing ten ina ted at 1 10 p m --- 1 DECLASSIFIED Authority N N D19£Si