CENTRAL INTELLIGENCE AGENCY ET AL. V. SIMS ET AL.

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• Collection: General CIA Records
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• Release Decision: RIPPUB
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• Document Page Count: 42
• Document Creation Date: December 16, 2016
• Document Release Date: August 8, 2005
• Sequence Number: 1
• Publication Date: April 16, 1985
• Content Type: OPEN

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SUPREME COURT OF THE UNITED STATES
Syllabus
CENTRAL INTELLIGENCE AGENCY ET AL. V.
SIMS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA DISTRICT
No. 83-1075. Argued December 4, 1984?Dedded April 16, 1985"
Between 1963 and 1966, the Central Intelligence Agency (CIA) financed a
research project, code-named MKULTRA, that was established to coun-
ter Soviet and Chinese advances in brainwashing and interrogation tech-
niques. Subprojects were contracted out to various universities, re-
search foundations, and similar institutions. In 1977, respondents in
No. 83-1075 (hereafter respondents) filed a request with the CIA under
the Freedom of Information Act (FOIA), seeldng, inter di:a, the names
of the institutions and individuals who had performed the research under
MKULTRA. Citing Exemption 3 of the FOIA?which provides that an
agency need not disclose "matters that are . . . specifically exempted
from disclosure by statute. . . provided that such statute. . . refers to
particular types of matters to be withheld"?the CIA declined to disclose
the requested information. The CIA invoked, as the exempting statute
referred to in Exemption 3, 1 102(d)(3) of the National Security Act of
1947, which states that "the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods from unau-
thorized disclosure." Respondents then filed suit under the FOIA in
Federal District Court. Applying, as directed by the Court of Appeals
on an earlier appeal, a definition of "inteffigence sources" as meaning
only those sources to which the CIA had to guarantee confidentiality in
order to obtain the information, the District Court held that the identi-
ties of researchers who had received express guarantees of confidential-
ity need not be disclosed, and also exempted from disclosure other
researchers on the ground that their work for the CIA, apart from
*Together with No. 83-1249, Sint., of al. v. Central Intelligence Agency
of al., also on certiorari to the same court.
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U CIA v. SIMS
Syllabus
MKUL'TRA, required that their identities remain secret. The court
further held that there was no need to disclose the institutional affili-
ations of the individual researchers whose identities were exempt from
disclosure. The Court of Appeals affirmed this latter holding, but
reversed the District Court's ruling with respect to which individual
researchers satisfied "the need-for-confidentiality" aspect of its formula-
tion of exempt Intelligence sources.' The Court of Appeals held that it
was error automatically to exempt from disclosure those researchers to
whom confidentiality had been promised, and that an individual qualifies
as an Intelligence source" exempt from disclosure under the FOIA only
when the CIA offers sufficient proof that it needs to protect its efforts in
confidentiality in order to obtain the type of information provided by the
researcher.
Held:
1. Section 102(d)(3) qualifies as a withholding statute under Exemp-
tion 3. Section 102(dX3) clearly refers to "particular types of matters"
within the meaning of Exemption 3. Moreover, the FOIA's legislative
history confirms that Congress intended I 102(dX3) to be a withholding
'statute wider that Exemption. Azid the plain meaning of ? 102(d)(3)'s
language, as well as the National Security Act's legislative history, indi-
cates that Congress vested in the Director of Central Intelligence broad
authority to protect all sources of intelligence information from disclo-
sure. To narrow this authority by limiting the definition of Intelligence
sources" to sources to which the CIA had to guarantee confidentiality in
order to obtain the information, not only contravenes Congress' express
intention but also overlooks the practical necessities of modern intelli-
gence gathering. Pp. 7-13.
2. MICULTRA researchers are protected Intelligence sources" within
102(dX3)'s broad meaning, because they provided, or were engaged to
provide, information that the CIA needed to fulfill its statutory obliga-
tions with respect to foreign intelligence. To force the CIA to disclose a
source whenever a court determines, after the fact, that the CIA could
have obtained the kind of information supplied without promising con-
fidentiality, could have a devastating impact on the CIA's ability to carry
out it statutory mission. The record establishes that the MKULTRA
researchers did in fact provide the CIA with information related to its
intelligence function, and therefore the Director was authorized to
withhold these researchers' identities from disclosure under the FO IA.
Pp. 13-1&
3. The FOIA does not require the Director to disclose the institutional
affiliations of the exempt researchers. This conclusion is supported by
the record. The Director reasonably concluded that an observer who is
knowledgeable about a particular intelligence research project, such as
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CIA v. SIMS
Syllabus
111CULTRA. could, upon learning that the research was performed at a
certain institution, deduce the identities of the protected individual
researchers. Pp. 18-21.
? U. S. App. D. C. ?, TO9 F. 2d 96. affirmed in part and reversed in
Part.
BURGER. C. J.. delivered the opinion of the Court. in which WHITE.
&Aomori, POWELL, REHNQUIST. STEvris. and O'Comoit. JJ., joined.
MARsnALL, J., Med an opinion concurring in the result, in which BREN-
NAN. J., joined.
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NOTICE: This opinion in subject to formal revision 'afore publication is the
prelimmary print of the United States Reports. Rodin ere roomed co
amityRath* porter of Decisions. Supreme Court of the United States. Wash-
ington. D. C. 20543. of any ty=raphical or other formai errors. m order
that torrectios may be made the prelimiory print goes to press. ?
SUPREME COURT OF THE UNITED STATES
Noe. 83-1075 AND 83-1249
CENTRAL INTELLIGENCE AGENCY, ET AL,
PETITIONERS
83-1075 V.
JOHN CARY SIMS AND SIDNEY M. WOLFE
JOHN CARY SIMS AND SIDNEY M. WOLFE,
PETITIONERS
83-1249 v.
CENTRAL INTELLIGENCE AGENCY AND WILLIAM
J. CASEY, DIRECTOR, CENTRAL
INTELLIGENCE AGENCY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIP.CUTT
[April 18, 19851
CHIEF JUSTICE BURGER delivered the opinion of the
Court.
In No. 83-1075, we granted certiorari to decide whether
102(d)(3) of the National Security Act of 1947, as incorpo-
rated in Exemption 3 of the Freedom of Information Act, ex-
empts from disclosure only those sources of intelligence in-
formation to which the Central Intelligence Agency had to
guarantee confidentiality in order to obtain the information.
In No. 83-1249, the cross-petition, we granted certiorari to
decide whether the Freedom of Information Act requires the
Agency to disclose the institutional affiliations
of persons whose identities are exempt from disclosure as
"intelligence sources."
Between 1953 and 1966, the Central Intelligence Agency
financed a wide-ranging project, code-named MKULTRA,
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concerned with "the research and development of chemical,
biological, and radiological materials capable of employment
in clandestine operations to control human behavior." ' The
program consisted of some 149 subprojects which the Agency
contracted out to various universities, research foundations,
and similar institutions. At least 80 institutions and 185 pri-
vate researchers participated. Because the Agency funded
MKULTRA indirectly, many of the participating individuals
were unaware that they were dealing with the Agency.
MKULTRA was established to counter perceived Soviet
and Chinese advances in brainwashing and interrogation
techniques. Over the years the program included various
medical and psychological experiments, some of which led to
untoward results.' These . aspects of MKULTRA surfaced
publicly during the 1970's and became the subject of execu-
tive and congressional investigations.'
Final Report of the Select Committee to Study Government Operations
with Respect to Intelligence Activities, S. Rep. No. 94-755, Book 1, p. 389
(1976) (footnote omitted) (Final Report). MXULTRA began with a pro-
posal from Richard Helms, then the Agency's Assistant Deputy Director
for Plans. Helms outlined a special funding mechanism for highly sensi-
tive Agency research and development projects that would study the use
of biological and chemical materials in altering human behavior.
MKULTRA was approved by Allen Dulles, then the Director of Central
Intelligence, on April 13, 1963.
'Several NIL-ULTRA subprojects involved experiments where re-
searchers surreptitiously administered dangerous drugs, such as LSD, to
unwitting human subjects. At least two persons died as a result of
MKULTRA e.xperiments, and others may have suffered impaired health
because of the testing. See Id., at 392-403. This type of experimentation
is now expressly forbidden by executive order. Exec. Order No. 12333,
52.10 3 CFR 213 (1982).
See generally Final Report, at 385-422, 471-472; Report to the Presi-
dent by the Commission on CIA Activities Within the United States
228-228 (June 1975); Project MKULTRA, the CIA's Program of Research
in Behavioral Modification: Joint Hearings before the Select Committee on
Intelligence and the Subcommittee on Health and Scientific Research of
the Senate Committee on Human Resources, 96th Cong., 1st Sess. (1977);
Human Drug Testing by the CIA, 1977: Hearings on S. 1893 before the
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CIA v. SIMS 3
On August 22, 1977, John C. Sims, an attorney, and Sidney
M. Wolfe, M. D., the director of the Public Citizen Health
Research Group,' filed a request with the Central In-
telligence Agency seeking certain information about
MKULTRA. Respondents invoked the Freedom of In-
formation Act (FOIA), 5 U. S. C. ? 552. Specifically, re-
spondents sought the grant proposals and contracts awarded
under the MKULTRA program and the names of the institu-
tions and individuals that had performed research.'
