HEARING BEFORE A SUBCOMMITTEE ON GOVERNMENT OPERATIONS HOUSE OF REPRESENTATIVES NINETY- EIGHTH CONGRESS SECOND SESSION ON H.R. 5164

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200240007-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 210
• Document Creation Date: December 21, 2016
• Document Release Date: November 6, 2008
• Sequence Number: 7
• Publication Date: May 10, 1984
• Content Type: OPEN SOURCE

Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CIA INFORMATION ACT
HEARING
SUBCOMMITTEE OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
NINETY-EIGHTH CONGRESS
H.R. 5164
TO AMEND THE NATIONAL SECURITY ACT OF 1947 TO REGULATE
PUBLIC DISCLOSURE OF INFORMATION HELD BY THE CENTRAL IN-
TELLIGENCE AGENCY, AND FOR OTHER PURPOSES
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
COMMITTEE ON GOVERNMENT OPERATIONS
JACK BROOKS, Texas, Chairman
DON FUQUA, Florida
JOHN CONYERS, JR., Michigan
CARDISS COLLINS, Illinois
GLENN ENGLISH, Oklahoma
ELLIOTT H. LEVITAS, Georgia
HENRY A. WAXMAN, California
TED WEISS, New York
MIKE SYNAR, Oklahoma
STEPHEN L. NEAL, North Carolina
DOUG BARNARD, JR., Georgia
BARNEY FRANK, Massachusetts
TOM LANTOS, California
RONALD D. COLEMAN, Texas
ROBERT E. WISE, JR., West Virginia
BARBARA BOXER, California
SANDER M. LEVIN, Michigan
BUDDY MACKAY, Florida
MEL LEVINE, California
MAJOR R. OWENS, New York
EDOLPHUS TOWNS, New York
JOHN M. SPRATT, JR., South Carolina
JOE KOLTER, Pennsylvania
BEN ERDREICH, Alabama
GERALD D. KLECZKA, Wisconsin
FRANK HORTON, New York
JOHN N. ERLENBORN, Illinois
THOMAS N. KINDNESS, Ohio
ROBERT S. WALKER, Pennsylvania
LYLE WILLIAMS, Ohio
WILLIAM F. CLINGER, JR., Pennsylvania
RAYMOND J. McGRATH, New York
JUDD GREGG, New Hampshire
DAN BURTON, Indiana
JOHN R. McKERNAN, JR., Maine
TOM LEWIS, Florida
ALFRED A. (AL) McCANDLESS, California
LARRY E. CRAIG, Idaho
DAN SCHAEFER, Colorado
WILLIAM M. JONES, General Counsel
JOHN E. MOORE, Staff Administrator
JOHN M. DUNCAN, Minority Staff Director
GOVERNMENT INFORMATION, JUSTICE, AND AGRICULTURE SUBCOMMITTEE
GLENN ENGLISH, Oklahoma, Chairman
STEPHEN L. NEAL, North Carolina THOMAS N. KINDNESS, Ohio
ROBERT E. WISE, JR., West Virginia TOM LEWIS, Florida
BUDDY MACKAY, Florida DAN BURTON, Indiana
EDOLPHUS TOWNS, New York
GERALD D. KLECZKA, Wisconsin
Ex OFFICIO
FRANK HORTON, New York
ROBERT M. GELLMAN, Counsel
EUPHON L. METZGER, Clerk
JOHN J. PARISI, Minority Professional Staff
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CONTENTS
Page
Hearing held on May 10, 1984 ....................................................................................... 1
Text of H.R. 5164 .............................................................................................................. 2
Statement of -
Briggs, Charles A., Executive Director, Central Intelligence Agency, ac-
companied by Ernest Mayerfeld, Deputy Director of Legislative Liaison;
Larry Strawderman, Information and Privacy Coordinator; and Ber-
nard Makowka, Office of General Counsel ...................................................... 11
English, Hon. Glenn, a Representative in Congress from the State of
Oklahoma, and chairman, Government Information, Justice, and Agri-
culture Subcommittee: Opening statement ..................................................... 1
Lynch, Mark H., American Civil Liberties Union, Washington, DC .............. 37
McGehee, Ralph, representing the Fund for Open Information and Ac-
countability, Inc .................................................................................................... 89
Mackenzie, Angus, director, Freedom of Information Project ......................... 75
Rowe, Charles S., editor and copublisher, the Free-Lance Star, Fredericks-
burg, Va., representing the American Newspaper Publishers Associa-
tion, and the American Society of Newspaper Editors, accompanied by
Tonda F. Rush, counsel/government affairs, ANPA ..................................... 60
Letters, statements, etc., submitted for the record by -
Briggs, Charles A., Executive Director, Central Intelligence Agency:
Deputy Director McMahon's excerpted statement before the House
Permanent Select Committee on Intelligence ......................................... 13-21
Prepared statement .......................................................................................... 24-29
Response to Messrs. Mackenzie's and McGehee's arguments against
H.R. 5164 ...................................................................................................... 98-116
