HEARING BEFORE THE SUBCOMMITTEE ON LEGISLATION OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF REPRESENTATIVES NINETY-EIGHTH CONGRESS SECOND SESSION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92B01283R000100070012-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 128
• Document Creation Date: December 23, 2016
• Document Release Date: September 13, 2013
• Sequence Number: 12
• Publication Date: February 8, 1984
• Content Type: REPORT

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LEGISLATION TO MODIFY THE APPLICATION OF
THE FREEDOM OF INFORMATION ACT TO THE
CENTRAL INTELLIGENCE AGENCY
41.
HEARING
BEFORE THE
SUBCOMMITTEE ON LEGISLATION
OF THE
PERMANENT
SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
NINETY-EIGHTH CONGRESS
SECOND SESSION
FEBRUARY 8, 1984
Printed for the use of the Permanent Select Committee on Intelligence
U.S. GOVERNMENT PRINTING OFFICE
32-713 0 WASHINGTON : 1984
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
(Established by H. Res. 658, 95th Congress, 1st Session)
EDWARD P. BOLAND, Massachusetts, Chairman
ROMANO L. MAZZOLI, Kentucky
NORMAN Y. MINETA, California
WYCHE FOWLER, Georgia
LEE H. HAMILTON, Indiana
ALBERT GORE, JR., Tennessee
LOUIS STOKES, Ohio
DAVE McCURDY, Oklahoma
ANTHONY C. BEILENSON, California
J. KENNETH ROBINSON, Virginia
G. WILLIAM WHITEHURST, Virginia
C. W. BILL YOUNG, Florida
BOB STUMP, Arizona
WILLIAM F. GOODLING, Pennsylvania
THOMAS K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
STEVEN K. BERRY, Associate Counsel
JEANNE M. MCNALLY, Clerk
SUBCOMMITTEE ON LEGISLATION
ROMANO L. MAZZOLI, Kentucky, Chairman
LOUIS STOKES, Ohio
ANTHONY C. BEILENSON, California
EDWARD P. BOLAND, Massachusetts
BERNARD RAIMO, Jr., Counsel
DAVID S. ADDINGTON, Counsel
G. WILLIAM WHITEHURST, Virginia
WILLIAM F. GOODLING, Pennsylvania
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CONTENTS
Page
Hearing held on Wednesday, February 8, 1984 1
LIST OF WITNESSES
Testimony of John N. McMahon, Deputy Director of Central Intelligence;
accompanied by Ernest Mayerfeld, Deputy Director, Office of Legislative
Liaison, Central Intelligence Agency; and Larry Strawderman, Chief, Infor-
mation and Privacy Division, Central Intelligence Agency 4
Testimony of Mary C. Lawton, Counsel for Intelligence Policy, U.S. Depart-
ment of Justice 29
Testimony of Mark H. Lynch, counsel, American Civil Liberties Union 46
Testimony of John H. Shenefield, former associate attorney general, current
partner, Milbank, Tweed, Hadley & McCloy, on behalf of the American Bar
Association 65
Testimony of Charles S. Rowe, editor and publisher, the Free Lance Star,
Fredericksburg, Va., on behalf of the American Newspaper Publishers Asso-
ciation and the American Society of Newspaper Editors 69
Testimony of Samuel R. Gammon, executive director, National Coordinating
Committee for the Promotion of History, on behalf of the Organization of
American Historians and the American Historical Association 73
APPENDIX
Appendix A, H.R. 3460 91
Appendix B, H.R. 4431 95
Appendix C, Statement submitted by the Society of Professional Journalists 105
Appendix D, CIA Analysis of Previously Released Documents to Ensure Con-
tinued Availability 113
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PROPOSALS TO EXEMPT CERTAIN CIA OPER-
ATIONAL FILES FROM SEARCH, REVIEW AND
DISCLOSURE UNDER THE FREEDOM OF IN-
FORMATION ACT
WEDNESDAY, FEBRUARY 8, 1984
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON LEGISLATION,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:07 a.m., in room
H-405, the Capitol, the Honorable Romano Mazzoli (chairman of
the subcommittee) presiding.
Present: Representatives Mazzoli (presiding), Stokes, McCurdy,
Boland (chairman of the committee), Robinson, Whitehurst, and
Goodling.
Also present: Thomas K. Latimer, staff director; Michael J.
O'Neil, chief counsel; Steven K. Berry, associate counsel, Bernard
Raimo, Jr., and David S. Addington, counsel and Martin C. Faga,
professional staff member.
Mr. MAZZOLI. The subcommittee will come to order.
Today the Subcommittee on Legislation meets to consider the
impact of the Freedom of Information Act on the Central Intelli-
gence Agency. The subcommittee will focus on certain proposals to
exempt certain files of the CIA from search and review under
FOIA.
These proposals are embodied in three measures, S. 1324, which
passed the Senate last November, H.R. 4431, which is substantially
similar to the Senate bill, and which has been introduced by our
colleague in the committee, Congressman Bill Whitehurst; and
H.R. 3460, which I introduced and which, though similar to the
others, contains certain differences.
The FOIA is not a subject new to this committee. We have held
hearings on it twice before, in 1979 and again in 1980. We have
considered proposals to exempt the CIA entirely from the FOIA.
We have considered proposals to exempt all the intelligence agen-
cies from the FOIA, and we have considered proposals to narrow
the scope of judicial review when classified information is at issue.
Witnesses from the intelligence community argue vigorously that
their activities should be exempt. Witnesses from the press, acade-
mia, and civil liberties groups argue just as vigorously that the
Agency should remain covered and that the FOIA should be tight-
ened as to it.
(1)
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Since neither side finds itself able to win its way fully, they have
come together, and I think in a correct way, to see what realistical-
ly can be done to make the law work better without impeding vital
intelligence functions.
The subcommittee welcomes the opportunity to play a construc-
tive role in this process. Community supporters suggest that the
CIA has been seriously hampered by the FOIA. Community detrac-
tors suggest that the community has a role which must be overseen
and investigated closely. These dramatic claims do not make our
job, which is the job of trying to make changes in the law without
going too far one way or the other, any easier. In any event, we are
here today because the principal players in this drama realize,
sometimes far better than our allies do, that something is better
than nothing, and that it is neither immoral nor a sellout to talk
with the other guy and try to compromise differences.
The purpose of these hearings is to look carefully at all the pro-
posals which are on the table and to determine which formulation
or combination of provisions this subcommittee should adopt. The
premises of all of these measures are that an amended FOIA
should not result in the loss of any meaningful information now ob-
tainable under current law, that any amended FOIA should not
prevent access to files or information concerning alleged or actual
improprieties or illegalities, and that an amended FOIA should
result in a sharp reduction in the time and personnel costs which
the Agency now sustains in responding to FOIA requests.
While I possess a certain slight pride of authorship in H.R. 3460,
I also recognize that the success of this endeavor will depend upon
a further display of the spirit of compromise which has brought us
this far.
Therefore, I trust all of us here are prepared to work together
further to effect whatever changes to the existing proposals may be
necessary to get a bill which will pass.
Our witnesses this morning are Mr. John McMahon, the Deputy
Director of the CIA; Ms. Mary Lawton, the Attorney General's
Counsel for Intelligence Policy, and Mr. Mark Lynch, director of
the ACLU's project on national security. Each of these distin-
guished people has appeared before the committee many times, and
each brings the highest degree of competence, intelligence and pro-
fessionalism to this endeavor.
Parenthetically here, John, I might say that maybe the best way
to proceed is to lock all of you in a room and send you in food
under the doorway, and when you knock on the door or send up a
white wisp of smoke, then we will open the door and we will let
you out, and we will have a bill. But failing that process, which I
think probably is the most healthy way to proceed, we have to pro-
ceed in this rather arduous way.
But we do welcome you this morning, Mr. McMahon.
Let me yield to my friend from Pennsylvania for any opening
statements he would like to make.
Mr. GOODLING. Thank you, Mr. Chairman.
Today's hearings mark another important step on the long legis-
lative road to adjustment of the Freedom of Information Act to ac-
commodate both the informational needs of the public and the
operational security needs of the Central Intelligence Agency. We
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do not have to choose between the two. This great Republic can
have both an informed citizenry and an effective foreign intelli-
gence agency.
Chairman Mazzoli's bill, H.R. 3460, and Congressman White-
hurst's bill, H.R. 4431, have been crafted carefully to give greater
protection to America's most sensitive intelligence operations with-
out significantly reducing the amount of CIA information releas-
able to the public under the Freedom of Information Act. A decade
of experience has shown that certain CIA operational records sys-
tems containing the most sensitive information directly concerning
intelligence sources and methods inevitably contain few items
which can be disclosed to FOIA requesters. The records contained
in these operational record systems almost invariably fall within
the FOIA exemptions protecting classified information and infor-
mation relating to intelligence sources and methods. Nevertheless,
despite the fact that records retrieved from these operational
record systems will, after line-by-line security review, be found to
be exempt from FOIA disclosure, the CIA must search and review
records from these systems in response to FOIA requests.
The legislation under consideration is intended to end the waste
of time and money entailed in this search and review of records
which cannot be disclosed. The legislation is also intended to
reduce the possibility of accidental disclosure of sensitive CIA oper-
ational secrets and to reassure CIA intelligence sources that the
FOIA poses no risk to the confidentiality of their relationship with
the United States Government.
Congressman Whitehurst's bill, which is nearly identical to the
Senate-passed bill, S. 1324, is basically the chairman's bill with sev-
eral refinements added in the Senate at the end of a tough legisla-
tive process of give and take. The process produced an effective bill
which was worked out in cooperation with the CIA and the Ameri-
can Civil Liberties Union and which was favorably reported unani-
mously by the Senate Intelligence Committee and approved by
voice vote in the Senate.
As I understand it, two issues of great importance remain: the
role, if any, of the courts in reviewing CIA implementation of this
legislation, and the question of search and review of documents
having to do with investigation of allegations of illegality or impro-
priety in the conduct of intelligence activities.
I look forward to learning what the witnesses have to say, espe-
cially on these two issues, to see if we can combine the best of the
chairman's bill and Congressman Whitehurst's bill to produce a
bill to which the members of this committee and of the House can
give their full support.
Mr. Chairman, you are to be commended for your efforts to rec-
oncile the interests of those affected by the legislation before this
subcommittee and to insure its timely consideration. Enactment of
this legislation will go a long way toward reassuring our allies and
individuals abroad who risk their lives to cooperate with the CIA
that the United States can keep secrets.
I welcome those who are going to testify here today.
Mr. MAZZOLI. I thank the gentleman for his statement.
The gentleman from Massachusetts, our distinguished chairman.
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Mr. BOLAND. Mr. Chairman, only to say I would like to under-
score what you have said and Mr. Goodling has said with reference
to these hearings.
As those who are familiar with this House Permanent Select
Committee on Intelligence know, we have been in business a little
bit more than 6 years, and the legislative subcommittee that Mr.
Mazzoli chairs has been the author and has been successful in pass-
ing some of the legislation that affects the intelligence community
and impacts upon the public generally.
This is an important matter, as Mr. Goodling has said, as the
chairman has said. S. 1324 has passed the Senate unanimously by
voice vote. That gives everybody in the Senate a chance to say they
voted for it or against it. [Laughter.]
Mr. BOLAND. So we are concerned about it. We are concerned
about the impact of the Freedom of Information Act on the intelli-
gence community. We are concerned about the impact of this kind
of legislation upon the civil liberties of the people of America. And
so this subcommittee will get a very close look at it, a close look at
the product that is before us from the Senate, and also the legisla-
tion that has been filed by the chairman of the subcommittee.
I want to welcome the witnesses who are here. Obviously, this
piece of legislation has more than a passing interest among an
awful lot of people. So thank you for coming. I am sure that this
subcommittee will be the beneficiary of the advice that comes from
both sides, both those who support and those who oppose this legis-
lation.
Thank you, Mr. Chairman.
Mr. MAZZOLL I thank the chairman.
Mr. McMahon, if you would introduce the gentlemen with you
and perhaps anybody else in the room who might help you or assist
you in your testimony today.
STATEMENT OF JOHN N. McMAHON, DEPUTY DIRECTOR OF CEN-
TRAL INTELLIGENCE, ACCOMPANIED BY, ERNEST MAYER-
FELD, DEPUTY DIRECTOR, OFFICE OF LEGISLATIVE LIAISON,
CENTRAL INTELLIGENCE AGENCY; AND LARRY STRAWDER-
MAN, CHIEF, INFORMATION AND PRIVACY DIVISION, CENTRAL
INTELLIGENCE AGENCY
Mr. MCMAHON. Thank you, Mr. Chairman.
I have with me today Ernie Mayerfeld, who is the Deputy Direc-
tor of our Office of Legislative Liaison and has been very instru-
mental in fashioning our interests regarding both the Senate bill as
well as your bill and Mr. Whitehurst's bill. We also have Larry
Strawderman, who is the Chief of the Information and Privacy Di-
vision out at CIA.
Mr. MAZZOLI. Mr. McMahon, you may proceed.
Mr. MCMAHON. Thank you, sir.
Mr. Chairman and members of the Subcommittee on Legislation,
it is a pleasure to appear before you today to discuss H.R. 3460, in-
troduced by you, Mr. Chairman, and H.R. 4431, introduced by Mr.
Whitehurst. As you know, both pieces of legislation seek to provide
relief to the Central Intelligence Agency--
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Mr. MAZZOLI. Mr. McMahon, I hate to interrupt you, but the gen-
tleman, our ranking member, has just come in. He had traffic jams
probably in northern Virginia somewhere.
Mr. McMAHoN. I am glad to yield, Mr. Chairman.
Mr. MAZZOLI. Mr. Whitehurst is, of course, the author of one of
the main bills and our ranking member. So with your indulgence, I
would yield to him for statements.
Mr. WHITEHURST. Traffic and a very slow truck driver.
Thank you very much, and let's proceed. I am sorry.
Mr. MAZZOLL John, you may continue.
Mr. MCMAHON. Thank you, sir.
As you know, both pieces of legislation seek to provide relief to
the Central Intelligence Agency from some of the most serious
problems the Agency has encountered in working to comply with
the Freedom of Information Act, and at the same time, both bills
are designed to insure that the public's access to records of the CIA
is preserved. Neither bill would totally exclude CIA from the re-
quirements of the FOIA, but rather, each is based on a carefully
crafted approach which would exclude from the FOIA process only
our operational files contained in three specific components of the
Agency.
Removing these operational files from the FOIA search and
review process would substantially lessen the ever present risk that
a human error might result in the exposure of intelligence sources
and methods.
Most importantly, I believe that this legislation would go far
toward alleviating the perception of our sources and potential
sources that the U.S. Government cannot be trusted to protect
them from exposure. At the same time, Mr. Chairman, the public
should receive improved service from the Agency under the FOIA
because requesters would no longer have to wait 2 to 3 years to re-
ceive whatever responsive information could be released to them.
Furthermore, it is important for everyone to understand that en-
actment of this legislation would not result in any meaningful loss
of information now released under the act.
Mr. Chairman, last June I testified before the Senate Select Com-
mittee on Intelligence on S. 1324, a bill which at that stage was
very similar to your bill. The problems we have with the FOIA are
no different from the ones we faced several months ago. Therefore,
my testimony before you today will basically reiterate the points
that I made last summer to the Senate.
Under present law, any FOIA requester can cause a search and
review to be made in all CIA files, including operational files, and
the Agency must defend a denial of sensitive information to
anyone who asks for it, line by line, sometimes word by word. We,
of course, attempt to assure our sources who live in fear of this
process that the exemptions available under the FOIA are suffi-
cient to protect their identities. That assurance is too often seen as
hollow.
They ask, with justification, in my view, that in exchange for the
risks which they undertake on our behalf and in your behalf, we
provide them with absolute assurance of confidentiality. So long as
we are compelled by law to treat our operational files as potential-
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ly public documents, we are unable to provide the ironclad guaran-
tee which is the backbone of an effective intelligence service.
In addition, the review of operational files withdraws uniquely
capable personnel from intelligence operations and compels us to
violate our own working principles of good security. Let me explain
these points in more detail.
For security reasons, Agency information is compartmented into
numerous self-contained file systems which are designed in order
to serve the operational needs of a particular component or to ac-
complish a particular function. Agency personnel are given access
to specific files only on a need to know basis. Operational files are
more stringently compartmented because they directly reveal intel-
ligence sources and methods. Yet a typical request under the FOIA
will seek information on a generally described subject wherever it
may be found in the Agency and will trigger a search which trans-
gresses all principles of compartmentation.
A relatively simple FOIA request may require as many as 21
Agency record systems to be searched. A difficult request can in-
volve as many as 100. In many instances the results of these
searches are prodigious. Thousands of pages of records are amassed
for review. Here is a graphic illustration of the product of an FOIA
search:
1.
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Although in the case of records gleaned from operational files,
virtually none of this information is released to the requester, secu-
rity risks remain which are inherent in the review process.
The documents are scrutinized line by line, word by word, by
highly skilled operational personnel who have the necessary train-
ing and experience to identify source-revealing or other sensitive
information. These reviewing officers must proceed upon the as-
sumption that all information released will fall into the hands of
hostile powers and that each bit of information will be retained
and pieced together by our adversaries in a painstaking effort to
expose secrets which the Agency is dedicated to protect.
At the same time, however, the reviewing officer must be pre-
pared to defend each determination that an item of information is
classified or otherwise protected under the FOIA. Furthermore, the
officer must bear in mind that under the FOIA, each reasonably
segregable item of unprotected information must be released. Sen-
tences are carved into their intelligible elements, and each element
is separately studied.
When this process is completed for operational records, the
result is usually a composite of black markings, interspread with a
few disconnected phrases which have been approved for release.
Here again is a typical example:
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After the responsive records have been properly reviewed, the
public derives little or nothing by way of meaningful information
from the fragmentary items or occasional isolated paragraph which
is ultimately released from operational files. Yet we never cease to
worry about these fragments. We can never be completely certain
what other pieces of the jigsaw puzzle our adversaries already have
or what else they need to complete the picture.
Perhaps we missed the source-revealing significance of some
item. Perhaps we misplaced one of the black markings. The review-
ing officer is confronted with the dizzying task of defending each
deletion without releasing any clue to the identity of our sources.
He has no margin for error. Those who have trusted us may lose
their reputation, their livelihood or their lives. Even the well-being
of their families is at stake if one apparently innocuous item falls
into hostile hands and turns out to be a crucial lead.
As long as the process of FOIA search and review of CIA oper-
ational files continues, this possibility of error cannot be eradicat-
ed. The harm done to the Agency's mission by such errors is, of
course, unknown and uncalculable. The potential harm is, in our
judgment, extreme.
Aside from this factor of human error, we recognize that under
the current Freedom of Information Act, subject to judicial review,
national security exemptions do exist to protect the most vital in-
telligence information. The key point, however, is that those
sources upon whom we depend for that information have an entire-
ly different perception. I will explain how that perception has
become for us a reality that hurts the work of the Agency on a
daily basis.
The gathering of information from human sources remains a cen-
tral part of CIA's mission. In performance of this mission, Agency
officers must in essence establish a contractual relationship with
people in key positions with access to information that might oth-
erwise be inaccessible to the U.S. Government. This is not an easy
task, nor is it quickly accomplished. The principal ingredient in
these relationships is trust, and to build such a relationship, which
in many cases entails an individual putting his life and the safety
of his family in jeopardy to furnish information to the U.S. Govern-
ment, is a delicate and time consuming task. Often it takes years to
convince an individual that we can protect him. Even then, the
slightest problem, particularly a breach or perceived breach of
trust, can permanently disrupt the relationship. A public exposure
of one compromised agent will obviously discourage others.
One must recognize also that most of .those who provide us with
our most valuable and therefore most sensitive information live in
totalitarian countries. In such places, individuals suspected of any-
thing less than total allegiance to the ruling party or clique can
lose their lives. In societies such as these, the concepts behind the
Freedom of Information Act are totally alien, frightening, and
indeed, contrary to all they know. It is virtually impossible for
most of our agents and sources in such societies to understand the
law itself, much less why the CIA operational files in which their
identities are revealed should be subject to the act.
It is difficult, therefore, to convince one who is secretly cooperat-
ing with us that someday he will not awaken to find in a U.S.
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newspaper or magazine an article that identifies him as a CIA spy.
Also, imagine the shackles being placed on a CIA officer trying to
convince the foreign source to cooperate with the United States.
The source who may be leaning toward cooperation will demand
that he be protected. He wants absolute assurance that nothing
will be given out which could conceivably lead his own increasingly
sophisticated counterintelligence service to appear at his doorstep.
Of course, access to operational files under FOIA is not the only
cause of this fear. Leaks, the deliberate exposure of our people by
Agee and his cohorts prior to your passage of the identities legisla-
tion, and espionage activities by foreign powers all contribute, but
the perceived harm done by the FOIA is particularly hard for our
case officers to explain because it is seen as a deliberate act of the
U.S. Government.
Although we try to give assurances to these people, we have on
record numerous cases where our assurances have not sufficed.
Foreign agents, some very important, have either refused to accept
or have terminated a relationship on the grounds that in their
minds?and it is unimportant whether they are right or not?but
in their minds, the CIA is no longer able to absolutely guarantee
that they can be protected.
How many cases of refusal to cooperate where no reasons are
given are based upon such considerations I cannot say. I submit,
however, that knowing of numerous such cases, there are many
more instances where sources who have discontinued relationships
or reduced their information flow have done so because of their
fear of disclosure. No one can quantify how much information vital
to the national security of the United States has been or will be
lost as a result.
The FOIA has also had a negative effect on our relationships
with foreign intelligence services. Our stations overseas continue to
report consternation over what is seen as a potential legal require-
ment to disclose information entrusted to us.
Again, the unanswerable question is how many other services
are now more careful as to what information they pass to the
United States. This legislation will go a long way toward relieving
the problems that I have outlined. The exclusion from the FOIA
process of operational files will send a clear signal to our sources
and to those that we hope to recruit that the information which
puts them at risk will no longer be subject to the process. They will
know that their identities are not likely to be exposed as a result of
a clerical error, and they will know that the same information will
be handled in a secure and compartmented manner and not be
looked at by people who have no need to know that information.
In his decision in the lawsuit brought by Philip Agee against the
CIA, FBI, NSA, Department of State and Department of Justice,
Judge Gerhard Gesell of the U.S. District Court for the District of
Columbia summarized the problem this way: "It is amazing that a
rational society tolerates the expense, the waste of resources, the
potential injury to its own security which this process necessarily
entails."
At the same time, as I have explained before, by removing these
sensitive operational files from the FOIA process, the public is de-
prived of no meaningful information whatsoever.
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The paltry results from FOIA review of operational files are in-
evitable. These records discuss and describe the nuts and bolts of
sensitive intelligence operations. Consequently, they are properly
classified and are not releasable under the FOIA. The reviewing of-
ficers who produce these masterpieces of black markings are doing
their job, and doing it properly. The simple fact is that information
in operational records is by and large exempt from release under
the FOIA, and the few bits and pieces which are releasable have
little or no informational value.
When I speak of reviewing officers absorbed in this process, it is
important to stress that these individuals are not and cannot be
simply clerical staff or even FOIA professionals. In order to do
their job, they must be capable of making difficult and vitally im-
portant operational judgments. And consequently, most of them
must come from the heart of the Agency's intelligence cadre. More-
over, before any item of information is released under the FOIA,
the release must be checked with a desk officer with current
knowledge of the operational activity involved.
Hence, we must not only call intelligence officers on a full-time
basis away from their primary duties, we must also continually
divert the attentions of the officers of our operating components.
That is so because we have a practice in the Operations Directorate
which requires that every piece of paper which is released, even in-
cluding those covered with black marks like the one I showed you
before, must be reviewed by an officer from the particular desk
that wrote the documents or received it from the field. And we
cannot alter this practice because the risk of compromise is so
great.
You can imagine the disruption, for example, on the Soviet desk
when the people there must take time off from the work they are
supposed to do to review a document prepared for release under
the FOIA, and it is obvious, of course, that when a CIA operation
makes the front pages of newspapers, the FOIA requests on that
subject escalate.
This loss of manpower cannot be cured by an augmentation of
funding. We cannot hire individuals to replace those lost. We must
train them. After the requisite years of training, they are a scarce
resource needed in the performance of the Agency's operational
mission.
Let me make clear that this legislation exempts from the FOIA
only operational files. It leaves the public with access to all other
Agency documents and all intelligence disseminations, including
raw intelligence reports disseminated from the field. Files which
are not exempted from search and review will remain accessible
under the FOIA, even if documents taken from an operational file
are placed in them. This will insure that all disseminated intelli-
gence and all matters of policy formulated at Agency executive
levels, even operational policy, will remain accessible under FOIA.
Requests concerning those covert actions the existence of which is
no longer classified would be searched as before. And of particular
importance, a request by a U.S. citizen or permanent resident alien
for personal information about the requester would trigger all ap-
propriate searches throughout all pertinent record systems in the
Agency.
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I would also like to address the benefit to the public from this
legislation. As I mentioned earlier in my testimony, FOIA request-
ers now wait 2 to 3 years to receive a final response to their re-
quests for information when they involve the search and review of
operational files within the Directorate of Operations. We estimate
that with enactment of appropriate legislation, the CIA could in a
reasonable time substantially reduce the FOIA queue. Indeed, I can
assure you that following enactment, every effort will be made to
pare down the queue as quickly as possible. This would surely be of
great benefit if the public could receive final responses from the
CIA in a far more timely and efficient manner. The public would
continue to have access to disseminated intelligence product, and
all other intelligence and files which would not be exempted under
the terms of these bills.
I would also like to address the issue of how it would be possible
for the American public to have access to information concerning
any Agency intelligence activity that was improper or illegal. My
firm belief is that given the specific guidance which we now have
in Executive orders and Presidential directives, along with the ef-
fective oversight provided by this committee and its counterpart in
the Senate, there will not ever again be a repeat of the impropri-
eties of the past. And let me assure you, as I did the members of
the Senate Intelligence Committee, that Director Casey and I con-
sider it our paramount responsibility that the rules and regulations
not be violated.
However, should there be an investigation by the Inspector Gen-
eral's Office, the Office of General Counsel or my own office of any
alleged impropriety or illegality and it is found that these allega-
tions are not frivolous, the records of such an investigation would
be found in the files of the office conducting the investigation, and
these files cannot be exempted under the terms of the legislation
before this subcommittee.
In addition, any information found relevant by the investigating
office but still contained in exempted operational files would be
subject to search and review in response to an FOIA request. The
same would be true, for similar reasons, Mr. Chairman, whenever
a senior intelligence community official reports an illegal intelli-
gence activity to this committee or to the Senate Intelligence Com-
mittee pursuant to the requirements of Section 501 of the National
Security Act.
As I mentioned earlier, I testified last June before the Senate In-
telligence Committee on S. 1324 which, as introduced, was very
similar to your bill, Mr. Chairman, H.R. 3460. After 2 days of testi-
mony on that bill, it was clear that there were differences of opin-
ion and issues that had to be addressed. For the next 5 months, a
great deal of effort was spent by committee staff, Agency person-
nel, and the interested nongovernment organizations to work out
solutions to the remaining issues. Several Senators personally par-
ticipated in this process as well. Committee staff were given de-
tailed briefings on our records systems and inspected our files. Just
last week the staff of your committee were given briefings on our
file systems. In addition, we responded to numerous pages of de-
tailed questions from the SSCI as a whole, as well as from individ-
ual members. The result of this lengthy process was unanimous
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committee, SSCI, approval of a substitute bill containing several
amendments. These amendments were achieved through good faith
negotiations and compromise on the part of all parties involved. S.
1324, as amended and reported out of the Intelligence Committee,
then passed the Senate by unanimous consent. It has now been re-
ferred to your committee. One of the two bills you are considering
today is Representative Whitehurst's bill, H.R. 4431, which is virtu-
ally identical to S. 1324 as passed by the Senate.
This concludes my testimony, Mr. Chairman. I have with me the
Deputy Director of the Office of Legislative Liaison, Ernest Mayer-
feld, who is prepared to answer any questions you may have re-
garding the differences between the two bills. Also with me is
Larry Strawderman, Chief of the Information and Privacy Division.
We will be pleased to answer any specific questions you or the
other members may have.
Mr. MAZZOLI. Thank you, Mr. McMahon.
I might advise our subcommittee, because we have such a large
turnout this morning, that we will limit at least our first round of
questions to 5 minutes.
So, I yield myself 5 minutes now.
Let me just ask a couple of questions, Mr. McMahon.
First of all, when you talk about operational files, is there, for
example?if I am asking questions which are classified, I can cer-
tainly understand your deciding not to answer them?but are there
file cabinets marked operational and file cabinets marked nonoper-
ational?
Would that be a simple way to be able to decide which files are
then under a bill like ours or which are not?
Mr. MCMAHON. Well, the answer to that is yes, in the generic
term, but a great many of the files which we consider are machine
language, so they have an identification as well. But yes, indeed,
we isolate and segregate operational files, and when we speak of
operational files, that is a specific terminology for specific kinds of
files.
Mr. MAZZOLL OK. Let me ask you this, then.
If, for example, a law is passed which exempts operational files,
would it be possible in a sense to expand the number of file cabi-
nets which are marked operational, and contract the number of file
cabinets marked nonoperational, and in a sense finesse the prob-
lem that way?
Mr. MCMAHON. Yes, sir, if we were prepared to do something
that violated the spirit and the legality of the law, that would be
possible.
Mr. MAZZOLI. But I guess the implicit statement then, in the re-
sponse is that that is not likely because not only do you as a person
follow the law, but that there would be opportunities for oversight
by this committee and by our counterpart in the Senate to get into
that, is that correct?
Mr. MCMAHON. That is correct, Mr. Chairman, but I think the
greatest oversight is the people within CIA themselves. They would
not tolerate that. We went through a considerable amount of anxie-
ty in the past, and I need not remind this committee nor the Amer-
ican public, but what came to pass in the past was exposed by CIA
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itself, and I think that same spirit persists in springloaded fashion
today.
Mr. MAZZOLL Mr. McMahon, let me ask you this. One of the
main reasons that there would be some looking at this FOIA bill is
because of problems that might occur, in connection with service to
the public.
With respect to the Agency, you said essentially it is hard to
quantify the perception problem. It is hard to quantify the number
of foreign agents or assets who have decided not to further cooper-
ate with us. It is hard to quantify the danger, perhaps, which
might have occurred to some of the people.
Let us suppose, then, say I am going downstairs to the floor and
try to encourage my colleagues to pass a bill like this. And I have
to say to them I cannot tell you how many agents have been com-
promised; I cannot really tell you how many files have been let out
which contained those little fragments of information which can be
reassembled by the enemy, to our detriment; I cannot really tell
you, for example, the loss of confidence which has in effect lessened
the number of assets we could ever obtain, but I want you to pass
the bill because I like John McMahon and he likes me. Tell me
something else I could say except for the fact that you are a good
man, and Mr. Casey is, and good people run CIA.
Mr. McMAHori. It is difficult to give specific examples without
exposing the people that we have used.
Mr. MAZZOLI. Right.
Mr. MCMAHON. But there are a number, a great number of in-
stances where agents, working agents, agents in the Soviet Union
have told us not to touch them anymore and not to deal with them
anymore. There are a number of agents in other parts of the world
that refuse to have further dealings with us. We have had even in-
telligence services of friendly nations tell us that there is certain
information which they will not share with us because of the
impact of the FOIA.
It is indeed a very real problem. It goes to the heart and the very
fiber of running an intelligence service because the relationship
which you develop with agents or other intelligence services is one
of trust. It is a lawyer-client relationship. It is a patient-doctor rela-
tionship. It is a priest and confessor relationship, and to have that
exposed in the situation where through error or oversight that
person might be compromised, just runs anathema to how intelli-
gence organizations must work.
Mr. MAZZOLL If it is impossible to quantify any of this data on
the record, or even off the record, may I ask you?and we are de-
pending on this thing, that it just is not the way the operation
runs, it is not the way the Agency can function, or the whole indus-
try of intelligence?is there any other nation in the world that has
an FOIA that permits its citizens to examine any kind of intelli-
gence records? Are you aware of anything like that?
Mr. McMAHori. None that I know of. I know that the Australians
at one point were considering a similar type arrangement, but I
think they were clever enough to exclude operational files.
I would ask my colleague.
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Mr. MAYERFELD. I think that is correct. I have seen a draft of
their bill. I do not know what the present status is, but the exemp-
tion was so vast that in effect they included all intelligence files.
Mr. MAZZOLI. One of the things we could perhaps use to convince
a Doubting Thomas downstairs is that no other nation in the world
does it, which perhaps is some kind of a lead.
Lastly, and then my 5 minutes will be up, you used at different
times in here "absolute guarantees," "total guarantees," and
"guarantees."
If I understand correctly, Mr. McMahon, even if this bill passes,
or the Senate counterpart to it were passed, it would be hard for
the Agency to give an absolute guarantee because a certain
amount of your material would be looked into, and it would be ex-
punged or bowdlerized, but at least it would be gone into.
And even under the very best of circumstances, you cannot pro-
vide an absolute guarantee. So is the lack of an absolute guarantee
going to be a constant problem?
Mr. MCMAHON. I think, Mr. Chairman, if you can say that you
are not going after the operational files, that a lot of people will
breathe easier, because it is operational files where the person is
identified. If you go to our disseminated intelligence, while you can
often get unique intelligence that can only come from a certain
person, the bulk of the intelligence is such that you cannot go back
to the original source and expose a person. You expose a capability
someplace, but not the individual.
Mr. MAZZOLL So even though you would have something less
than an absolute guarantee, you still think you could convey a new
perception and convince new potential assets that there is a new
day in the CIA?
Mr. MCMAHON. By all means, and it would be a great burden off
our individual case officers.
Mr. MAZZOIA. Well, thank you.
My time has expired.
I yield 5 minutes to the gentleman from Virginia, Mr. White-
hurst.
Mr. WHITEHURST. Thank you, Mr. Chairman.
Just several questions, though, for the record because I think it
is important to establish this, Mr. McMahon.
At the Senate Intelligence Committee hearings on S. 1324, you
testified that a court review of CIA designation of operational files
as exempt would defeat what you hope to accomplish with this leg-
islation.
Mr. Mayerfeld testified that if the DCI designations of files as
exempt were subject to challenge in court, then "we would be right
where we started."
Does that testimony still remain your position on what would
best serve the national interest on the subject of judicial review of
CIA implementation of the legislation?
Mr. MAYERFELD. Mr. Whitehurst, yes. We would indeed prefer
legislation in which the file designation were legislated by the Con-
gress or left to the absolute discretion of the Director of Central In-
telligence. On the other hand, as this bill proceeded through the
legislative process in the Senate, it became clear that it would not
be accepted and would have no chance of passage unless some pro-
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vision for judicial review were made. The provision that is now in
your bill, which is close to the one that was passed by the Senate,
is one that we can live with. It has very limited judicial review. It
provides how a case gets into court, and that would not defeat the
purpose of the bill.
Mr. WHITEHURST. This is kind of a follow-on to that. You also tes-
tified in the Senate that the concern for possible CIA overzealous-
ness in designation of files as exempt would best be resolved not by
judicial review but by vigorous oversight of CIA file designation by
the Intelligence Committees of the Congress.
Is that still your view of what best serves the national interest?
Mr. MAYERFELD. Indeed it is.
Mr. WHITEHURST. Mr. McMahon, H.R. 4431 contains the Senate
judicial review provision of S. 1324, as you have noted.
Now, the Senate bill does not directly state the standard for judi-
cial review. The Senate report on the provision refers to a "ration-
al basis" standard of review.
Is this acceptable also to the Agency?
Mr. MAYERFELD. Indeed, it is.
Mr. MCMAHON. Yes, sir.
Mr. WHITEHURST. Finally, I understand that once judicial review
is properly triggered under the provision, the court will uphold a
CIA action implementing the bill if there is a rational basis in the
bill for the action, but if CIA has instead acted arbitrarily, then the
Court will order CIA to search and review operational files for the
requested records.
Is this degree of judicial involvement in review of the propriety
of file designation and placement of records in designated files ac-
ceptable to you?
Mr. MAYERFELD. Yes, it is, Mr. Whitehurst.
Mr. WHITEHURST. I think this is very, very important. We have
inserted this aspect of it in the bill that I submitted, and I want
this on the record. I want my colleagues, indeed, all of the people
who are here this morning, to understand precisely what we are
driving at with the judicial review provision.
