LETTER TO BERNARD MCMAHON FROM CHARLES A. BRIGGS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00858R000400610009-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 22, 2016
• Document Release Date: April 5, 2011
• Sequence Number: 9
• Publication Date: April 19, 1985
• Content Type: LETTER

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Central Intelligence Agenq-
OLL 85-1224/1
1 9 APR 1985
Mr. Bernard McMahon
Staff Director
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
I am very pleased to enclose a copy of the Supreme Court's
April 16 decision in the Sims case. We view the Supreme Court
decision to be one of great importance for the ongoing mission
of this Agency and for the national security of this country.
This decision, which clarifies the Agency's ability to protect
intelligence sources from the risk of forced disclosure, will
send an important message to our sources that we can protect
their confidentiality.
The contribution of this decision to the ability of the
Agency to perform its statutory missions will be incalculable.
This decision, along with Executive Order 12333, the CIA
Information Act and Intelligence Identities Protection Act,
represent important steps in the revitalization of the Agency..
We hope that you will share this important decision with
the Members of the Committee and other members of your staff
and convey to them our appreciation for their continued support
of the Agency.
Sincerely,
/IJW'Ct rd?se A.afAft9
Charles A. Briggs
Director, Office of Legislative Liaison
Distribution:
Original - Addressee
1 - OGC
1 - D/OLL
1 - DD/OLL
1 - OLL Chrono
1 - =Signer
OLL Subject File
LDG/OLL 19 April 85)
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SUPREME COURT OF THE UNITED STATES
Syllabus
CENTRAL INTELLIGENCE AGENCY ET AL. V.
SIMS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA DISTRICT
No. 83-1075. Argued December 4, 1984-Decided April 16, 1986'
Between 1963 and 1966, the Central Intelligence Agency (CIA) financed a
research project, code-named MKULTRA, that was established to coun-
ter Soviet and Chinese advances in brainwashing and interrogation tech-
niques. Subprojects were contracted out to various universities, re-
search foundations, and aiml7ar institutions. In 1977, respondents in
No. 88-1075 (hereafter respondents) filed a request with the CIA under
the Freedom of Information Act (FOIA), seeking, inter alia, the names
of the institutions and individuals who had performed the research under
MKULTRA. Citing Exemption 3 of the FOIA-which provides that an
agency need not disclose "matters that are ... specifically exempted
from disclosure by statute ... provided that such statute ... refers to
particular types of matters to be withheld"-the CIA declined to disclose
the requested information. The CIA invoked, as the exempting statute
referred to in Exemption 3, 1 102(dX3) of the National Security Act of
1947, which states that the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods from unau-
thorized disclosure." Respondents then filed stet under the FOIA in
Federal District Court. Applying, as directed by the Court of Appeals
on an earlier appeal, a definition of intelligence sources" as meaning
only those sources to which the CIA had to guarantee confidentiality in
order to obtain the information, the District Court held that the identi-
ties of researchers who had received express guarantees of confidential-
ity need not be disclosed, and also exempted from disclosure other
researchers on the ground that their work for the CIA, apart from
'Together with No. 83-1249, Sims et al. v. Central Intelligence Agency
et al., also on certiorari to the same court.
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CIA u SIMS M
Syllabus
MKULTRA, could. upon learning that the research was performed at a
certain institution, deduce the identities of the protected individual
researchers. Pp. 18-21.
- U. S. App. D. C. -. 09 F. 2d 96. affirmed in part and reversed in
BURGER. part-
C. J.. delivered the opinion of the Court. in which WHrrE.
Bt.aCEXUN, POWELL, REHNQULST. STEVENS. and O'CONNOL JJ.. joined.
MARSHALL, J., filed an opinion concurring in the result, in which BREN-
NAN, J., joined.