Lynch, Mark H., American Civil Liberties Union, Washington, DC: Pre-
pared statement .................................. .............................................................. 40-56
McGehee, Ralph, representing the Fund for Open Information and Ac-
countability, Inc.: Prepared statement ............................................................. 92-96
Mackenzie, Angus, director, Freedom of Information Project: Prepared
statement ............................................................................................................... 81-88
Rowe, Charles S., editor and copublisher, the Free-Lance Star, Fredericks-
burg, VA, representing the American Newspaper Publishers Associa-
tion, and the American Society of Newspaper Editors: Prepared state-
ment ........................................................................................................................ 64-71
APPENDIXES
Appendix 1.-Executive Order No. 12333 of December 4, 1981, "United States
Intelligence Activities" and Executive Order No. 12334 of December 4, 1981,
"President's Intelligence Oversight Board" ............................................................ 119
Appendix 2.-Plaintiffs brief in Mackenzie v. CIA (Feb. 6, 1984) .......................... 137
Appendix 3.-Letters to Government Information, Justice, and Agriculture
Subcommittee regarding H.R. 5164 .......................................................................... 201
a. Letter from R. Samuel Paz, president, and Ramona Ripston, executive
director, American Civil Liberties Union of Southern California, dated
June 7, 1984 ........................................................................................................... 201
b. Letter from Jack Landau, executive director, and Elaine P. English,
director, FOI Service Center, Reporters Committee for Freedom of the
Press, dated June 26, 1984 .................................................................................. 204
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CIA INFORMATION ACT
HOUSE OF REPRESENTATIVES,
GOVERNMENT INFORMATION, JUSTICE,
AND AGRICULTURE SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, DC.
The subcommittee met, pursuant to call, at 9:30 a.m., in room
2203, Rayburn House Office Building, Hon. Glenn English (chair-
man of the subcommittee) presiding.
Present: Representatives Glenn English, Gerald D. Kleczka,
Thomas N. Kindness, and Tom Lewis.
Also present: Robert Gellman, counsel; Euphon Metzger, clerk;
and John J. Parisi, minority professional staff, Committee on Gov-
ernment Operations.
OPENING STATEMENT OF CHAIRMAN ENGLISH
Mr. ENGLISH. The hearing will come to order.
The subject of today's hearing is H.R. 5164, the Central Intelli-
gence Agency Information Act. H.R. 5164 was introduced by Con-,
gressman Mazzoli, chairman of the Legislation Subcommittee of
the House Committee on Intelligence. The bill was jointly referred
to the Intelligence Committee and the Government Operations
Committee.
Last month, H.R. 5164 was ordered reported by the Intelligence
Committee, and a report filed on May 1. A similar bill, S. 1324, was
passed by the Senate last year.
[The bill, H.R. 5164, follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
To amend the National Security Act of 1947 to regulate public disclosure of
information held by the Central Intelligence Agency, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 15, 1984
Mr. MAZZOLI (for himself, Mr. BOLAND, Mr. ROBINSON, and Mr. WHITEHUBST)
introduced the following bill; which was referred jointly to the Permanent
Select Committee on Intelligence and the Committee on Government Oper-
ations
A BILL
To amend the National Security Act of 1947 to regulate public
disclosure of information held by the Central Intelligence
Agency, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Central Intelligence
4 Agency Information Act".
5 SEC. 2. (a) The National Security Act of 1947 is
6 amended by adding at the end thereof the following new title:
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
2
1 "TITLE VII-PROTECTION OF OPERATIONAL
2 FILES OF THE CENTRAL INTELLIGENCE
3 AGENCY
4 "EXEMPTION OF CERTAIN OPERATIONAL FILES FROM
5 SEARCH, REVIEW, PUBLICATION, OR DISCLOSURE
6 "SEC. 701. (a) Operational files of the Central Intelli-
7 gence Agency may be exempted by the Director of Central
8 Intelligence from the provisions of the Freedom of Informa-
9 tion Act (5 U.S.C. 552) which require publication or disclo-
10 sure, or search or review in connection therewith.