Mr. Chairman, I yield back my time.
Mr. MAZZOLI. Thank you very much. The gentleman's time has
expired.
The gentleman from Ohio is recognized for 5 minutes.
Mr. STOKES. Thank you, Mr. Chairman.
Mr. McMahon, I am a little concerned about the Senate bill in
this respect. In the absence, let's say, of a person having personal
knowledge of the existence of a particular document, how can that
person requesting the document make the prima facie showing that
is necessary in order to get a court to review the designation proc-
ess contained in the Senate bill?
Mr. MAYERFELD. Mr. Stokes, the language on the face of the bill
specifically states it is either an affidavit based on personal knowl-
edge or otherwise admissible evidence. In other words?well, per-
haps a hypothetical example that would best illustrate it would be
the following. A person has received a document under a previous
FOIA request which makes it crystal clear that there are further
documents on the same subject which should be contained in non-
designated files. I would think that the court would accept such an
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affidavit as admissible evidence and get into court under those cir-
cumstances.
Mr. STOKES. Another one of my concerns would be a concern
some of the historians have, and that is that these operational files
will be kept permanently away from them. We are encountering
some of the same thing here, for instance. I chaired the Select
Committee on Assassinations here, and under the House rules, any
documents not released had to be kept under file for 50 years.
Some members of the same committee that served with me and
some historians are saying that it is unfair to keep this type of ma-
terial away from historians.
So, I guess my question is, do you have any plan to review these
operational files periodically in order to ascertain whether or not
some of them should be declassified for that purpose?
Mr. MAYERFELD. Mr. Stokes, indeed we do. We view this process
of file designation as a dynamic one. It permits the Director to de-
designate files whenever he feels it is appropriate. This was exam-
ined in the course of the Senate process, and in fact, the bill was
amended to specifically provide that the Director must review the
designations no less than once every 10 years. He does not have to
wait 10 years. He can, if a case is made, if you will, or if he deter-
mines that a certain file that is only 2 years old is of such interest
to historians or to other groups, and the risk of compromise of
sources or a compromise of other classified information is really
minimal, he can dedesignate a category of files or a portion of a
category of files or a part of a file to permit access under the FOIA.
Mr. STOKES. Now, as I understand it, if we enact this legislation,
it is going to affect pending FOIA requests and pending court cases
since the law would be applied retrospectively rather than prospec-
tively.
Can you give us some idea of how many court cases are going to
be affected?
Mr. MAYERFELD. We will be submitting the answer formally for
the record, but I do have some preliminary figures. I believe Mr.
Moffett is here. He can correct me if I read his information wrong.
There are some 24 cases that would not at all be affected, now
currently pending that would not at all be affected, because they
are first-person requests either under the Privacy Act or the FOIA.
There are an additional 23 cases that will not be affected at all be-
cause the subject in dispute and the documents involved in the
case, were not found in files which could be designated. They would
be in nondesignated files.
And that leaves us with 12 cases, is that correct?
Mr. MOFFETT. Yes, sir.
Mr. MAYERFELD. Twelve cases that may be affected if this bill
were enacted, may be affected.
We cannot be certain because it is in litigation, the litigation is
ongoing, and to what extent these cases are affected is also uncer-
tain. But at least our present view is that those 12 cases contain
documents that will?some documents that will have come solely
from designated files.
Mr. STOKES. We are talking about approximately 12 pending
court cases?
Mr. MAYERFELD. Twelve pending court cases.
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Mr. STOKES. You are not certain exactly how this would affect
those cases?
Mr. MAYERFELD. They are likely to be affected. That means?I do
not know. Do you know whether any would be likely to be dis-
missed outright?
Mr. Moffett. It is very unlikely that they would.
Mr. MAYERFELD. Very unlikely. We may move for dismissal of a
portion of a case.
Mr. STOKES. I would have concern there in terms of dismissal of
plaintiffs, let's say, who have contracted a large amount of legal ex-
pense and so forth, and who would be cut off in the middle of that
type of situation.
I have one further question.
H.R. 3460 includes in the definition of operational files those files
that document "investigations conducted to determine the suitabil-
ity of potential foreign intelligence sources, counterintelligence
sources, or counterterrorism sources."
Now, does this definition include CIA employees and contractors?
Mr. MAYERFELD. Not CIA employees. It may include contractors,
yes.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Oklahoma is recognized for 5 minutes.
Mr. MCCURDY. Mr. Chairman, since I am not a member of the
subcommittee, I am probably not up on this as closely as you are,
but I want to ask, from the readings of the statements and some of
the statements of succeeding witnesses, it appears that H.R. 4431,
which is similar to the Senate version, is the one that the Agency
would support of the two.
Can you explain the principal differences, as you see it, between
the two bills? Is it judicial review and the amount of specificity
within the legislation, or is there any other noticeable difference?
Mr. MAYERFELD. Well, aside from some differences in format, and
the chairman's bill leaves out the statement of findings and pur-
poses, substantive differences are primarily those which you have
outlined, Mr. McCurdy. The judicial review provision is in there.
There is a somewhat clearer definition of the files, perhaps, in the
Senate bill, and it also identifies the operational files with a specif-
ic component which holds them.
There is one additional difference. The Senate bill specifically
states in the area of improprieties or investigations on impropri-
eties, that operational files would be searched for documents that
were reviewed and relied upon by investigative bodies. That is in
my mind a bit clearer than Mr. Mazzoli's bill which talks about in-
formation that was the subject of an investigation, which is capable
of being interpreted a bit too broadly.
Mr. MCCURDY. Have you read the statements of Mr. Lynch of the
ACLU, or Mr. Gammon of the American Historical Association,
and Mr. Rowe, who speaks on behalf of the publishers? Those three
appear to be the most critical, I am not so sure it is critical, but the
most concerned about the legislation before us today.
And how would you respond? I think Mr. Stokes raised a very
good question about the historical implications of closing files for
such an extended period of time.
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Mr. MAYERFELD. I'm sorry, Mr. McCurdy, I have not had an op-
portunity to read any of these.
Mr. MCCURDY. Well, I think the other statements were fairly
supportive. Perhaps as the others testify, you will be prepared at
some later time to respond to their concerns because that is one of
the reasons, I am sure, that they were called today, to get opposing
views so we can have a good debate.
I yield back my time.
Mr. MAZZOLL I thank the gentleman.
Maybe using part of the gentleman's time, if the gentleman will
yield to me, would you tell me, Mr. Mayerfeld or Mr. McMahon,
with respect to the historians that want to get back into the
records later on, you say that at least every 10 years the Director
of the Agency would have to make a review for purposes of poten-
tial declassification. Is that the idea?
Mr. MAYERFELD. Under the Senate bill, yes.
Mr. MAZZOLL And in our bill, what do we have in our version,
Mr. Whitehurst and I, on that?
Mr. MAYERFELD. Mr. Whitehurst has that same provision.
Mr. MAZZOLL And what do I have in mine on that subject?
Mr. MAYERFELD. It does not specifically address that.
Mr. MAZZOLL And what would you take from that?
Mr. MAYERFELD. Well, the way?I think after we have studied it,
I think we have all come to the conclusion, I think even my friend
Mr. Lynch would agree, that the bill ought to permit the Director,
ought to grant the Director the authority to designate these files
because that builds into the process some flexibility.
Mr. MAZZOLL Is there any kind?maybe I think Mr. Stokes asked
it. Is there any sort of an ongoing, routine, regular check for the
purpose of declassification going on now?
Mr. MAYERFELD. Yes, there is.
Mr. STRAWDERMAN. There is no ongoing systematic declassifica-
tion. We review material based on a mandatory review criteria as
spelled out in Executive Order 12356 where we receive material
from Presidential libraries, from people seeking documents that
were originated by CIA. They are sent to us, we review them and
release them under that procedure. So that is a form of mandatory
review or systematic review, but we do not have an ongoing pro-
gram under the new Executive order. It leaves that up to the dis-
cretion of each agency.
We also participate in activities dealing with other agencies such
as the State Department and their foreign relations of the U.S.
series. We will participate in the review of that material to the
extent that our equities are involved.
Mr. MAZZOLL Thank you.
The gentleman from Oklahoma's time has expired.
The gentleman from Pennsylvania is recognized for 5 minutes.
Mr. GOODLING. Did you indicate that the Mazzoli bill does not
then give you that flexibility that you are just talking about?
Mr. MAYERFELD. Well, I think in effect it probably would because
even if the bill is silent on how we go about designating files, there
has to be a means of doing that, and regulations will have to be
written, and we could simply write those into the regulations. But
it is less clear on the face of the Mazzoli bill.
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Mr. GOODLING. And therefore it would be better to clarify it now?
Mr. MAYERFELD. I would say so, yes.
Mr. GOODLING. Mr. Chairman, we might, after Mr. Lynch testi-
fies, perhaps Mr. McCurdy could ask or others could ask those
questions that they may want to ask at that particular time.
Mr. MAZZOLI. I would agree.
Mr. GOODLING. I will continue for the record the questioning that
Mr. Whitehurst began.
H.R. 4431 requires the DCI to promulgate regulations to imple-
ment the legislation. Since CIA's functions are all foreign affairs
functions, these regulations fall within the Administrative Proce-
dures Act public rulemaking exemption for matters involving for-
eign affairs functions, do they not?
Mr. MAYERFELD. No, I do not think so, because I believe the CIA
would come under the national security exemption of the APA.
Mr. GOODLING. And the second question, the term "sources" is
used in H.R. 3460, H.R. 4431, and S. 1324, when defining as exempt
Office of Security files documenting suitability investigations of po-
tential sources.
I understand the term "sources" in this legislation to refer to
providers or potential providers of information or operational as-
sistance and employees of contractors. The use of the term
"sources" in -this bill is not intended to be tied to the definition of
intelligence sources created out of thin air in the recent Sims FOIA
case.
Do you share the same basic understanding that I do of the
meaning of the term "sources" as used in the legislation we are
considering today?
Mr. MAYERFELD. Absolutely.
Mr. GOODLING. Thank you, Mr. Chairman.
Mr. MAZZOLL Thank you.
The gentleman's time has expired.
Let me yield myself just a few more minutes to follow up.
Mr. Mayerfeld, let me ask you, in response to the gentleman
from Ohio, you said that there are something like 12 cases which
would be affected by the retroactive provision in the bill. And there
would be 24 unaffected first-person cases and 23 unaffected nonde-
signatable file cases.
Mr. MAYERFELD. That is correct.
Mr. MAZZOLL And I realize that you would be carrying a certain
burden into the future because I gather from Mr. McMahon's testi-
mony these things can roll on for years and years, and it does get
some people, but would there not be something to arguing on
behalf of symmetry and appropriateness here?
Typically we pass bills prospectively, for prospective application.
Is there any way to quantify or to give us anything that would not
be a detail, because I am sure you do not want to tell us how many
people you have working in this function, but is there any way to
quantify the problem of a prospective application?
Mr. MAYERFELD. Of a prospective application?
The problem is, this bill is not going to be passed in secrecy, and
everybody out there is going to find out that operational files are
going to be excluded.
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Mr. MAZZOLI. Let's say as of yesterday afternoon, close of busi-
ness.
Mr. MAYERFELD. As of yesterday afternoon, if we were to even
then not affect the pending requests in the administrative stage,
the only result would be a longer wait until the queue is shortened.
Mr. MAZZOLL Let me shift. Mr. McMahon, you had talked about
benefits to the public from this prospective change in FOIA be-
cause currently the public waits for long, long periods of time. It
gets back extremely edited versions which may or may not be
useful to them.
You suggested that you were pretty sure the time would pick up.
Have you any idea now how long it takes as an average to get
documentation and how long it might take if this bill were passed?
Mr. STRAWDERMAN. It takes about 2 or 21/2 years today to process
a request if it involves Directorate of Operations records. If it does
not involve the Directorate of Operations, it can take less, say up
to 6 months to clear a case. We are hopeful that with the passage
of this bill we will be able to respond in terms of weeks, or at most,
months, to get a request back to the public.
The DDO queue is by and large the holdup at the moment. They
have the bulk of our workload, and with some of the cases drop-
ping out with passage of this bill, we believe that the flow of mate-
rials throughout the Agency would be enhanced.
Mr. MAZZOLL Will you need more people, more money to do this?
Mr. STRAWDERMAN. I do not believe it would take more people.
Mr. MAZZOLL Will you reduce the number of people on those jobs
then?
Mr. MCMAHON. I think what we will do, Mr. Chairman, is be
able to put operationally experienced people back into involvement
with operations. Therefore, they will not go over and help out on
the other files, but I think that it is an obligation of the Agency, if
this committee passes this bill, to live within the spirit of that,
which is to enhance the response time of the Agency to the Ameri-
can citizenry.
Mr. MAZZOLI. Thank you.
A couple of fairly quick questions, I hope, maybe to flesh it out.
Mr. Mayerfeld, do you have any problem dealing with my ver-
sion of the bill which suggests specifically the definition of oper-
ational files? It takes away from the Director that discretion which
under the Senate version is basically tied to the same definitions.
Would our stance on that be acceptable?
Mr. MAYERFELD. I have no problem with that.
Mr. MAZZOLL Now, how about something that several have
gotten into, and that is judicial review. Mr. Whitehurst, of course,
began the line of questions this morning.
How do you? see the bill that I have introduced in comparison to
the two other bills, the Senate and Mr. Whitehurst's bill on judicial
review?
Mr. MAYERFELD. Well, in your bill, I think it can reasonably be
argued, and in fact, my interpretation might be that the judicial
review would not be appropriate, that the Congress specifically leg-
islated these issues, legislated that operational files be excluded
from the FOIA access provisions, and then that would be it.
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Mr. MAZZOLI. In other words, it could be inferred from my bill
that silence on the point of judicial review means that there is no
judicial review?
Mr. MAYERFELD. It Could SO be inferred.
Mr. MAZZOLL It could also be inferred that we would just insti-
tute today's system of judicial review, the one that is currently em-
ployed?
Mr. MAYERFELD. I guess we would battle that in court.
Mr. MAZZOLL Just for the record, it was my intention in putting
it together that we would, for the purposes of argument, retain the
existing system of review and then compare it or contrast it to the
Senate review provision.
Could you compare 'and contrast today's system of judicial review
with what Mr. Whitehurst has proposed and what is in the Senate
bill?
Mr. MAYERFELD. Today's judicial review under FOIA?
Mr. MAZZOLL Yes.
Mr. MAYERFELD. It is very hard to do because with today's judi-
cial review under the FOIA, the courts have pretty broad power to
look at the exemptions under the act. In other words, if we with-
hold a certain document or these black markings, a piece of a docu-
ment, what the court can review is, is that proper under the law. Is
that information properly withheld?
The exemption that we most use is (b)(1), is it properly classified?
We are required to submit affidavits to justify the classification, to
justify the source.
Mr. MAZZOLL Mr. Mayerfeld, tell me if I am wrong. Staff has
done some markup for me on this because this is extremely compli-
cated material which I really do not fully understand. One of the
differences they suggest is that in the view of Mr. Whitehurst, the
shoe is on the foot of the petitioner to make a prima facie case, and
only then does the court really get into it.
If I am correct and advice to me is correct, today's situation puts
the burden on the Government to show that their classification is
correct.
Is that essentially the difference?
Mr. MAYERFELD. That is correct, but the difference is what do the
courts look at? If the courts challenge our?
Mr. MAZZOLI. Let me just kind of simplify it because if we go
with the Senate-Whitehurst version, we are saying that the
burden, then, of making at least a prima facie case that there has
been some wrongful designation or that there is some misfiled ma-
terial, is on the petitioner or requester. If we were to retain today's
situation either explicitly, in a revised version of this bill, or some-
how, then that says that the Government has the responsibility of
carrying the evidence, is that not correct?
Mr. MAYERFELD. I am not certain that it is, Mr. Chairman, be-
cause the FOIA law does not address that particular problem.
What the FOIA addresses is the propriety of withholding informa-
tion. This bill goes to the question of what files are designated.
There is no case law that instructs us on this. The problem arises
when the same kind of a thorough process that the courts get into
now in looking at the propriety of withholding information, they
would get into when looking at how we file our records.
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Frankly, Mr. Mazzoli, we would be worse off than we are now be-
cause if we would have to demonstrate that our files were all prop-
erly designated and that every piece of paper in there is properly
filed, that kind of judicial review puts .us in a situation where we
are worse off than today.
Mr. MAZZOLI. Well, unfortunately, my 5 minutes has expired.
The gentleman from Virginia?
Mr. WHITEHURST. I have no more questions.
Mr. MAZZOLL The gentleman from Ohio?
Mr. STOKES. Thank you, Mr. Chairman.
Gentlemen, how is the FOIA requester going to know that either
Congress or the Intelligence Oversight Board has conducted this in-
vestigation so that he can then, he or she can then avail them-
selves of the exemption?
Mr. MAYERFELD. Well, he does not have to know, Mr. Stokes. If a
request comes in, we will search all nondesignated files, and if
there has been such an investigation, he will learn of it.
Mr. STOKES. When you use the term "investigation," tell us what
you mean.
Mr. MAYERFELD. If there is an allegation that is made by?let me
take an example, an in-house allegation by an employee that there
was some impropriety or some violation of an executive order pro-
vision, that employee has the option of going up to the manage-
ment and seeing Mr. McMahon or Director Casey on this or going
to the Inspector General. No such allegation is ignored. Every such
allegation will be investigated if they are not on their face frivo-
lous, and there will be a record of whatever the Inspector General
did or whatever the Director's office did to investigate such an alle-
gation. There will be a record, and that will be kept in a nondesig-
nated file.
Mr. STOKES. When you receive either an FOIA request or a Pri-
vacy Act request, do you just search the headquarters files, or do
you search the field office files, both here and abroad?
Mr. MAYERFELD. Am I right about that, Mr. Strawderman, all
the files are at Langley?
Mr. STRAWDERMAN. That is right. We receive them in a central
office, and like the hub of a wheel, we fan those requests out to the
components most likely to have records, and all records would be
maintained at headquarters. We would not deal with installations
outside of the Washington, D. C. area. So they are all resident here
or indexed here and searchable here in the Washington area.
Mr. STOKES. So when you use the term operational files, how
many distinct file systems are we talking about, one or more?
Mr. MCMAHON. Files on tens of thousands of individual people.
Mr. STOKES. Thank you.
Thank you, Mr. Chairman.
Mr. MAZZOLA. Thank you very much.
The gentleman from Pennsylvania is recognized.
Mr. GOODLING. Just a few more for the record questions.
One I think might include the conversation that you were just
having.
Mr. McMahon, it has been suggested that the committee provide
for a full blown de novo judicial review of all CIA action to imple-
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ment the legislation we are considering instead of more limited ju-
dicial review or no judicial review at all.
If the legislation is modified to provide for the de novo judicial
review of CIA implementation of the legislation, would CIA contin-
ue to support it?
Mr. MAYERFELD. What is de novo review? That is a term of art.
Let me say that if the review meant that a plaintiff by means of
discovery could examine our entire file systems and make us prove,
the way we have to today, that a piece of information is classified,
make us prove that we filed properly or that every piece of paper
in that file ought to be in there, if the judicial review is that unfet-
tered, then we could no longer live with it.
Mr. GOODLING. Second question. I am not only interested in the
role of the courts in FOIA cases involving the CIA under the new
legislation, but also under current law. As I understand it, de novo
review under the current FOIA lets judges substitute their judg-
ment for that of the Director of the CIA on matters involving pro-
tection of sensitive national security information.
Can you tell us what kind of dangers this role for judges in na-
tional security matters causes, and also address specifically the
recent Fitzgibbon case?
Mr. MAYERFELD. Well, Mr. Goodling, your statement I suppose I
would challenge. The Supreme Court has not yet spoken on that.
Mr. MoFForr. The Fitzgibbon case--
Mr. MAZZOLI. Would you identify yourself for the record?
Mr. MoFFurr. Yes. My name is Page Moffett, Assistant General
Counsel, Central Intelligence Agency.
Sir, my personal view would be to agree certainly with that
statement under the current FOIA law. Besides the Fitzgibbon
case, there is also the Sims case where the courts have substituted
their judgment as to what a source is or is not under the National
Security Act. Indeed, in the Fitzgibbon case, the district court over-
ruled many of our determinations as to classified information and
to whether certain individuals were sources. And I would certainly
agree with your statement, sir.
Mr. GOODLING. What inherent dangers are there in such rulings
by judges?
Mr. MoFFETT. Well, sir, obviously, that a court will decide in its
opinion that this piece of source-revealing information is no longer
sensitive. In the Fitzgibbon case the judge decided that these people
lived 20 years ago, and there was a new regime, and he speculated
they would be popular with the new regime, and therefore he did
not see any reason why not to disclose them.
Mr. MAYERFELD. I should emphasize, Mr. Goodling, however, that
this legislation in no way attempts to alter the Freedom of Infor-
mation Act. So whereas the Fitzgibbon case, as Mr. Moffett pointed
out, is disturbing to us, this legislation will not affect that at all.
Mr. GOODLING. And the last, as just one example of the difficulty
of allowing Federal judges to override the Director of the CIA on
the matter of withholding sources, the judge in the Fitzgibbon case
ruled that CIA cannot withhold information to protect the identity
of an intelligence source if the source is not witting that he is pro-
viding the information to the CIA.
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Can you explain why that judge's ruling that you could not pro-
tect unwitting CIA sources from FOIA disclosure would, if it were
upheld by appeals courts and became the general rule, harm na-
tional security?
Mr. MCMAHON. It is conceivable that we are working the individ-
ual through another source, another agent who elicits the informa-
tion from the person providing the information, and to expose that
would identify that intermediate source. It may also expose our
own case officer as being involved in intelligence as opposed to
whatever his cover may be.
Mr. GOODLING. Thank you, Mr. Chairman.
Mr. MAZZOLL I thank the gentleman.
I think maybe just one very last question, and then we will move
on to another panel.
Excuse me, I am sorry.
The gentleman from Virginia.
Mr. WHITEHURST. I yield, Mr. Chairman.
Mr. MAZZOLA. I apologize.
Mr. WHITEHURST. Well, I thought I would just sit and bide my
time. I want to come to a bottom line, if I can, on this with respect
to human intelligence.
You have just been involved in an operation in Grenada, an on-
going one in Lebanon, and a complaint that has run through both
of these episodes has been, well, we did not have any human intel-
ligence, and why did we not have it? And of course, there are vari-
ous reasons for that. I understand that.
I think it is very important to raise that here for this reason.
Either we will adopt the Senate bill or mine, whatever?I have no
pride of authorship?or the Mazzoli bill, or some combination
thereof, and I think what needs to be answered so far as you can is
this:
First of all, which of the two bills provides the maximum securi-
ty for the protection of foreign agents?
Mr. MAYERFELD. Mr. Whitehurst, I think they are equal.
Mr. WHITEHURST. Do you think they are equal in that regard? It
makes no difference then.
Mr. MAYERFELD. [Nods in the negative.]
Mr. WHITEHURST. Fine. That seems to be an answer.
Mr. McMARoN. I would like to make one point, Mr. Whitehurst.
I would be pleased to ride the alleged failure of intelligence in Gre-
nada and Lebanon as a good reason why we need one of these bills.
I cannot do that. There was no intelligence failure in Grenada
and there was no intelligence failure in Beirut.
Mr. WHITEHURST. OK. So we have that on the record. That puts
to rest a lot of the comments that we heard.
Thank you very much, Mr. Chairman.
While I have got the floor, and in the absence of the chairman,
the aspects that we have been talking about with respect to judicial
review do not really touch on that at all, on the question of securi-
ty of foreign agents. It really comes back to the issue of your abili-
ty to oversee your files more effectively, et cetera, et cetera.
OK, that is fine.
Mr. MAZZOIA. Thank you very much, Mr. Whitehurst.
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I will just continue on the gentleman's time for the other couple
questions I have.
Perhaps Mr. Strawderman might answer. We started talking
about benefits to the public and the amount of time it takes and
what steps might be taken.
May I ask you, have any steps been taken, any concrete steps to
improve the way these cases are handled?
Mr. STRAWDERMAN. I believe the biggest value, once the bill is
passed, will be the cases that will drop out by virtue of the retroac-
tivity of the bill, and we need to measure, then, what the effect of
that is on the entire process. It is hard to hypothetically look at it
and say it is going to move in 6 months or 8 months or 2 weeks or
10 weeks.
So I think we need to see what happens with that and measure
accordingly how rapidly we can get material to the public.
So I cannot really give you a more finite answer on that today.
Mr. MAZZOLL All of the proposals have an exemption for first
person requests. This has been discussed on the Senate side, and
there was some thought of extending that to groups and organiza-
tions.
Can you give me some pros and cons on that, how you see that?
Mr. MAYERFELD. Well, first of all, the basis behind the first
person is founded on what we believe is a very proper principle,
that people ought to have the right to know what the Government
has on them. That I think is less justifiable on behalf of organiza-
tions. Whether this kind of a first amendment, if you will, right is
possessed by IBM is perhaps questionable.
The other consideration is if we extend that first person exemp-
tion to include organizations, it would so drastically cut back the
relief that this bill provides; it would cut it back to almost mean-
ingless because we mention?organizations appear constantly now
in correspondence and all manner of contacts, and it would have to
be searched whenever it is requested.
Mr. STRAWDERMAN. Mr. Chairman, I might add we are continual-
ly reviewing our processes and procedures to see if we can use form
letters more efficiently or word processors more efficiently. So it is
a concern that we have as to how we can move material through
the system more efficiently.
Mr. MAZZOLI. The reason I asked the question was to flesh out
the record because someone argued that one of the real problems
here is self-created: The longer it takes you to churn out the papers
and the longer it takes you to examine, the more impact on the
system there is, and the more the requesters perhaps will turn to
things as drastic as trying to find a law that might speed things up
a little bit.
So I mean, you are satisfied that you are doing everything rea-
sonably within your budget and power to move these requests
along while maintaining security of vital information?
Mr. STRAWDERMAN. That is correct, MT. Chairman.
Mr. MAZZOLL Thank you very much.
I thank all of you gentlemen for your testimony today, and I am
sure it will help us. And as Mr. Whitehurst has said, it is our in-
tention to try to do something, and your statements certainly have
helped.
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Mr. MCMAHON. We appreciate that, Mr. Chairman.
I cannot emphasize enough the impact of the present FOIA on
our sources. It is detrimental to the well-being of our country, and
we have to seek the relief. And I do not think that there is any
American that would want to see one of our sources exposed.
We will, under the provisions of your bill and Mr. Whitehurst's
bill, guarantee the American citizenry, the historians, academia,
the kind of information that they need, that they feel is useful and
meaningful, but we will be able to protect those people that are
providing us that information.
Mr. MAZZOLL That is certainly our goal.
Thank you very much, Mr. McMahon, Mr. Strawderman, and
Mr. Mayerfeld.
We will now welcome Ms. Mary Lawton, Counsel for Intelligence
Policy of the U.S. Department of Justice.
Ms. Lawton, welcome. You have been before us many times, and
we welcome you again.
You may proceed.
STATEMENT OF MARY C. LAWTON, COUNSEL FOR INTELLIGENCE
POLICY, UNITED STATES DEPARTMENT OF JUSTICE
MS. LAWTON. Thank you, Mr. Chairman.
We welcome the opportunity to appear before the subcommittee
to support legislation granting significant relief to the Central In-
telligence Agency from burdens currently imposed by the Freedom
of Information Act. The subcommittee has before it two proposals
to achieve this end, H.R. 3460 and H.R. 4431. For reasons I will out-
line later, the Department of Justice prefers the approach taken by
H.R. 3460.
This committee is already aware of the enormous burden FOIA
imposes on the CIA, and certainly, Mr. McMahon pointed that out.
The compartmented nature of its files and the sensitivity of the in-
formation contained in them pose particular difficulties in search-
ing and processing requested materials. Moreover, the subtlety of
intelligence information necessitates review by skilled intelligence
analysts rather than FOIA specialists, thus diverting the intelli-
gence analysts from their primary mission.
The committee may not be as familiar with the burden litigation
over CIA files imposes on the Department of Justice. To begin with,
the Department can assign to CIA FOIA cases only those attorneys
who have the necessary clearances to deal with the information at
issue. Working with the CIA, these attorneys must formulate the
sort of public affidavit called for in Phillippi v. CIA and Ray v.
Turner, without at the same time disclosing the very information
they are requested to protect. Often, in order for the courts to ap-
preciate the national security implications of requested records, ex-
tensive classified affidavits explaining their sensitivity must be
filed. The courts, in turn, must struggle with the paradox of ex-
plaining the reasons for their decisions without disclosing the un-
derlying facts. Yet this enormous expenditure in intelligence, legal,
and judicial time and energy invariably results in the classification
being upheld and the requester denied the information.
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If there were any public benefit served by FOIA requests of this
type, it would be appropriate for the committee to weigh that bene-
fit against security concerns. But there is no such benefit with
regard to the operational files of the CIA. From the security stand-
point, a FOIA request diverts intelligence personnel from their
mission, diminishes compartmentalization, ties up attorneys for
CIA and Justice, and clogs already crowded court dockets. All that
the public receives is the not inconsiderable bill.
H.R. 3460 and H.R. 4431 recognize that the time has come to
eliminate this vast waste of resources. They focus on the most sen-
sitive records of the CIA, those dealing with operations, intelli-
gence sources and methods, and the exchange of information with
foreign liaison services. The bills provide FOIA relief only to files
maintained in the Directorates of Operations, Science and Technol-
ogy and the Office of Security. At the same time, they provide the
possibility of FOIA access to files concerning special activities, the
existence of which are unclassified, matters which have been inves-
tigated for possible violations of law, and information concerning
U.S. persons requested by those persons.
Where the bills differ is in the means proposed to achieve the
goal of FOIA relief. Under H.R. 3460 the Congress would describe
the categories of files which should be exempt and exempt them.
The mechanisms under H.R. 4431 are more elaborate. The DCI
would be required to issue regulations for the identification of
exempt records within the statutory categories. Deputy Directors
or office heads would then propose the designation of certain files
within the category of records for which they have responsibility,
and such designations would be reviewed at least every 10 years.
All designations and redesignations would require DCI approval.
The courts would be authorized to review the regulations, the des-
ignations, and even the placement of documents in the particular
files.
Both bills would ease the initial FOIA search burden on the CIA.
In our judgment, however, H.R. 4431 does nothing to ease the liti-
gation burden on CIA, Justice and the courts but may even serve
to increase it. Litigants would be invited to challenge the DCI's reg-
ulations and his subordinates' compliance with them and the filing
practices of the CIA. This would create a new field of litigation in
which there are no existing precedents to guide the attorneys or
the courts. It takes little imagination to conclude that at least from
the Justice Department perspective?and I emphasize that?the
cure offered by H.R. 4431 may well prove worse than the disease.
Accordingly, Mr. Chairman, we urge the committee to adopt the
straightforward approach of H.R. 3460 which provides the CIA with
relief from the unwarranted burden of searching and analyzing
files which by their very nature are protected from release. We
urge the committee to question seriously whether the price of such
relief should be additional burdens on the courts and the depart-
ment of the type inherent in H.R. 4431.
We have no other comments, Mr. Chairman. We will be happy to
answer questions.
Mr. MAZZOLI. Thank you very much, Ms. Lawton. I appreciate
your being here, and thank you for the very succinct testimony.
Let me ask a couple of questions to get started.
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H.R. 3460 contains a proviso designed to insure the fact that files
which contain evidence of past abuses will be not exempt, and it is
suggested that those files would be characterized as those on which
there has been an investigation by our two committees, the Intelli-
gence Committees of the Senate or House, the Intelligence Over-
sight Board and Office of General Counsel of the CIA, the Office of
Inspector General of the CIA, or the Office of the Director of Cen-
tral Intelligence, but it does not mention the Department of Justice
specifically.
Do you see that there is any reason or logic in our extending
that to include the Office of the Attorney General or whatever
agency or group in your shop makes investigations?
Ms. LAWTON. Certainly it seems an anomaly. I do not think the
practical effect is much different because normally CIA would in-
vestigate internally before referring it to us for further investiga-
tion. So the same cases are going to show up either way, but on the
surface, it does look rather odd that the law enforcement branch is
excluded.
Mr. MAZZOLL Let me ask you, there are some differences be-
tween the two bills. You outlined one. I am sure that Mr. White-
hurst will be talking about the other in a moment.
Let me talk about the other one, and that is on the issue of judi-
cial review. You do not in your statement, I believe, talk about it,
but you were in the room and you heard us talk earlier about the
question of the very detailed kind of judicial review which is
present in the Senate-Whitehurst version and the absence of any
reference to judicial review in H.R. 3460.
Now first, as one of the leading lawyers, and I notice from your
vitae, No. 1 in your law school class, maybe you might remember
back to it?what do you take from an absence of any reference in
our bill to judicial review?
Ms. LAWTON. If we were writing on a clean slate, Mr. Chairman,
you could argue either way. Certainly we would be inclined to
argue no judicial review available under your bill, particularly
since it is?the bill itself, is the Congress of the United States des-
ignating the files, and acts of Congress are reviewable customarily
when you are challenging them on constitutional grounds.
But FOIA access is not a constitutional right; it is a statutory
right. So I seriously question whether designation by the Congress
would be judicially reviewable, although somebody is going to try, I
will guarantee you that.
Mr. MAZZOLL Sure. A few people in this room today, maybe.
Ms. LAWTON. Particularly since in the course of developing these
bills the subject has come up and been discussed at great length. If
the bill were ultimately passed without mention of judicial review,
then I think it would be very clear that the Congress did not
intend any, and I would certainly argue that.
Mr. MAZZOLL All right.
So let's say that the lack of artfulness of the author has left us
with a big open hole in here which is supposed to be filled by cur-
rent judicial review.
Could you give me, if you are familiar with it, a comparison of
current judicial review of these FOIA questions and what appears
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in the Senate/ Whitehurst version? Is there any succinct way to de-
scribe the differences?
Ms. LAWTON. Well, I think so because you have several determi-
nations. In the current FOIA you have implicitly some determina-
tions of who is not covered, yourselves and the courts. You have
the determination through legislative history that the Executive
Office of the President, elements which advise the White House
Office, and particular elements based on the Soucie v. David line of
cases are not covered. They are not obliged to search, as CIA would
not be obliged to search the operational files.
Those have all been challenged?not all, some of those determi-
nations of who is not covered have been initially challenged, set-
tled, and that is it, and they are no longer relitigated. The Execu-
tive Office exemption is litigated agency by agency but only once
per agency. The claim of an exemption which an agency may make
to any given record is continually litigated, and on a de novo basis,
with the court deciding not as a matter of law but basically as a
matter of fact whether a particular document fits a legal defini-
tion. And the court is free to substitute its own judgment. Most
have been deferential in matters of classification, but not all, and
those are a constant litigation matter.
What I would see as between the two bills is if the bill as you
introduced it where Congress makes the designation and there is
no mention of judicial review was passed, there will be a one-shot
test of whether that is reviewable. My best guess is it would be
found not reviewable, and that would be the end of it.
What I am concerned about in the bill Mr. Whitehurst intro-
duced is that there will be a one-shot attack first on the DCI's regu-
lations which, while they do not have to go through the APA, will
immediately be requested under the Freedom of Information Act.
And then, even if we win that one, there will be a challenge wheth-
er the Deputy Director of Operations and the Deputy Director for
Science and Technology, and the head of the Office of Security
each complied with those regulations. So that is at least three chal-
lenges.
Then we come down to whether any given document belongs in
those files to begin with, and that last is what really worries me.
The first four cases we can handle, but that last one is what wor-
ries me.
Mr. MAZZOLI. My time has expired.
The gentleman from Virginia is recognized for 5 minutes.
Mr. WHITEHURST. I would like to have you around when we go to
conference with the Senate, I really would.
Ms. LAWTON. I would love to be there.
Mr. WHITEHURST. Let me ask you this. I am not an attorney, but
you have been a very impressive witness this morning.
Is it possible to write into the Mazzoli bill or the House bill a
specific prohibition against judicial review?
Ms. LAWTON. Yes, but somebody will challenge the constitution-
ality of it anyway. There is no way to keep a lawyer out of court on
the first shot. [General laughter.]
Certainly it would probably more likely appear in legislative his-
tory than a line in a bill saying the courts are not to look at this,
but it has been done.
