THE CASE FOR THE NEW F.O.I.A. BILL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200190026-4
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• Sequence Number: 26
• Publication Date: June 2, 1984
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T r-"
CON TE__11;_N f I is
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LETTERS
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While Someone Else Is Eating-VII:
434
At the Heart of All Poverty David Ray
EDITORIALS
BOOKS & THE ARTS
433
The Jackson Factor
453
Cambridge Women's Peace
435
Locking the Files
Collective, ed.: My Country
436
Hunger in Africa
Is the Whole World: An
437
Secret Calumny
Anthology of Women's Work
COLUMNS
On Peace and War
Laska, ed.: Women in the
438
Beat the Devil .4lerander Cockburn
Resistance and in the
440
Sovieticus Stephen F. Cohen
Holocaust: The Voices of
ARTICLES
Eyewitnesses
Enloe: Does Khaki Become
.433
The Culture Wars:
You?: The Militarization of
Hard Right Rudder at the N.E.H. John S. Friedman
and Eric Nadler
456
Women's Lives
Three Poems
Karen Rosenberg
Patrick Creagh
441
Where the Candidates Stand:
457
Zweig: Walt Whitman:
.The Democrats on
National Security
460
The Making of the Poet
Films
Lewis Nvde
Katha Pollitt
443
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Locking the Files
Volume 238, Number 14
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Operational Files Exemption," The Nation, September 24,
19831. Later this month, the House Government Operations
Subcommittee on information will consider the bill. Both
bodies are expected to make only minor language changes;
then the bill will go to the floor for a vote. The Senate has
already approved the exemption. Following the predicted
passage in the House and resolution of differences in a
House-Senate conference, President Reagan '.Fill sign the
final bill. Then hundreds of thousands of documents--no
one knows the extent of the material-detailing the C.I.A.'s
he steady erosion of the Freedom of Information
Act continues to disfigure the internal security
landscape in the Reagan era. On April 11, the
House Intelligence Committee began a public
markup of an Administration bill that would largely exempt
Central intelligence:\^er,cy "operational files" from public
s;ru:iny under the F.O.1.:\. Ise_ Angus Mackenzie, "The
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436 The Nation.
domestic and foreign programs of disinformation, surveil-
lance, recruitment of informers, subversion and assassination
will be officially and irrevocably closed to, press and public.
It is not that C.I.A. Files have been easily pried open in the
past. All the agency's files that relate to national security mat-
ters or that might reveal confidential sources or investigative
techniques are exempt from F.O.I.A. requests. Civil libertar-
ians who support the exemption say that operational files
contain only unreleasable material and so the bill's passage
will not reduce the current flow of information. But the blan-
ket exemption would preclude many of the kinds of suits jour-
nalists and researchers now bring against the C.I.A. in Federal
court for relevant papers. Those suits force'the agency to jus-
tify its claims when national security is invoked; judges then re-
view the raw files in their chambers and decide whether the
documents should be released. The C.I.A. has not lost a
single such suit in eighteen years, but even the possibility that
a rogue judge could rule against the agency worries the spy-
masters enough to press for the exemption.
Even suits pending in Federal courts may be removed
from judicial review by the Senate's version of the law. Last
year, Democratic Senator Patrick J. Leahy of Vermont, a
member of the Senate Intelligence Committee, asked the
C.I.A. which of the sixty-odd suits then in litigation might
be dismissed if the exemption passed. The agency specified
twelve that "may be affected," and Angus Mackenzie, of
the Center for Investigative Reporting, obtained a list of
them for The Nation.' It includes the following:
? Glen L. Roberts, owner of a computer software com-
pany and publisher of a newsletter that provides "a fresh
outlook on government arrogance," requested C.I.A. Files
on David S. Dodge, former acting president of the Ameri-
can University of Beirut, who was kidnapped in Lebanon in.
July 1982 and was subsequently released.