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SUPREME COURT OF THE UNITED STATES
Noe. 83-1075 AND 83-1249
CENTRAL INTELLIGENCE AGENCY, ET AL.,
PETITIONERS
83-1075 u
JOHN CARY SIMS AND SIDNEY M. WOLFS
JOHN CARY SIMS AND SIDNEY M. WOLFE,
PETITIONERS
83-1249 u
CENTRAL INTELLIGENCE AGENCY Ni AWILLIAM
J. CASEY, DIRECTOR, CENTRAL
INTELLIGENCE AGENCY
ON PEALS FOR THE DISTRICT OF CERTIORARI TO THE UNITED STATES COURT OF
[Apt 16, 1986]
CHIEF JUSTICE BURGER delivered the opinion of the
Court.
In No. 83-1075, we granted certiorari to decide whether
$102(d)(3) of the National Security Act of 1947, as incorpo-
rated in Exemption 3 of the Freedom of Information Act, ex-
empts from disclosure only those sources of intelligence in-
formation to which the Central Intelligence Agency had to
guarantee confidentiality in order to obtain the information.
In No. 83-1249, the cross-petition, we granted certiorari to
decide whether the Freedom of Information Act requires the
Agency to disclose the institutional affiliations
of persons whose identities are exempt from disclosure as
"intelligence sources."
I
Between 1953 and 1966, the Central Intelligence Agency
financed a wide-ranging project, code-named MKULTRA,
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CIA u SIMS 3
On August 22, 1977, John C. Sims, an attorney, and Sidney
M. Wolfe, M. D., the director of the Public Citizen Health
Research Group,' filed a request with the Central In-
telligence Agency seeking certain information about
MKULTRA. Respondents invoked the Freedom of In-
formation Act (FOIA), 5 U. S. C. 1552. Specifically, re-
spondents sought the grant proposals and contracts awarded
under the MKULTRA program and the names of the institu-
tions and individuals that had performed research.'
Pursuant to respondents' request, the Agency made avail-
able to respondents all of the MKULTRA grant proposals
and contracts. Citing Exemption 3 of the FOIA, 5 U. S. C.
4 552(bX3XB),6 however, the Agency declined to disclose the
Subcommittee on Health and Scientific Research of the Senate Committee
on Human Resources, 96th Cong.. 1st Seca. (1877).
An internal Agency report by its Inspector General had documented the
controversial aspects of the MKULTRA project in 1963. See Report of
Inspection of MKULTRA (July 26, 1963).
? Sims and Wolfe are the respondents in No. 83-1075 and the crow
petitioners in No. 83-1248. In order to avoid confusion, we refer to Sims
and Wolfe as respondents throughout this opinion.
"Twenty years after the conception of the MKULTRA project, all
own files pertaining to MKULTRA were ordered destroyed. Final Re-
port, at 389-390. 409-406. In 1977, the Agency located some 8.000 pages
of previously undisclosed MKULTRA documents. These consisted mostly
of financial records that had inadvertently survived the 1973 records de-
structioon. Upon this discovery, Agency Director Stanfield Turner noti-
fied the Senate Select Committee on Intelligence and later testified at a
joint hearing before the Select Committee and the Subcommittee on
Health and Scientific Resources of the Senate Committee on Human
Resources. Although the Joint Committee was given a complete list of
the MKULTRA researchers and institutions, the Committee honored the
Agency's request to treat the names as confidential. Respondents sought
the surviving MKULTRA records that would provide this information.
The Agency also cited Exemption 6, 5 U. S. C. I 552(bX6), which in-
sulates from disclosure "personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of per-
sonal privacy." This claim, rejected by the District Court and the Court of
Appeals, is no longer at issue.
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On remand, the District Court applied this definition and
ordered the Agency to disclose the names of 47 researchers
and the institutions with which they had been affiliated.