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Mr. WHITEHURST. What about in the report language as the
intent of the Congress, putting it in there, the intent of the framers
of this legislation?
Ms. LAWTON. If the court does not like it, it will not look at the
report.
Well, you may not remember the original Freedom of Informa-
tion Act in 1966, there was a House report and a Senate report
both describing the same bill but in words nobody would recognize
as similar. We argued always in the executive branch that the
House report was controlling, but the courts decided the Senate
report was controlling. So you just do not know, Congressman.
Certainly language could go in either the bill or the report that
would have an effect, and particularly having had major discus-
sions in the Congress and then not saying anything in the bill is an
important item of legislative history.
Mr. WHITEHURST. That is why I am pursuing this this morning
for the record here because I think it is important to establish this.
Just for the sake of absolutely clarifying now, it is your judgment
that if we went with the Mazzoli bill, the government would take
the position that judicial review does not prevail because of the ab-
sence of our including such a provision in the legislation?
Ms. LAWTON. For that reason and because it is the Congress des-
ignating the files. It is not delegating that to an executive officer.
It is doing it itself.
Mr. WHITEHURST. Do you think a subsequent administration with
different players would read it differently?
Ms. LAWTON. No, I do not, Congressman.
Mr. WHITEHURST. Thank you very much.
Thank you, Mr. Chairman.
Mr. MAZZOLI. The gentleman from Ohio is recognized for 5 min-
utes.
Mr. STOKES. Thank you, Mr. Chairman.
Ms. Lawton, some of us are concerned about the revelation of
certain improper action that took place on the part of the agencies
back in the 1950's and 1960's and even the 1970's. I am just won-
dering how would this legislation affect, say, activities that were
conducted by the DDO or the Office of Security back in the 1950's
and the 1960's which may have involved improper activity or im-
proprieties which were not at that time investigated but which are
revealed or come to light here in the 1980's?
MS. LAWTON. Well, whether still classified or not, they were cov-
ered in the investigations conducted by the Church and Pike Com-
mittees. They would under either bill be available.
If there has been any other investigation by the Inspector Gener-
al, the Director's office, the Intelligence Oversight Board, or subse-
quent oversight by this committee after the Church and Pike Com-
mittees disbanded, it would be under the bill, available. If there is
something in there that was not uncovered in the last decade?and
I have great difficulty visualizing what that could be?it probably
would not turn up under this bill because there would be no search
of the Directorate of Operations files, and unless there is a cross-
reference someplace else in a file that is searchable, it is probably
buried forever.
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Mr. STOKES. So from the viewpoint of this legislation, the bottom
line would be that if it has not either been investigated by the two
committees or any one of the other agencies, that this would stop
any further investigation.
Ms. LAWTON. Well, it could, of course, be come across accidental-
ly by operations people using operations files for operational pur-
poses. All I am saying is that the FOIA would not uncover it be-
cause there would be no search made for that purpose.
Mr. STOKES. Thank you very much.
Mr. MAZZOLI. Thank you very much.
Let me yield myself 5 minutes.
Ms. Lawton, let me come back to the question which is one of the
fairly profound differences between these two versions of the bill,
and that is on judicial review.
To kind of go back again, to set the groundwork here, we have a
bill sponsored by yours truly that says nothing whatsoever about
judicial review, which can be, by legal analysis, judged to say, by
reason of the way the files were designated, that judicial review
does not obtain on the question of whether or not operational files
are properly designated, and in effect, there would be no judicial
review.
We can take the other position, which is the Senate! Whitehurst,
which is a fairly long and detailed description of what the courts
can do.
Is that your understanding, one is silent and one has a new
structure for judicial review different than current judicial review?
Ms. LAWTON. Yes, because it has both a structure of reviewing
new things, but also a different standard through the report which
is the arbitrary, capricious standard.
Mr. MAZZOLI. Let me start at that point, then. If because of my
lack of legislative artfulness I put a big hole in my bill where I
really meant to put current practice, current judicial review, let's
then accept that what I meant to put in there was current judicial
review, and we are talking about that versus the new practice
which would be set up by the Senate/ Whitehurst bill.
Now, would you tell us a little bit about those two, today's prac-
tice, today's review, and their proposal on how you see that to work
from your standpoint, how you see it working from the public
standpoint, what rights and prerogatives the jurists would have?
Could they examine the individual documents? Could they see
this material which is said to be operational and therefore exempt?
Can you give me a little background on that?
Ms. LAWTON. It is hard to visualize how they would go at it, Mr.
Chairman, because there is no exactly comparable situation today.
However, that was my point in discussing who is inside the FOIA
and who is outside, and essentially, the courts have not reviewed
whether requesters can file requests with the Congress of the
United States, because the statute does not cover them, and that is
clear, and that is the end of it.
And there has been, as I say, one-shot litigation on who in the
executive office is or is not covered, but once they are determined
not to be covered, then there is no case-by-case review. And that is
the analogy, I think, under your bill.
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Mr. MAZZOLI. Let me ask you this question because I may be in
over my head with this stuff.
Ms. LAWTON. It is a wonderful act.
Mr. MAZZOLI. If the material prepared by staff is reasonably ac-
curate, it is to the effect that current practice or current judicial
review with respect to FOIA matters requires the Government to
bear the burden of justifying any withholding of information by
reason of the fact that it would be sensitive, and includes judicial
access to the material in question. Those are two things in current
practice, if I am correct. The Government has the burden of proof
to justify any withheld information, and also, the judges have
access to the information in question.
Is that your understanding?
Ms. LAWTON. The judges have a right of access. They do not
always exercise it. They will sometimes be content with an elabo-
rate affidavit.
Mr. MAZZOLI. That is the Vaughn, whatever they call it?
MS. LAWTON. The Vaughn affidavit is a public thing, but there
are often in camera, ex parte affidavits which are classified, as you
lay out for the judge chapter and verse of why every word of every
page of every document cannot be released. They are sometimes
longer than the document.
Mr. MAZZOLI. I am sure they would be.
So the judge may or may not go further. The judge may accept
that long, elaborate, classified affidavit in camera satisfying him-
self or herself that this material was properly sequestered, properly
designated, or that judge could, is that correct?
Ms. LAWTON. Insist on seeing it.
Mr. MAZZOLI. Insist on seeing the document. So the CIA has to go
wheeling out to Langley and bring that piece of paper in.
Ms. LAWTON. What more often happens, Mr. Chairman, is the
judge says no, I do not need to see it. I am satisfied without the
document. It goes to the Court of Appeals. The Court of Appeals
says you should have looked at it. It comes back to the district
court, and then they look at it.
Mr. MAZZOLI. Let me shift focus to Senate! Whitehurst.
Would under that version of judicial review the judge have an
opportunity to be satisfied with this long, elaborate, classified affi-
davit submitted in camera? Would, under the other version here,
would that be possible?
Ms. LAWTON. Yes.
Mr. MAZZOLI. Then taking it one step further, could the judge
under the Senate/Whitehurst version demand to see the docu-
ment?
MS. LAWTON. Yes, he could.
Mr. MAZZOLI. Thank you.
I understand that there is a footnote in the Senate report, I have
not read it, but somewhere it deals with the question of what
judges have access to in extraordinary circumstances. I am not
quite sure I fully understand it. We may have to take that up in
answers that you might send us later.
But it seems to me that if I read this thing correctly and am cor-
rectly advised, the Senate version is apparently silent on the point
of whether or not the judge can actually demand to see the docu-
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ment, but the footnote suggests that it is available in the presence
of extraordinary circumstances.
Does that ring any bells with you, Mary? I am not sure I
fully--
Ms. LAWTON. Not to be flippant, but the judge is a 500 pound go-
rilla once you are in his court. He can see what he wants to see.
Mr. MAZZOLL I guess we are in sort of an informal setting.
Ernie, why do you not come up? It would help. What we are
trying to do is get information here.
Mr. MAYERFELD. The Senate report does indeed say--
Mr. MAZZOLL Could you help us on the question again?
Let me start from ground zero.
Under current judicial review, the judge may in his or her opin-
ion demand to see a document.
Mr. MAYERFELD. Yes, if the document is in the dispute under cur-
rent FOIA, sir.
Mr. MAZZOLL It may go up to the court of appeals, but the judge
has that power.
Under the Senate/Whitehurst, can the judge demand to see a
document?
Mr. MAYERFELD. I would say yes, and the Senate report does ad-
dress that.
Mr. MAZZOLL But that is only in a footnote, if I am not mistaken.
Mr. MAYERFELD. It is in the body of the report. It says the bill
does not deprive the court of its authority to order the Agency to
attach to its affidavits as part of its response requested Agency
records in extraordinary circumstances.
Mr. MAZZOLI. Let me just ask your opinion and Mary's.
What would the view be if that were put in statutory language,
not in a committee report, but in language dropping, say, the word
"extraordinary," but in effect return to current practice where the
judge, if the judge is not satisfied with this long and detailed and
classified affidavit, the judge may demand to see the document.
The current practice says that. How about something like those
exact words put into a Whitehurst formulation? How would you
see that?
Mr. MAYERFELD. Well, if we write that into the statute, it gives a
plaintiff the right to do this, and that is really what concerns us.
We are not worried about judges looking at our files and judges sat-
isfying themselves, but if it gives rise to a litigating right and per-
mits the plaintiff an unfettered kind of discovery, to walk through
our files, that is what we would find intolerable.
Mr. MAZZOLL I am not sure I follow that, to tell you the truth. It
seems to me that if we return this wording to current practice or
current status of judicial review, we are simply saying it is not so
much the plaintiffs determination because the judge may be very
well satisfied by the in camera examination of the affidavit which
describes the material which might have sources and methods, but
if for some reason that judge who, as we say, are 500 pound gorillas
with plenary power, decide that he or she wants to see that thing,
current practice says you cannot say no. That judge?for security
reasons. I mean, they cannot flap it around, but if something like
that could be put in the bill so that we could say that if the judge
is not satisfied, not the plaintiff satisfied, but if the judge is not sat-
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isfied and in that judge's opinion an examination of the original
document is required to decide whether or not it is properly classi-
fied, properly designated, whether it has this sensitive material in
it.
Mr. WHITEHURST. Would you yield?
My bill provides that already. He can see anything he wants.
Mr. MAYERFELD. That is exactly correct.
Mr. MAZZOLL It is in the Whitehurst version?
Well, then it does not parallel the Senate version entirely.
Mr. MAYERFELD. Yes, it does. The Senate report language, togeth-
er with the Senate/Whitehurst bill, makes that clear. The judge
has that right.
Mr. MAZZOLI. Well, my time has long since expired. You have
been very indulgent.
I yield to my friend from Virginia or Pennsylvania for followups
on this or anything.
Mr. WHITEHURST. I have a very curious feeling I am going to
become a champion of the chairman's bill and he is going to
become a champion of mine.
Mr. MAZZOLA. You sit here and I will sit there. No one is going to
kill his bill.
Mr. WHITEHURST. I yield to my friend from Pennsylvania.
Mr. GOODLING. Well, I can approach this three different ways. I
could say that I have no legal background, I am intimidated by the
witness, and therefore I will call her if I need a lawyer, but I am
not going to be stupid enough to ask any questions. Or since I am
sitting up here half asleep with a lawbook in my hand, I could act
like a judge. [Laughter.]
But I think the approach I will take is since the questions I am
asking you are questions of the staff, if they are stupid, we can
blame them and not me. So I will use that approach. [Laughter.]
Is not a possible third alternative the courts should review the
Mazzoli bill under the normal Administrative Procedures Act
review of action by all Federal agencies?
Ms. LAWTON. Well, Congressman, by and large the Mazzoli bill
does not require an action by the Federal agencies. That is the dif-
ference between that bill and the Whitehurst bill, in that the Maz-
zoli bill says these files, Congress says these files are not covered.
Under the other formulation, Congress says to the Director, you
decide what files are not covered. Under that formulation, the Di-
rector is taking an action which is probably reviewable, but under
the Mazzoli bill, it is Congress that is saying these files are not cov-
ered, and the Director does not have to do a thing.
Mr. MAZZOLL Would the gentleman yield for a second?
Just assume, Mary, that we say fine, under the Mazzoli formula-
tion, this is a congressional determination of which files are
exempt, and also say the kind of judicial review of the question of
whether or not a proper designation has been made or whether or
not material is in the right file is current administrative practice
review, even though we might suggest that we do not need to do it
this way, but we do it voluntarily. Is that possible? Would that be
discordant? Would that be mutually exclusive in one bill?
Ms. LAWTON. I suppose not because there is, of course, the
Agency, when it searches or not a particular system, has in effect
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taken an action interpreting the bill, if you will, but again, the
question would be?and this is all in the wording?whether it is
the selection of this system as outside the bill, the view of which
we could live with, versus whether any given item belongs in that
system or in some other system. The latter is what Justice would
have great difficulty with. The former is this. One of the systems
covered by the bill would not be a terribly difficult case. As I have
said, we have litigation. As the Deputy Director said, there are 22
major systems. We would have 22 cases and then it would be done,
we would be finished with it.
Mr. MAZZOLI. I am sorry. I did not mean to take too much time.
Thank you for yielding.
Mr. GOODLING. A few other questions.
As I understand it, the FOIA standard for judicial review is
somewhat of an anomaly when referring to the legal standard of
judicial review.
Do you think we should have a standard of judicial review which
gives more credence to a decision made by a local zoning board and
a lesser standard to a decision made by the DCI on only those
issues concerning sensitive national security?
Ms. LAWTON. No. I do not think that.
Mr. MAZZOLI. That is a high hard ball right in there, and bang,
right out of the park. It is a 450-foot homer right to dead center
field.
Ms. LAWTON. With a short right field.
Mr. MAZZOLI. Hit that one right out of the park.
Mr. GOODLING. I will quit while I am ahead.
Mr. MAzzom. The gentleman from Ohio is recognized.
Mr. STOKES. I have no further questions, Mr. Chairman.
Mr. MAZZOLI. Mary, thank you very much. We may, because this
is obviously an interesting area, we may ask for further help from
you, but for now we thank you and appreciate your attendance.
Ms. LAWTON. Thank you, Mr. Chairman.
Mr. MAZZOLI. Now I would like to call the last of the morning
witnesses in, Mr. Mark H. Lynch, counsel for the American Civil
Liberties Union.
Mr. Lynch, we welcome you, of course. Like our previous wit-
nesses, you are not only a person who is very familiar with Hill
procedures, but you have been in this room many, many times.
I just wonder, does the Sergeant at Arms think you may be earn-
ing a congressional pension up here? When he sees you around
long enough, he may think you are one of the members.
Mr. LYNCH. Not under the new security system, Mr. Chairman. I
had a hard time getting in here this morning.
Mr. MAzzom. Well, you and Howard Baker are in the same boat.
Again, your statement will be made part of the record, and we
welcome your statement.
[The prepared statement of Mark H. Lynch follows:]
STATEMENT OF MARK H. LYNCH ON BEHALF OF THE AMERCIAN CIVIL LIBERTIES UNION
Mr. Chairman: Thank you for your invitation to the American Civil Liberties
Union to testify on H.R. 3460, introduced by Mr. Mazzoli, and H.R. 4431, introduced
by Mr. Whitehurst. The latter bill is substantially similar to S. 1324, which passed
the Senate on November 17, 1983. These bills amend the National Security Act of
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1947 so as to remove certain files of the Central Intelligence Agency from the cover-
age of the Freedom of Information Act.
The ACLU is a nonpartisan organization of over 250,000 members dedicated to de-
fending the Bill of Rights. The ACLU regards the FOIA as one of the most impor-
tant pieces of legislation ever enacted by Congress because the Act positively imple-
ments the principle, protected by the First Amendment, that this nation is commit-
ted to informed robust debate on matters of public importance. Accordingly, the
ACLU is extremely wary of all proposals to limit the FOIA.
However, the CIA's position on these bills and on S. 1324 marks a significant shift
in the debate of the last several years over the applicability of the FOIA to the CIA
which we welcome and commend. The Agency is no longer seeking a total exemp-
tion from the Act; it is no longer arguing that the Act is inherently incompatible
with the operation of an intelligence service; and it is no longer arguing that no
information of any value has ever been released by the CIA under the Act. Most
significant of all, the Deputy Director of Central Intelligence, Mr. John N. McMa-
hon, stated before the Senate Intelligence Committee that if S. 1324 was enacted,
"the public would receive improved service from the Agency under the FOIA with-
out any meaningful loss of information now released under the Act."
If in fact no meaningful information now available under the FOIA will be with-
held under this bill, and if the bill will result in more expedituous processing of re-
quests, it will not be a set-back for the FOIA. However, there are many questions
which must be answered before we can be confident that Mr. McMahon's assurance
will be borne out. The Senate Intelligence Committee made a great deal of progress
in answering these questions, and many of the answers are contained in that Com-
mittee's report on S. 1324, S. Rep. No. 98-305, 98th Cong., 1st Sess. (1983) (herein-
after "Senate Report"). Furthermore, the amendments adopted by the Senate Intel-
ligence Committee improved the bill considerably.
Nevertheless, there is still important work for this Committee to do to assure the
public that this legislation (1) will not result in the loss of any meaningful informa-
tion now released under the Act, and (2) will improve the CIA's service to the public
under the FOIA. We set forth below a number of steps which the Committee should
take in this regard. Moreover, since some aspects of the CIA's filing systems and
other internal operations are classified, the public must depend on the Committee to
verify the assumptions on which these bills are based. Furthermore, as detailed
below, there are a number of amendments which we urge this Committee to adopt
to refine and improve this legislation further.
WHAT THE BILL WOULD DO
At this point, I would like to set forth our understanding of what this legislation
would do, based on the CIA's testimony before the Senate Intelligence Committee
and the Senate Report. If this understanding is mistaken or incomplete in any re-
spect, we request clarification so there will be no misunderstanding over the legisla-
tion.
1. Certain operational files, the contents of which are now invariably exempt from
disclosure, will be exempt from search and review. However, all gathered intelli-
gence will be accessible, subject to the Act's exemptions, as it is now. This is possible
because most items of gathered intelligence are routinely disseminated outside the
components identified in the bill and are stored in non-operational files. In excep-
tional circumstances where gathered intelligence is stored in an operational compo-
nent, it will be indexed in a non-operational file and will be subject to search and
review. By making all gathered intelligence accessible, this bill is a significant im-
provement over past proposals which would have have made only finished intelli-
gence reports, such as national intelligence estimates, accessible. This is important,
because finished intelligence may omit raw information that is important to under-
standing events.
2. Only the operational files of the CIA's Directorate of Operations, Directorate of
Science and Technology, and Office of Security will be exempt from search and
review. Thus, operational information located elsewhere in the Agency will be sub-
ject to search and review.
3. Information concerning investigations of illegality or impropriety in the con-
duct of intelligence activities will continue to be subject to search and review, even
if the information is found only in operational files.
4. Operational files will be subject to search and review in response to requests for
information concerning "special activities"?i.e., covert operations for purposes
other than the collection of intelligence?if disclosure of the existence of such activi-
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ties is not otherwise exempt under the FOIA. This provision codifies the current
procedures under the Act. See e.g., Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
5. All CIA files, including operational files, will continue to be subject to search
and review in response to requests from United States citizens and permanent resi-
dent aliens for information concerning themselves.
STEPS TO ASSURE THAT THERE WILL BE NO LOSS OF INFORMATION NOW AVAILABLE
In order to be sure that Mr. McMahon was correct when he said that the bill will
not result in the loss of any meaningful information now released under the bill, we
asked that the CIA analyze a number of documents of significance to the public
which have been released by the Agency under the FOIA to determine whether
these documents would be accessible under the proposed legislation. Our under-
standing from the published deliberations of the Senate Intelligence Committee is
that the CIA did this and that the results of the analysis were favorable. However,
the analysis itself was never made part of the public record. Accordingly, we ask
this Committee to make similar inquiries and to make the answers available to the
public so that we can determine that this legislation will not diminish the quality of
information currently available from the CIA under the FOIA. Furthermore, since
the Senate deliberations, various people have brought to our attention other signifi-
cant documents released by the CIA, and we request that these also be included in
the CIA's analysis.
We also asked that the CIA prepare an analysis of how the bill would affect pend-
ing litigation so that there would be an ample public record against which to meas-
ure Mr. McMahon's assurances. This analysis too apparently was prepared but was
not included in the published record. Accordingly, we request this Committee to
take the step of requesting and publishing the analysis of the bill's effect on pending
litigation.
STEPS TO IMPROVE PROCESSING
I would like to focus for a moment on the CIA's promise that it will provide im-
proved service to FOIA requesters under this bill. There is a very great need for
improvement on this score. The two to three year wait which the public must now
endure has greatly diminished the Act's utility. As Mr. McMahon acknowledged in
testimony before the Senate Intelligence Committee, some people have given up
making requests to the CIA because of the backlog. By removing from the FOIA's
search and review requirement files which invariably are exempt from disclosure
under the current provisions of the FOIA because of their sensitive operational
nature, this legislation will eliminate the requests which are primarily responsible
for the backlog. But how will the continued processing of documents still subject to
the Act be improved?
The Senate Intelligence Committee has addressed this question largely in budget-
ary and personnel terms, which of course are the foundation for improved service to
the public. Accordingly, the Senate Committee has received assurances that the CIA
will not reduce the resources now allocated to FOIA processing so that resources
currently devoted to processing operational files will be diverted to processing re-
quests for non-operational files which will continue to be subject to the FOIA.
While this commitment of resources is crucial and fundamental to improved proc-
essing, we believe that the processing problem has another dimension as well. There
needs to be a change in the CIA's attitude toward responding to FOIA requests. For
a number of reasons, some of which may be excusable and some of which may not,
the CIA has developed a siege mentality toward the public and the FOIA. Conse-
quently, the Agency has also developed a number of techniques to stymie the proc-
essing of requests and to put off requesters. Here are some recent examples:
1. On September 24, 1982, a member of the staff of the Center for National Securi-
ty Studies requested CIA studies produced since October 15, 1979 on the subject of
where the insurgents in El Salvador receive their weapons and other support. The
request specifically disclaimed any interest in raw intelligence reports and limited
itself to analytic studies. The CIA made the following response:
Your request, as submitted, cannot be processed under the FOIA. Under the pro-
visions of the FOIA, we are neither authorized nor required to perform research or
create records on behalf of a requester. Almost without exception, our FOIA
searches, because of the structure of our records systems, must be limited to those
that can be conducted for records that are indexed or maintained under the name of
an individual, organization, title, or other specific entity. Further, if our searches
surface information, we are not permitted to analyze that information on behalf of a
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requester to determine if it is in some way related to an event, activity, incident, or
other occurrence.
The foregoing paragraph is apparently a piece of boilerplate on a word-processor,
for it appears in many Agency responses. By making this response, the Agency
avoids its obligation to process the request. While there may be some requests that
are so vague that such a response is appropriate, it is used in many cases where it is
plainly inappropriate. In this instance, it was astonishing for the CIA to suggest
that it cannot identify any studies on the source of weapons to the insurgents in El
Salvador, for this is one of the key issues in the debate over U.S. policy toward that
country. Indeed, this request asks for the same sort of information the President,
the Secretary of State, the Secretary of Defense, or this Committee might request
from the CIA. In fact, after further discussions between the requester and CIA per-
sonnel, the Information and Privacy Coordinator wrote on February 17, 1983 that
he had arranged for a search of Agency files for responsive records. However, there
should have been no need for this five month run-around?a process which would
deter less experienced requesters or those without ready access to legal counsel.
2. On February 3, 1983, CNSS requested information on the issue of whether
former CIA employees William F. Buckley and E. Howard Hunt had complied with
their obligation to submit their writings concerning intelligence matters for prepub-
lication review. The request was prompted by Mr. Buckley's discussion of this topic
in the January 31, 1983 issue of The New Yorker. The Agency replied with another
piece of computerized boilerplate:
So that we can be sure there are no privacy considerations, we need to have a
signed and notarized statement from these individuals authorizing us to release per-
sonal information that otherwise would have to be withheld in the interest of pro-
tecting these person's privacy rights. These rights are addressed in the Privacy Act
(5 U.S.C. 552a) and the FOIA (5 U.S.C. (b)(6)). If we should locate relevant records
and did not have such an authorization, we probably would be unable to release sub-
stantially more than already appears in the public domain, such as that contained
in newspapers and the like.
After a letter from counsel pointing out that compliance by public figures with
their prepublication review obligations does not involve privacy concerns protected
by the FOIA or the Privacy Act, the Agency agreed to process the request. It should
have begun processing immediately upon receipt of the request without the inter-
vention of lawyers and the threat of litigation.
3. In response to a subpoena from CBS News, the CIA produced a large number of
CIA documents relevant to the libel litigation between CBS and General Westmore-
land over the CBS News' report that the military falsified enemy troops strengths
in Vietnam. All classified information was removed from these documents, and they
were released to CBS without any restriction on the use to which they might be put.
Indeed, both CBS and General Westmoreland have released some of these docu-
ments in well-publicized press conferences. On August 25, 1983, one of my clients
requested a set of these documents from the CIA. Since the CIA already had proc-
essed the documents for release to CBS, no further processing should have been re-
quired other than to copy them. Notwithstanding the seeming simplicity of this re-
quest, my client has not yet received a single page. This type of bureaucratic delay
is inexcusable.
Mr. Chairman, I offer these examples of the CIA's techniques to resist compliance
with the FOIA not to refight old battles but to demonstrate that Congress must take
steps to insist that the CIA improve its compliance with the FOIA. The Agency says
that this bill will alleviate its most pressing problems with the FOIA. In return for
that relief the Agency must be required to make prompt, efficient, cooperative re-
sponses to the public. While this bill may eliminate the backlog, it will not by itself
change the Agency's attitude toward the Act. Business as usual even with the relief
provided by this bill will not be enough to insure compliance with the spirit of the
FOIA. Accordingly, this Committee must go beyond the budgetary and personnel
commitments which the Senate Committee received and require a firm commitment
from the Agency's leadership to improve service under the Act and a detailed plan
for accomplishing this objective. Furthermore, this Committee must make it clear
that it intends to make CIA's compliance with the FOIA one of its oversight prior-
ities.
COMMENTS ON SPECIFIC PROVISIONS OF H.R. 3460 AND H.R. 4431
I now would like to turn to our comments on the specific provisions of H.R. 3460
and H.R. 4431. Some of these comments concern drafting issues where we believe
the bills can be made clearer and others concern important matters of substance.
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OVERALL ORGANIZATION
In general we prefer the overall organization of H.R. 3460 to that of H.R. 4431
because the former is more straightforward and more simply stated. In particular,
H.R. 3460 collects in one section, 701(b), all three circumstances in which operation-
al files will remain subject to search and review. As a matter of drafting, we believe
that this approach is preferable to H.R. 4431, which disperses those three circum-
stances between the second proviso to section 701(a) and section 701(c).
Also as a matter of drafting, we favor the way in which H.R. 3460 states in sec-
tion 701(a) that operational files shall be exempt and then defines operational files
in section 701(c). However, H.R. 4431 contains a very significant improvement over
H.R. 3460 in that it links the different kinds of operational files with the specific
components of the CIA where those files are found. We also favor the consolidation
of the four types of operational files in H.R. 3460 to three in H.R. 4431. Also with
respect to the definitions of operational files, we favor H.R. 4431's deletion of the
word "counterterrorism," which as the Senate Report makes clear, is included in
other terms employed by H.R. 4431. Accordingly, we recommend that the final bill
be organized along the lines of H.R. 3460 but with the definitional section drawn
from section 701(a) of H.R. 4431.
REQUESTS BY INDIVIDUALS FOR INFORMATION ABOUT THEMSELVES
H.R. 4431 provides that all files shall be subject to search and review whenever
United States citizens or lawfully admitted permanent resident aliens request infor-
mation about themselves pursuant to the Privacy Act or the FOIA. H.R. 3460 omits
any reference to the Privacy Act. We believe that both Acts should be included be-
cause there are circumstances where it is advisable for individuals to invoke both
the FOIA and the Privacy Act when requesting information about themselves.
REQUESTS BY ORGANIZATIONS FOR INFORMATION ABOUT THEMSELVES
We also urge this Committee to explore the possibility of expanding the concept of
first-party requests to include requests by political, religious, academic, and media
organizations which have been operationally targeted or utilized by the CIA. Such
an amendment would do a great deal to assure the public that information about
CIA activities which affect the exercise of First Amendment rights will not be lost
as a result of this bill.
The Senate Intelligence Committee rejected the concept of requiring search and
review in response to first party requests by organizations for the following reasons:
Such search could run the gamut of operational files because U.S. organizations
are frequently referred to incidentally in Agency operational documents. Reference
to a U.S. organization in an operational document does not necessarily indicate that
the organization was targeted by or involved in a CIA operation. Because of the
volume of incidentally acquired information, granting domestic organizations the
same access as individuals would resurface the problems this bill is designed to alle-
viate?risks to sources and methods by breaking down compartmentation of oper-
ational files and commitment of operations officers to nonproductive FOIA review.
Senate Report at 28.
Mr. Chairman, we do not advocate an amendment which will require so much
processing that it defeats the bill's objective to reduce the CIA's backlog. However,
we believe that the objections expressed in the Senate Report suggest that there are
ways to limit the circumstances in which first-party organizational requests trigger
search and review so that the CIA's task is manageable. This can be done by limit-
ing the type of organization to those whose activities inherently involve the exercise
of First Amendment rights?political, religious, academic, and media organizations.
Furthermore, the search required by requests from such organizations could be lim-
ited to files concerning the CIA's operational targeting or use of such an organiza-
tion. Thus, it would not be necessary to search for all incidental references to a re-
questing organization?a problem which the Senate Report suggests is the main ob-
jection. We urge this Committee to explore whether such a middle-ground approach
to requests by organizations is feasible. If it is, incorporation of such an approach
will certainly make this bill more acceptable to the public.
REQUESTS FOR INFORMATION CONCERNING SPECIAL ACTIVITIES
Both H.R. 3460 and H.R. 4431 provide that operational files will continue to be
searched for information concerning "any special activity the existence of which is
not exempt from disclosure under the Freedom of Information Act." As noted above,
the purpose of this provision is to codify current law and to insure that information
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concerning covert actions will be available to the same extent it now is. We have no
problem with the language in these bills on this issue, but we are concerned that
the Senate Report may be construed to give a "tilt" to current law.
The discussion at pages 24-25 of the Senate Report seems to suggest that covert
actions will be exempt from disclosure unless an authorized Executive Branch offi-
cial has officially and publicly acknowledged the existence of the covert action.
Indeed, this is the position which the CIA takes in litigation. However, we believe
that there are additional circumstances under which a covert action may no longer
be exempt from disclosure. For example, a requester might argue that actions by a
House of Congress or one of its Committees disclose enough information about a
covert action so that a court should conclude that its existence is no longer exempt
from disclosure; or a requester might argue that a covert action has become so
widely known to the public that a court should conclude that its existence is no
longer exempt from disclosure. The validity of these arguments is presently an open
question in the courts.
We do not ask the Congress in this bill to take any position on the validity of
these various arguments over when the existence of a covert action can no longer be
exempt under the FOIA. Indeed, one of the reasons that this bill is not highly con-
troversial is that it does not address the substantive scope of the FOIA's exemptions
from disclosure. We do not believe that the Senate Report meant to take any posi-
tion on the issue of when the existence of covert operations is exempt from disclo-
sure, but we are afraid that such an implication might be drawn from the Report.
On the other hand, the separate views of Senators Durenberger, Huddleston,
Inouye, and Leahy expressly disclaim any such implication (Senate Report at 42), as
does a colloquy between Senators Goldwater and Huddleston on the Senate floor
during the debate on the bill. 129 Cong. Rec. S 16745 (daily ed., Nov. 17, 1983). For
the sake of absolute clarity, we urge this Committee to include in its Report a state-
ment along the lines of the separate views of these four Senators.
REQUESTS FOR INFORMATION CONCERNING INVESTIGATIONS OF ILLEGALITY OR
IMPROPRIETY
There is a major difference between H.R. 3460 and H.R. 4431 on the issue of
search and review of operational files for information concerning matters which
have been investigated for illegality or impropriety in the conduct of a intelligence
activity. H.R. 4431 provides that operational files will continue to be searched "for
information reviewed and relied upon" in the course of such an investigation. H.R.
3460 provides that operational files will continue to be searched "for information
concerning . . . the subject" of such an investigation. We feel very strongly that
the approach taken by H.R. 3460 must be adopted. In our view, the issue determin-
ing search and review in these circumstances should not be whether documents
were reviewed or relied on, but whether they concern the subject which is impor-
tant enough to have been the subject of the investigation. Even if investigators over-
look relevant documents in the course of an investigation, those overlooked docu-
ments should be subject to search and review.
With respect to the proviso on investigations, we also suggest that the list of
bodies whose investigations require search and review be modified slightly. Both
H.R. 3460 and H.R. 4431 now list "the intelligence committees of the Congress, the
Intelligence Oversight Board, the Office of General Counsel of the CIA, the Office of
the Inspector General of the CIA, or the Office of the Director of Central Intelli-
gence." To these we would add any special Presidential Commission or Select Com-
mittee of Congress established to investigate intelligence activities.
DISSEMINATED INFORMATION STORED IN OPERATIONAL FILES
Both H.R. 3460 and H.R. 4431 provide that information derived or disseminated
from operational files and found in non-operational files shall be subject to search
and review. The CIA's testimony before the Senate Intelligence Committee and the
Senate Report make clear that most items of gathered intelligence are routinely dis-
seminated beyond operational files and therefore will be subject to search and
review because they are stored in non-operational files. However, the CIA's testimo-
ny and the Senate Report also make clear that some items of gathered intelligence
are disseminated outside the Operations Directorate on an "eyes only" basis and
they are returned to the Operations Directorate for storage. The Senate Report
clearly states that such documents will be subject to search and review because they
have been disseminated outside operational components. However, this concept is
not spelled out as clearly in any of the statutory language as it is in the Senate
Report. Indeed, both H.R. 3460 and H.R. 4431 only provide that documents from
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operational files contained in non-operational files will be subject to search and
review. Accordingly, we urge this Committee to include statutory language to indi-
cate clearly that documents which are disseminated outside operational components
but stored in operational files are subject to search and review.
JUDICIAL REVIEW
One of the most important issues in this legislation is the question of the scope
and standard of judicial review. One of the most important and unique features of
the FOIA, as it was passed in 1966, is that members of the public can obtain de novo
judicial review of agency decisions to withhold information. Almost all judicial
review of actions by government agencies is conducted under a deferential standard,
such as whether the agency action is arbitrary or capricious, is an abuse of discre-
tion, or has a rational basis. The FOIA provision for de novo review, however, re-
quires courts to take a harder look at agency decisions to withhold information than
courts take at other agency actions. This searching standard of review is codified in
section 552(a)(4)(B) of the FOIA, and it is in many ways the engine which makes the
Act work. Because agencies know that they face de novo review, they must be very
careful when they decide to withhold information. Because of de novo review courts
have the authority to examine closely agency decisions to withhold information.
With this authority, courts can vindicate the rights which Congress conferred on the
public when it enacted the FOIA. Because of the vital importance of de novo review,
the ACLU must oppose any legislation which threatens to erode this standard of
judicial review.
When S. 1324 was introduced, it, like H.R. 3460, made no mention of judicial
review. Thus, we assumed that any disputes arising under this legislation would be
judicially reviewable under section 552(a)(4)(B) of the FOIA. Such disputes might
arise over the following issues: (1) whether files are in fact operational files as de-
fmed in the bill; (2) whether documents have been improperly placed solely in oper-
ational files; and (3) whether any of the provisos requiring search of operational
files are applicable, that is, (a) whether the requester is a person entitled to make a
first-person request for information, (b) whether the request concerns a special activ-
ity the existence of which is not exempt from disclosure under the FOIA, or (c)
whether the requested information concerns an investigation for illegality or impro-
priety. Let me also stress that we do not anticipate that such disputes will arise
very often under this legislation. Indeed, the difficulty which has been encountered
is devising procedures to handle these disputes is far out of proportion to the fre-
quency with which they will occur.
Since we assumed that disputes arising under this legislation would be judicially
reviewable, we were startled when the CIA announced at the hearings before the
Senate Intelligence Committee that in the Agency's view there would be no judicial
review of CIA determinations under S. 1324. We responded that this view was
wholly unacceptable and that we would oppose any bill that would restrict the level
of judicial review now available under the FOIA.