Pursuant to respondents' request, the Agency made avail-
able to respondents all of the MKULTRA grant proposals
and contracts. Citing Exemption 3 of the FOIA, 5 U. S. C.
552(bX3XB),4 however, the Agency declined to disclose the
Subcommittee on Health and Scientific Research of the Senate Committee
on HUM.= Resources, 95th Cong.. 1st Sess. (1917).
An internal Agency report by its Inspector General had documented the
controversial aspects of the MICULTRA project in 1963. See Report of
Inspection of MKULTRA (July 26, 19e3).
'Sims and Wolfe are the respondents in No. 83-1075 and the cross-
petitioners in No. 83-1249. In order to avoid confusion, we refer to Sims
and Wolfe as respondents throughout this opinion.
'Twenty years after the conception of the MKULTRA project, all
known files pertaining to MKULTRA were ordered destroyed. Final Re-
port, at 339-390. 408-405. In 1977, the Agency located some 8.000 pages
of previously undisclosed BIXULTRA documents. These consisted mostly
of financial records that had inadvertently survived the 1973 records de-
struction. Upon this discovery, Agency Director Stansfield Turner nod-
ded the Senate Select Committee on Intelligence and later testified at a
joint hearing before the Select Committee and the Subcommittee on
Health and Scientific Resources of the Senate Committee on Human
Resources. Although the Joint Committee was given a complete list of
the MKULTRA researchers and institutions, the Committee honored the
Agency's request to treat the names as confidentiaL Respondents sought
the surviving MSULTRA records that would provide this information.
'The Agency also cited Exemption 6, 5 U. S. C. I 552(bX6), which in-
sulates from disclosure "personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of per-
sonal privacy.* This claim, rejected by the District Court and the Court of
Appeals, is no longer at issue.
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CIA v. SIMS
names of all individual researchers and 21 institutions.' Ex-
emption 3 provides that an agency need not disclose "matters
that are. . . specifically exempted from disclosure by statute
. . . provided that such statute. . . refers to particular types
of matters to be withheld." Ibid. The Agency relied on
?102(d)(3) of the National Security Act of 1947, 61 Stat. 498,
50 U. S. C. ?403(d)(3), which states that
"the Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from un-
authorized disclosure."
Dissatisfied with the Agency's limited disclosure, respond-
ents filed suit under the FOIA, 5 U. S. C. ?552(a)(4)(B), in
the United States District Court for the District of Columbia.
That court ordered disclosure of the withheld names, holding
that the MKULTRA researchers and affiliated institutions
were not- "intelligence sources" within the meaning of
?102(d)(3). 479 F. Supp. 84 (DC 1979).
On appeal, the United States Court of Appeals concluded,
as had the District Court, that ?102(d)(3) qualifies as a with-
holding statute under Exemption 3 of the FOIA. The court
held, however, that the District Court's analysis of that stat-
ute under the FOLA lacked a coherent definition of "intelli-
gence sources." Accordingly, it remanded the case for re-
consideration in light of the following definition:
'[Ain intelligence source' is a person or institution that
provides, has provided, or has been engaged to provide
the CIA with information of a kind the Agency needs to
perform its intelligence function effectively, yet could
not reasonably expect to obtain without guaranteeing
the confidentiality of those who provide it." 206 U. S.
D. C. 157, 166, 642 F. 2d 562, 571 (1980).
'The Agency tried to contact each institution involved in MKIILTRA to
ask permission to disclose its identity; it released the names of the 59 insti-
tutions that had consented. Evidently, the Agency made no parallel effort
to contact the 185 individual researchers. See n. 22, infra.
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CIA u SIMS 5
On remand, the District Court applied this definition and
ordered the Agency to disclose the names of 47 researchers
and the institutions with which they had been affiliated.
The court rejected respondents' contention that the
MKULTRA research was not needed to perform the Agen-
cy's intelligence function, explaining that
"tiln view of the agency's concern that potential foreign
enemies could be engaged in similar research and the de- -
sire to take effective counter-measures, . . . [the
Agency] could reasonably determine that this research
was needed for its intelligence function." App. to Pet.
for Cert. in No. 83-1075, pp. 22a-23a.
The court then turned to the question whether the Agency
could show, as the Court of Appeals' definition requires, that
it could not reasonably have expected to obtain the informa-
tion supplied by the MICULTRA sources without guarantee-
ing confidentiality to them. The court concluded that the
Agency's policy of considering its relationships with
MICT,JLTRA researchers as confidential was not sufficient to
satisfy the Court of Appeals' definition because "the chief de-
sire for confidentiality was on the part of the CIA." Id., at
24a. The court recognized that some of the researchers had
sought, and received, express guarantees of confidentiality
from the Agency, and as to those held that their identities
need not be disclosed. The court also exempted other re-
searchers from disclosure on the ground that their work for
the Agency, apart from itICULTRA, required that their
identities remain secret in order not to compromise the
Agency's intelligence networks in foreign countries. Id., at
26a-27a, 30a-31a. Finally, the court held that there was no
need to disclose the institutional affiliations of the individual
researchers whose identities were exempt from disclosure;
. this withholding was justified by the need to eliminate the
unnecessary risk that such intelligence sources would be
identified indirectly. Id., at 27a, 34a.
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6 CIA v. SIMS
Both the Agency and respondents appealed. The Court of
Appeals affirmed that part of the District Court's judgment
exempting from disclosure the institutional affiliations of in-
dividual researchers found to be intelligence sources. How-
ever, it reversed the District Court's ruling with respect to
which individual researchers satisfied "the need-for-confiden-
tiality" aspect of its formulation of exempt "intelligence
sources." 228 U. S. App. D. C. 269, 275, 709 F. 2d 95, 101
(1983).
At the outset, the court rejected the suggestion that it re-
consider the definition of "intelligence sources." Id., at 271,
709 F. 2d, at 97. The court then criticized the District Court
for focusing its inquiry on whether the Agency had in fact
promised confidentiality to individual researchers. The
court held that the District Court's decision automatically to
exempt from disclosure those researchers to whom confiden-
tiality had been promised was erroneous; it directed the Dis-
trict Court on remand to focus its inquiry on whether the
Agency offered sufficient proof that it needed to cloak its ef-
forts in confidentiality in order to obtain the type of informa-
tion provided by the researcher. , Only upon such a showing
would the individual qualify as an "intelligence source" ex-
empt from disclosure under the FOIA.8
',Judge Bork wrote a separate opinion, concurring in part and dissent-
ing in part. He criticized the majority's narrow definition of "intelligence
sources," urging in particular that there is "no reason to think that section
403(dX3) was meant to protect sources of information only if secrecy was
needed in order to obtain the information." 228 U. S. App. D. C., at 277,
709 F. 2d, at 103. He noted that lilt seems far more in keeping vrith the
broad language and purpose of (Section 403(d)(3)1 to conclude that it au-
thorizes the nondisclosure of a source of information whenever disclosure
might lead to discovery of what subjects were of interest to the CIA."
Ibid. He also took issue with the majority's conclusion that the FOIA
sometimes requires the Agency to break a promise of confidentiality it has
given to an intelligence source. This is "not an honorable way for the gov-
ernment of the United States to behave," and would produce "pernicious
results." Id.. at 276-277, 709 F. 2d, at 102?/03.
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We granted certiorari, 465 U. S. , (1984). We
now reverse in part and affirm in part.
II
No. 83-1075
A
The mandate of the FOIA calls for broad disclosure of Gov-
ernment records.' Congress recognized, however, that
public disclosure is not always in the public interest and thus
provided that agency records may be withheld from disclo-
sure under any of the nine exemptions defined in 5 U. S. C.
1552(13). Under Exemption 3 disclosure need not be made as
to information "specifically exempted from disclosure by stat-
ute" if the statute affords the agency no discretion on disclo-
sure, 5 U. S. C. ?552(b)(3)(A), establishes particular criteria
for withholding the information, or refers to the particular
types of material to be withheld, ?552(bX3)(B).
The question in No. 83=1075 is twofold: first, does
I 102(dX3) of the National Security Act of 1947 constitute a
statutory exemption to disclosure within the meaning of Ex-
emption 3; and second, are the MKULTRA researchers in-
cluded within ? 102(d)(3)'s protection of "intelligence
sources."
Congress has made the Director of Central Intelligence
"responsible for protecting intelligence sources and methods
from unauthorized disclosure." 50 U. S. C. ?403(dX3). As
part of its postwar reorganization of the national defense sys-
tem, Congress chartered the Agency with the responsibility
of coordinating intelligence activities relating to national se-
"The Court has consistently recognized this principle. See, a. g.,
Baldrige v. Shapiro, 456 U. S. 345, 352 (1982); NLRB v. Robbins Tire &
Rubber Co., 427 U. S. 214, 220 (1978); EPA v. Mink, 410 U. S. 73, 80
(1973).