? The Center for National Security Studies, an A.C.L.U.
affiliate, initiated two suits. The first seeks information
about the C.I.A.'s covert operations in Central America, in-
cluding details of its involvement in El Salvador's March
1982 election. The second is an omnibus suit covering a wide
range of center requests under the F.O.I.A. that the C.I.A.,
in effect, simply ignored. One request relates to the agency's
Files on its domestic operations against various organiza-
tions and publications. In response to the suit, the C.I.A. re-
leased some documents on the Students for a Democratic
Society, the Vietnam Veterans Against the War, various
bookstores which carry radical reading material, left-wing
newspapers, an antiwar convention held in 1972 at the Uni-
versity of California and Pacific News Service. The center
continues to press for more documents, but the C.I.A.
hopes to get the suit dismissed under the exemption.
3 J. Gary Shaw of Cleburne, Texas, is trying to get
C.I.A. files on suspects in the John F. Kennedy assassina-
tion case, including right-wing French terrorists reported to
have been in Dallas on November 22, 1963.
4 Henry Hurt, a Reader's Digest writer, is researching
C.I.A. involvement in the case of a Soviet defector,
? Mtacc::.zic's esea:_n as pa:t:as'y funded by a grant from the Fund for
-r csi:ga:n: Jcu.r:.tsm.
? April 14, 1984
Nicholas George Shadrin, who disappeared in Vienna on
December 20, 1975, and is presumed dead-the victim of a
botched double-agent masquerade-
? A suit is pending against the C.I.A. for files on the
agency's infiltration of the underground, dissident and
left-wing press in the United States. Publications believed to
have been targeted include Ramparts, Quicksilver Times
(both defunct) and the New York City-based Guardian.
On March 15, Representative Romano \fazzoli and
others introduced a bill (H.R. 5164) to permit all suits filed
before February 7 to continue. Even if the ongoing suits are
saved, they serve as examples of what would be thrown out
of court under the exemption.
In many cases, the C.I.A. has released some files, appar-
ently in an attempt to head off unfavorable judicial rulings.
Sometimes the agency simply stonewalls. In one of the most
egregious cases of official obstinacy, the C.I.A. has refused
to release a single page of some 180.000 documents on the
Guatemala coup of 1954, by which the agency overthrew the
elected government of Jacobo Arbenz Guzman and installed
a right-wing regime whose successors rule to this day.
Writer Stephen Schlesinger, who with Stephen Kinzer pub- .
lished a thorough study of the coup in a 1982 book, Bitter
Fruit, sued the C.I.A. for its files on the events. Recently his
request was denied by the U.S. District Court for the Dis-
trict of Columbia. Judge Thomas Flannery held that disclo-
sure would be "risking damage to American foreign rela-
tions . . . particularly in Central America at this time in
light of the delicate political situation." No doubt he was re-
ferring to U.S. covert operations against the Nicaraguan
government, which are distressingly similar to those carried
out by the C.I.A. in Guatemala thirty years ago.
What is in the mountains of C.I.A. operational files is not
just of academic or historic interest. Much of it is still perti-
nent to dirty tricks and drastic practices in progress today.
No one claims it will be easy to scotch such schemes, but
when the press, the public and independent political forces
have access to intelligence information, they are better able
to prevent history from being repeated.
ast month the Reagan Administration attached a
controversial military appropriations bill for
Central America to a popular measure for
emergency food aid to Africa. Because of that
cynical maneuver thousands on that continent continue to
die, victims of the worst drought there in recent memory.
Emergency food aid for Africa has strong bipartisan sup-
port. In January, Republican Senator John Danforth visited
an area in southern Mozambique that is suffering terrible
famine. His group saw skeletons of cattle Tying where they
had died in dry basins that had once been small lakes. Refu-
gees from interior regions of the country had fled to the
coast, although there was little more to cat there than leaves
and roots. A U.S. Air Force doctor with Danforth's group
predicted many children would die unless help arrived quick-
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nri er in Africa
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The size of the food shortage can be debated; that there is
anger in Kampuchea cannot. A February 9 report from the
tate Department admitted that the. food situation in
.ampuchea is "precarious" and noted that malnutrition
lagues many parts of the country. How will the United
rates respond?