The court rejected respondents' contention that the
MKULTRA research was not needed to perform the Agen-
cy's intelligence function, explaining that
"[i]n view of the agency's concern that potential foreign
enemies could be engaged in similar research and the de-
sire to take effective counter-measures, . . . [the
Agency] could reasonably determine that this research
was needed for its intelligence function." App. to Pet.
for Cert. in No. 83-1075, pp. 22a-23a.
The court then turned to the question whether the Agency
could show, as the Court of Appeals' definition requires, that
it could not reasonably have expected to obtain the informa-
tion supplied by the MKULTRA sources without guarantee-
ing confidentiality to them. The court concluded that the
Agency's policy of considering its relationships with
MKULTRA researchers as confidential was not sufficient to
satisfy the Court of Appeals' definition because "the chief de-
sire for confidentiality was on the part of the CIA." Id., at
24a. The court recognized that some of the researchers had
sought, and received, express guarantees of confidentiality
from the Agency, and as to those held that their identities
need not be disclosed. The court also exempted other re-
searchers from disclosure on the ground that their work for
the Agency, apart from MKULTRA, required that their
identities remain secret in order not to compromise the
Agency's intelligence networks in foreign countries. Id., at
26a-27a, 30a-31a. Finally, the court held that there was no
need to disclose the institutional affiliations of the individual
researchers whose identities were exempt from disclosure;
this withholding was justified by the need to eliminate the
unnecessary risk that such intelligence sources would be
identified indirectly. Id., at 27a, 34a.
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We granted certiorari, 465 U. S. (1984). We
now reverse in part and affirm in part.
II
No. 83-1075
A
The mandate of the FOIA calla for broad disclosure of Gov-
ernment records.' Congress recognized, however, that
public disclosure is not always in the public interest and thus
provided that agency records may be withheld from disclo-
sure under any of the nine exemptions defined in 5 U. S. C.
1552(b). Under Exemption 3 disclosure need not be made as
to information "specifically exempted from disclosure by stat-
ute" if the statute affords the agency no discretion on disclo-
sure, 5 U. S. C. ? 552(b)(3XA), establishes particular criteria
for withholding the information, or refers to the particular
types of material to be withheld, 1552(bX3XB).
The question in No. 83-1075 is twofold: first, does
? 102(dX3) of the National Security Act of 1947 constitute a
statutory exemption to disclosure within the meaning of Ex-
emption 3; and second, are the MKULTRA researchers in-
cluded within ? 102(dX3Ys protection of "intelligence
sources."
B
Congress has made the Director of Central intelligence
"responsible for protecting intelligence sources and methods
from unauthorized disclosure." 50 U. S. C. ? 403(dX3). As
part of its postwar reorganization of the national defense sys-
tem, Congress chartered the Agency with the responsibility
of coordinating intelligence activities relating to national se-
'The Corot his consistently recognized this principle. See, e. g.,
Baldrige Y. Shapiro, 456 U. S. 845, 352 (1982); NLRB v. Robbins Tire &
Rubber Co., 437 U. S. 214, 220 (1978), EPA v. Mink, 410 U. S. 73, 80
(1973).
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methods" or if disclosure would reveal otherwise protected
information.
C
Respondents contend that the Court of Appeals' definition
of "intelligence sources," focusing on the need to guarantee
confidentiality in order to obtain the type of information
desired, draws the proper line with respect to intelligence
sources deserving exemption from the FOIA. The plain
meaning of the statutory language, as well as the legislative
history of the National Security Act, however, indicates that
Congress vested in the Director of Central Intelligence very
broad authority to protect all sources of intelligence informa-
tion from disclosure. The Court of Appeals' narrowing of
this authority not only contravenes the express intention of
Congress, but also overlooks the practical necessities of
modern intelligence gathering-the very reason Congress
entrusted this Agency with sweeping power to protect its
"intelligence sources and methods."
We begin with the language of ? 102(dX3). Baldrige v.