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curity." In order to carry out its mission, the Agency was
expressly entrusted with protecting the heart of all intelli-
gence operations?"sources and methods."
Section 102(d)(3) of the National Security Act of 1947,
which calls for the Director of Central Intelligence to protect
"intelligence sources and methods," clearly "refers to par-
ticular types of matters," 5 U. S. C. ? 552(b)(3)(B), and thus
qualifies as a withholding statute under Exemption 3. The
"plain meaning" of the relevant statutory provisions is suffi-
cient to resolve the question, see, e. g., Garcia v. United
States, 469 U. S. ? (1984); United States v. Weber
Aircraft Corp., 465 U. S. ?, -- (1984). Moreover, the
legislative history of the FOIA confirms that Congress in-
tended ? 102(d)(3) to be a withholding statute under Exemp-
tion 3." Indeed, this is the uniform view among other fed-
eral courts."
Our conclusion that ?102(d)(3)- qualifies as a withholding
statute under Exemption 3 is only the first step of
the inquiry. Agency records are protected under ? 102(d)(3)
only to the extent they contain "intelligence sources and
'See, e. g., H. R. Rep. No. 961, 80th Cong., 1st Sess., 3 (1947); S. Rep.
No. 239, 80th Cong., 1st Sess., 1 (1947).
See H. R. Rep. No. 94-880, pt. 2, p. 15, n. 2 (1976). See also H. R.
Conf. Rep. No. 93-1380, p. 12 (1974); S. Conf. Rep. No. 93-1200, P. 12
(1974); S. Rep. No. 98-854, p. 16 (1974). For a thorough review of the
relevant background, see DeLawrentiis v. Haig, 686 F. 2d 192. 195-197
(CAB 1982) (per curiam).
Recently, Congress enacted the Central Intelligence Agency Informa-
tion Act, Pub. L. 98-477,98 Stat. 2209, exempting the Agency's "opera-
tional flies' from the FOLA. The legislative history reveals that Congress
maintains the position that Section 102(dX3) is an Exemption 3 statute.
See, e. g., H. R. Rep. No. 98-726, pt. 1, P. 5 (1984); S. Rep. No. 98-305,
p. 7, n. 4 (1983).
See, e.g., Musty. Casey, 235 U. S. App. D. C. 11, 15, 730 F. 2d 7'73,
777 (1984); Gardels v. CIA. 223 U. S. App. D. C. a, 91. 689 F. 2d 1100,
1103 (1982); Halperin v. CIA, 203 U. S. App. D. C. 110, 113, 629 F. 2d
144, 147 (1980); National Commission on Law Enforcement and Social
Justice v. CIA, 576 F. 2d 1373, 1376 (CA9 1978).
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CIA tt SIMS 9
methods" or if disclosure would reveal otherwise protected
information.
Respondents contend that the Court of Appeals' definition
of "intelligence sources," focusing on the need to guarantee
confidentiality in order to obtain the type of information
desired, draws the proper line with respect to intelligence
sources deserving exemption from the FOIL The plain
meaning of the statutory language, as well as the legislative
history of the National Security Act, however, indicates that
Congress vested in the Director of Central Intelligence very
broad authority to protect all sources of intelligence informa-
tion from disclosure. The Court of Appeals' narrowing of
this authority not only contravenes the express intention of
Congress, but also overlooks the practical necessities of.
modern intelligence gathering?the very reason Congress
entrusted this Agency with sweeping power to protect its
"intelligence sources and methods."
We begin with the language of ? 102(d)(3). Baldrige V.
Shapiro, 455 U. S. 345, 356 (19E2); Steadman v. SEC, 450
U. S. 91, 97 (1981). Section 102(dX3) specifically authorizes
the Director of Central Intelligence to protect "intelligence
sources and methods" from disclosure. Plainly the broad
sweep of this statutory language comports with the nature of
the Agency's unique responsibilities. To keep informed of
other nations' activities bearing on our national security the
Agency must rely on a host of sources. At the same time,
the Director must have the authority to shield those Agency
activities and sources from any disclosures that would unnec-
essarily compromise the Agency's efforts.
The "plain meaning" of ? 102(d)(3) may not be squared with
any limiting definition that goes beyond the requirement that
the information fall within the Agency's mandate to conduct
foreign intelligence. Section 102(dX3) does not state, as the
Court of Appeals' view suggests, that the Director of Central
Intelligence is authorized to protect intelligence sources only
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if such protection is needed to obtain information that other-
wise could not be acquired. Nor did Congress state that
only confidential or nonpublic intelligence sources are pro-
tected) ? Section 102(d)(3) contains no such limiting lan-
guage. Congress simply and pointedly protected all sources
of intelligence that provide, or are engaged to provide, in-
formation the Agency needs to perform its statutory duties
with respect to foreign intelligence. The plain statutory lan-
guage is not to be ignored. Weber Aircraft Corp., supra, at
The legislative history of ?102(d)(3) also makes clear that
Congress intended to give the Director of Central Intelli-
gence broad power to protect the secrecy and integrity of the
intelligence process. The reasons are too obvious to call for
enlarged discussion; without such protections the Agency
would be virtually impotent.
Enacted shortly after World War II, ?102(d)(3) of the Na-
tional Security Act of 1947 established the Agency and em-
powered it, among other things, "to correlate and evaluate
intelligence relating to the national security." 50 U. S. C.
?403(d)(3). The tragedy of Pearl Harbor and the reported
deficiencies in American intelligence during the course of
the war convinced the Congress that the country's ability to
gather and analyze intelligence, in peacetime as well as in
war, must be improved. See, e. g., H. R. Rep. No. 961,
80th Cong., 1st Sess., 3-4 (1947); S. Rep. No. 239, 80th
Cong., 1st Sess., 2 (1947).
Congress knew quite well that the Agency would gather
intelligence from almost an infinite variety of diverse
sources. Indeed, one of the primary reasons for creating the
?Congress certainly is capable of drafting legislation that narrows the
category of protected sources of information. In other provisions of the
FOIA and in the Privacy Act, Congress has protected "confidential
source[s]," sources of "confidential information," and sources that provided
information under an express promise of confidentiality. See 6 U. S. C.
I 552(3X7)(D); 5 U. S. C. ?t 552a(kX2) and (5).
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Agency was Congress' recognition that our Government
would have to shepherd and analyze a "mass of information"
in order to safeguard national security in the postwar world.
See /bid. Witnesses with broad experience in the intelli-
gence field testified before Congress concerning the practical
realities of intelligence work. Fleet Admiral Nimitz, for ex-
ample, explained that Intelligence is a composite of authenti-
cated and evaluated information covering not only the armed
forces establishment of a possible enemy, but also his indus-
trial capacity, racial traits, religious beliefs, and other related
aspects." National Defense Establishment: Hearings on S.
758 before the Senate Committee on Armed Services, 80th
Cong., 1st Sess., 132 (1947) (Senate Hearings). General
Vandenberg, then the Director of the Central Intelligence
Group, the Agency's immediate predecessor, emphasized
that "foreign intelligence [gathering' consists of securing all
possible data pertaining to foreign governments or the na-
tional defense and security of the United States." Id., at
497."
Witnesses spoke of the extraordinary diversity of intelli-
gence sources. Allen Dulles, for example, the Agency's first
Director, shattered the myth of the classic "secret agent" as
the typical intelligence source, and explained that "American
businessmen and American professors and Americans of all
types and descriptions who travel around the world are one
of the greatest repositories of intelligence that we have."
National Security Act of 1947: Hearings on H. R. 2319 before
"Congressmen certainly appreciated the special nature of the Agency's
intelligence function. For example, Rep. Wadsworth remarked that the
"function of [the Agency] is to constitute itself as a gathering point for in-
formation coming from all over the world through all kinds of channels."
93 Cong. Rec. 9397 (1947). Rep. Boggs, during the course of the House
hearings, commented that the Director of Central Intelligence "is dealing
with all the information and the evaluation of that information, from wher-
ever we can get it." National Security Act of 1947: Hearings on H. R.
2319 before the House Committee on Expenditures in the Executive De-
partments, 80th Cong., 1st Sess., 112 (Apr. 2-July 1, 1947).
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12 CIA v. SIMS
the House Committee on Expenditures in the Executive De-
partments, 80th Cong., 1st Sess., 22 (June 27, 1947) (Closed
House Hearings)." In a similar vein, General Vandenberg
spoke of "the great open sources of information upon which
roughly 80 percent of intelligence should be based," and iden-
tified such sources as "books, magazines, technical and scien-
tific surveys, photographs, commercial analyses, newspa-
pers, and radio broadcasts, and general information from
people with knowledge of affairs abroad." Senate Hearings,
at 492.
