STATE OF (SANITIZED) ON S. 1324 BEFORE THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE JUNE 28, 1983

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00135R000500820009-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 20, 2016
• Document Release Date: April 8, 2008
• Sequence Number: 9
• Publication Date: June 28, 1983
• Content Type: REPORT

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STAT
S. 1324
before the
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
June 28, 1983
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Mr. Chairman and Members of the Committee:
It is an honor to appear here today in support of
S. 1324, a bill to amend the National Security Act of 1947
to regulate public disclosure of information held by the
Central Intelligence Agency.
This bill addresses a problem caused by the
intersection - some would say the collision - of two
powerful postulates on which our system of government is
based. First, our society is organized as a democracy in
which the most fundamental decisions are made by our
citizenry at the ballot box. To that extent the fate of the
Republic is in the hands of voters who we hope will be
endowed with the wisdom of educated choice that can come
only from the availability of information. But second, and
cutting across the need for freely available information, is
the fact of life that secrecy is essential to our national
security in those narrow areas in which the dangers caused
by disclosure outweigh the benefits. The application of the
Freedom of Information Act to our intelligence community is
the best possible example of one fundamental goal in uneasy
tension with another. The task of S. 1324 is to address the
problems that have been caused by that tension, and to
adjust the competing values.
An informed citizenry is one of our society's
highest ideals. The First Amendment to the Constitution is
eloquent testimony to the importance we as a Nation place on
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freedom of expression as a prerequisite to the emergence of
the truth. Our founding fathers were confident that truth,
if given a chance, would prevail in the marketplace of
ideas. Much of our public policy is dedicated to ensuring
that the competition in the marketplace of ideas is fair and
unfettered. Education policy, communications policy,
political campaign and contribution laws, the law of libel,
and patent policy are only a few examples of decisions by
our society to emphasize the importance of making
information available, in contrast to other competing
values. To these ends, we have always valued a free press,
unruly as at times it may be; a diverse academic community,
as searching and persistent as it should be; and an
inquiring citizenry, as awkward as that can be - all
dedicated to ferreting out and publishing facts, even when
they embarrass or are uncomfortable or may cause
inconvenience, even injury. We have insisted on erring on
the side of disclosure.
An important component of our effort as a Nation to
be sure that our citizens have access to the facts is the
Freedom of Information Act. As enacted originally and then
as amended, the Act was designed to improve, the access of
the public to information about our government. No longer
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was it sufficient for government, in resisting requests for
information, simply to rely on vague expressions of
reluctance or privileges of uncertain scope. The Congress
on behalf of the people had laid out the contours of those
narrow categories in which, at least for a time and in the
service of some supervening justification, the public could
be denied information. Even in those areas, Congress
established independent judicial review to ensure that the
government lived up to its obligations.
The area of national security should not be a
generalized exception to our predisposition in favor of
public disclosure of information. Indeed, one essential
component of true national security is an informed citizenry
and its support that, as a result of education, it gives
more confidently to its government. Surely no area of our
national life is more important, and in no other area of
government activity are the concerns of the public to
understand and help make decisions more commendable. In.a
world in which war, terrorism and intrigue are commonplace,
we as Americans not only have a right to know, but the duty
to find out, to analyze in a hardheaded fashion and to come
to sound conclusions, especially when the implications of
those conclusions are grave and the actions called for are
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difficult and momentous. When our sons may be called upon
to give their lives to protect the national security, when
our cities are held in a strategic balance of terror, when
our resources are so completely committed to establish and
maintain our defense, there can be no thought that the area
of national security is immune from public inspection.
But we do not live in a benign world. We confront
adversaries who do not share our goals nor play by our
rules. Information that might be of some relevance in
public debate may be the same information that confers a
decisive strategic advantage on those who are antagonistic
to our ideals, to our interests, indeed to our very
existence. It is a matter of common sense, then, that there
are areas of our national security that cannot be open to
public view and that chief among these are the operational
decisions of an effective intelligence service. Moreover,
it follows equally that certain essential files of
information at the core of the operation of our intelligence
service contain information so sensitive that every step
must be taken to safeguard it against discovery or release.
Extraordinary steps are in fact taken to protect
such information Classification standards, while recognizing
the importance of an informed public, nevertheless permit
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withholding of information. in those areas where disclosure
could reasonably be expected to cause damage to the national
security (E.O. 12356). The organization of the sensitive
files in the intelligence community is compartmented so that
only those persons with a need to know have access and it is
accordingly much more difficult for any individual to have
knowledge of facts for which he has no such need to know.
It does not follow, however, that there is no
legitimate room for public inquiry in the intelligence
community. Where intelligence information has been
furnished to policy-makers and has formed a basis for
important national policy decisions, inquiry - if not always
disclosure - is appropriate. Where there are non-trivial
allegations of illegality or impropriety the public has a
right to ask questions. Unfortunately, the Freedom of
Information Act, as presently structured, does not in the
accommodation of these important predicates for public
inquiry give sufficient weight to the enormous sensitivity
of the central operational files. In an effort to strike a
balance appropriate to government across-the-board, the FOIA
properly reveals important aspects of the. intelligence
community to the healthy scrutiny of the American people.