The Senate Committee decided that judicial review was important and should be
maintained. In response to that stand, the CIA refined its position and pointed out
specific burdens which it has encountered in litigation over its decisions to withhold
specific documents under the FOIA exemptions. These burdens arise primarily from
the requirement that the Agency file detailed affidavits justifying its withholding
decisions on a page-by-page, document-by-document, and paragraph-by-paragraph
basis. Since we do not believe that disputes under this legislation will involve the
same kind of issues that arise when the CIA withholds documents as exempt under
the Act, we did not object to report language or statutory language which would
make clear that courts should handle disputes under this legislation with different
procedures that those used in disputes over whether documents fall within the Act's
exemptions, provided that both types of dispute are subject to de novo review.
The language which now appears in section 701(e)(1) of H.R. 4431 represents an
attempt to accommodate all of these interests. However, that language was hastily
drafted on the eve of the Senate Committee's mark-up and could be considerably
clearer. Accordingly, we think that this Committee can substantially improve the
way judicial review is addressed and that in doing so it can meet both the concerns
of the CIA that it not be subjected to unduly burdensome litigation demands under
this legislation and the concerns of the public that de novo review be maintained.
Such an accommodation should include the following principles, which we believe
are consistent with the intent, if not the actual result, of section 701(e)(1) of H.R.
4431.
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First, review should be available for all types of disputes which may arise under
this legislation. See p. 17, supra. As H.R. 4431 is now drafted, it is not clear that
judicial review is available when there is a dispute over the applicability of the pro-
visos requiring search of operational files.
Second, review should focus not on whether the CIA's regulations comply with the
statute but on whether in any specific case the CIA's action has complied with the
statute. As section 701(eX1) of H.R. 4431 is now drafted, it requires that in the first
instance the court shall determine whether the Agency's regulations comply with
the statute. However, if the requester makes a prima facie showing that the Agency
has not complied with the statute, the court must make a further inquiry. We be-
lieve that the intent of the section is that on this second inquiry the court shall
determine whether the Agency has complied with the statute. However, because of
ambiguity in the drafting, the section is susceptible to the interpretation that even
after the requester has made a showing of non-compliance with the statute, the
court's determination is limited to whether the regulations, rather than the actual
Agency action in question, comply with the statute. This interpretation would un-
dermine the principle of de novo review, and therefore the statute and legislative
history need to be clarified to insure the rejection of this interpretation.
Third, to avoid any ambiguity, the following procedures should be spelled out
clearly. Whenever a complaint alleges that the CIA has not complied with the stat-
ute, the Agency should be permitted to rebut the allegation with an affidavit from
an appropriate Agency official averring that the Agency has complied with the stat-
ute. At that point, the burden of proof should shift to the plaintiff to show a genu-
ine dispute that the Agency's affidavit is incorrect. We have no objection to requir-
ing the plaintiff to do this by an affidavit based on personal knowledge or otherwise
admissible evidence, for the Federal Rules of Civil Procedure require no less. If the
court finds that the plaintiff has raised a genuine issue that the Agency has not
complied with the legislation, it can require further submissions from the CIA,
which can be filed in camera ex parte if they are classified. This procedure of in
camera ex parte filings, when necessary, is consistent with current practice. Al-
though we agree that the plaintiff would not be able to direct discovery to the CIA
on his own initiative, it is important that the court have the authority to require
the CIA to make whatever submission which the court determines is necessary to
resolve the controversy before it. Any implication in the Senate Report that this au-
thority is circumscribed should be rejected. However, we stress that (1) ordinarily a
CIA affidavit demonstrating compliance with the statute will be sufficient, and (2)
these affidavits would not be the same as the detailed affidavits which the Agency is
required to file in support of its decisions to withhold documents under the exemp-
tions to the FOIA.
Fourth, the standard of review which the court applies to the question of whether
the Agency has complied with the statute must be de novo, as is the standard of
review for all other determinations under the FOIA. Unfortunately, the Senate
Report (p. 31) states that the court should apply a "rational basis" standard of
review. That deferential standard of review is unacceptable.
Finally, Mr. Chairman, there is the question of how these principles should be ex-
pressed in the legislation. Our view is that it would be best for the statute to state
simply that disputes arising under section 701 are reviewable under section
552(aX4)03) of the FOIA and for the procedures outlined above to be set forth in the
legislative history. The reason for this preference is that it is easier to write out the
procedures in ordinary language than in statutory language. Furthermore, refer-
ence to section 552(a)(4)(B) would emphasize that review is to be de novo. However,
if others believe it imperative for the procedures to be spelled out in the statute,
that task can be accomplished, although it will require great care.
REQUESTS FOR FILES OF HISTORICAL SIGNIFICANCE
Testimony before the Senate Intelligence Committee demonstrated that S. 1324,
as originally introduced, was deficient with respect to the needs and interests of his-
torians. That testimony showed that operational information can be important to
the writing of history and that after the passage of time it is often possible to de-
classify much operational information. However, as introduced, S. 1324 would have
sealed operational files in perpetuity.
The CIA and the Senate Committee responded to this problem in a positive and
commendable fashion. As an example of how operational files can be considered for
declassification after the passage of time, the Agency informed the Committee that
the files of the OSS now held by the Operations Directorate would not be exempt
from search and review. Furthermore, the CIA agreed to the provision which now
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appears as section 701(d)(2) of H.R. 4431. This amendment provides that not less
than every ten years the CIA will review operational files or portions thereof to de-
termine whether they can be made subject to search and review. The criteria for
this determination "shall include consideration of the historical value or other
public interest in the subject matter of the particular category of files or portions
thereof and the potential for declassifying a significant part of the information con-
tained therein."
We believe that this provision is a very significant improvement in the legislation
and we recommend that it be included in H.R. 3460. However, we also believe that
one further step should be taken to protect the public's interest in historical re-
search. As now incorporated in H.R. 4431, the decennial review is limited to the
files which the CIA believes are of historical or other public interest and which the
CIA believes can be declassified in significant part. Moreover, these determinations
are not subject to any meaningful judicial review. For the purposes of decennial
review, we do not object to leaving the Agency with the discretion to decide which
files will be reviewed. However, with respect to older files, we think that members
of the public should be able to petition for review of specific operational files which
the CIA may not have removed from the exempt category through its discretionary
decennial reviews. We do not at this time have a firm view on the precise age at
which files should become eligible for such citizen petition. Whether it should be 25,
30, or 40 years is a question which the Committee should explore with historians
and with the CIA.
In order to make this citizen petition for removal of old files from the operational
category effective, there should be a right of judicial review when the Agency denies
a petition. The standard for such judicial review could be whether a senior official
has determined that there is no likelihood that a significant portion of the specified
file or specified portion of a file can be released to the public. Thus, the nature of
this judicial review could be different from the nature of review of disputes over the
release of specific documents, and it would not require page-by-page analysis of the
documents in the file which the requester seeks to have removed from exempt
status. Such a provision would, we believe, strike a balance between the interests of
the public, and particularly historians, in being able to trigger review of specific
files for removal from exempt status after the passage of an appropriate amount of
time and the CIA's interest in avoiding the burden of page-by-page review in re-
sponse to such petitions.
In summary, Mr. Chairman, the introduction and consideration of these bills rep-
resent an important step forward in balancing the interests of the CIA and the in-
terests of the public in appropriately applying the principles of the FOIA to the
Agency. Our position continues to be that if this legislation will not result in the
loss of information now available under the FOIA, and if it will result in the im-
proved processing of requests, the ACLU will support it. The Senate deliberations
resulted in several significant improvements in the legislation to meet this stand-
ard, but there is still important work for this Committee to do in establishing a con-
vincing public record which shows that the bill will meet this standard and in draft-
ing language that will precisely achieve its aims. We look forward to working with
the Committee to complete this work.
Thank you, Mr. Chairman. I would be happy to answer any questions the Com-
mittee might have.
STATEMENT OF MARK H. LYNCH, COUNSEL, AMERICAN CIVIL
LIBERTIES UNION
Mr. LYNCH. Thank you, Mr. Chairman.
We appreciate the opportunity to testify on these pieces of legis-
lation. I have a fairly lengthy prepared statement which deals with
a great many issues which have been raised this morning. I would
ask that that be submitted for the record, and perhaps I could at-
tempt to summarize that statement and focus particularly on the
things that seem to have most interested the committee already
this morning.
Mr. MAZZOLI. Certainly.
It would be very helpful, if you could, because you have seen the
general area of questions, and you could help us on some of those
issues.
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Mr. LYNCH. Mr. Chairman, just to give a little background, I
have been litigating cases against the CIA under the Freedom of
Information Act for about 8 years now, and a couple of things have
been clear to me.
First of all, a great deal of useful information is released to the
public as a result of the Freedom of Information Act, but at the
same time, there is a great deal of information which the CIA in-
variably and properly withholds under the exemptions which exist
in the act because that information is either classified or involves
intelligence sources and methods. And it has also become clear to
me that, as the testimony from the Agency has indicated, a great
deal of time is spent processing and justifying the withholding of
information which in the end is exempt and which the courts are
going to accept as exempt.
It has been my feeling for a long time that this is not a sensible
way to proceed. The burdens of processing this information have
resulted in this enormous backlog, 2 to 3 years, which vastly dimin-
ishes the utility of the act to the public, and it has contributed to a
siege mentality at the Agency which has resulted in all sorts of
strategies and ploys to try to put requesters off. Generally things
have been mired down. There ought to be a way out of this morass.
As long as the Agency insisted on total exemption from the act,
we were obliged to take very strong exception to that position be-
cause, as I have said, and as the Senate committee has document-
ed, a great deal of useful information has been released.
So it was a big breakthrough when the Agency came up with the
idea of focusing narrowly on operational files, the contents of
which are almost always withheld anyway, as the key to defining
what should be removed from the coverage of the act.
At the same time, we all recognize that there has been some in-
formation of significance released from operational files, and it
then became a problem of how to craft certain provisos to provide
for the search of operational files in certain exceptional circum-
stances. The provisos in the bill cover that.
And we now, I think, are at probably the most difficult issue,
that being judicial review.
Now, our position on this bill is that if, in fact, it will not result
in the loss of any meaningful information to the public, and if it
will result in expedited processing, it will be a plus for the public,
and it is something that we would support. But those promises
from the CIA have to be substantiated on the public record
through the process of legislative development, and there are a
great many questions and specifics that have to be dealt with.
The Senate Intelligence Committee report answers a lot of those
questions, but there still is more work for this committee to do in
establishing the public record. There is also more work for this
committee to do in fine tuning the bill.
There are a couple of things that we would like to see on the
public record. First of all, an analysis of documents which have
been released in the past so that we can be assured that these
kinds of documents will be subject to search and review in the
future. It is my understanding that the CIA has prepared such an
analysis, but that it did not get included in the published record of
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the Senate Intelligence Committee. We would like to see that on
the public record here. [See Appendix D.]
Second, Mr. Mayerfeld earlier this morning referred to an analy-
sis that the Agency has done of pending litigation. Again, we have
heard about this analysis, but it has not been put on the public
record, and we think that is very important because that lets us
see precisely what this bill will do in the real world. It gives us a
real world bottom line against which to evaluate the effect of this
bill. So we would like to see that on the public record as well.
With respect to improving the processing of Agency requests, the
Senate Intelligence Committee has obtained commitments from the
CIA to maintain certain budgetary and personnel commitments to
freedom of information processing. That is an excellent develop-
ment and something that we are very pleased to see. In effect, the
CIA has promised that, although it may divert individual people
that are involved in the process, the Agency is not going to reduce
the number of people or the amount of money that it spends on
processing, and that the resources that will no longer be devoted to
processing operational files will be used to process other files.
But on this processing point there is another problem as well.
That is the attitudinal problem, and I do not think the Senate com-
mittee got very far into that. Perhaps they assumed it would fall
into place. Because of the backlog and the problems which the
Agency has perceived itself to be beset with, an uncooperative
spirit with the public has developed. We hope that this bill will al-
leviate that, but we would like to see this committee go a little fur-
ther with the Agency in developing some concrete plans to improve
the efficiency, the cooperativeness, the civility, with which people
are treated by the Agency. It is possible to do this. I point to the
freedom of information program at the Department of Defense
where there are a great many sensitive files, and people are treat-
ed efficiently and cooperatively.
If we get this operational file problem out of the way, we would
like to see the CIA make some improvements in that regard as
well.
Now, turning to the specific provisions of the bills, in terms of
overall organization, we prefer the Mazzoli bill to the Senate/
Whitehurst bill for a number of detailed reasons which I have
pointed out in my written testimony. In particular, I think the
Mazzoli bill is a little clearer in the way it sets out in one place the
provisos under which operational files will be searched. However, I
think the definitions in the Whitehurst bill are more highly refined
than those in the Mazzoli bill. So we would like to see the defini-
tional sections?particularly the way they tie the definitions of
operational files to particular components of the Agency?included
in the framework of the Mazzoli bill.
The issue has arisen as to whether the concept of first party re-
quests can be expanded to include certain kinds of organizations.
The bill now provides that, individuals who are U.S. citizens or per-
manent resident aliens can request information about themselves
and that the search in response to those requests will cover all files
of the Agency.
The Senate Intelligence Committee's report suggests that the
reason the CIA cannot do this with respect to U.S. organizations is
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that there are too many incidental references to organizations and
that requests by organizations would require a wide-ranging file
search. We would like to explore the possibility of meeting the spe-
cific objections or the specific problems that the Senate committee
focused on, and we think it might be possible to resolve them. We
do not have a firm view, but we are offering this proposal as a sug-
gestion. We think it might be possible to resolve the problems iden-
tified by the Senate committee if you enabled U.S. organizations
whose activities inherently involve the exercise of first amendment
rights to request records about themselves?that is to say, political
organizations, religious organizations, academic organizations, and
media organizations. If you restrict search and review to those
kinds of organizations, and further restricted the search only to
subject files concerning those organizations where they have been
operationally targeted or utilized by the Agency, this would re-
spond to the concern that these organizations may be getting im-
properly enmeshed in intelligence activities. We think that this ap-
proach could avoid the problem of searching for a vast number of
incidental references to these organizations.
On the other hand, if it is impossible to do this without aggravat-
ing the backlog, then it probably is not feasible, because the back-
log is a very important consideration. We do not advocate amend-
ments that are going to exacerbate the backlog problem. But it
seems to me that if you limit the requests by U.S. organizations in
the way I have suggested, or perhaps in other ways the committee
might find appropriate, we can avoid that problem.
One way in which we think the Mazzoli bill is quite superior to
the Senate bill is in the proviso dealing with when operational files
will be searched for information concerning investigations into ille-
gality or impropriety. The Senate bill provides that this search will
be for documents which have been reviewed or relied upon by the
investigators. The Mazzoli bill provides that this proviso reaches
documents which concern the subject of an investigation into ille-
gality and impropriety.
Now, the difference is that if an investigator happens to overlook
a document, he has not reviewed or relied upon it, and it would not
be covered by the Senate bill, whereas the Mazzoli bill will cover
all documents which concern the subject of the investigation, irre-
spective of whether it has been actually looked at or overlooked
through inadvertence or whatever other reason.
To give an example of how this might make a difference, there
clearly have been a number of investigations by the CIA and by
committees of Congress into operation CHAOS. Operation CHAOS
was quite a large and wideranging affair. It is conceivable that
there could be some files concerning operation CHAOS that were
not actually eyeballed by any of the investigators, but nonetheless
relate to the subject of operation CHAOS. Under the Mazzoli bill,
as we read it, those documents would be included, whereas under
the Senate bill, only the documents on operation CHAOS which ac-
tually had been reviewed or relied upon by investigators would be
subject to search and review. So for that reason we favor the ap-
proach taken in the Mazzoli bill.
The Senate Intelligence Committee report provides that docu-
ments which may have been disseminated outside of operational
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files but then returned for storage in operational files will be sub-
ject to search and review. The underlying principle is that any-
thing that is disseminated out of the operational files is subject to
search and review. However, there are extraordinary circum-
stances where some disseminations are on an eyes only basis, and
the information is then returned to the Operations Directorate for
storage.
As I say, the Senate committee report makes it very clear that
such information will be subject to search and review, but that con-
cept is not spelled out in the statute. We think this issue is suffi-
ciently important that it should be elevated from the level of being
dealt with in report language and should be dealt with in statutory
language, which should not be too difficult to draft.
Let me turn next to the issue of historians.
Testimony before the Senate Intelligence Committee made it
clear that S. 1324 as introduced was not sufficiently responsive to
the interests of historians, because after the passage of time, some
operational files can be declassified and these types of operational
files can be important to the writing of history. The CIA and the
Senate committee responded in a very positive fashion to these con-
cerns. For example, the Operations Directorate informed the
Senate committee that the files of OSS, although they are oper-
ational, will not be regarded as exempt because they are sufficient-
ly old and of sufficient historic interest that they can be reviewed.
Furthermore, the Agency agreed to undertake not less than
every 10-year review of operational files to determine if particular
files are of historic or other public interest and if a significant por-
tion of them can be declassified. If so, then they would be removed
from the exempt operational status. But this review, this every 10-
year review, is solely in the Agency's discretion. It is up to the
Agency to decide whether there is historical interest, and it is up
to the Agency to decide whether a significant portion of the file
can be declassified.
I do not think that that standard is inappropriate for the pur-
poses of the decennial review. However, to accommodate the inter-
ests of historians and the interests of the public in historical re-
search, I think it would be useful to establish a mechanism where-
by a member of the public can trigger a review of older files, and
whereby the standard of review would be whether a significant por-
tion can be declassified.
Now, I do not know what the appropriate age here is, whether it
is 25 years, 30 years, 40 years. I think the committee can determine
that in consultation with historians and the Agency. But while we
heartily commend the discretionary decennial reviews, we think
that there ought to be a mechanism at some point after the pas-
sage of a sufficient amount of time whereby a member of the public
can trigger a review of a file which may not have been taken out of
the exempt status in the course of the decennial reviews.
Now, turning to the issue of judicial review which properly has
occupied the committee in substantial part this morning, one of the
most important and unique features of the Freedom of Information
Act as it was passed in 1966 is that it provided for de novo review
of decisions by agencies that documents fell within the act's exemp-
tion. This is different than almost any other kind of judicial review
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of agency action, because usually judicial review of agency action
proceeds on the standard of whether the agency was arbitrary or
capricious, whether it abused its discretion, whether what it did
had a rational basis in fact or law. Those are all highly deferential
standards of review, but Congress felt the Freedom of Information
Act was sufficiently important that courts should be authorized to
conduct de novo review. And in many ways, this feature of de novo
review is the engine which makes the act run.
Because of de novo review, agencies have to be very careful in
their decisions to withhold information, and the courts have full
authority to vindicate the rights which Congress conferred on the
public.
Now, when this bill was introduced, we assumed that the provi-
sion of the Freedom of Information Act that provides for judicial
review would apply to this act. There has been a lot of debate
today about whether or not there is judicial review when the stat-
ute is silent. As a general rule, in my view, when statutes are
silent, there is judicial review. There is judicial review unless a,
statute affirmatively precludes judicial review. Ms. Lawton, howev-
er, has identified a plausible argument?and it is one that has to
be taken very seriously because I am sure the Justice Department
will make it?that the way the Mazzoli bill is drafted, the Govern-
ment could argue that Congress intended to preclude judicial
review.
As a result of all this debate and all this confusion, Congress is
going to have to speak clearly on what judicial review is appropri-
ate, irrespective of what might have been the situation if we were
writing on a clean slate. There has been enough debate and enough
controversy over this so that Congress is going to have to speak
clearly.
I might say that it would be very easy to fix the Mazzoli bill to
respond to the point that Ms. Lawton made if at the beginning of
section 701(a) the bill said something like the Director of Central
Intelligence "is authorized to exempt" operational files located in
the various directorates from the provisions of the Freedom of In-
formation Act which require publication or disclosure, search and
review in connection therewith. It would be a very easy thing to
take away the preclusive effect Ms. Lawton finds in the language
in your bill.
I think it is important to focus on what kinds of disputes might
arise under this legislation, and I think the discussion up to now
has not done that very clearly. We have got to remember that the
Agency's experience heretofore on judicial review has been with
the question of whether particular documents are exempt under
the statute. In order for a court to undertake de novo review of
those issues, the affidavit requirement has been developed by the
courts, the Vaughn v. Rosen affidavit, and it is true that Vaughn v.
Rosen affidavits sometimes are very long, very extensive. They re-
quire the Agency to justify on a paragraph-by-paragraph basis why
they take the position that particular documents are exempt.
Now, I do not think that when we have disputes under this legis-
lation we are going to be dealing with the same kind of issue. We
are not going to be dealing with lots and lots of documents. We are
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going to be dealing with larger questions that are not going to have
to be dealt with in that paragraph-by-paragraph fashion.
Ms. Lawton said there is no precedent to guide the courts in the
way disputes under this statute might be handled. I have to dis-
agree with her about that. In fact, there is a substantial body of
law under the Freedom of Information Act dealing with what
courts do when a plaintiff alleges that the Agency has not conduct-
ed a sufficiently thorough search for requested documents. That
body of law over the adequacy of the search?while it does not fit
precisely, will and will not govern precisely the issues which arise
under this statute?it nonetheless is a relevant body of precedent.
And the kinds of showings that courts require agencies to make
when there is an issue over the adequacy of the search simply do
not involve the voluminous, detailed Vaughn affidavits.
Now, the disputes which might arise under this statute I think
are as follows: First, Whether the files are in fact operational files
as defined in the bill. Second: Whether documents have been im-
properly placed solely in operational files. Third: Whether any of
the provisos requiring search of operational files are applicable;
and that breaks down into three parts, (a) whether the requester is
a person entitled to make a first person request for information; (b)
whether the request concerns a special activity the existence of
which is not exempt from disclosure under the FOIA; or (c) wheth-
er the requested information concerns investigation for illegality or
impropriety.
We think it is very, very important to maintain the principle of
de novo review, but let me stress that de novo review in this con-
text will not require the same kind of litigation demands that the
Agency has experienced when the issue has been whether a par-
ticular document is exempt under the act. So the kinds of problems
that Mr. Mayerfeld was concerned about?and I think I have got
him fairly well quoted here in my notes?where the Agency has to
examine the entire file system and all pieces of paper, he said he
could not live with that. I do not think that is going to be required
if we have de novo review of the kinds of disputes that will arise
under this statute.
We do think it is essential to have de novo review. Any implica-
tion in the Senate bill or the Senate report or the Whitehurst bill
that the standard of review is arbitrary or capricious or whether
the Agency position has a rational basis would be inadequate in
our view. But again, I do not think that resolution of these issues
under the de novo standard is going to require the same kind of
litigation burdens that questions of exemption under the FOIA in-
volve.
A provision providing for de novo review of the disputes that
might arise here would result in the following procedures being fol-
lowed in court. If a plaintiff alleges in a complaint that in some
way the CIA has not complied with section 701, the Agency would
be permitted to rebut that allegation with an affidavit from an ap-
propriate Agency official averring that the Agency had in fact com-
plied with the statute. At that point, assuming the sufficiency of
the affidavit, the burden of proof would shift to the plaintiff, and
he would be required to show that there is a genuine dispute, that
the Agency's affidavit is incorrect.
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We do not have any objection to this showing being made
through an affidavit based on personal knowledge or otherwise ad-
missible evidence because the Federal Rules of Civil Procedure re-
quire that now.
Now, if the court finds the plaintiff has raised a genuine issue as
to whether the Agency has complied with the statute, the court can
then require whatever information the court feels is essential to re-
solve that controversy, and if the submissions that the court feels
are necessary involve classified information, that information will
be filed ex parte, in camera, as the current practice now proceeds.
One of the things that Mr. Mayerfeld said he was concerned
about was giving the plaintiffs an unfettered right of discovery into
the Agency's file system. I do not think that would happen under
this bill. It would be perfectly permissible to let the court control
the questions the Agency must answer, and the court should be
guided in that regard by what kind of information it needs to re-
solve the dispute that has been presented to the court.
Any implication in the Senate bill or in the Senate report that
the court's authority in this regard is circumscribed should be re-
jected by this committee.
Let me also stress that ordinarily the CIA's first affidavit demon-
strating compliance with the statute?assuming that it is a suffi-
cient affidavit?is going to resolve the issue because unless the
plaintiff can come up with an affidavit controverting the CIA's affi-
davit, there is no need for the judge to go further.
And as I said several times already, these affidavits would not
have to be as detailed as the Vaughn v. Rosen affidavits.
For these reasons, Mr. Chairman, we think that you can accom-
modate the interests of the Agency in avoiding undue litigation de-
mands, and at the same time, our very strong interest in maintain-
ing the vital principle of de novo review under this statute.
I would be happy to answer any questions you have now.
Mr. MAZZOLL Well, thank you very much, Mr. Lynch, and I will
yield myself 5 minutes to get started.
Let me get to a few little things before we get to judicial review.
You said that you thought the CIA should go on the record with
this review of cases which might be affected by the effective date of
this bill.
How much more do you need than what Mr. Mayerfeld told us
this morning? He gave us the number of cases and suggested that
the bulk of them, 46 or 48 of them, would not be affected, and 12
would be.
Mr. LYNCH. We would like to see which cases fall in which cate-
gories.
Mr. MAZZOLL Would you not find that out very soon? Would the
court not determine at what point?
Mr. LYNCH. That is my point, Mr. Chairman. I think the public is
entitled to know what effect this statute will have on pending liti-
gation before the statute is enacted. Basically, I think we should
not be asked to buy a "pig in a poke" here.
Mr. MAZZOLL Well, you know, the whole thing might be mooted
if the committee decides to make it prospective, totally prospective,
and then all cases which are inside would be there.
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Do you share Mr. Mayerfeld's concern that there will be a whole
rush to the courthouse if we do not limit this to some time yester-
day?
Mr. LYNCH. Well, my view on the question of retrospective versus
prospective application in the last analysis hinges on the backlog. I
had understood that it was necessary to have retrospective applica-
tion in order to clear out the backlog. If that is the case, I think we
are prepared to live with retrospective application. On the other
hand, if prospective application would not have a horrendous
impact on clearing out the backlog, then there would be no reason
for this committee not to consider it.
Mr. MAZZOLL What proof do you need? What sort of things can
Mr. Mayerfeld give you that would assure you of how much speed-
ing up and getting into the backlog would develop from a retrospec-
tive application of this bill?
Well, maybe you all can talk about that at some point, but if
there is something that can be done to assure you, then we might
curtail these cases.
If I understand correctly around here, typically we have made
laws prospective, and anyone inside--
Mr. LYNCH. I may be wrong about this, but I do not think that
the pending cases are the big problem. The big problem is the
pending requests which have not yet been processed. If the case is
pending in court, I think that the processing has probably been
done in almost every case. There may be a couple of cases where
they are still processing.
Mr. MAZZOLL Well, I would not anticipate that if we made the
bill prospective that we would allow anyone who has made an ap-
plication at this point to come in under the old act, I would not
think that to be the case. It would seem to me that if they decide to
go into court, they do so under the new basis.
Mr. LYNCH. It may be that the way to cut it is between requests
that have been processed and requests that have not been proc-
essed as of whatever date the committee thinks is appropriate, but
the guiding principle here is taking care of the backlog.
Mr. MAZZOLL Well, if that is the case, and because you men-
tioned that before, you were thinking in terms of four categories
under the first amendment, the clergy, the media, press, and politi-
cal, and you were a little bit hesitant to extend this first-person ex-
emption, to curtail the first-person exemption for these four areas
because it might further build up the backlog, and yet with respect
to the historians, it would seem to me that you are adding to the
backlog almost inevitably by requiring at the trigger of some
member of the public the CIA to examine all these past cases to
decide.
It does strike me as being reasonable. If you have a mandatory
every 10 years, this decennial- review, nothing is going to be too
very old at the end of a 10-year period. s
Now, the question of whether or not the DCI's determination of
what is historical and what is not is maybe at another point, but I
worry, frankly, about a trigger just on the basis that that just is
going to cause, it seems to me, an incredible amount of paperwork.
Now, tell me a little bit about--
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Mr. LYNCH. Well, the key to that, I think, is the standard that
you apply for whether a file should be reviewed for exemption from
the operational category, and I think it would be appropriate to
have that standard be whether a senior Agency official has deter-
mined that no significant amount of information can be declassi-
fied from that file. That would not require going through the file in
great detail. It could be done on a less intensive basis.
The reason why I think that at some point, whether it is 25, 30,
or 40 years, that there ought to be an opportunity for citizens to
petition for this kind of review is to take care of the possibility that
in the course of the decennial reviews the Agency has never made
the determination that a particular file can be dedesignated or re-
moved from the exempt category. It is sort of a court of last resort
for very old documents to insure that the interests of historians are
protected.
Mr. MAZZOLI. Well, you know, I think the committee will discuss
it, but it does strike me on whatever basis that you do it that this
opens up a whole new area, and if it seems through our oversight?
and I guess we could get into the two committees, that the Agency
has been derelict about ever opening up anything, I mean, they
have this 10-year review and they just simply do it pro forma and
say nothing is available, then I think our committee would be in a
position then to say that something ought to be done. Maybe the
act could then be rewritten to say that public people could trigger
it or something. I think I would like to see this play out just a little
bit just to see what kind of cooperation you get, because if you
start something that is going to require sort of an ongoing review
of these files, depending on whatever standard, it seems to me you
are going to build up the very backlogs that you might be trying to
diminish.
But let me mention one thing just in passing. You hope, and I do,
too, that at some point we can develop concrete plans for assisting
the public, and I think you used the term "civility." Well, my 51
years of living life has shown me that civility is a two-way street,
and I am sure that some of the people that go into the CIA are
going in there with blood in their eye and with a chip on their
shoulder, and with the belief that this Agency should not exist, and
they have done this and done that. And in some cases maybe they
have. I think it works both ways.
I have always, in talking to my Federal employees at home, sug-
gested that if they make a good first contact with the public, it
makes the whole operation of the Federal Government so much
more pleasant that it tends to destroy the image that people have
about Federal civil servants.
Again, I think here the teaching process can lean both ways.
Mr. LYNCH. That is where, Mr. Chairman, I think the experience
with the Department of Defense is very instructive in this regard.
They found that when they dealt more cooperatively with people,
people dealt cooperatively with them. They would get a request
like a subpena, intended to cover like a tent, made by people who
were very wary that they were going to be cheated out of informa-
tion. But then the Department would call them up and engage the
requesters in a discussion about what it is that they really want,
and the requester is so flattered and surprised to get this level of
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cooperation that in many cases?obviously some people are prick-
ly?they are able to refine the requests.
Mr. MAZZOLI. Well, I hope so. I do not know what the amount of
business is with respect to DOD, but DOD probably has about the
same number of requests as the CIA; but, in any event, I think the
idea of having some consciousness raising about dealing with the
public is important.
My time has long since expired.
The gentleman from Ohio?
Mr. STOKES. Thank you very much, Mr. Chairman.
Mr. Lynch, CIA has expressed some concern relative to discovery
in the judicial review process.
What type of materials would be available under discovery? Cur-
rently what type of materials are available under discovery?
Mr. LYNCH. Not very much because the courts have placed the
burden on the Agency to produce a sufficient amount of informa-
tion for a judge to make a determination through the Vaughn v.
Rosen affidavit process. Because the burden is on the Agency, they
have to put forth the relevant information. Then if the requester
feels that the Vaughn affidavit is inadequate, he can either direct
his own discovery, which the judges are reluctant to permit, or the
requester can protest that the Vaughn affidavit is insufficient. If
the judge agrees with that, then the judge tells the Agency to be
more specific, and sometimes the judge gives the Agency some
guidelines on how to be more specific. Sometimes the guidelines
are so specific that the Agency's response must be classified and
the judge has to review it in camera.
Mr. STOKES. Well, then, how do you think that this legislation
would affect the whole question?
Mr. LYNCH. Well, again, if the requester is able to raise a genu-
ine issue that in some way the Agency has not complied with sec-
tion 701, then the court would direct the Agency to provide howev-
er much information the court felt it needed to resolve the dispute
that had been raised by the requester. Courts are very reluctant to
let people propound numerous and burdensome interrogatories to
agencies like the CIA. You do not get that kind of freewheeling dis-
covery that arises in other contexts.
Mr. STOKES. There has been some discussion here, you have men-
tioned it, the chairman has mentioned it, in terms of the attitudi-
nal problem as it relates to CIA, and I think you have hit upon cer-
tainly an area that we ought to be concerned with. However, I do
not know how you can effectuate change in attitudinal problems
because generally that is a policy problem, sort of like the phone
company that says it will be our policy here to speak civilly to
people, that you be very cooperative and that type of thing.
I guess one of my questions would be in dealing with other agen-
cies, you have told us how DOD is very responsive, very sensitive to
the concerns of people. How are some of the agencies, FBI or NSA,
some of the other agencies?
Mr. LYNCH. They are not great. They all have different problems
and different - attitudes, and very many of them could improve on
this score, and it really is?I think you are right?it is a policy
matter. It depends a lot on the signals that come from the top, and
assuming a good signal comes from the top, then following it up,
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getting the right people into the line positions. I am not casting
any aspersions on anyone at this point, but there are some people
who are talented at this and others who are not talented at it. One
of the problems with the CIA is that if you are out there working
on FOIA requests, all you have heard for the past several years is
that we are going to get total exemption. We have got to get rid of
this act altogether. We cannot live with it at all. And if that is
what you hear constantly, it is not very encouraging. It does not
encourage people at the line level to be open and responsive and so
on. They think that maybe the whole thing will go away at some
b point.
The CIA's support of these different pieces of legislation marks a
big watershed. In effect, the Agency is saying that if you give us
relief on the operational files, we can live with the Freedom of In-
formation Act, and we think that it is important, that it is not in-
compatible with our work as an intelligence agency. And that is a
beginning.
If the people on the line hear this new viewpoint repeatedly and
there is good leadership from the top level management to live
with the Freedom of Information Act, then hopefully the process-
ing will improve. But I think that the committee can explore with
the Agency some concrete management steps that could be taken.
And as I say, some other agencies perform well.
DOD is a good example because they do have some pretty sensi-
tive files over there. They may not be absolutely as sensitive as
CIA's, but they are not dealing with inconsequential material by
any mean. There may be some lessons to be learned out there.
Mr. STOKES. If I have some more time left, I will ask one other
question.
You perhaps heard my questions this morning with reference to
concern over whether or not this particular act would foreclose any
further investigation with reference to any type of improprieties by
the agencies that perhaps occurred during the 1950's and 1960's
and even the 1970's, and whether this act would then shut off such
investigation once these matters are revealed.
We do know that from time to time there is such a revelation.
Do you have any concerns in that respect?
Mr. LYNCH. Well, the Mazzoli bill would only shut them off if the
CIA took no action whatsoever on the allegation of impropriety. If
there was an investigation, then the documents relevant to the sub-
ject of the investigation would be accessible. So if you were dealing
with something recent, it would require stonewalling by the
Agency, and then I assume the committees of Congress would get
into the act and have an investigation.
? Now, I can foresee some new revelation coming out about some-
thing that happened in the 1950's or the 1960's, and maybe the
oversight committees and the CIA itself would decide that there
was too much water over the dam and they did not want to get
into it. But then you begin to get into these records through the
historical access provision. If the records are old, then they will be
coming up for decennial review, and if some kind of citizen petition
mechanism were adopted, people could ask that the records be ex-
amined.
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So I think that the problem you raise is covered through differ-
ent angles of the bill.
Mr. STOKES. My time has expired. Thank you, Mr. Chairman.
Mr. MAZZOLL I thank the gentleman.
Let me proceed with a couple more things, and then we will ad-
journ for the morning.
Earlier today, Mr. Lynch, you pointed out the difference between
H.R. 3460 and the Senate! Whitehurst bill on the issue of insuring
that records concerning improprieties remain subject to search.
H.R. 3460 refers to information concerning the subject of an inves-
tigation, while H.R. 4431 refers to information reviewed and relied
upon during an investigation.
Would you talk to that point for just a few minutes. "Informa-
tion reviewed and relied upon," where did that wording come
from? Is that wording that the Senate staff developed? Is that from
some other law? Is there some historical background or precedent
for that language?
Mr. LYNCH. I think it is language that the Agency felt was appro-
priate to deal with this problem.
Mr. MAZZOLI. All right, tell me where I got my language then,
just out of curiosity.