Congress was also well aware of the importance of secrecy
in the intelligence field. Both General Vandenberg and
Allen Dulles testified about the grim consequences facing
intelligence sources whose identities became known. See
Closed House Hearings, at 10-11, 20. Moreover, Dulles ex-
plained that even American citizens who freely supply intelli-
gence information "close up like a clam" unless they can hold
the Government "responsible to keep the complete security
of the information they turn over:" Id., at 22.3 Congress
was plainly alert to the need for maintaining confidentiality?
both Houses went into executive session to consider the leg-
islation creating the Agency?a rare practice for congres-
sional sessions. See n. 15, supra:
Against this background highlighting the requirements of
effective intelligence operations, Congress expressly made
"These hearings were held in executive session. The transcript was
declassified in 1982. The Senate also held hearings behind closed doors.
See S. Rep. No. 239, 80th Cong., 1st Sees., 1 (1947).
*Secrecy is inherently a key to successful intelligence operations. In
the course of issuing orders for an intelligence mission, George Washington
wrote to his agent
"The necessity of procuring good intelligence, is apparent and need not be
further urged. All that remains for me to add is, that you keep the whole
matter as secret as possible. For upon secrecy, success depends in most
Enterprises of the kind, and for want of it they are generally defeated
. . . ." 8 Writings of George Washington 478-479 (J. Fitzpatrick ed. 1933)
(Letter from George Washington to Colonel Elias Dayton, July 26, 1777).
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the Director of Central Intelligence responsible for "protect-
ing intelligence sources and methods from unauthorized dii-
closure." This language stemmed from President Truman's
Directive of January 22, 1946, 11 Fed. Reg. 1337, in which he
established the National Intelligence Agency and the Central
Intelligence Group, the Agency's predecessors. These insti-
tutions were charged with "assurfing] the most effective
accomplishment of the intelligence mission related to the na-
tional security," ibid., and accordingly made "responsible for
fully protecting intelligence sources and methods," id., at
1339. The fact that the mandate of ? 102(d)(3) derives from
this Presidential Directive reinforces our reading of the legis-
lative history that Congress gave the Agency broad power to
control the disclosure of intelligence sources.
III
A
Applying the definition of "intelligence sources" fashioned
by the Congress in ?102(d)(3), we hold that the Director of
Central Intelligence was well within his statutory authority
to withhold the names of the MKULTRA researchers from
disclosure under the FOIA. The District Court specifically
ruled that the Agency "could reasonably determine that this
research was needed for its intelligence function," and the
Court of Appeals did not question this ruling. Indeed, the
record shows that the MKULTRA research was related to
the Agency's intelligence-gathering function in part because
it revealed information about the ability of foreign govern-
ments to use drugs and other biological, chemical, or physical
agents in warfare or intelligence operations against adversar-
ies. During the height of the cold war period, the Agency
was concerned, not without reason, that other countries were
charting new advances in brainwashing and interrogation
techniques.
"App. to Pet. for Cert. in No. 83-10I5, pp. 22a-23a.
"For example, Director of Intelligence Stannfleld Turner explained
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Consistent with its responsibility to maintain national secu-
rity, the Agency reasonably determined that major research
efforts were necessary in order to keep informed of our po-
tential adversaries' perceived threat. We thus conclude that
MKULTRA researchers are "intelligence sources" within the
broad meaning of ?102(d)(3) because these persons provided,
or were engaged to provide, information the Agency needs to
fulfill its statutory obligations with respect to foreign
intelligence.
Respondents' belated effort to question the Agency's au-
thority to engage scientists and academic researchers as
intelligence sources must fail. The legislative history of
?102(d)(3) indicates that Congress was well aware that the
Agency would call on a wide range and variety of sources to
provide intelligence. Moreover, the record developed in this
case confirms the obvious importance of scientists and other
researchers as American intelligence sources. Notable ex-
amples include those scientists and researchers who pio-
neered the use of radar during World War II as well as the
group which took part in the secret development of nuclear
weapons in the Manhattan Project. See App. 43; App. to
Pet. for Cert. in No. 83-1075, p.
The Court of Appeals narrowed the Director's authority
under ?102(d)(3) to withhold only those "intelligence sources"
in an affidavit that the MICULTRA program was initiated because the
Agency was confronted with "learning the state of the art of behavioral
modification at a time when the U. S. Government was concerned about
inexplicable behavior of persons behind the iron curtain' and American
prisoners of war who had been subjected to so called 'brainwashing.'" Id.,
at 89a.
*Indeed, the legislative history of the recently enacted Central Intelli-
gence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, in which
Congress exempted the Agency's "operational files" from disclosure under
the FOIA, reveals Congress' continued understanding that scientific re-
searchers would be valuable intelligence sources. See H. R. Rep. No.
98-728, pt. 1. p. 22 (1984).
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CIAa SIMS 15
who supplied the Agency with information unattainable with-
out guaranteeing confidentiality. That crabbed reading of
the statute contravenes the express language of f 102(d)(3),
the statute's legislative history, and the harsh realities of the
present day. The dangerous consequences of that narrow-
ing of the statute suggest why Congress chose to vest the Di-
rector of Central Intelligence with the broad discretion to
safeguard the Agency's sources and methods of operation.
The Court of Appeals underestimated the importance of
providing intelligence sources with an assurance of confiden-
tiality that is as absolute as possible. Under the court's
approach, the Agency would be forced to disclose a source
whenever a court determines, after the fact, that the Agency
could have obtained the kind of information supplied without
promising confidentiality.? This forced disclosure of the
identities of its intelligence sources could well have a devas-
tating impact on the Agency's ability to carry out its mission.
"The Government has a compelling interest in protecting
both the secrecy of information important to our national se-
curity and the appearance of confidentiality so essential to
the effective operation of our foreign intelligence service."
Snepp v. United States, 444 U. S. 507, 509, n. 3 (1980) (per
curam). See Haig v. Agee, 453 U. S. 280, 307 (1981). If
potentially valuable intelligence sources come to think that
the Agency will be unable to maintain the confidentiality of
its relationship to them, many could well refuse to supply in-
formation to the Agency in the first place.
Even a small chance that some court will order disclosure
of a source's identity could well impair intelligence gathering
Indeed, the Court of Appeals suggested that the Agency would be re-
quired to betray an explicit promise of confidentiality if a court determines
that the promise was not necessary, or if a court concludes that the intelli-
gence source to whom the promise was given was "unreasonably and atypi-
cally Wert of cooperating with the Agency. 228 U. S. App. D. C., at 273,
709 F. 2d, at 99. However, "Wrest nations, like peat men, should keep
their word." FPC v. Tuscarora Indian Nation, 362 U. & 99, 142 (1960)
(Black, J., dissenting).
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16 CIA u. SIMS
and cause sources to "close up like a clam." To induce some
sources to cooperate, the Government must tender as abso-
lute an assurance of confidentiality as it possibly can. "The
continued availability of [intelligence] sources depends upon
the CIA's ability to guarantee the security of information
that might compromise them and even danger [their] per-
sonal safety." Snepp V. United States, supra, at 512.
We seriously doubt whether a potential intelligence source
will rest assured knowing that judges, who have little or no
background in the delicate business of intelligence gathering,
will order his identity revealed only after examining the facts
of the case to determine whether the Agency actually needed
to promise confidentiality in order to obtain the information.
An intelligence source will "not be concerned with the under-
lying rationale for disalosure of" his cooperation if it was
secured 'Ainder. assurances of confidentiality." Baldrige v.
Shapiro, 455 U. S., at 361. Moreover, a court's decision
whether an intelligence source will be harmed if his identity
is revealed will often require complex political, historical, and
psychological judgments. See, e. g., Fitzgibbon v. CIA, 578
F. Supp. 704 (DC 1983). There is no reason for a potential
intelligence source, whose welfare and safety may be at
stake, to have great confidence in the ability of judges to
make those judgments correctly.
The Court of Appeals also failed to recognize that when
Congress protected "intelligence sources" from disclosure, it
was not simply protecting sources of secret intelligence in-
formation. As noted above, Congress was well aware that
secret agents as depicted in novels and the media are not the
typical intelligence source; many important sources provide
intelligence information that members of the public could also
obtain. Under the Court of Appeals' approach, the Agency
could not withhold the-identity of a source of intelligence if
that information is also publicly available. This analysis
ignores the realities of intelligence work, which often in-
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volves Seemingly innocuous sources as well as unsuspecting
individuals who provide valuable intelligence information.
Disclosure of the subject matter of the Agency's research
efforts and inquiries may compromise the Agency's ability to
gather intelligence as much as disclosure of the identities
of intelligence sources. A foreign government can learn a
great deal about the Agency's activities by knowing the pub-
lic sources of information that interest the Agency. The in-
quiries pursued by the Agency can often tell our adversaries
something that is of value to them. See 228 U. S. App.