But to the extent it requires the search and review of files
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that can in the end never be made public, FOIA in this
instance is futile, and possibly even disastrous.
The problem arises in this stark form because the
Freedom of Information Act applies fully to the Central
Intelligence Agency. A request requires the search and
review of literally all files likely to contain responsive
information. This can involve the search of over 100 files
where a complicated request is made. Information can be
refused on the grounds that it is properly classified
(Section 552(b)(1)) or that it is specifically exempted from
disclosure by statute (Secton 552(b)(3)). In the case of
the Central Intelligence Agency, a (b)(3) exemption may be
triggered by Section 102(d)(3) of the National Security Act
of 1947, providing that the Director of Central Intelligence
shall be responsible for protecting the intelligence sources
and methods from unauthorized disclosure.
The result of this process is the release on
occasion of minute, frequently incomprehensible,
disconnected fragments of documents, which are islands of
unprotectable material in the vast exempt ocean of
classified and sensitive information. What emerges is of
marginal value to informed discourse and on occasion,
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because it is out of context, is highly misleading and
indeed distorting to scholarly analysis and public debate.
And yet this dubious result is achieved at the
price of expenditure of enormously scarce resources. The
systems of search, review and confirmatory review
necessarily in place in the CIA to avoid release of
information that might compromise extremely sensitive
operations takes the time not of government clerks, but of
intelligence professionals. Furthermore, even with a system
of review redundancy, the potential for human error is
present. Indeed, there are examples of sensitive material
mistakenly released. Moreover, we are told that allied
intelligence services and overseas contacts that are the
sources of much of the intelligence in our possession are so
concerned about the applicability of the Freedom of
Information Act to the CIA, from initial request to judical
review, that they are increasingly reluctant to put their
own lives on the line in the service of our government. In
sum, the applicability of the Freedom of Information Act to
these sensitive files yields very little information, if
any, on the one hand, but it holds the potential for
mistaken disclosure, and tends to constrict the flow.of
information, on the other.
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As this problem has become evident in recent years,
there has been a series of efforts to deal with it.
Differences that exist now concern only the mode of
solution. What is clear is that there is a broad consensus
that some solution is very much in order. The standard that
is now generally agreed upon is that exemption from the
Freedom of Information Act should cover only information
that release of which is virtually never appropriate and
that it is essential to safeguard for the efficient
functioning of our intelligence community. The complete
removal of a category of information from the Act should be
as narrowly defined as is possible.
In support of S. 1324 as an effective solution that
meets this standard, we can say several things. First, it
will result in virtually no lessening of the amount of
information that has hitherto been available from the
intelligence community. Second, it avoids the risk of human
error that may result in the fatal compromise of highly
sensitive intelligence operations. Third, it avoids the
dedication of elaborate resources to the essentially futile
task of reviewing documents that can in the end never be
released in any event, and thus frees up intelligence
professionals to do the task for which they are best suited.
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Fourth, it inevitably will reduce the backlog and the
litigation over the backlog, so that requests that can be
responded to will be addressed in a more timely fashion.
And finally, it will reduce the reluctance to cooperate of
those abroad who do not fully understand our general system
of disclosure of information, and thus it will enhance the
effectiveness of our intelligence capability.
S. 1324 is a modest compromise that safeguards the
essential central operational files of our intelligence
capability at the CIA. It is carefully crafted to avoid an
unnecessarily broad exemption from the Act and its
underlying policy. It preserves access to finished
intelligence, information concerning authoritatively
acknowledged special activities, studies of intelligence
prepared for training purposes, and even raw intelligence
supplied to policy-makers in its original form to assist in
policy decisions. It avoids closing off access to
information concerning illegal or improper intelligence
activities. S. 1324 is an astute blend of practical
effectiveness that avoids violating an important policy
preference in favor of informed public debate.
In short, I support S. 1324 and do so
wholeheartedly. I do so because I believe that in this
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narrow instance, an exception to our general rule of access
to information about our government is, thoroughly
justifiable. I do so because here the balance in favor of
secrecy overwhelms the theoretical benefit of access to
sensitive information that can never in the end be released.
I do so in the firm belief that in this small area, secrecy
must be preserved, so that we do not unnecessarily
jeopardize the security of our democratic institutions that
make this entire issue of such importance. This Nation,
which gains so much strength from the debate of an informed
citizenry, can in this instance protect that strength most
effectively by imposing the discipline of secrecy on the
operational files of the Central Intelligence Agency.
S. 1324 successfully mediates that policy tension and
deserves speedy enactment.
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STAT
STAT
STAT
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