11 "(b) For the purposes of this title the term `operational
12 files' means-
13 "(1) files of the Directorate of Operations which
14 document the conduct of foreign intelligence or coun-
15 terintelligence operations or intelligence or security lia-
16 sion arrangements or information exchanges with for-
17 eign governments or their intelligence or security serv-
18 ices;
19 "(2) files of the Directorate for Science and Tech-
20 nology which document the means by which foreign in-
21 telligence or counterintelligence is collected through
22 scientific and technical systems; or
23 "(3) files of the Office of Security which document
24 investigations conducted to determine the suitability of
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
4
3
1 potential foreign intelligence . or counterintelligence
sources;
except that files which are the sole repository of disseminated
intelligence are not operational files.
"(c) Notwithstanding subsection (a) of this section,
exempted operational files shall continue to be ' subject to
search and review for information concerning-
"(1) United States citizens or aliens lawfully ad-
mitted for permanent residence who have requested in-
formation on themselves pursuant to the provisions of
the Freedom of Information Act (5 U.S.C. 552) or the
Privacy Act-of 1974 (5 U.S.C. 552a);
"(2) any special activity the existence of which is
not exempt from disclosure under the provisions of the
Freedom of Information Act (5 U.S.C. 552); or
"(3) the specific subject matter of an investigation
by the intelligence committees of the Congress, the In-
telligence Oversight Board, the Department of Justice,
the Office of General Counsel of the Central Intelli-
gence Agency, the Office of Inspector General of the
Central Intelligence Agency, or the Office of the Di-
rector of Central Intelligence for any impropriety, or
violation of law, Executive order, or Presidential direc-
tive, in the conduct of an intelligence activity.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
5
4
1 "(d)(1) Nonoperational files which contain information
2 derived or disseminated from exempted operational files shall
3 be subject to search and review.
4 "(2) The inclusion of information from exempted oper-
5 ational files in nonoperational files shall not affect the exemp-
6 tion under subsection (a) of this section of the originating
7 operational files from search, review, publication, or disclo-
8 sure.
9 "(3) Records from exempted operational files which
10 have been disseminated to and referenced in nonoperational
11 files and which have been returned to exempted operational
12 files for sole retention shall be subject to search and review.
13 "(e) The provisions of subsection (a) of this section shall
14 not be superseded except by a provision of law which is en-
15 acted after the date of enactment of subsection (a), and which
16 specifically cites and repeals or modifies its provisions.
17 "(f) Whenever any person who has requested agency
18 records under the Freedom of Information Act (5 U.S.C.
19 552) alleges that the Central Intelligence Agency has im-
20 properly withheld records because of failure to comply with
21 any provision of this section, judicial review shall be available
22 under the terms set forth in subparagraph 552(a)(4)(B) of title
23 5, United States Code, except that-
24 "(1) information specifically authorized under cri-
25 teria established by an Executive order to be kept
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
6
5
1 secret in the interest of national defense or foreign re-
2 lations which is filed with, or produced for, the court
3 by the Agency shall be examined ex parte, in camera
4 by the court;
5 "(2) the court shall, to the fullest extent practica-
6 ble, determine issues of fact based on sworn submis-
7 sions of the parties;
8 "(3) when a complaint alleges that requested
9 records were improperly withheld because of improper
10 placement solely in exempted operational files, the
11 complainant shall support such allegation with a sworn
12 written submission, based upon personal knowledge or
13 otherwise admissible evidence;
14 "(4)(A) when a complainant alleges that requested
15 records were improperly withheld because of improper
16 exemption of operational files, the Agency shall meet
17 its burden under subparagraph 552(a)(4)(B) of title 5,
18 United States Code, by demonstrating to the court by
19 affidavit that exempted files likely to contain respon-
20 sive records currently perform the functions set forth in
21 subsection (b) of this section; and
22 "(B) in making its determination under subpara-
23 graph (A) of this paragraph, the court may not order
24 the Agency to review the content' of any operational
25 file or files unless the complainant disputes the Agen-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
7
6
1 cy's showing with a sworn written submission based on
2 personal knowledge or otherwise admissible evidence;
3 "(5) in proceedings under paragraphs (3) and (4)
4 of this subsection the parties shall not obtain discovery
5 pursuant to rules 26 through 35 of the Federal Rules
6 of Civil Procedure, except that requests for admission
7 may be made pursuant to rules 26 and 36;
8 "(6) if the court finds under this subsection that
9 the Agency has improperly withheld requested records
10 because of failure to comply with any provision of this
11 section, the court shall order the Agency to search and
12 review the appropriate exempted operational file or
13 files for the requested records and make such records,
14 or portions thereof, available in accordance with the
15 provisions of the Freedom of Information Act (5
16 U.S.C. 552), and such order shall be the exclusive
17 remedy for failure to comply with this section; and
18 "(7) if at any time following the filing of a com-
19 plaint pursuant to this subsection the Agency agrees to
20 search the appropriate exempted operational file or
21 files for the requested records, the court shall dismiss
22 the claim based upon such complaint.