Four years ago, Representative Millicent Fenwick urged
er colleagues in the House to approve,aid for Kampuchea:
We have never cared who sat in the palaces of the world;
ie have always been concerned about who is starving in the
treets." Today, those who could make a difference do not
hare that sentiment.
? DISPUTE OVER C.I.A. FILES
The Case for the
New E O.I.A. Bill
RA GLASSER
Later this month a bill that has evoked concern
and disagreement among civil.. libertarians and
critics of the Central Intelligence Agency will be
sent to the floor of the House of Representatives..
the bill, which would exempt certain kinds of C.I.A. files
from normal requirements under the Freedom of Informa-
ion Act, has been scrutinized and debated in a series of re-
=nt public hearings before various Congressional commit-
tees. After many revisions, the latest version of this bill,
H.R. 5164, has a good chance of passing in the full House,
partly because, after a long drafting process, it has gained
the support of the American Civil Liberties Union. ?
The A.C.L'.U.'s position has been attacked in several
forums and publications, among them The Nation [see
Angus Mackenzie, "The Operational Files Exemption,"
September 24, 1983]. Some of our critics have gone so far as
to suggest that the A.C.L.U. has become, wittingly or un-
wittingly, an accomplice in weakening the F.O.I.A.
In fight of those charges, it is important to understand
what the American Civil Liberties Union has been doing,
why it supports a much-changed version, of legislation it
originally opposed and why it thinks the legislation
represents a modest victory for those who support the
The Freedom of Information Act is one of the most im-
portant laws enacted by Congress. By making government
information available to the public, the act strengthens
America's commitment to informed, robust debate on all
public policies. The act is especially vital with respect to the
C.I.A., whose, illegal activities are encouraged by the
shroud of secrecy that envelops them. While the shroud
has not yet been sufficiently lifted, over the last decade the
F.O.I.A. has been a significant tool in bringing the C.I.A.
Ira Glasser is national executive director of the American
Civil Liberties Union.
The New York Public Library
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 "670
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under increased public and Congressional scrutiny.
But most people who submit requests to the agency under
the F.O.I.A. encounter two main problems: the C.I.A.
withholds information it should release by hiding behind ex-
aggerated claims of national security, which the courts have
never had the courage to reject; and when it does decide to
release information it takes an intolerable amount of
time-often two to three years.
Aside from pure obstructionism, a primary cause for
delay is the time-consuming search the agency undertakes
through its "operational" files when processing an F.O.I.A.
request. Basically, operational files contain documents and
information related to the intelligence process rather than
the intelligence product. For example, a document that
describes the technical capacity and location of a sophisti-
cated optics device is considered operational; the informa-
tion obtained by that device is not. Similarly, how an intelli-
gence source was spotted and recruited, how much he is
paid, the details of where and when he meets with his case
officer, are all considered operational; any information pro-
vided by that source is not.
Such operational information, with a few important
exceptions described below, is invariably classified and
therefore exempt from release under the provisions of the
F.O.I.A. The courts have never ordered the release of such
information, and are not likely to under any conceiv-
able standard of classification. Nonetheless, every time an
F.O.I.A. request is made to the C.I.A., all operational files
have to be reviewed.
To alleviate the problem of delays, the A.C.L.U. set out to
draft legislation that would spare the agency from searching
through its operational files. At the same time we wanted to
insure that the kind of information currently being released
or likely to be released in the future would not be exempt or
improperly hidden in operational files. We felt that such
legislation would obligate the C.I.A. to respond to requests
more quickly, while guaranteeing that no new curbs on in-
formation would result.