D. C., at 277, 709 F. 2d, at 103 (Bork, J., concurring in part
and dissenting in part). For example, disclosure of the fact
that the Agency subscribes to an obscure but publicly avail-
able Eastern European technical journal could thwart the
Agency's efforts to exploit its value as a source of intelligence
information. Similarly, had foreign governments learned
the Agency was using certain public journals and ongoing
open research projects in its MKULTRA research of "brain-
washing" and possible countermeasures, they might have
been able to infer both the general nature of the project and
the general scope that the Agency's inquiry was taking.
The "statutory mandate" of ?102(dX3) is clear: Congress
gave the Director wide-ranging authority to "protedt] intelli-
gence sources and methods from 'unauthorized disclosure."
Snepp v. United States, 444 U. S., at 509, n. 3. An intelli-
gence source provides, or is engaged to provide, information
the Agency needs to fulfill its statutory obligations. The
record establishes that the MKULTRA researchers did in
fact provide the Agency with information related
n In an affidavit, Director of Central Intelligence Turner stated that
Itpiroughout the course of the CHICULTRAI Project, CIA involvement or
association with the research was concealed in order to avoid stimulating
the interest of hostile countries in the same research areas." App. to Pet.
for Cert. in No. 83-1075, pp. 89a-90a.
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to the Agency's intelligence function. We therefore hold
that the Director was authorized to withhold the identities of
these researchers from disclosure under the FOIA.
IV
No. 83-1249
The cross-petition, No. 83-1249, calls for decision on
whether the District Court and the Court of Appeals cor-
rectly ruled that the Director of Central Intelligence need not
disclose the institutional affiliations of the MICULTRA re-
searchers previously held to be "intelligence sources." Our
conclusion that the MICULTRA researchers are protected
from disclosure under ? 102(d)(3) renders unnecessary any
extended discussion of this discrete issue.
In exercising the authority granted by Congress in
102(dX3), the Director must, of course, do more than simply
withhold the names of intelligence sources. Such withhold-
ing, standing alone, does not carry out the mandate of Con-
gress. Foreign intelligence set-vices have an interest in
knowing what is being studied and researched by our agen-
cies dealing with national security and by whom it is being
done. Foreign intelligence services have both the capacity
to gather and analyze any information that is in the public
domain and the substantial expertise in deducing the iden-
tities of intelligence sources from seemingly unimportant
details.
In this context, the very nature of the intelligence appa-
ratus of any country is to try to find out the concerns of
others; bits and pieces of data "may aid in piecing together
bits of other information even when the individual piece is not
of obvious importance in itself." Halperin v. CIA, 203 U. S.
App. D. C. 110, 116, 629 F. 2d 144, 150 (1980). Thus,
" Iw]hat may seem trivial to the uninformed, may appear
of great moment to one who has a broad view of the
scene and may put the questioned item of information in
its proper context.'" Halkin v. Helms, 194 U. S. App.
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D. C. 82, 90, 598 F. 2d 1, 9(1978), quoting United States
v. Marchetti, 466 F. 2d 1309, 1318 (CA4), cert. denied,
409 U. S. 1063 (1972).
Accordingly, the Director, in exercising his authority under
102(dX3), has power to withhold superficially innocuous in-
formation on the ground that it might enable an observer to
discover the identity of an intelligence source. See, e. g.,
Gardels v. CIA, 223 U. S. App. D. C. 88, 91-92, 689 F. 2d
1100, 1103-1104 (1982); Halperin v. CIA, supra, at 113, 629
F. 2d, at 147.
Here the Director concluded that disclosure of the institu-
tional affiliations of the MKULTRA researchers could lead to
identifying the researchers themselves and thus the disclo-
sure posed an unacceptable risk of revealing protected "intel-
ligence sources."' The decisions of the Director, who must
of course be familiar with "the whole picture," as judges are
not, are worthy of great deference given the magnitude of
the national security interests and potential risks at stake.
It is conceivable that the mere explanation of why informa-
tion must be withheld can convey valuable information to a
foreign intelligence agency.
The District Court, in a ruling affirmed by the Court of Ap-
peals, permitted the Director to withhold the institutional
affiliations of the researchers whose identities were exempt
from disclosure on the ground that disclosure of "the identi-
ties of the institutions . . . might lead to the indirect dis-
During the congressional inquiries into MKULTRA, then Director
of Central Intelligence Turner notified the 80 institutions at which
MKULTRA research had been conducted. Many of these institutions had
not previously been advised of their involvement; Director Turner notified
them as part of "a course of action (designed to) lead to the identification of
unwitting experimental subjects." Id., at 92a, n. 1. As a result of inqui-
ries into the ?dSULTRA progam, many of these institutions disclosed their
involvement to the public. Others advised the Agency that they had no
objection to public disclosure. Director Turner disclosed the names of
these institutions; he did net disclose the names of any institutions that ob-
jected to disclosure. See n. 7, supre.
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20 CIA u SIMS
closure of" individual researchers. App. to Pet. for Cert. in
No. 83-1075, p. 27a. This conclusion is supported by the
record.n The Director reasonably concluded that an ob-
server who is knowledgeable about a particular intelligence
research project, like MKULTRA, could, upon learning that
research was performed at a certain institution, often deduce
the identities of the individual researchers who are protected
'Intelligence sources." The FOIA does not require disclo-
sure under such circumstances.
. Respondents contend that because the Agency has already
revealed the names of many of the institutions at which
MKULTRA research was performed, the Agency is some-
how estopped from withholding the names of others. This
suggestion overlooks the political realities of intelligence
operations in which, among other things, our Government
may choose to release information deliberately to "send a
message" to allies or adversaries." Congress did not man-
date the withholding of information that may reveal the iden-
tity of an intelligence source; it made the Director of Central
Intelligence responsible only for protecting against unau-
thorized disclosures.
The national interest sometimes makes it advisable, or
even imperative, to disclose information that may -lead to the
? For example, an affidavit filed by an Agency operations officer familiar
with KKULTRA stated that disclosure of the institutions at which
SIKULTRA research was performed would pose "a threat of damage to ex-
isting intelligence-related arrangements with the institutions or exposure
of past relationships with the institutions." App. 27.
Admiral Turner provided one well-known example of this phe-
nomenon:
11)Juring the Cuban missile crisis, President Kennedy decided to release a
great deal of sensitive intelligence information concerning Soviet missile
installations in Cuba. It was clear, at that time, that the Soviets had to be
told publicly that the United States Government had precise information
on the extent of the Soviet threat in order to justify the strong counter-
measures then taken by our Government." App. to Pet. for Cert. in No.
83-1075, p. 90a.
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identity of intelligence sources. And it is the responsibility
of the Director of Central Intelligence, not that of the judi-
ciary, to weigh the variety of complex and subtle factors in
determining whether disclosure of information may lead to an
unacceptable risk of compromising the Agency's intelligence-
gathering process. Here Admiral Turner, as Director, de-
cided that the benefits of disclosing the identities of institu-
tions that had no objection to disclosure outweighed the costs
of doing so. But Congress. in ? 102(dX3), entrusted this dis-
cretionary authority to the Director, and the fact that Admi-
ral Turner made that determination in 1978 does not bind his
successors to make the same determination, in a different
context, with respect to institutions requesting that their
identities not be disclosed. See, e. g., Salisbury v. United
States, 223 U. S.App: D. C. 243, 248, 690 F. 2d 966, 971
(1982).
V
We hold that the Director of Central Intelligence properly
invoked ?102(d)(3) of the National Security Act of 1947 to
withhold disclosure of the identities of the individual
MKULTRA researchers as protected "intelligence sources."
We also hold that the FOIA does not require the Director to
disclose the institutional affiliation.s of the exempt research-
ers in light of the record which supports the Agency's deter-
mination that such disclosure would lead to an unacceptable
risk of disclosing the sources' identities.
Accordingly, we reverse that part of the judgment of the
Court of Appeals regarding the disclosure of the individual
researchers and affirm that part of the judgment pertaining
to disclosure of the researchers' institutional affiliations.
/t is so ordered.
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SUPREME COURT OF THE UNITED STATES
Noe. 83-1075 AND 83-1249
CENTRAL INTELLIGENCE AGENCY, ET AL.,
PETITIONERS
83-1075 v.
JOHN CARY SIMS AND SIDNEY M. WOLFE
JOHN CARY SIMS Arm SIDNEY M. WOLFE,
PETITIONERS
83-1249 v.
CENTRAL INTELLIGENCE AGENCY AND WILLIAM
J. CASEY., DIRECTOR, CENTRAL
INTELLIGENCE AGENCY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CLRCUTT
[April 16, 19851
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
concurring in the result.
To give meaning to the term "intelligence source" as it is
used in ? 102(d)(3) of the National Security Act of 1947, the
Court today correctly concludes that the very narrow defini-
tion offered by the Court of Appeals is incorrect.' That the
Court of Appeals erred does not, however, compel the con-
clusion that the Agency's sweeping alternative definition is in
"The Court of Appeals defined an Intelligence source" as "a person or
institution that provides, has provided, or has been engaged to provide the
CIA with information of a kind the Agency needs to perform its intelli-
gence function effectively, yet could not reasonably expect to obtain with-
out guaranteeing the confidentiality of those who provide it." 206 U. S.