Shapiro, 456 U. S. 345, 356 (1982); Steadman v. SEC, 450
U. S. 91, 97 (1981). Section 102(dX3) specifically authorizes
the Director of Central Intelligence to protect "intelligence
sources and methods" from disclosure. Plainly the broad
sweep of this statutory language comports with the nature of
the Agency's unique responsibilities. To keep informed of
other nations' activities bearing on our national security the
Agency must rely on a host of sources. At the same time,
the Director must have the authority to shield those Agency
activities and sources from any disclosures that would unnec-
essarily compromise the Agency's efforts.
The "plain meaning" of ? 102(d)(3) may not be squared with
any limiting definition that goes beyond the requirement that
the information fall within the Agency's mandate to conduct
foreign intelligence. Section 102(dX3) does not state, as the
Court of Appeals' view suggests, that the Director of Central
Intelligence is authorized to protect intelligence sources only
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CIA u SIDES 11
Agency was Congress' recognition that our Government
would have to shepherd and analyze a "mass of information"
in order to safeguard national security in the postwar world.
See Ibid. Witnesses with broad experience in the intelli-
gence field testified before Congress concerning the practical
realities of intelligence work. Fleet Admiral Nimitz, for ex-
ample, explained that "intelligence is a composite of authenti-
cated and evaluated information covering not only the armed
forces establishment of a possible enemy, but also his indus-
trial capacity, racial traits, religious beliefs, and other related
aspects." National Defense Establishment: Hearings on S.
758 before the Senate Committee on Armed Services, 80th
Cong., 1st Sess., 132 (1947) (Senate Hearings). General
Vandenberg, then the Director of the Central Intelligence
Group, the Agency's immediate predecessor, emphasized
that "foreign intelligence (gathering] consists of securing all
possible data pertaining to foreign governments or the na-
tional defense and security of the United States." Id., at
497."
Witnesses spoke of the extraordinary diversity of intelli-
gence sources. Allen Dulles, for example, the Agency's first
Director, shattered the myth of the classic "secret agent" as
the typical intelligence source, and explained that "American
businessmen and American professors and Americans of all
types and descriptions who travel around the world are one
of the greatest repositories of intelligence that we have."
National Security Act of 1947: Hearings on H. R. 2319 before
,. Congressmen certainly apprecisted the special nature of the Agency's
intelligence function. For example, Rep. Wadsworth remarked that the
"!unction of [the Agency] is to constitute itself as a gathering point for in-
formation coming from all over the world through all kinds of channels."
98 Cong. Rec. 9697 (1947). Rep. Boggs, during the course of the House
hearings, commented that the Director of Central Intelligence "is dealing
with all the information and the evaluation of that information, from wher-
ever we can get it." National Security Act of 1947: Hearings on H. R-
2319 before the House Committee on Expenditures in the Executive De-
partments, 80th Cong., 1st Seas., 112 (Apr. 2-July 1, 1947).
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CU u SINS 13
the Director of Central Intelligence responsible for "protect-
ing intelligence sources and methods from unauthorized dis-
closure." This language stemmed from President Truman's
Directive of January 22, 1946, 11 Fed. Reg. 1337, in which he
established the National Intelligence Agency and the Central
Intelligence Group, the Agency's predecessors. These insti-
tutions were charged with "assur(ing) the most effective
accomplishment of the intelligence mission related to the na-
tional security," ibid., and accordingly made "responsible for
hilly protecting intelligence sources and methods," id., at
1339. The fact that the mandate of 1102(dX3) derives from
this Presidential Directive reinforces our reading of the legis-
lative history that Congress gave the Agency broad power to
control the disclosure of intelligence sources.
III
A
Applying the definition of "intelligence sources" fashioned
by the Congress in ? 102(dX3), we hold that the Director of
Central Intelligence was well within his statutory authority
to withhold the names of the MKULTRA researchers from
disclosure under the FOIA. The District Court specifically
ruled that the Agency "could reasonably determine that this
research was needed for its intelligence function,"' and the
Court of Appeals did not question this ruling. Indeed, the
record shows that the MKULTRA research was related to
the Agency's intelligence-gathering function in part because
it revealed information about the ability of foreign govern-
ments to use drugs and other biological, chemical, or physical
agents in warfare or intelligence operations against adversar-
ies. During the height of the cold war period, the Agency
was concerned, not without reason, that other countries were
charting new advances in brainwashing and interrogation
techniques.