Of course, the C.I.A., already on record as favoring legis-
lation that would exempt it from all provisions of the act,
jumped at the opportunity to support a bill that would ex-
empt it from searching its operational files. Our task, there-
fore, was to defeat the legislation unless its language strictly
limited the exemption. That was not easy.
After much lobbying, the Senate passed S. 1324 which,
while much improved over the version that was introduced,
was not adequate in several important respects. If that
had been the final version of the legislation, we would
have opposed it and we believe our opposition would
have killed-it.
Fortunately, the legislative process is just that, a process.
Accordingly, after the Senate approved its bill, we set to
work on the House version. For us, the House is a much
more hospitable forum, and we thought we stood a good
chance of getting everything we wanted. We did. In its pres-
ent form this bill differs markedly from the Senate's. We
support this version because we believe it will obligate the
C.I.A. to release information more quickly and prevent it
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671
from withholding any information it is currently obligated
to release. Here is a summary of the major provisions of
H.R. 5164:
? Operational files in three divisions of the C.I.A.-the
Directorate of Operations, the Directorate for Science and
Technology and the Office of Security-would be exempt
from search and review. (A few important exceptions are
noted in the bill and summarized below.) The term "opera-
tional" is defined narrowly to include only files that docu-
ment the means of acquiring information, as opposed to
those that contain the information itself. All other C.I.A.
files, including those in the three specified divisions, will be
subject to search and review under the Freedom of Informa-
tion Act.
? All documents from operational files that are dissemi-
nated outside the three divisions, whether within the C.I.A.
Dr elsewhere in the government, will be subject to search and
-eview-even a document that concerns the most intimate
details of an operation and is. sent only to the director of
Zentral Intelligence. Once disseminated, information can-
tot be exempt, even if it is kept in an otherwise exempt
)perational file. That includes any document shown to
someone outside the three divisions on an "eyes only,"
to-copy basis and returned to the operational file.
? All information in operational files concerning covert
)perations will be subject to search and review, unless the very
:xistence of the covert operation is properly classified
nformation.
? All information in operational files concerning the sub-
ect matter of an investigation of improper or illegal conduct
)y the C.I.A. will be subject to search and review. Such in-
-estigations may be conducted by the agency's inspector
.eneral or general counsel, by Congressional oversight com-
aittees or by the President's Intelligence Oversight Board.
he C.I.A. also initiates an investigation whenever a pri-
ate citizen makes an allegation of improper or illegal con-.
.uct: for example, that an organization has been illegally
ifiltrated. (It does not investigate claims of a clearly
rivolous.nature, such as "the C.I.A. is manipulating my
rain waves.") Regardless of an investigation's outcome,
ae C.I.A. will be required, in response to an F.O.I.A. re-
;uest, to search its operational files for information concern-
rig the alleged abuse. This provision insures that all infor-
aation in the operational files concerning abuses inves-
igated by the Church and Pike committees will continue
be accessible and that in the future, similar information
n alleged abuses will be available.
? Operational files must be searched in response to U.S.
itizens or permanent resident aliens who request informa-
on about themselves. This provision preserves the access to
[formation currently available to individuals.
? Federal courts will have the right to review whether a
articular file meets the legal definition of ` operational" or
'hether particular documents are improperly kept solely in
perational files. This guarantee significantly improves on
e Senate version and clearly opposes the C.I.A. position,
.ken during Senate hearings last June, that no judicial
view should be permitted.
? Finally, the bill does not apply retroactively to any law-
suit pending on February 7, 1984, the day before the House
began hearings on the bill.
Some critics of the A.C.L.U.'s position say the bill would
allow the C.I.A. to withhold information it is currently obli-
gated to release, or conceivably would be obligated to re-
lease under a more liberal standard of classification. That
claim is false. Various people have shown us documents re-
leased under current law that arguably might not be released
under the proposed legislation. We have examined them all,
and in every case the document would still be released under
one of the exceptions provided in H.R. 5164. Moreover,
even a liberal administration would without doubt con-
tinue to classify the kinds of sources and methods the bill
would exempt.