23 "DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
24 "SEC. 702. (a) Not less than once every ten years, the
25 Director of Central Intelligence shall review the exemptions
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
8
7
1 in force under subsection (a) of section 701 of this Act to
2 determine whether such exemptions may be removed from
3 any category of exempted files or any portion thereof.
4 "(b) The review required by subsection (a) of this section
5 shall include consideration of the historical value or other
6 public interest in the subject matter of the particular category
7 of files or portions thereof and the potential for declassifying
8 a significant part of the information contained therein.
9 "(c) A complainant who alleges that the Agency has
10 improperly withheld records because of failure to comply with
11 this section may seek judicial review in the district court of
12 the United States of the district in which any of the parties
13 reside, or in the District of Columbia. In such a proceeding,
14 the court's review shall be limited to determining (1) whether
15 the Agency has conducted the review required by subsection
16 (a) of this section within ten years of enactment of this Act or
17 within ten years after the last review, and (2) whether the
18 Agency, in fact, considered the criteria set forth in subsection
19 (b) of this section in conducting the required review."
20 (b) The table of contents at the beginning of such Act is
21 amended by adding at the end thereof the following:
"TITLE VII-PROTECTION OF OPERATIONAL FILES OF THE
CENTRAL INTELLIGENCE AGENCY
"Sec. 701. Exemption of certain operational files from search, review, publication,
or disclosure.
"Sec. 702. Decennial review of exempted operational files.".
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
8
1 SEC. 3. The Director of Central Intelligence, in consul-
2 tation with the Archivist of the United States, the Librarian
3 of Congress, and appropriate representatives of the historical
4 discipline selected by the Archivist, shall prepare and submit
5 by June 1, 1985, to the Permanent Committee on Intelli-
6 gence of the House of Representatives and the Select Com-
7 mittee on Intelligence of the Senate a report on the feasibility
8 of conducting systematic review for declassification and re-
9 lease of Central Intelligence Agency information of historical
10 value.
11 SEc. 4. The amendments made by section 2 shall be
12 effective upon enactment of this Act and shall apply with
13 respect to any requests for records, whether or not such re-
14 quest was made prior to such enactment, and shall apply to
15 all civil actions not commenced prior to February 7, 1984.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. ENGLISH. This legislation exempts selected CIA files from
search and review under the Freedom of Information Act. The
theory behind the bill is that these files contain information that is
exempt from disclosure under the FOIA.
By exempting files from unproductive search and review, the
backlog of FOIA requests at the CIA will be reduced, FOIA re-
quests will be processed more rapidly, and the security of CIA in-
formation will be protected. At the same time, no information now
available to a requester will be removed from public availability.
These are worthy goals, and our purpose here today is to find out if
the bill lives up to these goals.
I would like to make clear at the outset that the need for secrecy
in the conduct of intelligence operations is not at issue today. No
one disputes that secrecy has its place in intelligence activities..
The Freedom of Information Act has always recognized that the
Government has a legitimate need for secrecy to protect our na-
tional security interests.
At the same time, however, intelligence agencies do possess infor-
mation about which the public can legitimately inquire and which
is relevant to public debate. The House Intelligence Committee
report on H.R. 5164 lists examples of this type of information.
These include:
Directives on the management, coordination, and general con-
duct of intelligence activities;
National intelligence estimates, including estimates relating to
the 1962 Cuban missile crisis;
Memoranda from the CIA General Counsel on the legality of
covert action operations;
Records concerning CIA efforts to forestall publication of news
stories on the Glomar Explorer; and
Internal CIA studies of particular intelligence operations, such as
the Berlin tunnel operation in the 1950's.
It is our responsibility in this committee and in the Congress to
balance the national security needs for an effective intelligence
service and the benefits of an informed public. Finding the appro-
priate balance between these two important values is our ultimate
goal here today.