Mr. LYNCH. I may have suggested it.
Mr. MAZZOLL In this situation, what are we really dealing with?
How much different information? Is it worth fighting over? The
reason I asked you for the precedent for that language is because
"relied upon" may be too narrow. There might be some other word
for "relied upon" which is different than concerning the subject,
because "concerning the subject" is as broad as the universe.
Mr. LYNCH. I understand that criticism of the language in your
bill, but the subject is not as broad as the universe. The subject is
whatever it is that has been alleged to be improper or illegal. Let
me take an example. In some overall intelligence operation there is
an allegation that an American citizen has been improperly sur-
veilled contrary to the executive order and the CIA's regulations,
and there is an investigation of that. In my view, what this means
is that the subject of the investigation is the alleged improper sur-
veillance of the American citizen. It is not the overall intelligence
operation in which that impropriety took place, so it would not
result in having to search all of the surrounding files but only the
files dealing with the alleged impropriety.
Mr. MAZZOLI. What would happen if it were limited to informa-
tion reviewed?
Mr. LYNCH. What I would like to guard against is the possibility
that the investigators overlook relevant records, for whatever
reason?inadvertence, possible withholding by the people they are
investigating. Whatever the reason, I am trying to deal with the
possibility that investigators might overlook particular documents.
Mr. MAZZOLL Well, I appreciate that. I have to say that my own
language, it seems to be just a little bit murky and amorphous, and
it may lead to more problems.
Let me ask you a few questions which would have been asked by
Mr. Whitehurst or Mr. Goodling were they here, and I would also
ask staff to help me if I am improperly asking the question: If you
were the judge in a de novo review and the plaintiff challenged the
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court's determination, what would be the detailed steps that you
would take to resolve the issue?
Do you understand what the question is essentially? In a de novo
review, apparently a de novo review of the question of whether or
not material has been improperly put in files or been wrongfully
designated, if you were the judge in a de novo review, of those ques-
tions and the plaintiff challenged your determination, I assume
that you would say--
Mr. LYNCH. You mean, I think they mean the Agency's determi-
nation. If the plaintiff challenged the judge's determination, it
would be the court of appeals.
Mr. MAZZOLL Challenged the Agency's determination, what
would be the detailed steps you, the judge, would take to resolve
this issue?
Mr. LYNCH. That is a good question. I would say, all right, CIA, I
want an affidavit from a senior official responding to this allega-
tion. That person would write an affidavit which I do not antici-
pate would be terribly long. It would not have to involve the review
of lots and lots of documents?explaining that in fact the Agency
had complied with the statute. It is the sort of affidavit that agen-
cies are required to file when there is a challenge to the adequacy
of search under current FOIA litigation.
All right, if the affidavit rebutted the allegation, then I would
ask the plaintiff, do you have any evidence to controvert what this
official has said under oath. And if the plaintiff did not have any
evidence, that would be the end of the matter. If the plaintiff did
present admissible evidence controverting the CIA's affidavit, then
I would go back to the CIA and I would say I need more informa-
tion. I need a more detailed submission. Perhaps in some circum-
stances, which I do not think would arise very often, I might say,
all right, I want to look at a particular document. That is the way I
would see these cases develop, with the court having the authority
to require whatever information is necessary to resolve the dispute.
But vague allegations of noncompliance are not going to trigger
this process. It has got to be something specific and admissible for
the plaintiff to get the court into this.
Mr. MAZZOLL I may be asking a question sort of out of synch
here because the next one I have is, Mr. Lynch, on judicial review,
you indicated that once the plaintiff has the burden, he satisfies
that burden by showing a genuine issue of fact.
Do you know if that is the way CIA understands prima facie
showing?
I am not sure I fully appreciate the question, but essentially
speaking, one of the differences between the Senate/Whitehurst
bill and this bill before us, the Mazzoli bill, is that in the Senate
bill, in the review procedure, the plaintiff has to show a prima
facie case of improper designation, wrongful handling or whatever
before the Agency has to answer, before the court comes in.
If I understand correctly, current review procedures allow or re-
quire the government to show that it has properly handled the task
of designating the place of the papers.
Is that correct, or am I wrong in this, because Ms. Lawton did
not quite understand it that way either, yet that seems to be the
kind of information I have gotten.
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Mr. LYNCH. Yes. Well, the problem with the Senate/Whitehurst
bill is that in the first instance when there is an allegation that in
some way section 701 has not been complied with, the issue is
whether the Agency has complied with its regulations.
Well, I find that to be rather irrelevant, frankly. The question is
not whether the Agency has complied with its regulations. The
question is in any specific case, has the Agency complied with the
statute. Knowing whether the Agency complied with its regulations
may be a useful bit of information for the judge in making that in-
quiry, but I do not think that the inquiry should focus on compli-
ance with regulations. It should focus on compliance with the stat-
ute.
All right. Then the way the Whitehurst and Senate bill goes is
that after the Agency has come in to show that it has complied
with its regulations, then the plaintiff has the burden of coming up
with an affidavit making a prima facie showing that the Agency
has not complied with statute at that point, if I am reading the
Whitehurst bill fairly. It is a little confusing.
Now, the difference here is that I think if there is an allegation
that the statute has not been complied with, the Agency ought to
file an affidavit saying that it has, and then we get into this proce-
dure where the plaintiff has to come forward with an affidavit con-
troverting the Agency. That seems to me to be a cleaner and more
focused way to go than dealing with the compliance with regula-
tions, which is not really relevant, in my view.
Mr. MAZZOLL Let me ask you another question, Mr. Lynch, to be
sure--
Mr. LYNCH. May I add one thing more, please?
Mr. MAZZOLL Certainly.
Mr. LYNCH. I think that what I am saying really is not in any
substantial way different from prima facie showing. It is just that
that is not a very commonly used term in this context, and contro-
verting the Agency's affidavit is a more--
Mr. MAZZOLL More understandable.
Mr. LYNCH. Yes.
Mr. MAZZOLL Mr. Lynch, on page 20 of your prepared statement,
you state that ACLU agrees that the plaintiff will not be able to
direct discovery to the CIA on his own initiative.
Is it your position as it is CIA's position that whatever judicial
review is provided for in this legislation, this judicial review will
not include plaintiff's discovery of the CIA through depositions?
Mr. LYNCH. What I mean to say here is that in the vast majority
of cases dealing with the CIA, the courts are very restrictive about
letting the plaintiffs initiate their own discovery, and what they
are more inclined to do is let the plaintiffs suggest questions that
ought to be asked by the court, which is in effect a way of the
plaintiff making sure the right questions are asked. But the control
is ultimately with the court because judges take control of cases in-
volving CIA documents to a greater extent than they do in ordi-
nary litigation.
So, I do not anticipate in cases arising under this bill that the
plaintiff would be able to notice a deposition of a CIA official and
bring him down to the plaintiffs office and ask him questions
under oath there. I would not preclude, however, the possibility
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that the judge in some extraordinary circumstances might decide
that he wants to hear live testimony from somebody from the CIA,
and if he does that, the plaintiff might say Judge, these are some
questions I think you ought to ask. But in the end, the discretion is
with the judge.
Mr. MAZZOLL Do you have any idea of what the Central Intelli-
gence Agency understands this whole range to be as far as deposi-
tions and discovery? Does that cover--
Mr. LYNCH. One of the things that bothers me the most about
the Whitehurst language and the Senate language is it leaves so
much to chance and to litigators' ingenuity. It is just not clear
enough.
And that is another point, Mr. Chairman, that applies particular-
ly to this section, but with everything else in this bill. I plead with
the Congress to nail everything down. Do not turn the plaintiffs'
bar and the Justice Department litigators loose on each other to
argue that the bill meant this or that, where one side has a little
bit of legislative history here, and the other side has a little bit of
legislative history there. We have wasted a lot of time in the last 8
years doing that sort of thing. I would like to get it all straightened
out and agreed upon and have the bill and the legislative history
crystal clear.
Mr. MAZZOLL How in the world could I have ever written a bill
that was totally sound on judicial review, if I am to believe?how
could I have ever written such a bill?
Mr. LYNCH. Well, it is clearly something that has got to be ad-
dressed, and it should have been addressed earlier.
Mr. MAZZOLL One last question, Mr. Lynch from my colleagues
here.
Under the Senate bill, to get judicial review of issues of improper
designation or improper placement, does not the plaintiff have to
file the affidavit with his complaint, and in fact, the mere allega-
tions in a complaint are not enough under the bill?
Is that your understanding under the Senate bill, the Senate and
Whitehurst, that allegations alone would not be enough, that you
have to have an affidavit with the complaint?
Mr. LYNCH. Yes, I think it does contemplate a verified complaint.
That is not totally unacceptable. It is just an extraordinary thing
to do. Verified complaints are not generally required in Federal
practice, and it seems to me to be a bit of overkill perhaps.
Mr. MAZZOLI. Well, I certainly appreciate your help. Obviously
this whole issue of judicial review is very complex, and for people
like ourselves who do not practice the law, and are trying to re-
member what the old practice was and trying to understand the
terminology, it is very difficult, but I think today's testimony has
at least sharpened the focus on a couple of issues that are really
prime.
I do not know, are you and Ernie going out to lunch today or
something? Maybe you guys?or maybe I ought to find a room and
just slide your food in under the door, and maybe the two of you
can sit down and talk it over.
Mr. LYNCH. He has got to read my testimony which he said he
has not done yet.
Mr. MAZZOLL Well, thank you all very much.
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The committee stands adjourned until 1:30 this afternoon, when
we will continue.
[Whereupon, at 12:04 p.m., the subcommittee recessed, to recon-
vene at 1:30 p.m., this same day.]
AFTERNOON SESSION (1:48 P.M.)
Mr. MAZZOLI. The subcommittee will come to order.
Our witnesses for the afternoon session are Mr. John Shenefield,
representing the American Bar Association; Mr. Charles Rowe, rep-
resenting the American Newspaper Publishers Association, and
Mr. Sam Gammon representing the National Coordinating Com-
mittee for the Promotion of History.
Mr. Shenefield, as we all know, is a former Associate Attorney
General of the United States and a partner in the lawfirm of Mil-.
bank, Tweed, Hadley & McCloy. Mr. Rowe is the editor and pub-
lisher of the Fredericksburg, Virginia Free Lance Star. Dr.
Gammon is currently the executive director of the American His-
torical Association. Prior to assuming this position he was in the
Foreign Service for some 27 years and, among other positions, was
Counselor for Political Affairs in Rome, Deputy Chief of Mission in
Paris, and Ambassador to Mauritius.
Gentlemen, if you care to come forward, we could perhaps hear
from each of you sequentially, and then we could maybe get togeth-
er and talk over a little where we are.
Thank you very much. Maybe, Mr. Shenefield, you are in the
center, maybe not philosophically but geographically, and I say
that lovingly since we have been together many a time in the past.
But it is good to see you again, and you may proceed, and then we
can get to the other statements and then maybe have some ques-
tions.
[The prepared statement of John H. Shenefield follows:]
STATEMENT OF JOHN H. SHENEFIELD
Mr. Chairman and Members of the Committee: It is an honor to appear here
today on behalf of the American Bar Association to address H.R. 3460 and H.R.
4431, bills to amend the National Security Act of 1947 to regulate public disclosure
of information held by the Central Intelligence Agency.
These bills address a problem caused by the intersection?some would say the col-
lision?of two powerful postulates on which our system of government is based.
First, in our democratic society, the most fundamental decisions are made by our
citizenry at the ballot box. Those voters must be endowed with the wisdom of edu-
cated 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 dan-
gers 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 these bills is to ad-
dress the problems that have been caused by that tension, and to adjust the compet-
ing 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
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 market-
place of ideas. Much of our public policy is dedicated to ensuring that the competi-
tion in the marketplace of ideas is fair and unfettered. Education policy, communi-
cations 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 impor-
tance of making information available, in contrast to other competing values. To
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these ends, we have always valued a free press, unruly as at times it may be; a di-
verse academic community, as searching and persistent as it should be; and an in-
quiring citizenry, as awkward as that can be?all dedicated to ferreting out and pub-
lishing facts, even when they embarrass or are uncomfortable or may cause incon-
venience, 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 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 serv-
ice 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 predis-
position in favor of public disclosure of information. Indeed, one essential compo-
nent of true national security is an informed citizenry and the 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 commenda-
ble. In a world in which war, terrorism and intrigue are commonplace, we as Ameri-
cans not only have a right to know, but the duty to find out, to analyze in a hard-
headed fashion and to come to sound conclusions, especially when the implications
of those conclusions are grave and the actions called for are difficult and momen-
tous. 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 re-
sources 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 inspec-
tion.
Because 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 ad-
vantage 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 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.
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 the basis for important national policy decisions, in-
quiry?if not always disclosure?is appropriate. Where there are non-trivial allega-
tions of illegality or impropriety, the public has a right to ask questions. Unfortu-
nately, the Freedom of Information Act, as presently structured, does not in the ac-
commodation 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 subjects im-
portant aspects of the intelligence community to the healthy scrutiny of the Ameri-
can people. But to the extent it requires the search and review of files that can in
the end never be made public, FOIA in this instance is futile, and possibly even dis-
astrous.
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(bX1)) or that it is
specifically exempted from disclosure by statute (Section 552(b)(3)). In the case of the
Central Intelligence Agency, a (b)(3) exemption may be triggered by Section 102(dX3)
of the National Security Act of 1947, providing that the Director of Central Intelli-
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gence 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 incom-
prehensible, disconnected fragments of documents, which are islands of unprotecta-
ble material in the vast exempt ocean of classified and sensitive information. What
emerges is of marginal value to informed discourse and on occasion, 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 extreme-
ly 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 mistak-
enly 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 judicial review, that they are increasingly reluctant to put
their own lives on the line in the service of our government. In sum, the applicabil-
ity of the Freedom of Information Act to these sensitive files yields very little infor-
mation, if any, on the one hand, but it holds the potential for mistaken disclosure,
tends to constrict the flow of information, on the other.
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 House of Delegates of the American Bar Association gave voice to that
consensus at its 1983 Annual Meeting by passing a resolution in favor of significant
relief for the intelligence community from the applicability of the Freedom of Infor-
mation Act.
Commentators now generally agree that exemption from the Freedom of Informa-
tion Act should cover only information the release of which is virtually never appro-
priate. The complete removal of a category of information from the Act should be as
narrowly defined as is possible.
In support in principle of both H.R. 3460 and H.R. 4431 as effective solutions that
meet this standard, we can say several things. First, they will result in virtually no
lessening of the amount of information that has hitherto been available from the
intelligence community. Second, they avoid the risk of human error that may result
in the fatal compromise of highly sensitive intelligence operations. Third, they avoid
the dedication of elaborate resources to the essentially futile task of reviewing docu-
ments that can in the end never be released in any event, and thus free up intelli-
gence professionals to do the task for which they are best suited. Fourth, they inevi-
tably 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,
they will reduce the reluctance to cooperate of those abroad who do not fully under-
stand our general system of disclosure of information, and thus they will enhance
the effectiveness of our intelligence capability.
While both bills are significant improvements over the status quo, I personally
admit to a preference for H.R. 4431. That bill is somewhat more precise in laying
out the mechanics by which certain operational files are exempted. Moreover, the
scope of judicial review is defined.
Nevertheless, both bills are modest compromises that safeguard the essential cen-
tral operational files of our intelligence capability at the CIA. They are carefully
crafted to avoid an unnecessarily broad exemption from the Act and its underlying
policy. They preserve access to finished intelligence, information concerning au-
thoritatively acknowledged special activities, studies of intelligence prepared for
training purposes, and even raw intelligence supplied to policy-makers in its origi-
nal form to assist in policy decisions. They avoid closing off access to information
concerning illegal or improper intelligence activities. They are astute blends of prac-
tical effectiveness that avoid violating an important policy preference in favor of in-
formed public debate.
In short, on behalf of the American Bar Association, I support in principle both
bills, although with a slight preference for H.R. 4431. I do so because I believe that
in this 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 informa-
tion 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
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the security of our domestic institutions that make this entire issue of such impor-
tance. 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.
Both bills under consideration here successfully mediate that policy tension and
either deserves speedy enactment.
STATEMENT OF JOHN H. SHENEFIELD, FORMER ASSOCIATE AT-
TORNEY GENERAL, CURRENT PARTNER, MILBANK, TWEED,
HADLEY & McCLOY, ON BEHALF OF THE AMERICAN BAR ASSO-
CIATION
Mr. SHENEFIELD. Mr. Chairman, members of the committee, I am
delighted to appear here this afternoon on behalf of the American
Bar Association, which is the nationwide professional association
that has as its members, I believe, most of the practicing lawyers
in this country.
The American Bar Association has addressed this issue by resolu-
tion of its house of delegates last summer, and they have author-
ized me to appear here to address H.R. 3460 and H.R. 4431, to
convey to the committee their views on public disclosure of intelli-
gence information.
I assume that the written statement will be printed in the
record.
Mr. MAZZOLL Thank you for reminding me.
Without objection, all the written statements submitted will be
made a part of the record, and you may read them or speak from
them, however you wish.
Mr. SHENEFIELD. I will say only that the chairman of the stand-
ing committee, John Norton Moore, would have been here this
afternoon but for the fact that he has a class scheduled in Char-
lottesville. I am happy therefore to convey his views and the view
of the standing committee and the views of the ABA in endorsing
both of these pieces of legislation, although stating a slight person-
al preference for H.R. 4431 simply because it deals more precisely
with the mechanics of judicial review, which is obviously a central
controversy.
Both bills would result in my view in virtually no lessening of
the amount of information of a national security kind available to
the public from the intelligence community. Both statutes avoid
the risk of human error which is always possible any time docu-
ments of this sort are being reviewed and processed for production.
Both statutes avoid the involvement of enormous resources in the
review of documents at Langley, virtually all of which are always
exempt in any event, and both would, if enacted, substantially
reduce the backlog of requests so that requests that are legitimate
can be responded to more expeditiously. And, finally, both bills
would encourage, in my view, the kind of cooperation from those
abroad on whom our intelligence system relies but who do not now
feel that they are guaranteed the kind of anonymity that their per-
formance in this context requires.
One brief word on judicial review before I conclude, Mr. Chair-
man. The Carter administration, as a matter of historical record,
had developed recommendations in this area, as you undoubtedly
recall, that would have precluded judicial review. The thought was
that judicial review inevitably is so crude and susceptible of mis-
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take that it is unwise to subject these kind of documents to that
sort of risk.
On the other hand, the American Bar Association, in its actions
of last summer, espoused a standard of judicial review that was ex-
ceedingly deferential to the intelligence community. They would
have been willing to accept judicial review standards that in effect
honored any nonfrivolous?and that is a very low standard?any
nonfrivolous action by the Director of Central Intelligence.
Whatever the standard of judicial review chosen by this commit-
tee and by the Congress, it seems to me that the essential concept
must be that in the absence of absolutely clear abuse, the action of
the Director of Central Intelligence stands, and that the procedures
for reaching that conclusion do not involve exposure of the docu-
ments themselves to the adversary parties, certainly, and only in
the very rarest cases to the court itself.
With that, Mr. Chairman, I will subside and allow my colleagues
on either side of me, physically, at least, if not in position, to speak
further, and then perhaps we can have a debate.
Mr. MAZZOLI. Thank you very much, Mr. Shenefield. You were, I
remember vividly?it seems like yesterday, but it was what, 4
years ago, 3 years ago, you were here?
MT. SHENEFIELD. Yes.
Mr. MAZZOLL But I remember when you used to appear before
our Judiciary Committee quite a bit, you were always a person who
respected our time constraints, and you continue to do so today. So
I appreciate that very much.
I would like to now recognize Mr. Rowe and to invite his?again
recognizing your statement as part of the record, and hear from
you in any way you wish.
[The prepared statement of Charles S. Rowe follows:]
STATEMENT OF CHARLES S. ROWE
Mr. Chairman and members of the Committee, my name is Charles Rowe and I
am the editor and co-publisher of the Free Lance-Star in Fredericksburg, Virginia. I
am testifying today on behalf of the American Newspaper Publishers Association
and the American Society of Newspaper Editors.
The American Newspaper Publishers Association is a nonprofit membership cor-
poration organized under the laws of the Commonwealth of Virginia. Its member-
ship consists of nearly 1400 newspapers accounting for more than 90 percent of U.S.
daily and Sunday circulation. Many non-daily newspapers also are members.
The American Society of Newspaper Editors is a nationwide, professional organi-
zation of more than 850 men and women who hold positions as directing editors of
daily newspapers throughout the United States.
Mr. Chairman, at the outset, I want to thank you for affording me the opportuni-
ty to provide our views on legislative proposals to exempt certain CIA operational
files from the search and review provisions of the Freedom of Information Act
(FoIA).
First let me say that ANPA and ASNE support the existing FoIA. The act serves
as tangible proof in our society that the spirit of open government which pervaded
the founding of this great nation still lives; that this representative government still
cherishes the concepts of a free society made up of free people who are entitled to
information about how their government operates and how its decisions are made.
When editors and publishers defend the FoIA, we do so not solely in our personal
interest, but in the interests of the individual citizens of this free society. Naturally,
it concerns us when any proposal is made to weaken the Fol Act.
Over the past few years there has been considerable debate about the problems
faced by the CIA in complying with FoIA. In an October 1, 1982 letter to the Editor
of the New York Times, CIA Director William Casey stated that "there is an inher-
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ent incompatibility in applying an openness in government law to intelligence agen-
cies whose mission must be carried out in secrecy."
There are two points which must be remembered in looking at the CIA and its
problems with the FoIA. First, the existing statute recognized exceptions required to
strike the delicate balance between openness in government and the need for a
degree of secrecy in our intelligence operations. Exemptions 1 and 3 of the FoIA, in
conjunction with Section 102(dX3) of the National Security Act of 1947, protect clas-
sified national security information and intelligence sources and methods from dis-
closure. Courts have given great deference to the CIA in accordance with the afore-
mentioned exceptions.
The CIA has not been forced to release information when it believed that such
release would harm national security.
Secondly, the CIA has stated repeatedly that the existence of FOIA deters foreign
intelligence sources from cooperating with the CIA. The CIA might well devote
more effort to educating the foreign intelligence world and its sources on the statu-
tory protections provided by FoIA and the National Security Act.
For example, it could reiterate abroad Admiral Stansfield Turner's statement,
made to the 1980 ASNE convention in Washington, D.C., in which he stated:
?`. . . we have not lost a case in the court when we have claimed that something
was classified and therefore could not be released."
Mr. Chairman, we are pleased that the CIA no longer seeks a full exception from
the FoIA. At the same time, representatives of the newspaper business have not re-
jected out of hand the CIA's pleas for relief from the FoIA search and review re-
quirements. Over the past few years, we have met with the CIA several times to
develop a dialogue on this issue.
The two press associations which I represent here today carefully monitored
Senate consideration of S. 1324 from its introduction. We were concerned then that
the legislation could deny information to the public which is now available. A
degree of concern remains with us.
The version of S. 1324, passed by the Senate, which is similar to H.R. 4431, is
much improved over the original bill. These improvements include: a judicial review
provision, a requirement that the file designation be reviewed at least every 10
years, and continued search and review requirements for information in designated
files that was reviewed and relied upon in an official investigation. Additionally,
under S. 1324 and H.R. 4431, the CIA director is required to promulgate regulations
concerning the designation of CIA operational files.
However, even with the provisions for judicial review and implementing regula-
tions contained in the Senate bill, this legislation vests the CIA with a great deal of
power to subvert the spirit of public access to information. At this stage, we do not
know the percentage of CIA files which will be designated by the Director as "oper-
ational". The public's primary defense against overzealous secrecy lies with this
committee's oversight responsibilities, together with the House Government Oper-
ations Committee and those of your Senate colleagues. Misfiled information, which
currently would be subject to search and review, may never see the light of day
under this legislation.
As a representative of the newspaper business, I do not pretend to be an expert on
the intricate workings of the CIA. However, I urge the committee, in its delibera-
tions on H.R. 3460 and H.R. 4431, to take a fresh and careful look at the question of
whether in fact this legislation even inadvertently may result in denial of informa-
tion currently available under FoIA. I hope that anything passed by Congress to re-
lieve processing burdens won't also result in putting additional information under
wraps.
Following Senate hearings on S. 1324, in response to a request by Senator Leahy,
the CIA submitted a list which indicated the impact of S. 1324 on pending cases.
According to this list, approximately 16 cases may involve information in operation-
al files, which under S. 1324 would be exempt from search and review. It is not im-
mediately apparent why certain cases fall within or without the new exemption.
These cases should be carefully reviewed by this committee to fully understand the
definition of "operational files" that will be employed by the CIA. We ask that you
also give some careful thought as to whether this definition might easily be further
broadened by some future CIA director.
Mr. Chairman, I would like to call the committee's attention to three specific pro-
visions of H.R. 4431 that need improvement.
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JUDICIAL REVIEW
S. 1324, as introduced, did not contain a judicial review provision. Neither does
H.R. 3460. In testimony before the Senate Intelligence Committee, we joined other
witnesses in calling for the inclusion of such a provision. At that time, we stated,
and I reiterate here today, that a major and vital principle of FoIA is the right to
judicial review. The Senate-passed version of S. 1324 does include a judicial review
provision, but we believe it needs to be strengthened.
Under S. 1324, in order to secure court review, an individual would have to have
personal knowledge or otherwise admissible evidence of an improper designation of
specific files or improper placement of records in designated files. The committee
should carefully examine the difficulty which a requestor will have in getting into
court under this provision.
Even where a prima facie showing is made, under the provisions of the bill court
review is limited to review of the CIA's sworn response. In order to be effective, the
judicial review provision should empower the court to independently to review the
file, in camera if necessary, to determine whether a proper designation was made.
This is in accordance with the judicial review provision contained in FoIA, which
requires de novo review of the withholding of classified material.
COVERT ACTION/SPECIAL ACTIVITY FILES
Mr. Chairman, probably the most controversial of CIA activities has been covert
action operations (or special activities) which involve influencing events rather than
just gathering information. H.R. 3460, H.R. 4431 and S. 1324 all provide that the
CIA will continue to search and review operational files about CIA covert action op-
erations (or special activities), if the fact of the existence of the activity is not
exempt from the FoIA. The net effect of this provision would appear to deny search
and review of special activity files. Presumably, all covert action operations are clas-
sified, and thus fall under Exemption 1 of the FoIA. Only in those rare cases, where
an official of the Executive Branch has officially acknowledged the existence of the
operation, would the search and review provision still be applicable.
OPERATIONAL FILES SUBJECT TO OFFICIAL INVESTIGATION
All three legislative proposals (HR 3460, HR 4431 and S 1324 as passed) also pro-
vide for continued search and review of information in designated files which were
reviewed and relied upon in an official investigation for illegality or impropriety in
the conduct of an intelligence activity. The provision does not address cases where
the investigators merely sample a relevant file, overlook a file through inadvertance
or where the information is withheld from investigators. The provisions should be
strengthened to assure that all information relevant to the subject of an investiga-
tion remains accessible. While the report accompanying the bill addresses these
issues, mere report language in our opinion is inadequate. Report language is not
binding, and these loopholes should be addressed in the statute itself.
BACKLOG OF REQUESTS EXPEDITED REVIEW
Journalists have experienced excessive delays in CIA processing of their FoIA re-
quests. The average time for processing a request is about two years. Advocates of S
1324 argue that passage of the bill will result in eradication of the backlog.
The current backlog serves to deny information on a timely basis, but while elimi-
nation of the backlog is desirable, it should not be at the expense of denial of infor-
mation forever. As we have previously stated, this issue should be carefully exam-
ined by the committee. Further, we do not believe that any of the legislative propos-
als, including S 1324 and its report language, guarantee that the goal of elimination
of the backlog will be achieved. When the CIA was questioned on this point at the
Senate Intelligence Committee hearing, the response was troublingly vague. The
report accompanying S 1324 contains helpful language, but there is nothing to pre-
vent the CIA from the reallocating its resources elsewhere.
If, in fact the committee goes forward with legislation to exempt certain oper-
ational files, then at a minimum, the legislation should provide the public with
streamlined processing of FoIA requests which do not required extensive search,
review and coordination.
CONCLUSION
Our nation's newspapers recognize the need for a degree of secrecy in our intelli-
gence operations. However, this must be balanced against the principle of open gov-
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ernment in our free society. As Justice Black stated in the Pentagon Papers case,
New York Times v. United States, 403 U.S.C. 713,724 (1971),
"Secrecy in gopvernment is fundamentally antidemocratic, perpetuating bureau-
cratic errors. Open debate and discussion of public issues are vital to our national
health."
The amendments made to S 1324, which are substantially embodied in HR 4431,
clearly improve the bill. However, we urge each member of the committee and your
staff to carefully review again the important points raised here. The balance be-
tween secrecy and openness is for you to strike.
As the committee with oversight responsibility for the CIA, your have a special
responsibility. You have access to secret information of CIA operations which is not
available to the public. In the event that this legislation is enacted, the public must
rely on you to overee implementation and to safeguard the public's right to an open
government.
STATEMENT OF CHARLES S. ROWE, EDITOR AND PUBLISHER,
THE FREE LANCE STAR, FREDERICKSBURG, VA., ON BEHALF
OF THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION
AND THE AMERICAN SOCIETY OF NEWSPAPER EDITORS
Mr. ROWE. Thank you, Mr. Chairman.
At the start, I might point out that in addition to representing
the American Newspaper Publishers Association, I am wearing a
second hat here today as a representative of the American Society
of Newspaper Editors.
Mr. MAZZOLL Thank you very much.
Mr. ROWE. I will submit parts of my written testimony and deal
with some of the key points orally.
I think there are two points that we should remember when we
look at the CIA and the problems it has had with FOIA. The first
is that the existing statute does recognize the exceptions that are
necessary to strike a balance between the need for secrecy with
regard to intelligence operations and the openness that a democrat-
ic society requires.
Under FOIA you have exemption 1, which protects classified in-
formation; exemption (b)(3) is triggered by section 102(d)(3) of the
National Security Act and protects intelligence sources and meth-
ods from disclosure. And in addition, courts generally have been
quite deferential to the intelligence community when dealing with
these exceptions.
Second, the CIA has stated repeatedly that the existence of FOIA
deters its sources from cooperation. We feel that if CIA spent a
little more time trying to educate their sources as to the protec-
tions that are provided under the law and the protections that the
CIA can give them, they might address part of what they call the
perception problem. Maybe they should repeat more often what
Admiral Turner had to say back in 1980 when he reported that
CIA had not lost a single case in the courts when it claimed that
information was classified and should not be released.
We are very happy, Mr. Chairman, that the CIA is no longer
seeking an absolute and full exemption from the act. At the same
time, we have not rejected out of hand their pleas for some relief
from the search and review problems that may be unique to them.
Over the past few years both ANPA and ASNE have had several
meetings with CIA personnel in an effort to develop a dialog on the
issue. The two associations that I represent here today followed S.
1324 quite carefully as it proceeded through the Senate. We were
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concerned when that bill was introduced that the legislation would
be used to deny to the public considerable information that had
previously been available.
The bill as it came out of the Senate was much improved. We
still have a few concerns with it that I will discuss subsequently.
The improvements that we see in S. 1324 and in H.R. 4431 are
the requirement for judicial review, the requirement that file desig-
nations be reviewed every 10 years at least, and the continued
search and review requirements for information in designated files
that was relied on in an official investigation.
But even with the judicial review provisions and the implement-
ing regulations that are required, the bill gives the CIA tremen-
dous power which, if misused, can subvert the principle of public
access to information.
I do not know what percentage of the CIA files are going to be
designated by the DCI as operational. This morning we heard a ref-
erence to tens of thousands of files that might be so categorized. I
think that we in the press and the public will have to depend very
heavily on this committee, the Government Operations Committee,
and their Senate counterparts with oversight responsibilities to see
that the CIA conforms in spirit to the law.
As a representative of the newspaper business, I do not pretend
to be an expert on the intricate workings of the CIA, but I would
hope that this committee, when it considers H.R. 3460 and 4431,
will take a careful look at the question of whether this legislation
may even inadvertently result in the denial of any information
that is currently being made available under FOIA. If we are to re-
lieve the CIA of its processing burdens, let's not put any additional
information under wraps.
Following the Senate hearings on S. 1324, the CIA submitted a
list which indicated the impact of that bill on pending legal cases.
According to the list, I believe there are approximately 16 cases
that might involve information in operational files which under
this legislation would be exempt. I am not really quite certain why
certain cases fall within or without the new exemption. I do hope
that this committee will be careful to carefully define the matter of
operational files and make certain that the CIA will not misuse
this to give blanket classification to huge quantities of information.
The matter of judicial review was the subject of considerable dis-
cussion this morning. The testimony that I gave before the Senate
Intelligence Committee indicated that we strongly favor the inclu-
sion of a judicial review provision. We think that it is a vital prin-
ciple of FOIA to have the courts overseeing the act, including the
search and review exemption. While S. 1324 does include a judicial
review provision, we think that this could be strengthened.
In order to secure a court review, an individual has to have per-
sonal knowledge or otherwise admissible evidence of an improper
designation or improper placement of records in a designated file.
We hope your committee will look carefully at the question of just
how difficult it might be for a requester to meet this high standard.
Even where a prima facie showing is made, under the provisions
of the bill, court review is limited to the CIA's sworn response. In
order to be effective, we think the judicial review provision should
empower the court to independently review the file, in camera and
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ex parte if necessary, to determine whether a proper designation
was made.
The provision in S. 1324 concerning information in designated
files reviewed and relied on in an investigation of illegality, does
not address the cases where investigators might merely have sam-
pled a file, where they may have inadvertently overlooked a file or
where perhaps information was absolutely withheld from the inves-
tigators. We believe this provision should be strengthened to insure
that all information relevant to the subject of an investigation re-
mains accessible. The language in H.R. 3460 adequately addresses
this problem.
And while the report accompanying the Senate bill does address
these issues, we feel that mere report language is not adequate. In
this respect, while I may have indicated earlier that I prefer H.R.
4431, in this particular respect, Mr. Chairman, your bill is prefera-
ble.
Concerning the backlogs, as we have heard, it takes 2 or perhaps
even in some cases 3 years for the CIA to process a request. Obvi-
ously for most journalistic purposes this delay is just absolutely im-
possible.
The current backlog is denying information on a timely basis.
While we do hope that the backlog can be drastically reduced, we
do not favor eliminating the backlog by just arbitrarily denying
huge quantities of information that should be released. We hope
the committee will look carefully at this question. In addition, we
do not believe that any of the legislative proposals, including S.
1324 and its report language, guarantee that the goal of elimina-
tion of the backlog will be achieved.
The CIA's responses at times in this regard have been somewhat
vague, and we hope that perhaps your committee can get from the
CIA a more exact commitment on just how they will tackle that
backlog and how rapidly they can dispose of it.
In conclusion, Mr. Chairman, our Nation's newspapers recognize
the need for secrecy to a considerable degree in intelligence oper-
ations. We feel, though, that this must be balanced against the
principle of open Government. As Justice Black said in the Penta-
gon Papers case, secrecy in Government is fundamentally anti-
democratic, perpetuating bureaucratic errors. Open debate and dis-
cussion of public issues are vital to our national health.
The amendments to S. 1324 that are embodied substantially in
H.R. 4431 clearly improve the bill. However, we urge each member
of this committee and your staff to carefully review the points I
have raised here. The balance between secrecy and openness is
yours to strike.
As the committee with oversight responsibility, you have a spe-
cial responsibility to the American public. You have access to infor-
mation that the general public does not have, and in the event this
legislation is enacted, the public and the press will be relying on
you in your oversight capacity to safeguard the right to an open
Government.
Thank you.
Mr. MAZZOLL Thank you very much, Mr. Rowe.
Professor Gammon, welcome, and we would be happy to hear
from you.
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[The prepared statement of Samuel Gammon follows:]
STATEMENT OF SAMUEL R. GAMMON
My name is Samuel R. Gammon. I am a retired Ambassador and the executive
director of the American Historical Association. I am presenting testimony on
behalf of the National Coordinating Committee for the Promotion of History and
particularly for the 20,000 members of the Organization of American Historians and
the American Historical Association in opposing HR 4431 and HR 3460. These bills,
together with Senate bill 1324, would amend the National Security Act of 1947 to
exempt partially the Central Intelligence Agency from the Freedom of Information
Act, as amended.