Others suggest that the A.C.L.U. has compromised im-
portant principles by lobbying for the bill. That, too, is
false. If anyone has compromised in this process, it is the
C.I.A., which initially opposed many of the provisions on
which we insisted.
Our position was unflinching: from the beginning, we
maintained that we would oppose the bill unless each of our
concerns was adequately met. Although the Senate bill did
not meet them all, H.R. 5164 does. As A.C.L.U. staff
counsel Mark Lynch testified before Congress on May 10,
"Any movement away from what has been achieved - in
H.R. 5164 would be unacceptable, and we would oppose
any tinkering with this bill in a House-Senate conference."
Such tinkering is unlikely because Senators Barry
Goldwater and Daniel Moynihan, chair and vice chair,
respectively, of the Senate Intelligence Committee which
helped draft the Senate version, have informed the House
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T---- .. rnei
CENTRAL
AMERICA
WALTER LAFERER
ram: U1 $ e
WILLIAM M. UOORANOE
LRIIEM 12 .G.NOIL' R AST
PETER OAVIS
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CLOITRET FOX
CENTRAL AMERICAN LITERATURE 'POETRVART'"Ll^
The Nation.
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committee in writing that they will accept H.R. 5164
without a conference.
The.A.C.L.U. believes that the bill deserves the support
of information act advocates. It promises to speed up the
response to requests and imposes various legal obligations
on the C.I.A. that insure against the loss of information
now available or likely to become available. While it is not
the biggest triumph, it is a significant step forward. It is cer-
tainly not the disaster some have made it out to be. D
Vatican
(Continued From Front Cover)
testify to that. Missionaries from France, Ireland and else-
where implanted their faith in Africa, where Catholicism is a
fast-growing minority in some countries, under siege in
others but recognized, as everywhere else in the Third
World, as a religion of the elite. For a long time the Third
World Catholic elite,. shaped in the image of Rome, lacked
self-confidence when confronted by the- will or displeasure
of the Vatican. But that has changed in recent years.
Since it appeared in Latin America more than fifteen
years ago, liberation theology has bothered the Vatican.
Priests who allied themselves with the poor or opposed
brutal governments embarrassed bishops who tolerated or
were friendly to those,in power. The situation was worse for
the bishops whenever they sided with the priests. In the
1970s Dom Helder Camara, Archbishop of Recife in
overpopulated and perennially drought-stricken northeast
Brazil, became perhaps the most famous of the sympathetic
bishops. The Brazilian press was forbidden to mention his
name, except critically. He was called a communist. His
home was burned down several times. His priests were
beaten and arrested, and one of his aides was killed. Dom
Helder may be a hero to the priests, the nuns and the people,
but the Vatican has never really supported him.
Also important was Archbishop Oscar Arnulfo Romero,
the primate of El Salvador, who started out as a quiet con-
servative but became openly critical of the government
after the murder of a priest who was a close friend. On
March 24, 1980, just before Easter, Romero was murdered
as he said mass in a chapel in San Salvador. The order was
widely reported to have come from Maj. Roberto d'Aubuisson,
who had been the National Guard's intelligence chief only a
few months before. On the fourth anniversary of that event,
with El Salvador rent more than ever by a bloody civil war
and d'Aubuisson standing as a presidential candidate, an
unauthorized parade of mothers of the desaparecidos
marched in commemoration to the.cathedral where Romero is
buried, carrying- banners with the Archbishop's words: "Do
not fear those who kill, because they cannot kill the spirit."
Maurizio Clerici, correspondent for Milan's Corriere
delta Sera, described the scene outside the cathedral,
T.M. Pasca is an American journalist who writes for
The Nation from Rome.
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