"App. to Pet. for Cert. in No. 83-1075, pp. 22a-23a.
For example, Director of Intelligence Stans5eld Turner explained
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who supplied the Agency with information unattainable with-
out guaranteeing confidentiality. That crabbed reading of
the statute contravenes the express language of # 102(dX3),
the statute's legislative history, and the harsh realities of the
present day. The dangerous consequences of that narrow-
ing of the statute suggest why Congress chose to vest the Di-
rector of Central Intelligence with the broad discretion to
safeguard the Agency's sources and methods of operation.
The Court of Appeals underestimated the importance of
providing intelligence sources with an assurance of confiden-
tiality that is as absolute as possible. Under the court's
approach, the Agency would be forced to disclose a source
whenever a court determines, after the fact, that the Agency
could have obtained the kind of information supplied without
promising confidentiality." This forced disclosure of the
identities of its intelligence sources could well have a devas-
tating impact on the Agency's ability to carry out its mission.
"The Government has a compelling interest in Protecting
both the secrecy of information important to our national se-
curity and the appearance of confidentiality so essential to
the effective operation of our foreign intelligence service."
Snepp v. United States, 444 U. S. 507, 509, n. 3 (1980) (per
curiam). See Haig v. Agee, 453 U. S. 280, 307 (1981). If
potentially valuable intelligence sources come to think that
the Agency will be unable to maintain the confidentiality of
its relationship to them, many could well refuse to supply in-
formation to the Agency in the first place.
Even a small chance that some court will order disclosure
of a source's identity could well impair intelligence gathering
' Indeed, the Court of Appeals suggested that the Agency would be re-
quired to betray an explicit promise of confidentiality if a court determines
that the promise was not necessary, or if a court concludes that the inte li-
gence source to whom the promise was given was "unreasonably and atypi-
ally leery" of cooperating with the Agency. 228 U. S. App. D. C., at 273,
709 F. 2d, at 99. However, "(ghat nations, like great men, should keep
their word." FPC v. Tuscarora Indian Nation, 362 U. S. 99, 142 (1960)
(Black, J., dissenting).
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volves seemingly innocuous sources as well as unsuspecting
individuals who provide valuable intelligence information.
Disclosure of the subject matter of the Agency's research
efforts and inquiries may compromise the Agency's ability to
gather intelligence as much as disclosure of the identities
of intelligence sources. A foreign government can learn a
great deal about the Agency's activities by ]mowing the pub-
lic sources of information that interest the Agency. The in-
quiries pursued by the Agency can often tell our adversaries
something that is of value to them. See 228 U. S. App.
D. C., at 277, 709 F. 2d, at 103 (Bork, J., concurring in part
and dissenting in part). For example, disclosure of the fact
that the Agency subscribes to an obscure but publicly avail-
able Eastern European technical journal could thwart the
Agency's efforts to exploit its value as a source of intelligence
information. Similarly, had foreign governments learned
the Agency was using certain public journals and ongoing
open research projects in its MKULTRA research of "brain-
washing" and possible countermeasures, they might have
been able to infer both the general nature of the project and
the general scope that the Agency's inquiry was taldng.n
C
The "statutory mandate" of $102(dX3) is clear: Congress
gave the Director wide-ranging authority to "protec(t) intelli-
gence sources and methods from unauthorized disclosure."