Mr. Chairman, historians are deeply troubled by any proposal that would auto-
matically debar legitimate research into the past of our great nation. We perceive
the two bills as doing just that. There is a broad area of agreement between even
the most zealous historical researchers and the most ardent government advocates
of protecting security information in the hands of the federal government. We all
agree that openness, as created by our democratic traditions and by the Freedom of
Information Act, promotes the general welfare; we all agree that classifying and
withholding certain items of security information relating to military, diplomatic
and intelligence matters provide for the common defense. We perceive no constitu-
tional conflict here on the principles. Our differences come on matters of applica-
tion. Both sides would agree absolutely that at the secret end of the scale of 1 to 100
there are matters to be protected and both sides would agree absolutely that at the
other end of the scale there are matters which should legitimately be open to public
scrutiny. It is the 80% in between which brings scholars swarming out of their stud-
ies and bureaucrats from their warrens at Langley in bitter disagreement.
Mr. Chairman, historians accept that documents on intelligence methods and
sources need to be protected and that those documents should properly be classified
and should be withheld from scrutiny, whether requested under the Freedom of In-
formation Act or coming up for declassification under systematic review precedures.
The chief argument of the Central Intelligence Agency and of proponents of the two
bills is that hunting for and identifying documents which will probably be refused
anyway is just too darn much work, and therefore the Agency should be permitted
to designate Operations Division, Science and Technology Division and Security files
as exempt from such mandatory review. In lengthy discussions with Senator Dur-
renberger with respect to S. 1324, the progenitor of these two bills, the Agency con-
ceded that it would review all such files at least once every ten years to see if it
could dump them back into the pile eligible for FOIA consideration. That concession
is incorporated in HR 4431 (page 8, lines 3-12).
I fail to see, therefore, how this labor-saving legislation, designed to exempt the
CIA from finding out what is in its "operational" files in response to FOIA requests,
will save it any work whatever. True, they could wait ten years from enactment
before launching a crash project to review all documents in the exempt category,
and perhaps the Micawber principle would let something turn up in the meantime
to save them from the shirked labor, but I submit that this would be neither pru-
dent management nor responsible stewardship.
The proposed HR 4431, therefore, would not serve its purpose.
Mr. Chairman, during my 27-year diplomatic career, I spent over five years on the
seventh floor of the State Department, encountering a great deal of classified mate-
rial, including much sensitive compartmented intelligence from the CIA. Indeed, the
daily Top Secret Summary of the Department, seen every morning by the President,
SecDef, DCI, and SecState, and which usually contains 25-30 percent codeword ma-
terial or sensitive compartmented intelligence, was produced under my direct super-
vision during two assignments to the Executive Secretariat totalling three and one-
half years. (I claim no credit, however, for the readership this interesting publica-
tion has lately enjoyed among the inmates at Lorton. That is a form of openness
which even zealous historians deplore.) I also know how harried bureaucrats oper-
ate, having been one myself during 15-hour days under Secretary Kissinger.
The existence of an exemption for operational and other files as proposed under
these two bills would constitute a temptation more than mortal flesh could bear. As
a beneficiary of such an exemption, I know what I would have done?put wheels on
my safes and trundled them across the hall to the operations division at need!
Mr. Chairman, historians are deeply concerned at any legislation that exempts
entire categories of files from FOI search and review. We who have spent many
years in the Archives or federal records centers or presidential libraries know that
operational files of government agencies go far beyond sources and methods. Tradi-
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tionally, they also include the policy guidelines and the planning processes of oper-
ational activities and are the core of the decisionmaldng process of government. Al-
though the intent of these bills is to leave "non-operational files" subject to search
and review, only those bits of intelligence specifically transferred to such files from
their safeguarded operational cousins would be available for the normal operation of
FOIA procedures. Historians, and indeed congressional oversight committees, may
be permitted some skepticism under this heading, and I note that page 6 of HR 4431
is devoted to preventing the proposed operational files' exemption from search and
review from being applied against intelligence committees of the Congress and other
oversight entities.
Mr. Chairman, another concern of the historical community which I represent is
the total absence of any bottom line for exemption. So long as CIA every ten years
reviews its exemption designation, they may last in perpetuity. Surely even the Di-
rector of Central Intelligence would concede that Secretary of State Jefferson's
modest CIA-like intelligence operations with the confidential fund of the State De-
partment (which still exists) might now be revealed? How about merely 100-year-old
material relating to President Chester A. Arthur? Or even 50-year-old operations,
modest indeed, against Mussolini and Hitler?
Would the exemptions proposed for Operations Division, Science and Technology
Division, and Security Division of CIA also extend to other agencies, such as State,
Defense, the NSC? That is not clear, but our historian colleagues specializing in
Near Eastern history are not the only ones to know something about letting the
camel's nose into the tent.
Mr. Chairman, in conclusion, historians believe that these two bills are bad legis-
lation. They would not save CIA any labor in the long run. They would inevitably
lead to the use of operational exemptions as a "cover," and they constitute a very
bad precedent. There are enough other assaults on openness and the public's right
of legitimate access?and need only cite National Security Decision Directive 84 and
Executive Order 12356, as the most glaring examples?for this branch of govern-
ment to enact the proposed bill.
STATEMENT OF SAMUEL R. GAMMON, EXECUTIVE DIRECTOR, NA-
TIONAL COORDINATING COMMITTEE FOR THE PROMOTION OF
HISTORY, ON BEHALF OF THE ORGANIZATION OF AMERICAN
HISTORIANS AND THE AMERICAN HISTORICAL ASSOCIATION
Mr. GAMMON. Thank you very much, Mr. Chairman.
As the distinguished member from Virginia will confirm, histori-
ans are accustomed to batting cleanup in order to come in and tidy
up the record. [Laughter.]
Mr. GAMMON. I do want this afternoon to express my apprecia-
tion for the opportunity to appear here for the American Historical
Association and the Organization of American Historians; 20,000
historians is an awful lot of them, but that is what I represent this
afternoon. I am also in a somewhat novel position; it is well and
widely known that poachers make the best gamekeepers, but I am
a former gamekeeper appearing in the role of poacher. As a former
Government bureaucrat accustomed to trying to hide documents
from the public and occasionally from the legislative branch, I am
here to express the opposition of historians to the proposed legisla-
tion.
Historians, of course, accept the need for secrecy in Government
in national security matters. We accept that the classification
system is a legitimate means for protecting documents from prema-
ture release. We are very worried, however, about blanket exemp-
tions, and particularly, blanket exemptions that have no time
limits.
Let me just cite one particular example of what might be called
historical interest. It has been widely rumored for some years that
the Agency ran a successful urinalysis on Khrushchev in Vienna in
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1961. Historians would not be interested in which plumber was
useful in this plan or how it was done, or methods of operation; we
would be interested in the fact of it, of course, and certainly inter-
ested in the results of the laboratory findings.
I would like just to sum up very briefly from my written testimo-
ny the three basic reasons for historians' opposition to the legisla-
tion which would restrict the operation of the Freedom of Informa-
tion Act as far as the CIA's operational, science, technology, and
security files are concerned.
Our first and most serious problem is that there is no time limit,
no ultimate time limit in the use of the exempting authority. The
only implied limitation is not a final one, which is the concession
which Senator Durenberger negotiated with the Agency, and which
is incorporated in H.R. 4431, that every 10 years the certification of
exempt operational status would be reviewed. But it does not say
how many times this could be done.
Is 100-year-old material to be treated as still needing protecting?
CIA is not that old yet, but one day it will be. What about Mr. Jef-
ferson, who as Secretary of State, used the confidential fund of the
department, which still exists, by the way, for limited intelligence
activities? Presumably that should certainly come out. Or 50-year
material on the operations, limited indeed, against Hitler and Mus-
solini?
The fact that CIA has itself conceded that it will not treat OSS
files as operational files, and hence, protected from search and
review under the Freedom of Information Act, would tend to argue
that the Agency itself believes that 38 years is long enough to pro-
vide for absolute protection.
We would like very much to see, if legislation is going to be en-
acted, some form of final limitation which would set a limit on how
long material might be protected by such an exemption as that
contemplated in the two bills under consideration here.
Our second objection is perhaps a technical one in the sense that
the two acts, judging by the testimony this morning, might well be
retitled CIA and Justice Department Relief Act. The workload is
very heavy, backed up for 2 or 21/2 years on the Freedom of Infor-
mation Act requests for CIA. The Justice Department has an awful
lot of cases on its hands and more coming in all the time. But the
solution of saying do not raise the bridge, let's lower the river,
seems to us to be of doubtful validity.
The 10-year pledge, which we welcome, for reviewing the desig-
nation of files as operational, which is absent in H.R. 3460, though
written into H.R. 4431, would itself very obviously generate a con-
siderable workload. What it consists of is a pledge to set up a sys-
tematic review system. Now, the review would be for the purpose
of certifying that these documents contain operational material
and must still be protected, and there is perhaps a subtle shade of
difference between this type of analysis and an analysis which says
is this still classified or can it be declassified? But that is a fairly
fine shading of meaning, and it seems to me the workload would be
very considerble.
So how much labor is going to be saved at CIA if it truly intends
to implement the 10 year review rule?
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The third objection which we have to the legislation is perhaps
best expressed from a personal point of view. It seems to me that
the temptation of an operational exemption is just more then bu-
reaucratic flesh ought to be made to bear. I have been a harried
bureaucrat myself. The morning top secret summary of the State
Department incorporates, from 1/4 to 'A of its contents, special com-
partmented, sensitive compartmented intelligence of CIA. That
publication was produced under my direction on two separate occa-
sions over a period of 31/2 years but I cannot claim any credit for
the readership among the inmates at Lorton most recently. Even
historians deplore this kind of openness. But I do know that if I
had been the beneficiary of an exemption of this type, as a harried
bureaucrat, I would have been inclined to put wheels on my safe
and trundle it across into the operations division at need.
Well, now, that is an oversimplification, but the other side of
that is perhaps the assumption, which seems to be implicit in the
legislative approach, that any file is either one or the other. It is
either clean or dirty, overt or covert, operational or nonopera-
tional. Files do not look like that. They have all sorts of stuff in
them.
There will be parts, yes, that would give the name of the mythi-
cal plumber who helped with the urinalysis of Mr. Khrushchev, but
parts of the same file may contain nonoperational material. Is it
the intention of the Agency to break out only the most operational
part of the operational file and segregate that, or will one piece of
operational data purify, shelter or protect the whole file?
That is a practical problem and one which it seems to me to be
one that should be addressed.
I note, of course, that a large part of both the amended Senate
bill and H.R. 4431 is concerned with protecting the principle of
oversight, both congressional oversight and other appropriate agen-
cies, and insuring that they will have access in the course of legiti-
mate operations to some of this exempt material. I would say that
our concerns are very similar. We are very worried about the
actual operation of a proposal such as this.
So in conclusion, I would say that the historians are opposed to
the idea of legislation, and we like the Freedom of Information Act
the way it is. We are worried about the absence of a final limita-
tion on how long material might ultimately be protected. We are
not persuaded that the laborsaving provisions are going to be all
that laborsaving, and third, we are very worried about problems of
the liability to abuse.
Thank you, sir.
Mr. MAZZOLI. Thank you very much, Doctor.
Let me yield myself 5 minutes to start out with.
Mr. Rowe, d think you mentioned something, and perhaps Dr.
Gammon as well. You are worried about what might be called an
open-ended exemption, and I think you mentioned the same thing.
If you were to put a time limit on it, what period of time would
you select, just out of curiosity?
Mr. ROWE. Mr. Chairman, I do not believe you can put one arbi-
trary time limit. I think you might have to have a variety of time
limits, depending on the types of information. I think we are cover-
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ing such a broad area of subjects here that an arbitrary 5, 10, or 50
years would hardly apply across the board.
Mr. MAZZOLI. Dr. Gammon.
Mr. GAMMON. I think our belief would be that of course we
would be delighted with 38 years, if the OSS precedent is to be fol-
lowed, but it would seem 40 years would appear to be a reasonable
time to protect sources and methodology.
Mr. SHENEFIELD. I would, in answer to the same question, not
want to try to put any defined time into a statute. It seems to me
that the regulations that are promulgated by the Agency can take
care of those questions better. They have got to satisfy this commit-
tee of their propriety, and this committee will then continue to ex-
ercise oversight responsibility to see to it that the Agency is living
up to those regulations.
Mr. MAZZOLL I guess we can have the question of raising the sea
or shortening the sail or something by just eliminating the whole
historical 10-year examination. That would be one way for CIA to
save a lot of manpower or womanpower, would it not, Doctor, if we
are talking about trying to get people--
Mr. GAMMON. That would encourage, flagrantly encourage the
abuse concept, however, I would think. We like the 10-year princi-
ple.
Mr. MAZZOLL It is kind of interesting. I sense a fairly strong
skepticism on your part, maybe even antagonism on the parts of
the two gentlemen at the end of the table with respect to CIA.
Is that born of some personal experience that you have had, or is
that a kind of institutional bias that the press has to the intelli-
gence community? It is curious because that seems to be fundamen-
tal to what you are saying and what I think Dr. Gammon is, if they
are going to welsh, they are going to try their best to do all the bad
things and do all the finessing if you do not really watch them
every second of the time.
I mean, how did you get that point of view?
Mr. ROWE. Certainly not from personal experience in my case,
Mr. Chairman.
I think it would be only the natural tendency of somebody in any
agency to take maximum advantage of a statute that provides op-
portunities to hide things, and I do not think, in many cases I do
not think this would be done with evil intent.
Mr. MAZZOLL Well, let me ask you the question, because if I am
not mistaken, are the newspaper publishers not trying to have laws
passed that practically exempt public persons from having rights of
libel? Would not that then give your reporters a chance to do what
you say the agencies would do, which is to be less than careful and
to be unmindful of sources and checking out the data, and yet you
are looking for that, are you not?
Mr. ROWE. I do not really believe the two situations are compara-
ble, Mr. Chairman.
Mr. MAZZOIA. Why not?
Mr. ROWE. Well, I think we are dealing with two totally different
things. We are dealing with a nondisclosure statute--
Mr. MAZZOLL What we are dealing with is having no controls
over certain agencies, and you say if you have no controls over cer-
tain agencies or activities, they are going to be like the old story,
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when the cat is away, the mice will play, and you suggest that if
you take away these controls, people will misuse that freedom.
And I assume if you take away the controls over the right of re-
porting accurately and fairly, is there not the same likelihood of
perversion of that freedom, of misuse of that freedom as you say
there is here in CIA?
Mr. ROWE. Well, I guess you could say in the case of reporters
there is a possibility of misuse of that freedom. Over the years, it is
one of the things that I think that this country, legislatively and
judicially, has decided it is willing to put up with because it was
the lesser of the evils.
Mr. MAZZOLL Well, it is an interesting question. This is, of
course, very philosophical. We are not going to solve the problem of
the FOIA exemption here. But I think what that does is point up
the problem we have because there is a kind of an institutional
mistrust or distrust, whichever is the accurate word here, of histo-
rians, of writers, publishers, toward this agency, and frankly, if we
were to go your way, you would have every kind of hobble in their
way, and there would be the possibility I think of maybe having
some really serious intelligence failures, intelligence difficulties be-
cause we would not have the opportunities for the Agency to re-
cruit assets.
I mean, one of the things, Mr. Rowe, you were saying?and I
think Dr. Gammon echoed it, too?quoting Stansfield Turner, they
have never lost a case in court. And if I understand correctly, lis-
tening to the intelligence agency, that is not the standard that you
use. You do not lose cases in court, and we all know that, but they
say this perception problem is very real, it is not just a vaporous
thing, it is for real, that assets jump ship and they do not get in-
volved because they cannot be protected.
But obviously you do not believe that. You seem to think that is
not really the accurate state of affairs.
Mr. ROWE. No, I would concede that they probably do have a per-
ception problem. I think they could to some extent reduce the se-
verity of that problem by what they tell assets or sources they are
trying to recruit.
They have lots of problems--
Mr. MAZZOLL Just a second. I have that written down. I could
not read it, but I have "work hard to tell agents that protection is
available."
Now, do you really believe that an officer in some country is
going to say, now, look, trust me, trust me. I promise you we are
going to protect you.
Do you think that is going to make much difference to that
agent? I mean, do you not think they need something much more
concrete than that?
Mr. ROWE. I think they have lots of problems unrelated to FOIA,
penetration of allied intelligence services, which can disclose infor-
mation about our agents I think can be a tremendous problem, and
yet they have to somehow reassure their sources that either the
British intelligence cannot be penetrated, or if it is, there is a mini-
mal chance their cover will be blown.
Mr. MAZZOLI. Well, my time has expired.
Dr. Gammon, you had something, and then I will move on.
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Mr. GAMMON. I would just like to comment on a point.
One is with regard to my personal experience with the Agency.
I have worked closely with CIA personnel, and it is a splendid
agency; it does a very vital and necessary function. I was deeply
concerned at the damage done to its capabilities by the backlash
from revelations about certain earlier improprieties. It became so
difficult that even running a very, very tiny, minuscule and essen-
tially harmless operation which took place under my aegis at one
point became almost impossible to get cleared. It took 6 months to
do a very, very simple and certainly entirely legal operation. So I
think we went much too far in damage inadvertently to CIA's capa-
bility.
My concern and the concern of historians really is that there is a
natural opposition between historians and Government officials.
Though we all agree that on one end of the scale, at least 10 per-
cent of the material, even CIA would concede is certainly unclassi-
fied, should come out, and on the other end of the scale, even a
zealous historian would say, yes, maybe 10 percent should be pro-
tected, it is setting that difficult line about the other 80 percent in
between where we bicker and argue a great deal.
And indeed, I do have concern about abuses, not in the sense
that CIA officials or State Department officials are not honorable
men doing their very best, but the mindset in tackling the protec-
tion of material is very different from that in saying let's get it all
out.
Mr. MAZZOLI. Thank you. My time has expired. I appreciate my
panelists' indulgence.
The gentleman from Virginia is recognized.
Mr. WHITEHURST. Well, I must observe, Mr. Chairman, that the
appearance of these gentlemen, especially Mr. Gammon and Mr.
Rowe, creates feelings of ambivalency within me.
Mr. MAZZOLL I am sure.
Mr. WHITEHURST. For one thing, Mr. Rowe and I attended the
same university. He was several years ahead of me. So I remember
him very well, when I was at Washington & Lee after World War
II. And Mr. Gammon and I come from the same profession, and I
feel kind of like Benedict Arnold to put the bill in after listening to
his testimony.
What was your specialty? I am just curious.
Mr. GAMMON. Sixteenth century English history.
Mr. WHITEHURST. Oh, how marvelous. That is very good.
Well, I am sure you had no trouble with declassification.
Mr. GAMMON. Henry VIII had no objections.
Mr. WHITEHURST. I raise this because I mentioned to staff earlier,
they told me about your very generous comments, you may not feel
they have got the right historian on this committee by virtue of my
being an author of one of those bills, but my dissertation was on
Roosevelt's quarantine speech in 1937, and I wanted in the worst
kind of way to get hold of the papers of Cordell Hull who, as you
know, did not have a very high opinion of Sumner Welles, and the
feeling was mutual. Welles was still living, and he gave me the
benefit of his thinking of Hull, but Hull was dead when I did the
dissertation. But they were closed after 1933, and I think there was
something like a 40-year embargo on getting them. So I just walked
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around the Library of Congress salivating and not being able to do
anything about it.
Let me just, I have some questions to ask here, and I am going to
ask Mr. Mayerfeld if he will?is he still here?
Mr. MAYERFELD. Yes.
Mr. WHITExussr. CIA is always with us. [Laughter.]
With respect to the problem that Dr. Gammon has raised about
declassification, you do not go actually document by document, do
you? You pick a period?what is the intention of the Agency in this
regard?
Mr. MAYERFELD. As far as the provision in your bill is concerned?
Mr. WHITEHURST. Yes, sir.
Mr. MAYERFELD. The intention is at the appropriate times, but no
less than every 10 years, we look at certain files and see if it would
be appropriate to dedesignate, keeping in mind the possibility that
most of the material can be declassified.
Mr. WHrrExussr. Well, that is a pretty good answer, I guess.
Let me come back to something, and I will close up.
Mr. MAZZOLL Take your time.
Mr. WxrrEnuRsT. I instinctively feel the concerns of Dr.
Gammon, and this is maybe because it is latent within me because
I spent 18 years in a classroom. You did not. You were overseas
working for the enemy, for heaven's sakes, the Government.
[Laughter.]
You are a fine one. You should be the Benedict Arnold today and
not me. You know, I just deserted later on in life. But my mother
said, son, hang on to it. It is the best paying job you ever had. And
I have been here ever since.
But I look at, for example, what the British have done, and a few
years ago their kind of renewed interest in the Lusitania. The Brit-
ish still would not open their files, which leads us to a great deal of
suspicion about the role of the British Government in that tragedy.
But this legislation that has been presented either by the chair-
man or by myself or what has passed the Senate was not some-
thing that we all just got up one morning and said what we need is
to revise the FOIA. It came about because of problems, and very
real ones. It was not a question of the CIA just hammering on us so
that we finally said, all right, just keep them quiet, we will make
some changes.
But I think that the concerns are valid, and yet, to a person,
even though it may not always strike you that way on either side
of the aisle philosophically, there is a concern from the point of
view of the press in America, and as legitimate, genuine, honest
historical research, that we should not compromise ourselves too
much.
And I guess you really put your finger on it when you said that
somewhere in the middle we have got to come down on this. We
have got to absolutely provide better security for people who are
willing to serve the United States in another country, and how we
do that is probably not going to be entirely satisfactory as far as
you are concerned, and it may, as a matter of fact, not be satisfac-
tory, I am sure it will not be entirely as far as the Agency is con-
cerned, or even the rest of us.
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I think your testimony has been very helpful. I really got over
here this afternoon not having had a chance to look at the testimo-
ny ahead of time and not knowing really what to expect.
Mr. MAZZOLL The gentleman from Massachusetts.
Mr. BOLAND. Let me ask the representative of CIA; you say you
are going to look at them every 10 years to determine whether or
not you dedesignate?
Mr. MAYERFELD. Mr. Whitehurst's bill provides for that at a min-
imum.
Mr. BOLAND. How often do you do it?
Mr. MAYERFELD. Well, we do it when?well, as in the case, the
example that Professor Gammon cited, when there was sufficient
interest expressed in the OSS files, for example, the decision
simply was made. There was so much historical interest in these
that we should not designate those as operational files.
Mr. BOLAND. Let me ask you whether or not, have you dedesig-
nated very many of the files at all?
Mr. MAYERFELD. None of them has been designated at the
moment. All files currently are subject to review, but in the course
of reviewing this legislation, we have made a commitment that we
would not designate the OSS files.
Mr. BOLAND. I take it, addressing the panel, I take it that both
Attorney Shenefield and Mr. Rowe favor one of the bills, either the
Senate bill or the bill introduced by Mr. Whitehurst.
And you do that because it does provide, as I understand it, for
judicial review, and that is one of the principal differences among
the three bills, and Ambassador Gammon, you oppose them all.
You do not want any restriction.
Mr. GAMMON. We would prefer none.
Mr. BOLAND. You have a marvelous background. I have been
looking at that background. That really is a marvelous background,
and I can understand why the American Historical Association has
sent you here to testify, because of the background you have and
your association, I presume, with historical evidence which of
course is essential to the success of your organization.
And you have about, how big did you say, 20,000 members?
Mr. GAMMON. Of the two learned societies.
Mr. BOLAND. You must have an awful lot of information in your
own files, the society itself, does it not?
Mr. GAMMON. We do, which are kept in the Library of Congress.
Mr. BOLAND. And that is all available to the public.
Mr. GAMMON. That is all open.
Mr. BOLAND. But that information is quite different, of course,
from what we are trying to protect here.
As Mr. Rowe has said, the CIA files, the classified files, any files
that are classified are exempt, and also any files which would indi-
cate sources and methods used by the intelligence community are
also exempt.
With respect to judicial review, Attorney Shenefield, would you
give me your position on that, or the ABA's position on judicial
review? I think it is slightly different from what Mr. Rowe's is of
the American Association of Newspaper Editors.
Mr. SHENEFIELD. The position of the ABA, however it is worded,
is one in favor of substantial deference to the DCI in his designa-
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tion of these files. The words they used were a nonfrivolous certifi-
cation. On the sort of ladder of all possible lawyer lingo that might
be applied to this judicial review concept, that is about the lowest
and most deferential.
Mr. BOLAND. And as I understand it, Mr. Rowe, your preference
is for full de novo judicial review with the court having access to
the files to determine if it was properly designated. You are really
loading the court with a burden, aren't you, here?
Mr. ROWE. I think the courts can handle it, Mr. Chairman. I do
in fact.
Mr. BOLAND. Well, you know, the purpose of this legislation is to
try to lift the burden that is imposed upon the CIA with reference
to material that ought to be exempt, and of course, as you heard,
and the CIA has testified so often, the number of inquiries under
the FOIA run to several thousand. I think one of the figures I
heard?and you can correct me?is it 7,000? How high is that, the
number of inquiries to get a look at files in the CIA under the
FOIA? How many requests do you have, does the CIA get?
Mr. GAMMON. Your recollection is correct.
Mr. BOLAND. Does anyone have any idea.
Mr. MAYERFELD. Your figure is a little low for the totality since
the act has been?we get in excess of 1,000 a year.
Mr. BOLAND. And as I understand it, one of the great problems,
of course, is the operational files, and it is necessary to have people
who are familiar with information, requests for information. They
are the ones, you could not get the ordinary clerk to look at those
operational files, could you?
Mr. MAYERFELD. That is exactly right, Mr. Chairman.
Mr. BOLAND. And this, of course, places a great burden upon you.
Someone has said, well it would not be much of a burden. Why do
you not?why, you give the CIA money, all the money it wants
anyhow. Why do you not appropriate a couple of extra dollars to
them, give them some additional personnel, and it will correct the
situation.
But that does not do it at all. So the matter of money and per-
sonnel is really not a consideration. It really is taking expert, per-
sonnel to look at the files to determine whether or not they can be
released under the law.
Mr. SHENEFIELD. And then, because the files are compartmented,
any time you have the same person looking at more than one com-
partmented file, you have broken down the compartmentation. In
addition to that, there is a redundancy review, and so you have got
to put two people in place rather than just the one.
Mr. GAMMON. Mr. Chairman, the State Department's solution to
the same type of problem, absent the compartmentalization, is to
make heavy use of retired Foreign Service officers who presumably
have the expertise and are more than delighted to work part time.
Mr. BOLAND. I think the intelligence community, particularly the
CIA, I think the concern it expresses with reference to people from
whence information could flow is a justifiable one.
We have been sitting here now for almost 7 years on this com-
mittee, and time and time again we get information from the intel-
ligence community indicating that they do have difficulty getting
information from sources, particularly foreign sources, because of
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the danger of leaks or the danger of exposure, and I think that is a
legitimate complaint, from my experience in this committee, I
think it is a legitimate complaint. This would help to solve part of
that anyhow. I am not sure it is going to solve it all. But I am de-
lighted that at least two out of three, that is not too bad, two out of
three favor some action in this area.
And Ambassador Gammon, you are going to get it, you know.
That bill got by the Senate unanimously, a voice vote, and we have
three good bills on this side, and we will try to come out, under the
leadership of Mr. Mazzoli and Mr. Whitehurst, with the kind of a
bill you can all live with. You are going to get one, and we will do
the best we can to get you one you can live with.
Mr. MAZZOLI. Thank you, Mr. Chairman.
Mr. BOLAND. I think the Ambassador had a comment.
Mr. GAMMON. I just wanted to make one point for clarification,
perhaps, on the question of access to sources.
I certainly agree that recruiting, which CIA field officers must
do, is made difficult by the perception of individual sources that
they might be burned or exposed either accidentally or on purpose
or through whatever act, or through the national openness of
American society. I think that concern is certainly very legitimate.
I confess to a certain amount of skepticism about the fact that
the sister organizations, liaison organizations overseas, for in-
stance, British intelligence, French intelligence, et cetera, hold
back very much with us because this type of interchange is basical-
ly horse trading, and we have more and better information than
anybody else. So they cannot not deal with us.
Mr. MAZZOLI. I thank the gentleman.
There is one thing I believe the chairman has brought up, which
is very important. What little I have learned of the activity of in-
telligence gathering and analysis over the years is that what ap-
pears to be very innocuous and obviously not particularly sensitive
information can, in light of other things, the context in which it is
revealed and other material which is public record, can be rather
devastating.
So one of the problems we have here, I think, was the question of
kind of review, and I want to get back, after letting Mr. Robinson
proceed, I want to get back to Mr. Shenefield on the whole question
of judicial review. Judges may well be able to review automobile
evidence and be able to understand patent law, but understanding
intelligence is a very different matter, and if you had that informa-
tion before them, it could cause some problems. Their judgment
may not be accurate as to what really is sensitive and is not be-
cause this is such a highly sophisticated activity.
The gentleman from Virginia is recognized.
Mr. ROBINSON. Thank you, Mr. Chairman.
I want to apologize to all of our witnesses here today for not
being present earlier. This is one of the days when I have had to
wear about three hats, and unfortunately I did not get here on
time, but I want to in particular apologize to my friend and constit-
uent Charles Rowe who, in addition, of course, to his great stature
in the Association of Newspaper Publishers, is a pillar in one of the
communities that I represent, that being Fredericksburg, and it is
certainly nice to have you with us today.
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83
I also am sorry that another constituent, John Norton Moore,
who was scheduled to be on, found he could not be here, so I do not
have the privilege of welcoming two constituents among those that'
are with us here today.
I have a very deep concern about the matters that you have had
under consideration, that you have been discussing, and I can
assure you that I am going to peruse the record of this hearing, the
transcript of this hearing, very carefully, and that I will digest it in
full.
But I understand, Mr. Shenefield, that in your comments you
mentioned that a resolution in favor of relief for the intelligence
community from the FOIA has been passed by the American Bar
Association House of Delegates?
Mr. SHENEFIELD. Yes, sir, "significant relief' was the wording.
Mr. ROBINSON. Do you have a copy of that resolution?
Mr. SHENEFIELD. I will provide it to the committee.
Mr. ROBINSON. Mr. Chairman, I ask that this resolution be en-
tered in the record at this point.
Mr. MAZZOLL Without objection, so ordered.
[The information referred to follows:]
o
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American Bar Association
On August 3, 1983, the House of Delegates of the
American Bar Association, acting at the ABA's annual
convention in Atlanta, Georgia, adopted the National
Security and Intelligence provisions of Resolution. 110B,
proposed by the Section of Administrative Law. The
entire text of these provisions is as follows:
"BE IT RESOLVED, that the American
Bar Association favors amendments to the
Freedom of Information Act ("FOIA"),
5 U.S.C. 9552, consistent with these
principles:
"1. National Security and Intelligence.
"a. Congress should grant significant
relief from the FOIA for the intelligence
agencies.
"b. Judicial review of classification
decisions shall be limited to determining
whether there is a non-frivolous certifica-
tion by an official, appointed by the President
with the advice and consent of the Senate, that
the material has been properly classified.
"c. A new exemption should be added to the
FOIA for information obtained through sensitive
intelligence sources or methods, and for infor-
mation obtained from foreign intelligence sources
under a promise of confidentiality.
"d. Intelligence agencies should be
encouraged to experiment with modifications in
current administrative practices for handling
FOIA requests."
STANDING COMMITTEE ON LAW AND NATIONAL SECURITY
1155 EAST 60TH ST.. CHICAGO, ILLINOIS 60637 ? TELEPHONE [phone]
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CHAIRMAN
John Norton Moore
Z=11=4n4
Charlottesville, VA 22001
Richard E. Friedman
Chicago. IL
Rita E. Hauser
New York, NY
Ronald A_ Jacks
Chicago. IL
Max hi. Karns.!man
Washington. DC
Monroe Leigh
Washington. DC
John 0. Marsh. Jr.
Washington. DC
w.Joh,n2o. ,Rohninis Ic,a de
John H. Shenelield
Washington. DC
Daniel B. Silver
Washington. DC
R. James Woolsey
Washimblon. DC
ADVISORY COMMITTEE
CHAIRMAN
Chicago. IL BOOM
Suite 4000
One FIrst National Plaza
Morris I. Legman
VICE CHAIRMAN
Columbia. SC MOB
g=o7glci:'
BOARD OF GOVERNORS
LIAISON
Joseph E. Stopher
One Rivertront Plaza
Louisville. KY 40202
couNsthoRs To
THE COMMITTEE
h
WaltonLos Angeles. CA
Edward H. Levi
Chicago. IL
r,gnze?,!tia'
rtt47ori,'Nl.r.
Eugene Rostow
New Haven. CT
Dean Rusk
Athens. GA
YOUNG LAWYERS
DIVISION LIAISON
J. Michael SC
hepherd
Washington. D
LAW STUDENT LIAISONUDET
Ann Arbor. MI
CONSULTANTS TO
THE COMMITTEE
Frank R. Ban..
David Martin
William C. Mott
Lawrence H. Williams
STAFF DIRECTOR
N.E.
Washington. DC 20803
Tel. 20,543..S?45
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Mr. ROBINSON. I thank you for the opportunity.
Mr. MAZZOLI. Thank you very much for joining us.
Mr. Rowe, I think, if my memory is correct, you earlier today
were saying you thought we ought to get something fairly concrete
from the CIA with regard to service to the public and how quickly
requests will be acted on.
Could you give me some idea? You have had much more contact
with this than I have. What would you look for by way of such con-
crete help? I mean, statements from CIA that they are going to
speed up the process probably would not be satisfactory, but what
are you really looking for? What kind of help in that respect?
What kind of timeframe would be the goal you would seek?
Mr. ROWE. Well, obviously, Mr. Chairman, it would depend in
most cases on the type of information being requested, but certain-
ly, 2 to 21/2 years is far too long now for any journalistic use in the
short term. It is more historical by the time you get it.
You know, I would think that once they can solve their backlog
problems, that routine requests should be handled in 2 to 3
months, even, where they are not having to spend the time in the
designated files. I would think 2 to 3 months for the simple type of
request.
Mr. MAZZOLL And you have seen newspapering and the whole
profession change radically in just the last few years with new
kinds of word processors and type setters and satellites.
Is it your feeling that the use of new equipment, new techniques,
would be useful, or is this a painstaking, document by document,
line by line, word by word process and we can't avoid it?
Mr. ROWE. You are speaking of within the CIA?
Mr. MAZZOLL Yes.
Mr. ROWE. I would have just no basis for judging what they do or
how they do it or how I might suggest they do it better.
Mr. MAZZOLL Because I remember the days of Ben Hecht and the
hat tilted back and the ticket stub in the hatband, you know, and
clicking away at an old Underwood upright, and of course, that day
has long since gone forever. In those days Ben Hecht would have
probably said you cannot do it anyway but that way.
It is a peculiar thing, because you are dealing with a lot of elec-
tronic material as well as paper material, and maybe the idea of
speeding up the process by some quantum leap is impossible. But
you are hoping to get it to 2 to 3 to 4 months at least, to have some
information.
As a matter of fact, when you make an application, do you get an
acknowledgement back that yes, we have received it, and yes, we
are working on it, and do not call us, we will call you? Or what do
you get?
Mr. ROWE. I have not filed a request of the CIA myself. We have
dealt with other government agencies. I would be pretty certain
that they do make a response fairly quickly acknowledging receipt
of the inquiry.
Mr. MAZZOLI. OK. So you are not waiting for months and years
to know if they even got your mail?
Mr. ROWE. I would think Mr. Mayerfeld can assure us that the
initial response would go out.
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Mr. MAYERFELD. I can so assure you, that I think except for some
margin of error, that every request is replied to within 10 days, at
least acknowledged.
Mr. MAZZOLI. Just out of curiosity, is it possible to do anything in
the use of automation or using equipment to do this work? Would
that speed up the process at all? Do you think it lends itself to that
kind of use?
Mr. MAYERFELD. Well, I am not an expert at this. I think Mr.
Strawderman could comment on this more reliably, but any kind of
automation would not solve the basic problem which Chairman
Boland referred to, which is the requirement that someone who un-
derstands the subject matter must review it personally before it
can be released.
Mr. MAZZOLI. The chairman put his finger on the crux of the
problem.
I see Professor Gammon is nodding.