App. D. C. 157, 166, 642 F. 2d 562, 571 (1980) (Sims I).
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2 CIA v. SIMS
fact the correct one. The Court nonetheless simply adopts
wholesale the Agency's definition of "intelligence source."
That definition is mandated neither by the language or legis-
lative history of any congressional act, nor by legitimate pol-
icy considerations, and it in fact thwarts congressional efforts
to balance the public's interest in information and the Gov-
ernment's need for secrecy. I therefore decline to join the
opinion of the Court.
The Freedom of Information Act (FOIA or Act) estab-
lished a broad mandate for disclosure of governmental in-
formation by requiring that all materials be made public "un-
less explicitly allowed to be kept secret by one of the
exemptions. . ." S. Rep. No. 813, 89th Cong., 1st Sess., 10
(1965). The Act requires courts to review de novo agency
claims of exemption, and it places on the Agency the burden
of defending its withholding of information. 5 U. S. C.
552(a)(4)(B). Congress, it is clear, sought to assure that
Government would not operate behind a veil of secrecy, and
it narrowly tailored the exceptions to the fundamental goal of
disclosure.
Two of these few exceptions are at issue in this case. The
first, on which the Court focuses, is Exemption 3, which ex-
empts information "specifically exempted from disclosure by
statute," if the statute affords the agency no discretion on.
disclosure, ? 552(b)(3)(A), establishes particular criteria for
withholding the information, ? 552(b)(3XB), or refers to the
particular types of material to be withheld, ibid. The Court
quite rightly identifies ?102(d)(3) of the National Security
Act as a statutory exemption of the kind to which Exemption
3 refers; that section places with the Director of Central
'The Court today defines an Intelligence source" as one that "provides,
or is engaged to provide, information . . . related to the Agency's intelli-
gence function,* ante, at 17-18, and holds also that the Director may with-
hold, under this provision, information that might enable an observer to
discover the identity of such a source. Ante, at 19.
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CIA u SIMS 3
Intelligence the responsibility for "protecting intelligence
sources and methods from unauthorized disclosure."
A second exemption, known as Exemption 1, covers mat-
ters that are "(A) specifically authorized under criteria estab-
lished by an Executive order to be kept secret in the inter-
est of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order." 5
U. S. C. ft 552(b)(I). This latter exemption gives to the Ex-
ecutive Branch the authority to define material that will not
be disclosed, subject of course to congressional amendment of
the exemption. Agency decisions to withhold are subject to
de novo review in the courts, which must ascertain whether
documents are correctly classified, both substantively and
procedurally.
Exemption 1 is the keystone of a congressional scheme that
balances deference to the Executive's interest in maintaining
secrecy with continued judicial and congressional oversight.
In the past, Congress has taken affirmative steps to make
clear the importance of this oversight. See n. 5, infra. Ex-
emption 1 allows the Government to protect from the scru-
tiny of this Nation's enemies classes of information that war-
rant protection, as long as the Government proceeds through
a publicly issued, congressionally scrutinized, and judicially
enforced executive order. See Hearing on Executive Order
on Security Classification before the Subcommittee of the
Committee on Government Operations of the House of Rep-
resentatives, 97th Cong., 2d Sess. (1982) (Hearing).
Exemption 1 thus plays a crucial role in the protection of
Central Intelligence Agency information. That the Court
does not mention this exemption even once, in the course of
its lengthy analysis on the policy reasons for broadly inter-
preting the "intelligence source" provision, is extraordinary.
By focusing myopically on the single statutory provision on
which the Agency has chosen to rely in. asserting its secrecy
right, the Court rewards the agency's decision not to invoke
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Exemption 1 in this case.3 Of course, the Agency may fairly
assert any possible ground for decision, and it has no duty to
select that which is narrowest. But the Court, intent to as-
sure that important information is protected, today plays into
the Agency's hands by stretching the "intelligence source"
exception beyond its natural limit; it does so while simply
ignoring the fact that the information sought could properly
have been. withheld on other grounds?on which the Agency
chose not to rely. The cost of acceding to the Agency's liti-
gation strategy, rather than undertaking a thorough analysis
of the entire statutory scheme, is to mangle, seriously, a
carefully crafted statutory scheme.
I turn, then, to consider in light of this statutory frame-
work the Court's analysis of Exemption 3. After concluding
that Exemption 3 incorporates ?102(d)(3) as a withholding
provision, the Court sets out to define the term "intelligence
source." First, it looks to the "plain meaning" of the phrase
and concludes that an "intelligence source" is self-evidently
the same as an "information source." Ante, at 9-11. Sec-
ond, the Court looks to the legislative history. Pulling to-
gether pieces of testimony from congressional hearings on
the need to establish a centralized agency to gather informa-
tion, it concludes that Congress knew that the Agency would
collect information from diverse sources, and that "Congress
I Indeed, this caae presents a curious example of the Government's
gation strategy. Despite the repeated urging of the District Court, the
Agency steadfastly refused to invoke Exemption 1 to withhold the informa-
tion at issue. The lista of names of HICULTRA researchers were in fact
once classified under an Executive Order and were therefore within the po-
tential scope of Exemption 1, but the Agency elected to declassify them.
See 479 F. Supp. 84,88 (DC 1979). The District Court went so far as to
postpone the effective date of its disclosure order, so the Agency could "act
on the possibility of classifying the names of institutions and researchers
which would otherwise be disclosable," ibid.. and thereby withhold the
information under Exemption 1. The Agency refused to do so, however.
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CIA u SIMS 5
was plainly alert to the need for maintaining confidentiality"
so as not to lose covert sources of information. Ante, at 12;
see also Brief for Petitioners in No. 83-1075, pp. 18-21.
Third, the Court chastises the Court of Appeals for adopting
a "crabbed" reading of the statute and explains how, as a pol-
icy matter, the "forced disclosure of the identities of its intel-
ligence sources could well have a devastating impact on the
Agency's ability to carry out its mission." Ante, at 15; see
also Brief for Petitioners in No. 83-1075, p. 31. The Court
offers examples of highly sensitive information that, under
the lower court's reading, might be disclosed. See ante, at
16-17; see also Brief for Petitioners in No. 83-1075,
pp. 34-37.
Before this Court, the Agency argued against the lower
court's definition of "intelligence source," substituted its
own sweeping offering, and then recounted a litany of na-
tional security nightmares that would surely befall this Na-
tion under any lesser standard; today the Court simply buys
this analysis. But the Court thereby ignores several impor-
tant facts. First, the holding today is not compelled by the
language of the statute, nor by the legislative history on
which the Court relies. Second, the Court of Appeals' defi-
nition is not the sole alternative to the one adopted by the
Court today. Third, as noted, supra, other broad exemp-
tions to FOIA exist, and a holding that this Exemption 3 ex-
ception does not apply here would in no way pose the risk of
broad disclosure the Agency suggests. The Court's reliance
on the Nation's national security interests is simply mis-
placed given that the 9nteffigence source" exemption in the
National Security Act is far from the Agency's exclusive, or
most potent, resource for keeping probing eyes from secret
documents. In its haste to adopt the Agency's sweeping def-
inition, the Court completely bypasses a considerably more
rational definition that comports at least as well with the
statutory language and legislative history, and that main-
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8 CIA v. SIMS
tains the congressionally imposed limits on the Agency's ex-
ercise of discretion in this area.
To my mind, the phrase "intelligence source" refers only to
sources who provide information either on an express or im-
plied promise of confidentiality, and the exemption protects
such information and material that would lead to disclosure of
such information. This reading is amply supported by the
language of the statute and its history.
First, I find reliance on "plain mewling" wholly inappropri-
ate. The heart of the issue is whether the term "intelligence
source" connotes that which is confidential or clandestine,
and the answer is far from obvious. The term is readily sus-
ceptible of many interpretations, and in the past the Govern-
ment itself has defined the term far less broadly than it now
does before this Court. In testimony before the House Sub-
committee on Goiernment Operations on President Reagan's
Exemption 1 Executive Order, Steven Garfinkel, Director of
the Information Security Oversight Office, explained that the
term "intelligence source" is narrow and does not encompass
even all confidential sources of information:
"(Clertain of these sources are not 'intelligence sources.'
They are not involved in intelligence agencies or in intel-
ligence work. They happen to be sources of information
received by these agencies in confidence." Hearing,
supra; at 204.
The current Administration's definition of the term "intelli-
gence source" as used in its Executive Order does not, of
course, control our interpretation of a longstanding statute.
But the fact that the same Administration has read the
phrase in different ways for different purposes certainly un-
dercuts the Court's argument that the phrase has any single
and readily apparent definition.