Mr. Kindness.-
Mr. KINDNESS. Thank you, Mr. Chairman.
I welcome all of our witnesses today. A little over 4 years ago,
this subcommittee held a couple of days of hearings on legislation
similar in concept to H.R. 5164. At that time, I said that "The sub-
ject of CIA compliance with the Freedom of Information Act has
been one of continuing congressional interest in recent years."
That statement is just as true today as it was then. Congress has
had an ongoing interest in the application of the Freedom of Infor-
mation Act to the work of the CIA and should continue that.
The experience of the Agency and of those who have sought to
obtain information from the Agency under the Freedom of Informa-
tion Act has been a great teacher. Four years ago I don't believe
that any of us, either we in the Congress or the CIA or the ACLU
and others who request information, knew quite how to adjust the
CIA's obligations under the act.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Just given the status of H.R. 5164, it would appear that we are
closer to a balanced solution than ever before. But as the commit-
tee with principal jurisdiction over the Freedom of Information
Act, we have an obligation to look not only at this particular bill
but also any related Freedom of Information Act and Privacy Act
issues which arise as a consequence of the provisions of this legisla-
tion.
I welcome the opportunity to hear our witnesses today, and I
would yield back, Mr. Chairman.
Mr. ENGLISH. Thank you very much, Mr. Kindness.
This morning I want to welcome a new member of the subcom-
mittee; one who just joined us. In fact, he just joined the Congress,
and we are delighted to have him. Gerald Kleczka, who is from
Wisconsin,-was named by the committee yesterday to this subcom-
mittee. Mr. Kleczka, we want to welcome you, and do you have any
comments you want to make this morning?
Mr. KLECZKA. No thank you, Mr. Chairman. I want only to say
that it is a pleasure for me to not only serve on the Government
Operations Committee but also this subcommittee, and I look for-
ward to working with not only yourself, Chairman English, but
also our ranking minority member, Mr. Kindness.
Mr. ENGLISH. Thank you very much. Well, we appreciate it, and,
again, a very hearty welcome.
Also this morning we want to welcome Mr. Charles A. Briggs,
who is the Executive Director of the Central Intelligence Agency,
and Mr. Briggs, if you would introduce the folks that accompanied
you here this morning.
STATEMENT OF CHARLES A. BRIGGS, EXECUTIVE DIRECTOR,
CENTRAL INTELLIGENCE AGENCY, ACCOMPANIED BY ERNEST
MAYERFELD, DEPUTY DIRECTOR OF LEGISLATIVE LIAISON;
LARRY STRAWDERMAN, INFORMATION AND PRIVACY COORDI-
NATOR; AND BERNARD MAKOWKA, OFFICE OF GENERAL COUN-
SEL
Mr. BRIGGS. On my left, Mr. Chairman, is Mr. Ernest Mayerfeld,
who is Deputy Director of our Legislative Liaison Office. On my
right, Mr. Larry Strawderman, who has a bureaucratic title that I
can't even remember. He is the head of Information and Privacy
Division.
Mr. ENGLISH. Very good. We welcome you gentlemen here, and
we would be happy to hear your testimony, Mr. Briggs.
Mr. BRIGGS. All right, sir.
Mr. Chairman, and members of the subcommittee, it is a pleas-
ure to appear before you this morning to discuss H.R. 5164, the
Central Intelligence Agency Information Act. We last appeared
before you to discuss our concerns with the Freedom of Information
Act in February of 1980.
Since that time, the Central Intelligence Agency (CIA) has per-
sisted in its efforts to achieve needed relief from the unique prob-
lems posed to it by the FOIA. We believe that H.R. 5164 will pro-
vide the CIA with substantial relief from these problems without
reducing the amount of meaningful information which can be re-
leased to the public.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
As you know, Mr. Chairman, Deputy Director McMahon has pre-
sented our problems with the FOIA in great detail to both the
Senate and House Intelligence oversight committees during the
course of the 98th Congress. With your permission, Mr. Chairman,
I would like to submit for the record Deputy Director McMahon's
explanation of these problems as contained in the statement he
gave before the House Permanent Select Committee on Intelligence
last February.
Mr. ENGLISH. Without objection, that will be made part of the
record.