Mr. GAMMON. Automation depends very heavily. I know the
State Department has lots of its material in electronic retrieval
files, but for purposes of this sort we depend on very sophisticated
coding and indexing when it went in so you can call it up with a
punch of a button and you would still, of course, have to review it
from the sensitivity angle once you had it retrieved.
Mr. MAZZOLI. SO it could be at the beginning of the process
rather than the end that changes ought to be made.
Well, it is an interesting thing. If a bill like this passes, of course,
we are going to have a lot of responsibility, which you pointed out,
Mr. Rowe, in overseeing this, and it could be that the first thing we
will try to do is have some kind of working task force set up on
whether there is a way to use modern technology to speed up the
process of yielding information through FOIA.
John, let me ask you just a couple of questions.
You were probably not in the room this morning, but I freely
confess I am in over my head when we talk about all this judicial
review. It is very difficult for me, but essentially speaking, your po-
sition and the ABA's position is that the courts should be extreme-
ly deferential to the decisions of the DCI on classification of infor-
mation, on what is sensitive, what is sources and methods.
Now, given that, can there be a judicial review process worthy of
the name judicial review which gives this great deference?
Mr. SHENEFIELD. It is difficult. The process begins when someone
comes into a court and says that the CIA has made a mistake, and
that there are two or three bases for thinking that, and that they
are willing to put on the record, particularly under H.R. 4431, a
statement as to why they believe that to be so. That would then
shift the burden to the Agency to come forward with its rebuttal
statement. What that avoids, and why it seems to me that provi-
sion is so important, is the judge himself looks at the files, and sees
whether, as the chairman said, he happens to agree with the DCI's
analysis. That is where the danger potentially is lurking. And we
do have examples. While the CIA may not have lost a case, we do
have examples of the wrong result from a judge who independently
look through papers and comes to a conclusion.
Now, what the bill proposes may not be the kind of de novo
review that in the best of all worlds, in a nonsensitive situation, we
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would all prefer, but given the constraints it seems to me to be the
best available in these circumstances.
Mr. MAZZOLI. Try to help me. I believe in the Senate, I thought it
was a footnote, but it is in the text, in the body of the Senate
report is a statement to the effect that under their review process
in extraordinary circumstances the court could order produced the
exact document. After going through the Vaughn affidavits and in-
dexes and everything else, if the court still says to itself that I
want this material, the court can order it.
Do you see that to be a problem? Could you strike the word "ex-
traordinary" and say that under certain circumstances the court
could and let the law evolve? Do you think you still have to make
it extremely difficult for the judge to get that document?
Mr. SHENEFIELD. Well, the standard, as I recall it, in that report
had to do with a "rational basis." If the judge thinks there is no
rational basis for the DCI to come to the conclusion that he did,
then he may himself inquire into the merits of the controversy.
That is essentially the same standard that a judge uses in our
courts when he looks at a jury verdict, in a civil case challenged by
the losing party. The judge may say to himself, I do not agree with
that jury, but there was some evidence so that, they could rational-
ly have come to that result. Because they are the finders of fact,
therefore logically, in this bill, the DCI's judgment on this ought to
be sustained.
Now, the extraordinary circumstance would be?and it is hard
for me to imagine, but it is possible, I suppose?that a fairminded
judge looking at the DCI's judgment would say to himself, I cannot
see any rational basis for this decision, and therefore I myself am
going to inquire further. That seems to be so unlikely that it may
not be of great concern to the Agency, yet it seems to me to pre-
serve the essential review that is necessary in this context.
Mr. MAZZOLI. And you still have judicial review in the sense of
those who suggest that you cannot have some sort of review of this
whole activity. It would be a review, it would be in the context in
which other court reviews are held, is that right?
Mr. SHENEFIELD. Yes, sir, it is essentially the same standard that
our courts apply to general administrative agencies. It is the sub-
stantial basis or rational basis test, where they look to see whether
an expert in this area could have come to that conclusion.
Mr. MAZZOLI. Now, you used the term earlier, John, about non-
frivolous.
Mr. SHENEFIELD. Yes, sir.
Mr. MAZZOLI. "Any nonfrivolous action," would that sort of be
"is this rational?" Is that rational, nonfrivolous, not capricious?
MT. SHENEFIELD. Yes. I think the origin of that is now Judge An-
tonin Scalia of the U.S. Court of Appeals for the District of Colum-
bia who persuaded the ABA that such language was the best way
to state the concept that the ABA wanted to come up with, that if
it is roughly in that zone--
Mr. MAZZOLI. Let me ask?I should be going back to law school
for sure, I am admitting my intense ignorance of what I used to
know a little bit about?what is a de novo review? What actually is
de novo review?
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Mr. SHENEFIELD. It is pretty much what the Congress wants it to
be in a particular statute, but what it means as a kind of common-
sense matter to a lawyer practicing administrative law, is that the
judge completely throws out what went on before and looks at it all
over again coming fresh to the problem and makes up his own
mind. That is essential de novo review.
Mr. MAZZOLI. So the judge basically does not give much credence
or weight to the activities or judgment of the DCI, for example?
Mr. SHENEFIELD. Pure de novo review would give no weight to it.
Mr. MAZZOLL My time has expired.
The gentleman from Virginia?
The gentleman from Massachusetts?
Mr. BOLAND. What is your judgment, John, on whether or not
there ought to be a de novo review?
I understand that Mr. Rowe thinks it ought to be that kind of
review.
What is your judgment on that? This is one area in which I
think there is a difference, is there not?
Mr. SHENEFIELD. Yes, sir. My judgment and the ABA's judgment
is that de novo review here is improper, that you want a standard
that is much more deferential to the DCI, and that that standard
ought to speak in terms of rational basis, or nonfrivolous nature, or
something of that sort.
Mr. BOLAND. The judge really can make a judgment.
I think I would agree with you that he can listen to the parties
and he can listen to the DCI and suddenly make the judgment,
well, this is an arbitrary abuse of the DCI's power here, and I think
you have to trust the judgment of the courts in this area. A de
novo review would certainly delay proceedings considerably and
place an additional burden upon the court.
Mr. SHENEFIELD. Moreover, it places the corpus of what you are
trying to protect here, in a sense, in the courtroom. It is in camera,
but every once in a while there will be a wrong result, if those doc-
uments are alluded to in an opinion or they are described, that just
is not what you want to have happen.
Mr. BOLAND. Can we get agreement from Mr. Rowe and you on
which particular bill you favor?
I will ask the ambassador a little bit later.
Mr. ROWE. Of the two House bills, if I had to opt for one over the
other, I think 4431 would be my choice.
Mr. BOLAND. Now, you have got--
Mr. SHENEFIELD. By a nose, I would agree.
Mr. BOLAND. Ambassador Gammon, you have a marvelous oppor-
tunity to strike a historical niche in the American Historical Asso-
ciation by having the association favor one of the bills on the occa-
sion of its 100 anniversary. [Laughter.]
Mr. GAMMON. On the principle of the lesser evil that has been
described, 4431.
Mr. BOLAND. They were founded in 1884, and you know, since it
has been around that long, not you personally--[Laughter.]
Mr. BOLAND. But since the association has been around that long,
it deserves to be heard.
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I think if you could get another look at this that you could un-
derstand you will probably get something. We will make it as light
as we can.
Thank you very much. I appreciate it.
Mr. MAZZOLI. Thank you very much.
I understand Mr. Shenefield has to catch a plane. I want to get
him out of here.
But one of the things that occurs to me, again to get back to
what Mr. Rowe was saying, which I think is important, and that is
the kind of way people deal with one another and again trying to
improve the service to the public, it could well be that possibly the
people of the CIA would want to sit down with the historians and
newspaper writers and publishers just to see if there is any agree-
ment that can be reached or if there is any way that the service to
the requesters can be improved without compromising your stand-
ards, without devoting an immense amount of resources which they
need for gathering information to this task. It could be that some-
thing stemming- from this bill may actually be a healthy step in
the direction of trying to see if there is a certain degree of tenuous
coexistence.
My colleague talks about report language. It could be well as
part of our oversight that the historians be allowed to at least take
part in some kind of a task force or working group and see if you
could find ways to set time limits with periodic examinations and
without making it too formal, but maybe informally you can reach
a lot of agreements.
Anyway, gentlemen and my colleagues, thank you very much.
Staff, any questions at all?
Thank you all very much, John, Ambassador. Nice to see you,
Mr. Rowe. Have a good day.
The Committee is adjourned.
[Whereupon, at 2:48 o'clock p.m., the subcommittee recessed sub-
ject to the call of the Chair.]
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APPENDIX A
NTH CONGRESS H. R. 3460
1ST SESSION
To amend the National Security Act of 1947 to regulate public disclosure of
information held by the Central Intelligence Agency, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
, JUNE 29, 1983
Mr. MAZZOLI introduced the following bill; which was referred jointly to the Per-
manent Select Committee on Intelligence and the Committee on Government
Operations
A BILL
To amend the National Security Act of 1947 to regulate public
disclosure of information held by the Central Intelligence
Agency, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Information
4 Act of 1983".
5 SEC. 2. (a) The National Security Act of 1947 is
6 amended by adding at the end thereof the following new title:
(91)
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2
1 "TITLE VII?RELEASE OF REQUESTED INFORMA-
2 TION TO TILE PUBLIC BY TILE CENTRAL IN-
3 TELLIGENCE AGENCY
4 EXEMPTION OF CERTAIN OPERATIONAL FILES FROM
5. SEARCH, REVIEW, PUBLICATION, OR DISCLOSURE
6 "SEC. 701. (a) Operational files located in the Director-
7 ate of Operations, Directorate for Science and Technology,
8 and Office of Security of the Central Intelligence Agency
9 shall be exempted from the provisions of the Freedom of In-
10 formation Act which require publication or disclosure, or
11 search or review in connection therewith.
12 "(b) Subsection (a) of this section shall not prevent the
13 search and review of operational files for information con-
14 caning-
15 "(1) United States citizens or aliens lawfully ad-
16 mitted for permanent residence who have requested in-
17 formation on themselves pursuant to the provisions of
18 the Freedom of Information Act (5 U.S.C. 552);
19 "(2) any special activity the existence of which is
20 not exempt from disclosure under the provisions of the
21 Freedom of Information Act;
22 "(3) the subject of an investigation by the intelli-
23 gence committees of the Congress, the Intelligence
24 Oversight Board, the Office of General Counsel of the
25 Central Intelligence Agency, the Office of Inspector
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3
1 General of the Central Intelligence Agency, or the
2 Office of the Director of Central Intelligence for any
3 impropriety, or violation of law, Executive order, or
4 Presidential directive in the conduct of an intelligence
5 activity.
6 "(c) The provisions of subsection (a) of this section shall
7 not be superseded except by a provision of law which is en-
8 acted after the date of enactment of subsection (a), and which
9 specifically cites and repeals or modifies its provisions.
10 "(d) For the purposes of this title the term 'operational
11 files' means those files which document-
12 "(1) the means by which foreign intelligence infor-
13 mation, counterintelligence information, or counterter-
14 rorism information is collected through scientific and
15 technical systems;
16 "(2) foreign intelligence operations, counterintelli-
17 gence operations, or counterterrorism operations;
18 "(3) investigations conducted to determine the
19 suitability of potential foreign intelligence sources,
20 counterintelligence sources, or counterterrorism
21 sources; or
22 "(4) intelligence or security liaison arrangements
23 or information exchanges with foreign governments or
24 their intelligence or security services.
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4
"(e)(1) -Nonoperational files whieh 'containlinformatiOn
,2 derived Or disSeminited frdiii operational files shall be subjeet
"3 to 's-eareh and'reView..'.1
-4 14 S -`.-`(2) The inchision of inforMatiOn from Operational files
5 in nonoperational files shall not affect the eiemption under
'6 subsection'(a) of this. section of the originating -operational
Ti files from search, review, publicaticin; oi'disclosure.".
8' (b) The table of contents at the beginningof such Act is
9 amended by adding at theend thereof the following:
,"TITLE VII-RELEASE OF REQUESTED INFORMATION TO THE PUBLIC BY
THE CENTRAL INTELLIGENCE AGENCY
"Sec. 701. Exemption of certain Operational filesIrCnn se'ar'ch, review, publication, or
disclosure.".
? Lt
10 SEC. 3. The amendments made by section 2 shall be
11 effective upon enactment of this Act and shall apply with
? 7
, ?
12 respect to any requests for records, whether or not such re7
'
13 quest was made prior to such enactment, and shall apply ,to
.
14 all cases and proceedings pending before a court of the
15 United States on the date of such enactment: ,
;
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98TH CONGRESS ti
1ST SESSION
I 1 ? IN.
95
.4431
APPENDIX B
To amend the National Security Act of 1947 to regulate public disclosure of
information held by the Central Intelligence Agency.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 16, 1983
Mr. WHITEHURST introduced the following bill; which was referred jointly to the
Committees on Government Operations and the Permanent Select Commit-
tee on Intelligence
A BILL
To amend the National Security Act of 1947 to regulate public
disclosure of information held by the Central Intelligence
Agency.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Information
4 Act of 1983".
5 FINDINGS AND PURPOSES
6 SEC. 2. (a) The Congress finds that-
7 (1) the Freedom of Information Act is providing
8 the people of the United States with an important
9 means of acquiring information concerning the work-
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2
1 ings and decisionmaking processes of their Govern-
2 ment, including the Central Intelligence Agency;
3 (2) the full application of the Freedom of Informa-
4 tion Act to the Central Intelligence Agency is, howev-
5 er, imposing unique and serious burdens on this
6 agency;
7 (3) the processing of a Freedom of Information
8 Act request by the Central Intelligence Agency nor-
9 mally requires the search of numerous systems of
10 records for information responsive to the request;
11 (4) the review of responsive information located in
12 operational files which concerns sources and methods
13 utilized in intelligence operations can only be accom-
14 plished by senior intelligence officers having the neces-
15 sary operational training and expertise;
16 (5) the Central Intelligence Agency must fully
17 process all requests for information, even when the re-
18 quester seeks information which clearly cannot be re-
19 leased for reasons of national security;
20 (6) release of information out of operational files
21 risks the compromise of intelligence sources and
22 methods;
23 (7) eight years of experience under the amended
24 Freedom of Information Act has demonstrated that this
25 time-consuming and burdensome search and review of
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3
1 operational files has resulted in the proper withholding
2 of information contained in such files. The Central In-
3 telligence Agency should, therefore, no longer be re-
4 quired to expend valuable manpower and other re-
5 sources in the search and review of information in
6 these files;
7 (8) the full application of the Freedom of Informa-
8 tion Act to the Central Intelligence Agency is per-
9 ceived by those who cooperate with the United States
10 Government as constituting a means by which their co-
11 operation and the information they provide may be dis-
12 closed;
13 (9) information concerning the means by which in-
14 telligence is gathered generally is not necessary for
15 public debate on the defense and foreign policies of the
16 United States, but information gathered by the Central
17 Intelligence Agency should remain accessible to re-
18, questers, subject to existing exemptions under law;
19 (10) the organization of Central Intelligence
20 Agency records allows the exclusion of operational files
21 from the search and review requirements of the Free-
22 dom of Information Act while leaving files containing
23 information gathered through intelligence operations
24 accessible to requesters, subject to existing exemptions
25 under law; and
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4
1 (11) the full application of the Freedom of Infor-
2 mation Act to the Central Intelligence Agency results
3 in inordinate' delays and the inability of these agencies
4 to respond to requests for information in a timely
5 fashion.
6 (b) The purposes of this Act are-
7 (1) to protect the ability of the public to request
8 information from the Central Intelligence Agency
9 under the Freedom of Information Act to the extent
10 that such requests do not require the search and
11 review of operational files;
12 (2) to protect the right of individual United States
13 citizens and permanent resident aliens to request infor-
14 mation on themselves contained in all categories of
15 files of the Central Intelligence Agency; and
16 (3) to provide relief to the Central Intelligence
17 Agency from the burdens of searching and reviewing
18 operational files, so as to improve protection for intelli-
19 gence sources and methods and enable this agency to
20 respond to the public's requests for information in a
21 more timely and efficient manner.
22 SEC. 3. (a) The National Security Act of 1947 is
23 amended by adding at the end thereof the following new title:
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5
1 "TITLE VII?RELEASE OF REQUESTED INFORMA-
2 TION TO THE PUBLIC BY TIM CENTRAL IN-
3 TELLIGENCE AGENCY
4 "DESIGNATION OF FILES BY THE DIRECTOR OF CENTRAL
5 INTELLIGENCE AS EXEMPT FROM SEARCH, REVIEW,
6 PUBLICATION, OR DISCLOSURE
7 "SEC. 701. (a) In furtherance of the responsibility of the
8 Director of Central Intelligence to protect intelligence
9 sources and methods from unauthorized disclosure as set
10 forth in section 102(d)(3) of this Act (50 U.S.C. 403(d)(3))
11 and section 6 of the Central Intelligence Agency Act of 1949
12 (50 U.S.C. 403g), operational files located in the Directorate
13 of Operations, Directorate for Science and Technology, and
14 Office of Security of the Central Intelligence Agency shall be
15 exempted from the provisions of the Freedom of Information
16 Act which require publication or disclosure, or search or
17 review in connection therewith, if such files have been spe-
18 cifically designated by the Director of Central Intelligence to
19 be-
20 "(1) files of the Directorate of Operations which
21 document foreign intelligence or counterintelligence op-
22 erations or intelligence or security liaison arrangements
23 or information exchanges with foreign governments or
24 their intelligence or security services; or
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6
1 "(2) files of the Directorate for Science and Tech- ?
2 nology which document the means by which foreign in-
3 telligence or counterintelligence is collected through
4 scientific and technical systems;
5 "(3) files of the Office of Security which document
6 investigations conducted to determine the suitability of
7 potential foreign intelligence or counterintelligence
8 sources:
9 Provided, however, That nondesignated files which may con-
10 tam n information derived or disseminated from designated
11 operational files shall be subject to search and review. The
12 inclusion of information from operational files in nondesig-
13 nated files shall not affect the designation of the originating
14 operational files as exempt from search, review, publication,
15 or disclosure: Provided further, That the designation of any
16 operational files shall not prevent the search and review of
17 such files for information concerning any special activity the
18 existence of which is not exempt from disclosure under the
19 provisions of the Freedom of Information Act or for informa-
20 tion reviewed and relied upon in an investigation by the intel-
21 ligence committees of the Congress, the Intelligence Over-
22 sight Board, the Office of General Counsel of the Central
23 Intelligence Agency, the Office of Inspector General of the
24 Central Intelligence Agency, or the Office of the Director of
25 Central Intelligence for any impropriety, or violation of law,
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7
1 Executive order, or Presidential directive in the conduct of
2 an intelligence activity.
3 "(b) The provisions of this section shall not be super-
4 seded except by a provision of law which is enacted after the
5 date of enactment of this section and which specifically cites
6 and repeals or modifies its provisions.
7 "(c) Notwithstanding subsection (a) of this section,
8 proper requests by United States citizens, or by aliens law-
9 fully admitted for permanent residence in the United States,
10 for information concerning themselves, made pursuant to the
11 Privacy Act of 1974 (5 U.S.C. 552a) or the Freedom of In-
12 formation Act (5 U.S.C. 552), shall be processed in accord-
13 ance with those Acts.
14 "(d) The Director of Central Intelligence shall promul-
15 gate regulations to implement this section as follows:
16 "(1) Such regulations shall require the appropriate
17 Deputy Directors or Office Head to: (A) specifically
18 identify categories of files under their control which
19 they recommend for designation; (B) explain the basis
20 for their recommendations; and (C) set forth procedures
21 consistent with the statutory criteria in subsection (a)
22 which would govern the inclusion of documents in des-
23 ignated files. Recommended designations, portions of
24 which may be classified, shall become effective upon
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8
1 written approval of the Director of Central Intelli-
2 gence.
3 "(2) Such regulations shall further provide proce-
4 dures and criteria for the review of each designation
5 not less than once every ten years to determine wheth-
6 er such designations may be removed from any catego-
7 ry of files or any portion thereof. Such criteria shall in-
8 dude consideration of the historical value or other
9 public interest in the subject matter of the particular
10 category of files or portions thereof and the potential
11 for declassifying a significant part of the information
12 contained therein.
13 "(e)(1) On the complaint under section 552(a)(4)(B) of
14 title 5 that the Agency has improperly withheld records be-
15 cause of improper designation of files or improper placement
16 of records solely in designated files, the court's review shall
17 be limited to a determination whether the Agency regulations
18 implementing subsection (a) conform to the statutory criteria
19 set forth in that subsection for designating files unless the
20 complaint is supported by an affidavit, based on personal
21 knowledge or otherwise admissable evidence, which makes a
22 prima facie showing, that (A) a specific file containing the
23 records requested was improperly designated; or (B) the
24 records requested were improperly placed solely in designat-
25 ed files. If the court finds a prima facie showing has been
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9
1 made under this subsection, it shall order the Agency to file a
2 sworn response, which may be filed in camera and ex parte,
3 and the court shall make its determination based upon these
4 submissions and submissions by the plaintiff. If the court finds
5 under this subsection that the Agency's regulations imple-
6 menting subsection (a) of this section do not conform to the
7 statutory criteria set forth in that subsection for designating
8 files, or finds that the Agency has improperly designated a
9 file or improperly placed records solely in designated files,
10 the Court shall order the Agency to search the particular
11 designated file for the requested records in accordance with
12 the provisions of the Freedom of Information Act and to
13 review such records under the exemptions pursuant to section
14 55200 of title 5. If at any time during such proceedings the
15 CIA agrees to search designated files for the requested
16 records, the court shall dismiss the cause of action based on
17 this subsection.
18 "(e)(2) On complaint under section 552(a)(4)(B) of title 5
19 that the agency has improperly withheld records because of
20 failure to comply with the regulations adopted pursuant to
21 subsection (d)(2), the court's review shall be limited to deter-
22 mining whether the agency considered the criteria set forth in
23 such regulations.".
24 (b) The table of contents at the beginning of such Act is
25 amended by adding at the end thereof the following:
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10
"TITLE VU?RELEASE OF REQUESTED INFORMATION TO TME,
PUBLIC BY THE CENTRAL INTELLIGENCE AGENCY
"Sec. 701. Designation of files by the Director of Central Intelligence as exempt
from search, review, publication, or disclosure.".
1 SEC. 4. The amendments made by section 3 shall be
2 effective upon enactment of this Act and shall apply with
3 respect to any requests for records, whether or not such re-
4 quest was made prior to such enactment, and shall apply to
5 all cases and proceedings pending before a court of the
6 United States on the date of such enactment.
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APPENDIX C
The Society of Professional Journalists, Sigma Delta Chi
STATEMENT OF THE
SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI
before the
'SUBCOMMITTEE ON LEGISLATION
of the
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
United States' House of Representatives
concerning
"The Intelligence Information Act of 1983"
H.R. 3460, H. R. 4431
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Thank you, Mr. Chairman and members of the Committee,
for affording the Society of Professional Journalists,
Sigma Delta Chi, the opportunity to comment on H.R. 3460
and H.R. 4431, both entitled "The Information Intelligence
Act of 1983." Formed in 1909, the Society is the largest
organization of journalists in the United States, with more
than 24,000 members in all branches of the news media, print
and broadcast.
The Society has a longstanding interest in and concern
with the government's information policies. We testified
in the Senate on S. 1324, and now make known our views on
H.R. 3460 and H.R. 4431.. We do so out of more than just
professional self-interest. The flow of information from
the government to the public is the foundation upon which
this democracy is based. It is the public which benefits
from having direct access to official government information
and records rather than just having to rely on the infamous
official government spokesman.
As we did in our Senate testimony, we acknowledge that
the Central Intelligence Agency has abandoned its effort to
gain a complete exemption from the Freedom of Information
Act (FOIA). This is a-very constructive step by the CIA.
The CIA's stated purpose in seeking this bill -- alleviating
its administrative work and enhancing its internal security --
is unobjectionable. But while the Society does not object
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to this stated goal, there are still too many problems
with this bill to allow us to endorse it at present. In
short, we fear that the impact of this bill is far greater
than its stated purpose. It is also worth noting that
should the CIA be granted its exemption, this Committee's
oversight role will take on even more importance. Any
abuses in designating files that go undetected will be
blamed squarely on this Committee.
Part of this reluctance is rooted in the context with-
in which this bill is introduced. The overall information
policy of-the Reagan Administration has been one of con-
stantly whittling away at the amount of information the
American people receive about their government. These
policies have already given us a retrogressive package of
amendments to the FOIA, the Justice Department's policy of
fee waivers and regulations implementing the FOIA, the
President's executive order on classification and the Presi-
dent's ill-fated March 11, 1983 directive on national security
information.
The Society ES also skeptical of the need for this bill
because it is redundant; statutes now exist to prevent the
disclosure of sensitive CIA.information. Exemptions 1 and 3
to the FOIA now protect classified national security informa-
tion and intelligence sources and methods from disclosure
along with Section 102(d)(3) of the National Security Act
of 1947. Furthermore, the CIA has been unable to cite
examples of courts mandating the disclosure of information
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when the CIA argued that such release would harm national
security. Our skepticism over the need for this bill is
also rooted in the CIA's failure to produce concrete
examples of the FOIA's ever leading to the exposure of
a source's identity. .
But the Society is most concerned that this bill
runs counter to the very spirit behind the FOIA -- that
the American people are entitled to information about
their government. The Senate, in its consideration of
S. 1324, made several improvements that are lacking in
H.R. 3460, but contained in H.R. 4431. These measures
include provisions providing for judicial review of agency
decisions, requiring the designation of a file to be re-
viewed every ten years, continuing the search and review
of information in designated files used in an official
investigation and mandating that the CIA Director promul-
gate regulations concerning the designation of CIA opera-
tional files.
Before the Society can support a special CIA exemption
from the FOIA, one essential concern must be satisfied --
this bill cannot in any way lead to the denial of informati'On
that is now available under the FOIA. If this guarantee can
be given, then the CIA's goal of greater efficiency is justi-
fiable. ? But if this bill is used to withhold information
that is now releaseable, then greater efficiency is too high
a price to pay. As part of this greater efficiency promised
in return for passage of the bill, this Committee should re-
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ceive guarantees from the CIA that FOIA requests will be
complied with more expeditiously and that personnel will
be shifted internally to accomplish this. The CIA is now
a literal black hole for FOIA requests, with journalists
generally waiting at least two years for their requests
to be filled.
There are several specific provisions of H.R. 3460
and H.R. 4431 that need to be addressed before the Society
can support any FOIA exemption for the CIA.
JUDICIAL REVIEW:
In order, to ensure that this bill does not subvert
the FOIA's purpose of informing the American people about
their government, a strong judicial review provision is
essential. The Senate agreed with this statement and in-
serted such language. However, the Senate version still
contains problems. As set forth in S. 1324, to be granted
judicial review an individual must have personal knowledge
or otherwise admissible evidence of the improper designation
of a specific file-or the improper placement of a record in
a designated file. This standard provides illusoy comfort
obviously, very few persons.will have the requisite knowledge
to obtain judicial review. And, even if a requestor can make
this basic showing, S. 1324 limits court review to the CIA's
sworn response.
The Society proposes a different judicial. review stand-
ard that is in keeping with the intent of the FOIA. Any bill
passed by the Congressshould allow a court to independently
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review the designation of the file in question. If necessary,
this review can be in camera. Such a judicial review pro-
vision is consistent with the FOIA's general requirement
of de novo judicial review of withheld classified material.
DESIGNATION OF FILES:
H.R. 4431 contains a section that H.R. 3460 does not,
but which should be part of any bill passed by Congress.
This provision would require the CIA Director to promulgate
regulations setting out the procedures that would be used
to designate files as "operational." This provision also
includes the important requirement that procedures and cri-
teria be set forth to ensure that files are reviewed once
every ten years to ascertain whether designations can be
removed and the information made public. H.R. 4431 properly
includes in the criteria the historical value of the infor-
mation or the public interest in it.
OPERATIONAL FILES UNDER INVESTIGATION:
While S. 1324. and both House bills allow the continued
search and review of files which generated information used
in an official investigation of an abuse by the CIA, this
provision needs strengthening. The report accompanying S. 1324
provides helpful language to the effect that all information
relied upon as part of an investigation of an illegality or
impropriety in the conduct of an intelligence activity should
remain open to the public. But report language is not enough.
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A provision should be added to the statute to make it man-
datory that all information relevant to an investigation of
abuse or impropriety remain available.
SPECIAL ACTIVITIES FILES:
S. 1324 and both House bills contain provisions pro-
viding continued CIA search and review of operational files
concerning "special activities," or covert action operations,
if the fact of the activity's existence is not exempt from
the FOIA. Since all covert actions are, by definition,
classified and therefore covered by FOIA Exemption 1, this
provision appears to deny search and review of special
activity files. This provision seems to run counter to
the intent of the FOIA in that it would allow only files
pertaining to covert actions officially acknowledged by an
Executive Branch official to be subject to search and review.
PENDING REQUESTS/PENDING CASES:
All three bills contain a section that would make the
CIA's exemption to. the FOIA effective for all requests for
records and pending court cases, whether or not filed before
enactment of the bill. This provision should be struck from
the bill simply on the ground that it is, on the surface,
unfair., Furthermore, inclusion of such a provision is proof
that passage of this bill will keep from public disclosure
information that is now available to the public.
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CONCLUSION:
The Society of Professional Journalists, Sigma Delta
Chi realizes both the invaluable service the CIA performs
for the citizens of the United States and the need to keep
some of its information secret. But this must be weighed
against the principle that has allowed our democracy to
flourish for two hundred years. Above all else, we must
remember that all institutions of our government are answer-
able to the American people. Secrecy for secrecy's sake
erodes that principle.
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APPENDIX D
CIA ANALYSIS OF PREVIOUSLY RELEASED DOCUMENTS TO ENSURE CONTINUED AVAILABILITY
KEYED TO CENTER FOR NATIONAL SECURITY STUDIES REPORT NO. 102-4 (March 1981)
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GmtraHMdtmaAgency
WashingonLIC20505
5 April 1984
The Honorable Edward P. Boland, Chairman
Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is to respond to your request that the Agency provide
the Committee with certain information as to (1) the antici-
pated impact of the pending Freedom of Information Act (FOIA)
legislation on current Central Intelligence Agency (CIA) FOIA
litigation, and (2) the continued availability of information
previously released to the public.
Concerning your request for a list of each of our pending
FOIA cases and how each would be impacted, I understand that
this is no longer a matter of concern. H.R. 5164, as
introduced recently by you and Representatives Mazzoli,
Robinson, and Whitehurst, limits the retroactivity of the
legislation to cases filed after 7 February 1984, thus leaving
all pending cases subject to the current law.
In response to the second part of your request, we have
set forth in the enclosure our best analysis'as to whether
the documents referred to in the list you provided us would
continue to be available under the FOIA legislation being
considered. I trust that you will find this analysis to be
helpful.
look forward to working with you and the other members of
the Committee in securing enactment of meaningful legislative'"
relief.
Clair E. George
Director, Office of Legislative Liaison
Enclosure
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C-1 This category describes a letter, with attachments,
from the DCI to the President. Because this letter was written
by the DCI, it would be located in the Executive Registry.
Since the Executive Registry would not be exempt from search
and review, this type of material would continue to be
accessible.
C-5 This category describes documents which were referred
to in a report presented by the DCI to the Senate Appro-
priations Committee. It would, therefore, be located in the
Executive Registry. Since the Executive Registry would not be
exempt from search and review, this type of material would
continue to be accessible.
C-5(a) This document describes the organization and
function of the Domestic Operations Division. This document
is part of the Directorate of Operation's (DO) own internal
regulations. Since copies of these regulations would be
contained in non-designated files, this type of material
would continue to be accessible.
C-5(b) Same as answer to C-5(a).
C-5(c) This category describes correspondence between the
DCI and an individual outside the Agency. This type of
correspondence would be located in the Executive Registry.
Therefore, this type of document would continue to be
accessible to search and review.
C-5(d) This category describes a document analyzing the
international youth movement. These types of documents would
be located in the DDI. Since the DDI record system could not
be designated as exempt from search and review, these types of
documents would continue to be accessible.
C-5(e) This category describes a document to all employees
from the DCI. Documents from the DCI to all employees would be
stored in ehe Executive Registry. Since the Executive Registry
will not be designated as exempt from search and review, these
types of documents will still be accessible.
C-6 These documents describe an agreement between the V
Federal Bureau of Investigation (FBI) and the CIA. Copies of
these documents would likely be contained in the files of the
FBI. Since the bill does not affect documents contained in
federal agencies other than CIA, this type of material will
continue to be accessible.
C-8 This category describes a memo to-the DCI from the
IG. Documents from the IS to DCI would be located in the files
of the IG and Executive Registry. Since the Executive Registry
and 1G record systems would not be exempt from search and
review, this type of material would continue to be accessible.
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C-10 This catgory of documents describes a memo that was
examined by the Rockefeller Commission and referred to in the report
of that Commission. Since material that was transmitted to an
official investigatory body in the course of conducting an
investigation into an illegal or improper intelligence activity will
continue to be accessible to search and review, the types of
documents described in this category will remain accessible.
C-11 These documents describe events in Chile during 1970. The
document dated 18 September 1970 and the document describing Allende
would have been contained in the Office of Public Affairs. Since
the files of the Office of Public Affairs would not be exempt from
search and review, this type of material would continue to be
accessible. With respect to the document entitled "Developments
During the Week of 20 September 1983," we cannot make a definitive
determination on the accessibility of this type of document because
it is unclear where this document was filed within the CIA record
system.
C-12(a) This category describes documents pertaining to
activities outside the CIA's charter. These documents were
generated in response to a DCI directive requesting CIA to report
activities outside the charter of the Agency. This material would
likely be located in the Executive Registry since it was in response
to DCI request for information. The material would also be located
in the IG record systems since it was part of an IG investigation.
Since the files of the 1G and Executive Registry would not be exempt
from search and review, the type of material described in this
category would continue to be accessible.
C-12(b) Same as answer to C-5(d).
C-12(c) Same as answer to C-12(a).
C-13/15 This category describes documents regarding Project
RESISTANCE and MERRIMACK, which was run by the Office of Security.
These types of documents will not be located in record systems to be
designated by the Office of Security. They, therefore, will remain
accessible..
C-16 This category describes a memo to the DCI concerning
restrictions on covert operations. Documents sent to the DCI would
be located in the Executive Registry. Since the Executive Registry
would not be exempt from search and review, this type of material
will continue to be accessible.
C-19 This category describes documents located within CIA that
originated from other federal agencies. Since this bill is
restricted to CIA, documents produced by other federal agencies will
be available from other federal agencies. .
C-21 This category describes a memo from the General Counsel to
the DCI. Memos from the General Counsel to the DCI will be located
in the Executive Registry and the OGC. Since the Executive Registry
and the files of OGC will not be exempt from search and review, this
type of material will continue to be accessible.
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C-22 This category describes National Intelligence
Estimates relating to the Cuban Missile crisis. This type of
intelligence product would be located in the DDI record system,
which could not be a designated as exempt from search and
review under the bill. Thus, these types of documents would
continue to be accessible to search and review.
C-24 This category describes documents detailing
non-operational relationships between CIA and the University of
California. Since documents concerning non-operational
relationships would be located in nondesignated files, these
types of materials will continue to be accessible.
C-25 This category describes documents concerning the
Agency's relationship with a law firm hired to represent the
Agency. Documents concerning such a relationship would be in
the OCC. Since the files of OGC would not be exempt from
search and review, these types of documents will continue to be
accessible. This category also describes documents dealing
with CIA's relationship with a public relations firm. It is
not possible to determine whether this type of document would
continue to be accessible without obtaining a copy of the
document.
C-26 This category describes documents dealing with
Oswald's connection with Cuba, which was provided to. the
ROckefeller Commission. Since, material referred to or relied
upon an official investigatory body in the course of conducting
an investigation into an illegal or improper intelligence
activity will continue to be accessible to search and review,
the types of documents described in this category will remain
accessible.
C-27 This category contains documents describing CIA drug
experiments. These documents would be accessible because they
were relied upon by an official investigatory body in the
course of conducting an investigation into an illegal or
improper intelligence activity.
C-28 This category describes a memo from the IG to the DCI
concerning CIA's mail interception operation. Memos from the
IG to the DCI would be located in the Office of the Inspector
General and Executive Registry. Since the Executive Registry
and the files of IG will not exempt from search and review,
this material will continue to be accessible.