"[P]lain meaning, like beauty, is sometimes in the eye of
the beholder," Florida Power & Light Co. v. Lorion, 470
U. S. ? (1985), and in an instance such as this one,
in which the term at issue carries with it more than one plau-
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CIA u. SUM
sible meaning, it is simply inappropriate to select a single
reading and label it the "plain meaning." The Court, like the
Government, argues that the statute does not say "confiden-
tial source," as it might were its scope limited to sources who
have received an implied or express promise of confidential-
ity. See ante, at 10; Brief for Petitioners in No. 83-1075,
p. 16. However, the statute also does not say "information
source" as it might were it meant to define the class of mate-
rial that the Court identifies. I therefore reject the Court's
basic premise that the language at issue necessarily has but a
single, obvious interpretation.
Nor does the legislative history suggest anything other
than a congressional desire to protect those individuals who
might either be harmed or silenced should their identities or
assistance become known. The congressional Hearings
quoted by the Court, and by the Government in its brief,
focus on Congress' concern about the "deadly peril" faced by
intelligence sources if their identities were revealed, and
about the possibility that those sources would "'close up like
a clam"' without protection. See ante, at 12; Brief for Peti-
tioners in No. 83-1075, p. 20. These concerns are fully ad-
dressed by preventing disclosure of the identities of sources
who might face peril, or cease providing information, if their
identities were known, and of other information that might
lead an observer to identify such sources. That, to my mind,
is the start and finish of the exemption for an Intelligence
source"?one who contributes information on an implicit un-
derstanding or explicit assurance of confidentiality, as well as
information that could lead to such a source.'
'The fact that Congress established an Agency to collect information
from anywhere it could does not mean that it sought through the phrase
"intelligence source" to keep secret everything the Agency did in this
regard. Far from it, as the Court and the Agency both acknowledge, the
early congressional e3cpressions of concern about secrecy all focused on the
need to maintain the anonymity of persons who would provide information
only on an assurance of confidentiality.
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This reading of the "intelligence source" language also fits
comfortably within the statutory, scheme as a whole, as the
Court's reading does not. I focus, at the outset, on the re-
cent history of FOIA Exemption 1 and particularly on the
way in which recent events reflect Congress' on-going effort
to constrain agency discretion of the kind endorsed today.
The scope of Exemption 1 is defined by the Executive, and its
breadth therefore quite naturally fluctuates over time. For
example, at the time this FOIA action was begun, Executive
Order 12065, promulgated by President Carter, was in effect.
That order established three levels of secrecy?top secret,
secret, and confidential?the lowest of which, "confidential,"
was "applied to information, the unauthorized disclosure of
which reasonably could be expected to cause identifiable
damage to the national security." 43 Fed. Reg. 28949, 28950
(1978).
The order also listed categories of information that could
be considered for classification, including "military plans,
weapons, or operations," "foreign government information,"
and "intelligence activities and sources." Id., at 28951. As
it is now, nondisclosure premised on Exemption 1 was sub-
ject to judicial review. A court reviewing an Agency claim
to withholding under Exemption 1 was required to determine
do novo whether the document was properly classified and
whether it substantively met the criteria in the Executive
Order. If the claim was that the document or information in
it contained military plans, for example, a court was required
to determine whether the document was classified, whether
it in fact contained such information and whether disclosure
of the document reasonably could be expected to cause at
least identifiable damage to national security. The burden
was on the Agency to make this showing. At one time, this
Court believed that the judiciary was not qualified to under-
take this task. See EPA v. Mink, 410 U. S. 73 (1973), dis-
cussed in n. 5, infra. Congress, however, disagreed, over-
ruling both a decision of this Court and a Presidential veto to
?
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CIA v. SIMS 9
make clear that precisely this sort of judicial role is essential
if the balance that Congress believed ought to be struck be-
tween disclosure and national security is to be struck in
practice.'
Today's decision enables the Agency to avoid making the
showing required under the carefully crafted balance embod-
ied in Exemption 1 and thereby thwarts Congress' effort to
limit the Agency's discretion. The Court identifies two cate-
gories of information?the identity of individuals or entities,
whether or not confidential, that contribute material related
to Agency information-gathering, and material that might
enable an observer to discover the identity of such a
"source"--and rules that all such information is per se subject
to withholding as long as it is related to the Agency's "intelli-
gence function." The Agency need not even assert that dis-
In EPA v. Mink, 410 U. S. 73 (1973), the Court held that when an
agency relied on Exemption 1, which at the time covered matters "specifi-
cally required by Executive order to be kept secret in the interest of the
national defense or foreign policy,' 5 U. S. C. ? 552(b)(1) (1970 ed.), a
reviewing court could affirm the decision not to disclose on the basis of an
agency affidavit stating that the document had been duly classified pursu-
ant to executive order. The Court held that in camera inspection of the
documents was neither authorized nor permitted because "Congress chose
to follow the Executive's determination in these matters." 410 U. S.,
at 81.
Shortly thereafter, Congress overrode a Presidential veto and amended
the Act with the express purpose of overuling the Mink decision. Exemp-
tion 1 was modified to exempt only matters that are "(A) specifically au-
thorized under criteria established by an Executive order to be kept secret
in the interest of national defense or foreign policy and (B) in fact properly
classified pursuant to such Executive order." 5 U. S. C. f 662(bX1). In
addition, Congress amended the judicial review language to provide that
"the court shall determine the matter de novo, and may examine the con-
tents of such agency records in camera to determine whether such records
or any part thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the agency to sustain
Its action." 5 U. S. C. I 562(aX003). The legislative history unequivo-
cally establishes that in camera review would often be necessary and ap-
propriate. See S. Rep. No. 93-1200, p.9 (1974).
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10 CIA v. SIMS
closure will conceivably affect national security, much less
that it reasonably could be expected to cause at least identifi-
able damage. It need not classify the information, much less
demonstrate that it has properly been classified. Similarly,
no court may review whether the source had, or would have
been to have had any interest in confidentiality, or whether
disclosure of the information would have any effect on na-
tional security. No court may consider whether the informa-
tion is properly classified, or whether it fits the categories of
the executive order. By choosing to litigate under Exemp-
tion 3, and by receiving this Court's blessing, the Agency has
cleverly evaded all these carefully imposed congressional
requirements.'
If the class thus freed from judicial review were carefully
defmed, this result conceivably could make sense. It could
mean that Congress had decided to slice out from all the
Agency's possible documents a class of material that may
always be protected, no matter what the scope of the existing
executive order. But the class that the Court defines is
boundless. It is difficult to conceive of anything the Central
'The current Executive Order moves Exemption 1 a step closer to -Ex-
emption 3, given the manner in which the Court interprets the National
Security Act exemption. Like its predecessor, the Order establishes
three classification levels, but unlike the prior Order, the "confidential"
classification no longer requires a reasonable possibility of identifiable
damage. Instead, the label "confidential" now shall be applied to In-
formation the unauthorized disclosure of which reasonably could be ex-
pected to cause damage to the national security." Executive Order 12356,
3 CFR 166 (1983). In addition, the new Order not only lists "intelligence
sources" as a category subject to classification, but it also creates a pre-
sumption that such information is confidential. This presumption shifts
from the Agency the burden of proving the possible consequence to na-
tional security of disclosure. As a result, if the Agency defines Intelli-
gence source" under the Executive Order as broadly as the Court defines
the term in I 102(dX3), the Agency need make but a limited showing to a
court to invoke Exemption 1 for that material. In light of this new Order.
the Court's avid concern for the national security consequences of a nar-
rower definition of the term is quite puzzling.
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CIA et SIMS 11
Intelligence Agency might have within its many files that
might not disclose or enable an observer to discover some-
thing about where the Agency gathers information. Indeed,
even newspapers and public libraries, road maps and tele-
phone books appear to fall within the definition adopted by
the Court today. The result is to cast an irrebuttable pre-
sumption of secrecy over an expansive array of information in
Agency files, whether or not disclosure would be detrimental
to national security, and to rid the Agency of the burden of
making individualized showings of compliance with an execu-
tive order. Perhaps the Court believes all Agency docu-
ments should be susceptible to withholding in this way. But
Congress, it must be recalled, expressed strong disagree-
ment by passing, and then amending, Exemption 1. In light
of the Court's ruling, the Agency may nonetheless circum-
vent the procedure Congress has developed and thereby un-
dermine this explicit effort to keep from the Agency broad
and unreviewable discretion over an expansive class of
information.