Snepp v. United States, 444 U. S., at 509, n. 3. An intelli-
gence source provides, or is engaged to provide, information
the Agency needs to fulfill its statutory obligations. The
record establishes that the MKULTRA researchers did in
fact provide the Agency with information related
-In an affidavit, Director of Central Intelligence Turner stated that
"[t]hroughout the course of the [MKULTRAI Project, CIA involvement or
association with the research was concealed in order to avoid stimulating
the interest of hostile countries in the same research areas.' App. to Pet.
for Cert. in No. 83-1075, pp. 89a-90a.
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D. C. 82, 90, 598 F. 2d 1, 9 (1978), quoting United States
v. Marchetti, 466 F. 2d 1309, 1318 (CA4), cert. denied.
409 U. S. 1063 (1972).
Accordingly, the Director, in exercising his authority under
1102(dX3), has power to withhold superficially innocuous in-
formation on the ground that it might enable an observer to
discover the identity of an intelligence source. See, e. g.,
Gardels v. CIA, 223 U. S. App. D. C. 88, 91-92, 689 F. 2d
1100, 1103-1104 (1982); Halperin v. CIA, supra, at 113, 629
F. 2d, at 147.
Here the Director concluded that disclosure of the institu-
tional affiliations of the MKULTRA researchers could lead to
identifying the researchers themselves and thus the disclo-
sure posed an unacceptable risk of revealing protected "intel-
ligence sources."s The decisions of the Director, who must
of course be familiar with "the whole picture," as judges are
not, are worthy of great deference given the magnitude of
the national security interests and potential risks at stake.
It is conceivable that the mere explanation of why informa-
tion must be withheld can convey valuable information to a
foreign intelligence agency.
The District Court, in a ruling affirmed by the Court of Ap-
peals, permitted the Director to withhold the institutional
affiliations of the researchers whose identities were exempt
from disclosure on the ground that disclosure of "the identi-
ties of the institutions . . . might lead to the indirect dis-
'During the congressional inquiries into MKULTRA, then Director
of Central Intelligence Turner notified the 80 institutions at which
MKULTRA research had been conducted. Many of then institutions had
not previously been advised of their involvement; Director Ttuaer notified
them as part of ,a course of action (designed to] lead to the identification of
unwitting experimental subjects." Id., at 92s, n. 1. As a result of inqui-
ries into the MKULTRA progam, many of these institutions disclosed their
involvement to the public. Others advised the Agency that they had no
objection to public disdosure. Director Turner disclosed the names of
these institutions; he did not disclose the names of any institutions that ob-
jected to disdosure. See n. 7, supra.
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identity of intelligence sources. And it is the responsibility
of the Director of Central Intelligence. not that of the judi-
ciary, to weigh the variety of complex and subtle factors in
determining whether disclosure of information may lead to an
unacceptable risk of compromising the Agency's intelligence-
gathering process. Here Admiral Turner, as Director, de-
cided that the benefits of disclosing the identities of institu-
tions that had no objection to disclosure outweighed the costs
of doing so. But Congress. in ? 102(d)(3), entrusted this dis-
cretionary authority to the Director, and the fact that Admi-
ral Turner made that determination in 1978 does not bind his
successors to make the same determination, in a different
context. with respect to institutions requesting that their
identities not be disclosed. See, e. g., Salisbury v. United
States, 223 U. S.App. D. C. 243, 248, 690 F. 2d 966, 971
(1982). V
We hold that the Director of Central Intelligence properly
invoked ? 102(dX3) of the National Security Act of 1947 to
withhold disclosure of the identities of the individual
MKULTRA researchers as protected "intelligence sources."
We also hold that the FOIA does not require the Director to
disclose the institutional affiliations of the exempt research-
ers in light of the record which supports the Agency's deter-
mination that such disclosure would lead to an unacceptable
risk of disclosing the sources' identities.
Accordingly, we reverse that part of the judgment of the
Court of Appeals regarding the disclosure of the individual
researchers and affirm that part of the judgment pertaining
ons.
to disclosure of the researchers' institutional affiliati
It is so ordered.
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