C-29 This category describes a memo from the General
Counsel to the DCI regarding CIA activities-in Laos. Memos
from the General Counsel to the DCI will be located in the
Executive Registry and the OCC. Since the Executive Registry
and the-files of OGC will not be exempt from search and review,
this type of material will continue to be accessible.
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C-30 This category describes documents dealing with the
government's investigation of Jack Anderson. This type of
material will not be included in files which are to be
designated within the Office of Security. It would therefore
be accessible to search and review. This material may also be
accessible because it was relied upon in an investigation of
illegal'or improper intelligence activities. A definitive
opinion on this matters cannot be given without obtaining the
actual documents.
C-32 This category describes Director of Central
Intelligence Directives. DCID would be located in the
Executive Registry. Since documents in the Executive Registry
would not be exempt from search and review, this type of
material will continue to be accessible.
C-33 This category describes documents pertaining to the
disappearance of Professor Ribs. Certain of the documents
pertain to correspondence between DCI Colby and the SSCI and -
therefore would be contained in the Executive Registry. As to
the rest of the documents, it is not possible from the
description to ascertain whether they would continue to be
accessible. It would therefore be necessary to obtain the
actual documents.
C-34 This category describes documents pertaining to Peter
Camejo, Read of the Socialist Workers Party and to operation
CHAOS. It is likely that documents on Camejo were released
pursuant to a Privacy Act request. Since Privacy Act requests
will continue to be searched without restriction, this type of
material will remain accessible. With regard to the CHAOS
material, it is likely that this material was relied upon by
the Rockefeller Commission and Church Committee investigation
into illegal or improper intelligence activities. It therefore
will continue to be accessible.
C-35 Same as answer to C-27.
C-36 This category describes documents pertaining to
meetings held by the DCI Helms and statements by DCI Colby ,
concerning the Agency's mail intercept operation. Since thee
types of documents would likely be found in the Executive
Registry, which would not be exempt from search and review,
this type of material will continue to be accessible.
C-37 This category describes a memorandum from the General
Counsel to the DCI. This type of memorandum would be stored in
OGC and Executive Registry. Since the files of OGC and
Executive Registry would not be exempt from search and review,
.this type of material will continue to be accessible.
C-39 Same as answer to C-24.
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C-40 This category describes material concerning CIA
assistance to local police departments. This type of material
is likely to be found in Office of Security files that will not
be designated. Therefore, this type of material will continue
to be accessible.
C-41 This category describes a CIA critique of a Bar
Association report. This type of material will likely be found
in OGC files, which cannot be designated. This type of
material will, therefore, continue to be accessible.
C-42 This category describes documents pertaining to the
testimony before congress of two Directors of Central
Intelligence. Documents pertaining to congressional testimony
of the DCI will be found in the Executive Registry and Office
of Legislative Liaison. Since records in the Executive
Registry and Legislative Liaison Office will not be designated,
this material will continue to be accessible to search and
review.
C-44 Same as answer to C-13/15.
C-45 Same as answer to C-24.
C-46 Same as answer to e-13/15.
C-47 This category describes documents pertaining to CIA's
relationship with a journalist that was sent to the House and
Senate Intelligence Committees and the Rockefeller Commission.
CIA documents sent to Congress would be contained in the Office
of Legislative Liaison. Since the files in the Office of
Legislative Liaison will not be exempt from 'search and review,
these materials will continue to be accessible.
C-48 These documents pertain to contacts between the CIA
and the Internal Revenue Service regarding Rampart Magazine.
These documents originated within the Office of General Counsel
(OGC). Since the files of OGC will not be exempt from search,,
and review, this type of material will continue to be
accessible.
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C-49 This category describes White House press releases,
CIA documents listing the contents of the Agency's biological
arsenal, and the text of international agreements prohibiting
developments of such weapons. CIA biological 'weapons were the
subject of investigation by the Church Committee and it is
likely that the documents described in this category were
relied upon in the course of the investigation. Therefore,
these documents would be accessible because they were the
relied upon in the course of an investigation into improper
intelligence activities.
C-54 This category describes correspondence of a private
citizen intercepted by CIA. It appears that these items were
requested by this private citizen. Since the bill provides
that request by individuals for information concerning
themselves will be searched without restriction, the
accessibility of documents described in this category will not
be affected by the passage of the bill.
C-55 This category describes unclassified publications
sent to various colleges and universities on Soviet Government
personnel, international terrorism and other subjects.
Unclassified documents analyzing the Soviet Government and
international terrorism will likely be found in the DI, which
cannot be designated as exempt from searchand review.
Therefore this type of material will continue to be accessible.
C-58 This category describes documents analyzing trends in
international terrorism: This type of analysis will likely be
found in the DI, which cannot be designated as exempt from
search and review. Therefore, this type of material will
continue to be accessible.
C-61 This category describes a three page statement by the
DCI regarding contact with university officials. Written
statements by the DCI are likely to be contained in the
Executive Registry. Since the Executive Registry will not be
exempt from search and review, this type of document will
continue to be accessible.
C-63 This category describes articles written in the
"Studies of Intelligence." Since "Studies of Intelligence"
will be located in nondesignated files, this material will
continue to be accessible.
C-64 This category describes documents regarding plans by
CIA to assassinate various foreign officials. It is likely
that these documents were provided to the Rockefeller
Commission and Church Committee investigation into improper
intelligence activities. Since documents which are relied upon
in the course of an investigation into improper intelligence
activity will be subject to search and review, this type of
material will continue to be accessible.
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C-65 This category describes documents pertaining to overt
and covert relationship between the CIA and various
universities. Material relevant to overt relationships would
be contained in nondesignated files. It is not possible from
the description of the documents pertaining to covert
relationships with universities to determine whether they will
continue to be accessible.
C-66 This category describes documents pertaining to DCI
Colby's efforts to keep the Glomar Explorer story out of the
newspaper. These documents were retrieved from the Executive
Registry. Therefore, these types of documents will continue to
be accessible to search and review.
C-69 This category describes documents obtained through
discovery in the course of a litigation. Since the bill will
not affect the scope of search and review in response to a
discovery request, documents requested through the discovery
process will continue to be accessible.
C-70 This category describes correspondence with
universities regarding CIA Academic Relations. These types of
correspondences would be contained in the Office of Public
Affairs. Since files of the Office of Public Affairs will not
be designated as exempt from search and review, this type of
material will continue to be accessible. This category also
describes CIA regulations regal-ding relations with the academic
community, which would also be in files of the Office of Public
Affairs, and other nondesignated files.
C-71 This category describes deletions from a book
submitted for prepublication review. Classified information
deleted from books or articles submitted for prepublication
review will be found in files of the Office of Public Affairs.
Since the files of the Office of Public Affairs will not be
designated, this type of material will continue to be subject
to search and review.
C-75 This categor'Y describes documents pertaining to a
meeting between former DCI Turner and several university
officials. Since these types of'records will be found in the 67'
Executive Registry, they will continue to be accessible to
search and review.
C-91 This category describes a transcript of CIA testimony
before BPSCI. Since unclassified transcripts can be obtained
from Congress, this type of material will continue to be
accessible.
C-95 Same as answer to C-13/15.
C-96 This category describes a special study on the Berlin
Tunnel Operation. Since these special studies will not be in
designated files, this type of material will continue to be
accessible.
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C-100 This category describes documents which relate to
CIA's relationship with Tufts university. Material relevant to
.overt relationships would be contained in nondesignated files.
Those documents which concern an intelligence activity Which
was the specific subject of an investigation by an official
investigatory body would also be subject to search and review
under the legislation.
C-107 This category describes documents regarding Project
OFTEN. These documents would be accessible becaose they were
relied upon by an official investigatory body in the course of
conducting an investigation into the legality or propriety of
an intelligence activity.
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C. CENTRAL
INTELLIGENCE AGENCY
C-1. COLBY REPORT; Decembir 24, 1974; 64
pages. A letter front Colby to the President
regarding a December 22, 1974 Nero York
Times article revealing CIA domestic
intelligence activities. Nine annexes are
attached to the letter, whkh Include discussions
of the Huston Plan, interagency programs. a
counterintelligence office. Schlesinger's request
asking employees to report non-chartered CIA
activities (may be ordered as C-5(eff. and a
Much 5, 1971 memo terminating Operation
CHAOS. 156.40/copy)
CS:This series of documents (through C-5e)
were referred tomn a report on CIA domestic
activities presented by Director Colby lathe
Senate Appropriations Committee on January
15, 1975:
C-ha). ORGANIZATION AND FUNCTIONS.
DOMESTIC OPERATIONS DIVISION AND
STATION (DODS): February 11, 1963; 1 page.
The mission of the DODS is described as
directing. supporting and coordinating
"clandestine operational activities ... within
the United Staten against foreign largess.
(5.10/copy)
C-5(b). REDESIGNATION OF
COMPONENT; January 28. 19721 1 page. An
intra-agency memo from Thomas
Karam.sines, Deputy Director for Plans.
announcing the change in the name of the
Domestic Operations Division (DO) to Foreign
Resources Division (FR). (S.10/copy)
C-5(c). CORRESPONDENCE BETWEEN
DAVID GINSBURG, EXECUTIVE DIRECTOR
OF THE NATIONAL ADVISORY
COMMISSION ON CIVIL DISORDERS, AND
RICHARD HELMS. DIRECTOR OF THE CIA;
August 29, 1967 and September 1, 1967; 3
pages. Contains a request by Ginsburg for
Information on any civil disorder intelligence
the CIA may have, and Helms' reply.
(5.30/copy)
C-5(d). RESTLESS YOUTH: September 1968,
No. 0613/68: 41 pages. The report acolytes the
international youth movement of the late
19605. studies its sociological base, and
4-tempts to understand its structure, purposes.
goals, and possible ramifications. The report
cites the Civil Rights Movement of the early
1960s as proving to dissidents later in the
decade that confrontational politics is the only
means of accomplishing political change. See
also C-12(b) (54.10/copy)
C-Stel. MEMORANDUM FOR ALL CIA
EMPLOYEES FROM JAMES R.
SCHLESINGER. DIRECTOR: May 9. 1973: 2
Pages. t). Director requests that all CIA
Personnel report to him any past or present
activities which lie outside the Agency's
charter, and directs that if an order is given to
CIA employee which is inconsistent with the
123
EXTRACT: Center for National Security Studies
Report No. 102-4 (March 1981)
Agency's charter, the employee should report
the incident to the Director. See also C-1.
(5.20/copy(
C-6. DELIMITATION AGREEMENT OF 1948;
September and October 1948; 7 pages. The
documents constitute an agreement between the
FBI and the CIA permitting CIA contacts with
emigre' groups and individuals in the United
States. 15,70/copy)
C-8. 'POTENTIAL FLAP ACTIVMES."
MEMO TO WILLIAM COLBY FROM
WILLIAM V. BROE, INSPECTOR GENERAL;
May 21. 1973; 26 pages. The first portion of
the Memo discusks CIA contacts with
Watergate figures. and CIA participation in the
Intelligence Evaluation Committee and Staff,
established to evaluate domestic intelligence
studies. The second portion of the Memo
covers Support, Real Estate, Procurement,
Cover. Activities Directed Against U.S.
Ctiwns, and Collection Activities.
(52.60/copy)
C-10. FORMAL MEMORANDUM ON
RESPECTIVE RESPONSIBILITIES OF THE FBI
AND CIA IN THE UNITED STATES;
February 7, 1966; 2 pages. This memo referred
to on page 57 of the Rockefeller Commission
Report. The memo contains no information Oct
Included in that Report. (5.20/copy)
0.11. 00CUMliNilit ItlirrItttlil) 10 IN'
-ctssTR1 ActION IN C1111.1: 1963-1973:
Septembet 19711 and undated: II pap, ("hi,
file contain. three documents released to
CNSS through thel.f /IA Prigutionand deNcribing
etents in Chile during September 1970. 1 he
report? cont..ern alleged attempts ho the Chilean
Communkt Party to lute ulcer media outlets.
ryht.rrthin the Ch IN:11100111k Party.
1 he gromh cut -Portia 3 I ibertad.- and
Allender character and tvrt..er. 151.1111
C-12(a). FAMILY JEWELS-ACTIVITIES
CONSTRUED TO BE OUTSIDE THE CIA
CHARTER; May 1970' May 1973; 65 pages.
DCI James Schlesinger's directive of May 9,
1973 Ike C-5(e)J requested CIA employees to
repon activities which could be considered
outside the charter of the Agency. The request
released this partial file of questionable
activities. including domestic surveillance
Operations, arrangements with American firms.
assistance to local police departments'and
Office of Security support to the Bureau of
Narcotics and Dangerous Drugs. (56.50/copy).
*C-12(b). RESTLESS YOUTH; 1968; 245
pages. A version of the CIA's 19613 study of
worldwide student dissidence which induchs a
199-page section reporting on student
'movements in 19 foreign countries. Part I is
identical to C.5(d).cept Mat it indudes some
photographs and one paragraph deleted from
that version. (504.50/copy)
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? C.11(c). "FAMILY JEWELS" MEMORANDA:
1968 and 1973; 18 pages. Memoranda to the
DCI front various offices responding to his
request that CIA activities which may be
outside the Agency's charter be reported. The
memoranda show that the Agency examined
satellite photographs in analyeing domestic
civil disturbances, that the Domestic Contact
Service collects information on foreign students
studying in the U.S.. and that in 1969 and 1970
several studies were prepared on black radical
movements in the Caribbean, one of which
focused on possible links to the U.S. black
power movement. (51.80/copy)
*C-13/15. CIA/DOCUMENTS ON PROJECTS
RESISTANCE AND MERRIMAC; 1966-1975:
1987 pages. Documents in this file, released to
0955 through the FOIA, contain a number of
disamandes (rom, or additions to, the account
of the projects in the Rockefeller and Church
Reports. These relate to the use of informants
in Resistance; the scope of Resistmcss the use
of Army counterintelligence information In
Resistance reports; a proposed expansion of
MelTill1.1C in 1968; and Merrimac operations
outside the Washington. D.C. area. ($150.00;
selected documents 53.501
Aim. :11k1hik. it A 11.pn soniert indeN to the
14,1st:ince Mer.rintae J.:arm...describing
the date. number Al pares. groups mention,d
and tactk. described in each of 45M1 &cum.,
112.51 coN1
C-10. RESTRICTIONS ON OPERATIONAL
USE OF ACADEMICS; 1970 and 1973; 8
pages. Tom Huston's 1970 memo informing
DCI Helms that restrictions on domestic use of
several intelligence gathering techniques had
been lifted: and guidelines reprinted in 1973
prohibiting the Agency horn covert funding of
U.S. Educational or private voluntary
organkations. (S.80/copy)
C-19. FILES ON CHS GUEVARA: 1958-1976t
184 pages. A request to the CIA for 41 files on
Che Guevara and others produced responses
from the State Dept.. FBI, DIA, and Navy.
The file includes accounts of Ore's alleged
activities in Cuba. Latin Arnerica, Africa and
Vietnam; numerous false reports of his death;
and several accounts of his capture and
.ecution in Bolivia in 1967. (518.40/copy)
C-21. TWO MEMORANDA FROM CIA
GENERAL COUNSEL TO CIA DIRECTOR;
up to January 1962 - Aprii 1962: 8 pages. The'
three memoranda from CIA General Counsel
Lawrence Houston to the Director discuss the
legality of subversion and sabotage, and
paramilitary cold-war activities. These
memoranda argot that covert operations are
legal despite the lack of congressional
authorization in the 1917 NSC Act.
(50.80/copy)
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C-22. NATIONAL INTELLIGENCE
ESTIMATES RELATING TO THE CUBAN
MISSILE CRISIS; October 19 and 20, 1962, 30
pages. These papers concern the problem of
assessing the strategic and political implications
of the Soviet military buildup in Cuba. They
provide a history of the military buildup,
discuss its implications, and note that the
possibilities exist for an expansion of the
. buildup. The reports conclude that the Soviet
objective is to prove that the U.S. can no
longer prevent a Soviet presence in the
hemisphere, and discusses the probable effect
of a warning. 1$3.00/copo.
C-24. CIA RELATIONSHIPS WITH THE
UNIVERSITY OF CALIFORNIA; 1958-1977,
914 pages. Nathan Gardels received these files
through requests and litigation under the
FOIA. They document CIA relationships and
contraceiwith UC for research in political
science. Chinese and Slavic studies. physics,
and other fields, CIA use of academic cover;
and covert recruiting.
C-25. CIA RELATIONSHIPS WITH
DOMESTIC FIRMS; 1975-1976; 67 pages.
These documents, released in Halperin v. CIA.
provide a limited look at the Agency's
relationships with the Arnold & Porter law
firm hired to represent it during the 1975-1976
Senate investigation, and with Robert R.
Mullen and Co. The CIA used Mullen Co., a
public relations firm which hired E. Howard
Hunt in 1970. for cover and other purposes.
($6.70/copy)
. C-26. OSWALD AND THE CUBAN
CONNECTION, April and May, 1975; 27
pages. This report represents a review of items
in the CIA's Lee Harvey Oswald File "regarding
allegations of Castro Cuban involvement in the
John F. Kennedy assassination." The analysis
was requested by the Rockefeller Commission.
The report seeks, in part, to explain Oswald's
"feelings toward and relations with Castro's
Cuba." ($2.70/copy)
C-27. CIA DRUG EXPERIMENTS; up to MY
25, 1975; 146 pages. A collection of 59
documents detailing various CIA projects
relating to drug and behavioral experiments.
The file includes some documents from the
Frank Olson case (see C-35), as well as
documents describing MKULTRA, the CIA's
top-secret project to investigate "the
manipulation of human behavior." The
research is said to be "considered by many in
medicine and related fields to be professionally
unethical. A final phase of the testing of
MKULTRA products places the rights and
interests of U.S. ritizens in jeopardy."
($14.60/copy) (The entire 90,000-page release
of CIA behaviorcontrol documents is available
by appointment For inspection at the CNSS
Library.)
124
C-28, MEMO.FROM INSPECTOR GENERAL
TO DIRECTOR OF CIA INVESTIGATING
THE CIA'S NEW YORK MAIL INTERCEPT
PROGRAM, June 4, 1976; 11 pages. Colby's
affidavit in an FOIA case?stating that all mail
covers operated by the CIA's New York
Intercept Program (HTLINGUAL) on US-USSR
mail were indexed?sparked an investigation
on the entire project by the Inspector General.
The report examines the history of the project,
its mad interception procedures, and analyzes
how many and what kind of letters were ?
photographed, opened, and indexed.
($1.10/copy)
C-29. CIA ACTIVITIES IN LAOS: MEMO
FROM CIA GENERAL COUNSEL TO
DIRECTOR; October 30, 1969; 2 pages. The
memo resulted from Senator Pulbright's
assertion that the CIA is "waging war" in Laos
The General Counsel proceeded to inform the
Director of CIA operations in Laos (which he
characterized as assisting the native population
to prevent a military takeover) and of the
Agency's authority to carry out such
operations. (5.20/copy)
C-30. PROJECT MUDHEN?GOVERNMENT
INVESTIGATIONS OF JACK ANDERSON;
1972; 39 pages. This file includes a copy of the
complaint Anderson filed against Nixon,
Kissinger, Helms and several others. Alen'
included is a paper, "Chronology of a
Conspiracy," which summarizes the
government's investigation of Anderson, and a
series of five memos detailing certain aspects of
Project MUDHEN including operations, logs,
and photos. (83.90/copy)
C-32. DIRECTOR OF CENTRAL
INTELLIGENCE DIRECTIVES; 1946-1976; 285
pages. The directives are procedural memos
from DCIs over a period of twenty years. They
cover intelligence-related issues, including
procedures for the Intelligence Advisory
Committee, control of dissemination of foreign
intelligence, security policy guidelines on
liaison relationships with foreign intelligence
organizations, recognition of exceptional
service to the Agency, and exploitation of
foreign language publications. Also included
are directives relating to coordination of overt
collection abroad, domestic exploitation of
non-governmerital-organizations, and
production of atomic energy intelligence.
(828.50/copy)
C-33. CIA DOCUMENTS ON THE
DISAPPEARANCE OF PROFESSOR RIO/A,
April 1969- August 1975; 230 pages. The
disappearance in April 1969 of Dr. Thomas
Riha, a naturalized U.S. citizen born in
Czechoslavalda who was a professor of gassier
history at the University of Colorado. caused
considerable publicity, and prompted a CIA
investigation. The documents concern the
unexplained disappearance and the subsequent
involvement of University of Colorado
President Joseph Smiley. local news reporters,
and the CIA in inv.ligations of the matter.
Correspondence from William Colby to the
Senate Intelligence Committee explains the
limited role of the CIA in an affair that "was a
domestic concern and beyond the jurisdiction
and responsibility" of the Agency. News
coverage concerning the disappearance is
included. (823.00/copy)
C-34. CIA DOSSIER ON PETER CAMEJO
AND OPERATION CHAOS FILES ON THE
SOCIALIST WORKERS PARTY; 1968-
1974,220 pages. These files include an
incomplete CIA dossier on Peter Cornejo. the
presidential candidate of the Socialist Workers
Party. The Agency released 47 of the 1013
extant documents on Cornejo. which describe
his political activities. Also included are
Operation CHAOS files that add new details to
the description provided by the Rockefeller and
Church Reports on domestic spying by the
CIA. The documents reveal the Agencies use of
agents provocateurs and the widespread
monitoring of SWP leaders. (522.00/copy)
C-35. THE DEATH OF FRANK OLSON;
January 11, 1976; 179 pages. These are the
documents provided by the CIA to the family
of On. Frank Olson, the government biochemist
who died in November 1953 when he jumped
from a tenth story window after taking LSD.
The docurnents trace the CIA's investigation of
the Olson death as well as its involvement over
the years with drug experimentation. Some of
these documents are also included in C-27.
(817.90/copy)
(--36. 01'1 NI,IlS.
I hi: include inii !meting.
conducted h, CIA titedor Helm. on
1111 opcniog.
,v11 :1 stincincinN Inicinini
Conc,rning ol the yi,5111.
lilt 1,1c111, thv
I io
ihv /11,4..1 ?1,..pitc
p..,111c .1111,11.?incqt
,11,.111,1 111:11i ?01,11C ,111,1,-,
151 .1.1 ,l ,,.,l. thal 'Ow
lit1,1
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( .37. (-IA .11S11( I 1)1 PAR I MI I
NI RI CA121/1Nri
1?, I SI lti A I ION 01 l'OSSI111.1
11\11 II S 01 1 01- CIA
\CI] VII IS. 1954-1975: 19 page, 1 he
memorandum Iron, CIA Cienetal Coton.d 1.R.
llou?ton to the Director of Central Inte/ligentt
,splains the 'balancing of interest betmeen
the duty to enforce the law ... and the Director',
re,ponsibility for protecting intelligence
sources and methods." Included is a
brief summary of twenty eases in which
violations of criminal statutes were reported
to the Department of Justice between 1954 and
1975. A detailed examination of circurnstantts
imolved in the drug prosecution of Mr.
Puttaporn Khramkhruan. formcr CIA
employee. is also included. 1$1.90,copyl
C-39. CIA CONTRACTS WITH THE
UNIVER-SITY OF CALIFORNIA-SAN DIEGO:
1966-1976; 121 pages. Copies of a negotiated
contract between the CIA and U. of Cal. San
Diego. describing completion dat., scope of
work, location where research will be
conducted, deliverable items and costs. The
OA contracts were for research in the field of
image processing. a review of Soviet
Geochemical Literature. and a study of .
agriculture in Communist Gina. (512.10/copy)
C-40. THE CIA AND LOCAL POLICE, 1967-
1973; 177 pages. A serie, of memos and letters
concerning direct CIA assistance to 12
municipal and/or county police departments
including those of New York, Los Angel.,
Boston, and Washington. The doorments trace
the history of CIA training seminars in photo
and audio surveillance, narcotics, and "radical
terrorist" control. (517.70/copy)
C-41. CIA CRITIQUE OF BAR
ASSOCIATION REPORT: October 29, 1975;
39 P.8.? In response to a pamphlet. 'The
Central Intelligence Agency: Oversight and
Accountability." prepared by a Committee of
the Association of the Bar of the City of New
York, the CIA issued "a careful critique of the
report, . together with a short summary."
As the Agency explained. This paper is not a
brief in opposition; it is designed to question
the validity of some of the research and thus
raise legitimate questions as to some of the
statements and conclusions." It includes
sections on factual errors and misconceptions,
misquotations, and material taken out of
context. (53.90/copy)
125
C-42. SECRET LEGISLATIVE HISTORY OF
THE CIA; 1947-1948; 143 pages. These
documents reveal the secret congressional
testimony of the first two Directors of Central
Intelligence. Lt. General Hoyt S. Vanderberg
and Rear Admiral R.H. Hillenkoetter. Director
Hillenkoetter's April 1948 testimony before the
Howe Armed Services Committee describes the
problems which the fledgling intelligence
agency faced in its first two years. The
Vandenberg testimony was presented to the
Senate Armed Services Committee in April
1947 in support of the National Security Act of
1947 whith provided for urdfication of the
armed services and .tablishment of the CIA.
(514.30/copy)
?C44. CIA/RESISTANCE/BLACK STUDENT
UNIONS; 1968-1971; 33 pages. This file was
released to researcher Murv Glass following a
request for CIA files on the Black Student
Union at the University of California at Santa
Barbara. The documents show that Project
Resistthce and other CIA programs regularly
used informants. IThe Church Report stated
that Resistance did not run unilateral informant
oPeralions.?Ed.I ($3.30)
?C-45. CIA FILE ON UNIVERSITY OF
MICHIGAN AND CENTER FOR CHINESE
STUDIES; 1965-1976; 279 pag.. This file was
requested under FOIA by the editors of
Michigan Daily. It dothments confidential
contacts between various CIA research offices
and China scholars at the University of
Michigan. It also shows the Agency's attempt
to maintain academic contacts in a period
when the propriety of classified government
research was increasingly called into question.
A 1966 CIA memo in the file states: if a
university wishes to stipulate provisos or
qualifications we will be glad to consider them.
The university need only say what they are."
(527.90/copy)
?C-46. CIA/RESISTANCE/PEACE AND
FREEDOM PARTY, 1968-1974i 85 pages. This
file was obtained by the Peace and Freedom
Party under FOIA. The Party was an object of
CIA domestic surveillance thder Project
Resistance. This file shows that more than
50,000 names of PFP members from a single
state (California) were indexed by Resistance,
the figure given by the Church Committee was
12-16,000 names nationwide. The indexes
were retained at least as late as May 1979.
(58.5D/copy)
.C-47. CIA/POLICY ON RELATIONSHIPS
WITH JOURNALISTS/MATERIAL SENT TO
INTELLIGENCE COMMITTEES; 1973-1976: 47
pages. After litigation under FOIA, these
documents were released to journalist Judith
Miller in response to a request for all material
on CIA use of journalists which had been sent
to the House and Senate Intelligence
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Committees and the Rockefeller Commission.
The file contains little factual information, but
does include statements of CIA policy. Certain .
comments in the file raise the possibility that
CIA contacts with journalists were more
extensive than reported to the Committees:
(54.70/copy)
C-48 .. CIA/IRS RECORDS ON RAMPARTS
MAGAZINE/SPECIAL SERVICE STAFF, 1964,
1967, 1972; 12 pages. When Ramparts disclosed
in 1967 that the CIA was funding the National
Student Association, the CIA initiated an
investigation of the tax status of the magazine.
Also in the file are statements of the mission of
the Special Service Staff, an IRS office which
collected information on taxpayers based on
Political criteria. (51.20/copy) _
C-49 CIA/WHITE HOUSE/DESTRUCTION
OF BIOLOGICAL WEAPONS AND TOXINS;
1967-1970; 49 pages. 10 1069 and 1970, -,
President Nixon ordered the destruction of
existing stockpiles of biological and toxic
weapons. This file indud. White House prams
releases, CIA documents listing the contents of
the Agency's biological arsenal accumulated
under MKNAOMI, thd the ext of
international agreements prohibiting the
development, production and use of such
weapons. (54.90/copy)
C-54. CORRESPONDENCE OF VICTOR .
REUTHER INTERCEPTED BY THE CIA: 1968;
11 pages. Five items of Victor Reuther's
correspondence intercepted in 1968. At that
time an official of the United Auto Workers
(UAW), Reuther's name was also on
HTLINGUAL's "watch list" for mail intercepts
from 1969-1971. (51.10/copy)
C-55. CIA DISTRIMMONS TO
ACADEMICS, 1976; 11 pages. lists of more
than 40 colleges and universiti. to which the
CIA sent unclauified publications produced by
its overt research brthch on Soviet government
personnel, international terrorism, and other
subjects. (51.10/copy)
C-58. INTERNATIONAL TERRORISM IN
1926; July 1977, 22 pages. An analysis of
trends in international terrorism which finds,
among other things, that while the number of
terrorist incidents increased in 1976, the
number of acts involving kidnaping and
hostages. and the proportion of acts directed
against US citizens and property, declined.
Cuban exile formations emerged as "among the
most active and most disruptive terrorist
groups." (52.20/copy)
C-61. DCI TURNER'S STATEMENT ON
HARVARD GUIDELINES; August 1977; 3
pages. Turner states that the CIA will ignore
liarvard's requirement that university officials
be informed of all CIA contacts with university
personnel, and dodges the issue of covert
recruitment on campus. (5.30/copy)
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C-63. STUDIES IN INTELLIGENCE; 1972-
1975; 297 pages. Seventeen previously classified
articles and 33 book reviews written for
circulation within the Intelligence Community.
Subjects range front a post-mortem of U.S.
involvement in Vietnam, to the use of logic in
intelligence anklysis, to a review of Agee's
Inside the Company.
C-64. CIA ASSASSINATION PLOTS:
MEMOS ON TRUJILLO, CASTRO, SOUTH
VIETNAMESE LEADERS, BELGIAN ?
CONGO LEADERS, MESSAGES
CONCERNING TRUJILLO; 1960-1970, 198
pages. CIA discussions and planning of assassi-
nation plots concerning Trujillo. Castro, and S.
Vietnamese and Belgian Congo leaders. CIA
agents discuss eventual outcomes of such assassi-
nations, and what effect the assassinations would
have in those country. These docummts were
released pursuant to FOIA litigation. ($19.801
c4P84
C-65. CIA USE OF ACADEMICS; 1967-1975;
148 pages. Releaxd through litigation under
the FOIA, these documents contain information
on open and covert CIA-university
relationships for purposes of research.
reavittnent, and surveillance of student
dissent. (S14.80/copy)
Coo. GLOMAR EXPLORER STORY; January
1974- March 1975; 221 pages. Agency
documents showing DCI Colby's vigorous
efforts to keep the Giontar Explorer story out
of the papers by briefing reporters and editors
on its importance to the national security. The
story was held for more than a year through
the cooperation of the Neu, York Times, Los
Angeles Times. Washington Post. Parade
Magazine. Time. Neeoseuezie. CBS, AP, UP,
and other news organizations. The file contains
the incidental statement by Colby that the
Agency uses prostitutes to obtain information.
(522.10/copy)
tC419. CIA OPERA HON CHAOS: 1462-1977.
125 payes. Obtained through discosers in
Helm, these documents Irmo Oper-
ation Chaos and the Rol:kelt:II, Commission
shoo that the eaten, and ariets 01 domestic
aspects ol Chaos. as oell as resistant,: to the
ports-et bithin tire ('IA. ode greater than
rewakd h tile Church Committee. Ialso
eitillain its ideuce ol CIA ds.irreI,csyuuuao.
earls as 1962. and 01 a crocruip orNoo-
lion Irmo /5111 auditors. Ito, also discuss the
pi-mem:Mon 01 inlormation gathered by ?
CI I MIS ontl other issues 1.512.511 cops
9 I hese documents loon the appendix. a
published (ASS Report int Opertor ,,,, 5-11001,
I he woo. zoutlahlu tot S2.511.
C-70. CIA. CORRESPONDENCE wiTH
UNIVERSITIES ON GUIDELINES FOR
C1A-ACADEMIC RELATIONSHIPS:
1976-1978: 97 pages. This file was released
by the CIA after CNSS brought suit to
obtain responses to 12 FOIA requosts and
consists for the most part of already-public
126
information. The file contains correspon-
dence between the CIA and officials of
Harvard and Amherst Universities and the
University of Pennsylvania. The university
officials argue that covert recruitment by
and operational use of academics are
inconsistent with the proper functions of a
university: the CIA officials argue that these
activities are necessary and should be
allowed if individual academics choose to
engage in them. The CIA officials also say
that no full time university staff or faculty
are used on an unwitting basis and that none
are coerced into working with the Agency.
The file contains copies of CIA regulations
on relations "with the U.S. academic
'community as well as its far stricter policy
statements on relations with U.S. media and
religious organizations. (S9.70 copy)
C-7I. DELETIONS FROM THE C/A
AND THE CULT OF INTELLIGENCE.'
I977-I980: 23 pages. Twenty-five of the
168 deletions withheld by the CIA from this
1974 book have recently been made public
under the FOIA. This 23-page package
contains the release as reinserted into the
text of the hard cover edition as well as
references to the paperback and manuscript
page numbers. These now-released deletions
deal with CIA activities in Cuba and Chile.
CIA proprietaries, CIA-university ties, U.S.
Africa policy, and other subjects. (52.30/
eePY)
C-75. CIA; MEETINGS BETWEEN CIA
OFFICIALS AND UNIVERSITY PRES-
!DENTS: April 1978-July 1978: 40 pages.
This file was released in a suit brought by
CNSS to obtain responses to 12 FOIA
requests. The file contains correspondence
and internal memoranda concerning a June
14. 1978 meeting between Admiral Turner
and four university presidents which was
intended to imprme CIA-academic rela-
tions. The Ole also mentions Ximilar
meeting with three university presidents on
March 10. 1978. All participants agreed to
accept the briefings under conditions of
secrecy. 1S4.00 copy)
C-91. CIA;TESTIMONY ON EMPLOYEE
SECRECY CONTRACT. March 6.1980. 69
pages. Transcript of testimony of CIA officials
before the House Intelligence Committee
which explains the CIA's review procedures ,
and the Agency's interpretation of the Snepp
Supreme Court decision upholding the secrecy
contract. why only CIA critics have been
punished for breach of contract. how. present
CIA employees arc held to extra restrictions.
why books and articles but not columns.
speeches and lectures are reviewed, and other
points. 116.90 copy)
C-9$. CIA/RESISTANCE/ WILLIAM
AND MARY; November 1969-June 1977;
40 pages. These documents, released to
the William and Mary student newspaper
Flat Hat under the FOIA, include three
detailed informant reports on political
activity at the campus. The reports were
prepared for Project RESISTANCE, which
according to the Church Committee did not
use informants. The file atso contains
correspondence between the CIA and
college administrators concerning overt
recruiting. (54.00/copy)
C-96 "THE BERLIN TUNNEL OPER-
ATION"; June 1968; 57 pages. A
Clandestine Services History of the
planning, execution and eventual
compromise of a 500-yard tunnel from West
to East Berlin built by the CIA in order to
tap major Soviet and East German phone
lines. Although "from the beginning it was
realized that the duration of this operation
was finite," the project was considered one
of thc significant intelligence successen
of the Cold War. The study was obtained
under the FOIA by David Martin, author of
Wilderness of Mirrors. (55.70/copy)
?
C-I00 CIA/ TUFTS UNIVERSITY; 1963-
1978: 88 pages. These CIA files released to
Tufts under the FOIA include a 1969 list
prepared by the Agcncy's CHAOS office of
all SDS chapters nationwide. The files also
reflect open CIA-University ties including
overt recruiting, participation of Tufts
professors in CIA-sponsored seminars, and
possible employment of a professor by the
CIA during sabbaticals. One document,
apparently supplied lathe CIA by the Tufts
administration, is a break-down of a first
year class with emphasis on foreign students.
(58.80/copy)
C-I07 CIA/ BEHAVIOR CONTROL/-
PROJECT OFTEN; 1962-1973; 2020 pages.
Files released under the FOIA from the
CIA's Project OFTEN, a successor to
M K ULTRA. Files on the project, con-
ducted by the Agency's Office of Research
and Development, include a history of the
project, discussions of interrogation,
incapacitation, psychological assessment,
microwave tolerance in humans, electrical
stimulation of the brain, and plant and
animal studies. (0202.001copy. Portions of
the file may be ordered separately at
100 page)
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