The Court today reads its own concerns into the single
phrase, "intelligence source." To justify its expansive read-
ing of these two words in the National Security Act the Court
explains that the Agency must be wary, protect itself, and
not allow observers to learn either of its information re-
sources or of the topics of its interest. "Disclosure of the
subject matter of the Agency's research efforts and inquiries
may compromise the Agency's ability to gather intelligence
as much as disclosure of the identities of intelligence
sources," ante, at 17, the Court observes, and the "intelli-
gence source" exemption must bear the weight of that con-
cern as well. That the Court points to no legislator or wit-
ness before Congress who expressed a concern for protecting
such information through this provision is irrelevant to the
Court. That each of the examples the Court offers of mate-
rial that might disclose a topic of interest, and that should not
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12 CIA u SMLS
be disclosed, could be protected through other existing statu-
tory provisions, is of no moment.' That the public already
knows all about the MKULTRA project at issue in this case,
except for the names of the researchers, and therefore that
the Court's concern about disclosure of the Agency's "topics
of interest" argument is not appropriate to this case, is of no
consequence. And finally, that the Agency now has virtu-
ally unlimited discretion to label certain information "secret,"
in contravention of Congress' explicit efforts to confine the
Agency's discretion both substantively and procedurally, is of
no importance. Instead, simply because the Court can think
of information that it believes should not be disclosed, and
that might otherwise not fall within this exemption, the
Court undertakes the task of interpreting the exemption to
cover that information. I cannot imagine the canon of statu-
tory construction upon which this reasoning is based.
Congress gave to the Agency considerable discretion to de-
cide for itself whether the topics of its interest should remain
secret, and through Exemption 1 it provided the Executive
with the means to? protect such information. If the Agency
decides to classify the identities of non-confidential contribu-
tors of information so as not to reveal the subject matter or
kinds of interests it is pursuing, it may seek an Exemption 1
For example, the Court suggests that disclosure of the fact that the
Agency subscribes to an obscure but publicly available Eastern European
technical journal "could thwart the Agency's efforts to exploit its value as a
source of intelligence information." Ante, at 17; see Brief for Petitioners
in No. 83-1075, p. 38. Assuming this method of obtaining information is
not protected by Exemption 1, through an executive order, it would surely
be protected through Exemption 3's incorporation of I 102(dX3) of the Na-
tional Security Act. That provision, in addition to protecting "intelligence
sources." also protects "intelligence methods," and surely encompasses co-
vert means of obtaining information, the disclosure of which might close
access to certain kinds of information. Similarly, the fact that some un-
suspecting individuals provide valuable intelligence information must be
protected, see ante, at 17; Brief for Petitioners in No. 83-1075, p. 39, n. 15,
but again, because it is a covert means of obtaining information, not be-
cause the "source' of that information needs or expects confidentiality.
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CIA u SIMS 13
right to withhold. UnderCongress' scheme, that is properly
a decision for the Executive. It is not a decision for this
Court. Congress has elsewhere identified partkular types
of information that it believes may be withheld regardless of
the existence of an Executive order, such as the identities of
Agency employees, or, recently, the contents of Agency op-
erational files. See 50 U. S. C. ft 403g (exempting from dis-
closure requirements the organization, functions, names, offi-
cial titles, salaries, or numbers of personnel employed by the
Agency); Central Intelligence Agency Information Act, Pub.
L. 98-477, ? 701(a), 98 Stat. 2209 (exempting the Agency's
operational files from disclosure under FOIA). Each of
these categorical exemptions reflects a congressional judg-
ment that as to certain information, the public interest will
always tip in favor of nondisclosure. In this case, we have ab-
solutely no indication that Congress has ever determined that
the broad range of information that will hereinafter be en-
shrouded in secrecy should be inherently and necessarily con-
fidential. Neverthless, today the Court reaches out to sub-
stitute its own policy judgments for those of Congress.
IV
To my mind, the language and legislative history of
?102(dX3), along with the policy concerns expressed by the
Agency, support only an exemption for sources who provide
information based on an implicit or explicit promise of con-
fidentiality and information leading to disclosure of such
sources. That reading of the "intelligence source" exemp-
tion poses no threat that sources will "clam up" for fear of
exposure, while at the same time it avoids an injection into
the statutory scheme of the additional concerns of the Mem-
bers of this Court. The Court of Appeals, however, ordered
the release of even more material than I believe should be
disclosed. Accordingly, I would reverse and remand this
case for reconsideration in light of what I deem to be the
proper definition of the term "intelligence source."
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? ROUTING AND RECORD SHEET
SUBJECT: (Optional)
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building)
DATE
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,
COMMENTS (Number each comment to show from whom
to whom. Draw o line across column after each comment.)
RECEIVED
FORWARDED
lfrAil
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/
1.
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FORM 610 USE PREVIOUS
EDITIONS
GPO : 1983 0 - 411-632
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LONFIDENTIAL LL/461415
Approved For Release 2005/MpkitecOMWS01194R000900070001-brrinDn ropy
116LivaLl
Washinfpn.11C20505
Dr. Jeffrey T. Bergner
Staff Director
Committee on Foreign Relations
United States Senate
Washington, D.C. 20510
Dear Dr. Bergner:
Kc--"
OLL 85-0073
(REF: OLL 84-4499)
11 2 3N% 19535 IsS5
On 4 December 1984 Mr. Scott Cohen requested, on behalf
of the Department of State, a review for release of a
Foreign Relations Committee transcript dated 26 January 1965
concerning a briefing by former Central Intelligence Agency
Director McCone on the world situation. We apologize for
the delay in responding to you but because of the length and
sensitivity of the document a thorough review was undertaken.
(C)
The transcript contains extensive discussions relating
to highly classified technical collection systems as well as
sensitive human source reporting. Because these discussions
are inextricably woven throughout the text of the transcript,
it would be impossible to sanitize the document and have
anything meaningful remain for release. Therefore, we have
not attempted to sanitize the transcript. (C)
Thank you for giving us the opportunity to review the
transcript. If the Department of State has any further
4.4r4fte nn fhig matter. please have them contact
(U)
Sincerely,
/s/Charles A. Briggs
Charles A. Briggs
Director, Office of Legislative Liaison
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31191R000900070001 5
CONFIDENTIAL
25X1
25X1
pf RCY. CHAMMAN
tiDWARD N. SA.
JESSE PIELM.
RICIAARO G. LUGAR. IND
MOLES EloC. IAATHIAS, mt., MD.
fAMCY I.NASSESAUSI. IMNS.
*DY SOSCHWITZ. MINN
LARRY PRESSLER S. DAIL
PRANK H. MUNKOWSKI. ALASKA
PAULA HAWKINS. MA
d
tall BF ierEN. JR. DEL. i For Release 2005/08/16 : CIA-RDP93601194R0009000700
JOHN GLENN, OHIO
PAUL IL SARBANES, MD
PAUL MAMAS. MASS
EDWARD ZORINSKY. NUR United ?States gStnate
ALAN CRANSTON, CALIF.
CHRISTOPHER J 0000. 0044W.
scow COMA PAM DIRECTOR
flOYFLD S. CHRISTIANSON. MINORITY STAFF DIRECTOR
December 4, 1984
CIMAWIMEONFMMNREATIONS
WASHINGTON, D.C. 20510
Mr. Charles A. Briggs
Director, Office of
Legislative Liaison
Central Intelligence Agency
Washington, D. C. 20505
Dear Mr. Briggs:
The Department of State has requested a copy of the Foreign
Relations Committee's January 26, 1965 transcript for use in
the preparation of their documentary series, Foreign Relations
of the United States. This transcript concerns a briefing
with former CIA Director McCone on the world situation and is
retained in the CIA's files.
I would appreciate the Agency's review of the document and
your advising the Committee if there is any objection to the
release of it to the State Department for their use. If there
is no objection, please return the transcript to the Committee.
Sincerely,
Scott Cohen
Staff Director
SC:gke
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TOP SECRET
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25X1 MEMORANDUM FOR:
25X1 FROM:
SUBJECT:
14 January 1985
Liaison Division
Office of Legislative Liaison
Chief, Classitication Review Division
Office of Information Services
Request for Declassification Review of
Hearings of Senate Foreign Relations
Committee Proceedings on a Briefing by
CIA Director John A. McCone, 26 Jan 1965
1. The document from the Senate Foreign Relations Committee which you
asked us to review on 19 December 1984 is attached. Only the Agency
Byeman Control Officer, with the concurrence of the Agency's offices of
primary concern and the Department of Defense, has the authority to remove
this document from Byeman controls, and until that has been done it cannot
be reviewed, downgraded, or released.
2. Even if the Byeman controls are removed, it would require very
extensive deletions which could very well leave the document unsuitable
for publication. Pages 5 thru 47 describe a technical collection system
and some of its products in detail and would have to be removed in toto.
Pages 69 thru 81 contain information clandestinely collected; information
about Agency covert programs; and, on pages 77 thru 81, nuclear
information which would have to be cleared by the successor agencies to
the former AEC. Much of this information would have to be removed in
toto. The remaining pages, 48 thru 68, contain information on Soviet
military expenditures that would require extensive sanitization.
3. We have coordinated our review with the Directorate of Science &
Technology and they concur in our findings.
Attachment
WARNING NOTICE
INTELLIGENCE SOURCES
OR METHODS INVOLVED
HANDLE VIA BYEMAN
CHANNELS ONLY
DOWNGRADE TO CONFIDENTIAL
WHEN SEPARATED FROM ATTACHMENT
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DATE
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to whom. Draw a line across column after each comment.)
RECEIVED
FORWARDED
INITIALS
1.
_
CRD/OIS
322 Ames
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4.
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10.
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