[The information follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
EXCERPT OF STATEMENT OF
JOHN N. PICT MON
DEPUTY DIRECTOR OF CENTRAL INTELLIGENCE
UNDER PRESENT LAW ANY FOIA REQUESTER CAN CAUSE A SEARCH AND
REVIEW TO BE MADE IN ALL CIA FILES. INCLUDING OPERATIONAL
FILES. AND THE AGENCY MUST DEFEND A DENIAL OF SENSITIVE
INFORMATION TO ANYONE WHO ASKS FOR IT LINE BYLINE. SOMETIMES
WORD BY WORD. WE. OF COURSE. ATTEMPT TO ASSURE OUR SOURCES.
WHO LIVE IN FEAR OF THIS PROCESS. THAT THE EXEMPTIONS AVAILABLE
UNDER THE FOIA ARE SUFFICIENT TO PROTECT THEIR IDENTITIES. BUT
THAT ASSURANCE IS T00 OFTEN SEEN AS HOLLOW. THEY ASK, WITH
JUSTIFICATION IN MY VIEW, THAT IN EXCHANGE FOR THE RISKS WHICH
THEY UNDERTAKE ON OUR BEHALF. WE PROVIDE THEM WITH AN ABSOLUTE
ASSURANCE OF CONFIDENTIALITY. SO LONG AS WE ARE COMPELLED BY
LAW TO TREAT OUR OPERATIONAL FILES AS POTENTIALLY PUBLIC
DOCUMENTS, WE ARE UNABLE TO PROVIDE THE IRON-CLAD GUARANTEE
WHICH IS THE BACKBONE OF AN EFFECTIVE INTELLIGENCE SERVICE.
IN ADDITION, THE REVIEW OF OPERATIONAL FILES WITHDRAWS UNIQUELY
CAPABLE PERSONNEL FROM INTELLIGENCE OPERATIONS, AND COMPELS US
TO VIOLATE OUR WORKING PRINCIPLES OF GOOD SECURITY. LET ME
EXPLAIN THESE POINTS IN MORE DETAIL.
FOR SECURITY REASONS. AGENCY INFORMATION IS COMPARTMENTED
INTO NUMEROUS SELF-CONTAINED FILE SYSTEMS WHICH ARE DESIGNED IN
ORDER TO SERVE THE OPERATIONAL NEEDS OF A PARTICULAR COMPONENT
OR TO ACCOMPLISH A PARTICULAR FUNCTION. AGENCY PERSONNEL ARE
GIVEN ACCESS TO SPECIFIC FILES ONLY ON A "NEED TO KNOW" BASIS.
OPERATIONAL FILES ARE MORE STRINGENTLY COMPARTMENTED BECAUSE
THEY DIRECTLY REVEAL INTELLIGENCE SOURCES AND METHODS. YET A
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
TYPICAL REQUEST UNDER THE FOIA WILL SEEK INFORMATION ON A
GENERALLY DESCRIBED SUBJECT WHEREVER IT MAY BE FOUND IN THE
AGENCY AND WILL TRIGGER A SEARCH WHICH TRANSGRESSES ALL
PRINCIPLES OF COMPARTMENTATION. A RELATIVELY SIMPLE FOIA
REQUEST MAY REQUIRE AS MANY AS 21 AGENCY RECORDS SYSTEMS TO BE
SEARCHED, A DIFFICULT REQUEST CAN INVOLVE OVER 100.
IN MANY INSTANCES THE RESULTS OF THESE SEARCHES ARE
PRODIGIOUS. THOUSANDS OF PAGES OF RECORDS ARE AMASSED FOR
REVIEW. ALTHOUGH. IN THE CASE OF RECORDS GLEANED FROM
OPERATIONAL FILES. VIRTUALLY NONE OF THIS INFORMATION IS
RELEASED TO THE REQUESTER. SECURITY RISKS. WHICH ARE INHERENT
IN THE REVIEW PROCESS. REMAIN PRESENT. THE DOCUMENTS ARE
SCRUTINIZED LINE BY LINE. WORD BY WORD. BY HIGHLY SKILLED
OPERATIONAL PERSONNEL WHO HAVE THE NECESSARY TRAINING AND.
EXPERIENCE TO IDENTIFY SOURCE-REVEALING AND OTHER SENSITIVE
INFORMATION. THESE REVIEWING OFFICERS MUST PROCEED UPON THE
ASSUMPTION THAT ALL INFORMATION RELEASED WILL FALL INTO THE
HANDS OF HOSTILE POWERS. AND THAT EACH BIT OF INFORMATION WILL
BE RETAINED AND PIECED TOGETHER BY OUR ADVERSARIES IN A'
PAINSTAKING EFFORT TO EXPOSE SECRETS WHICH THE AGENCY IS
DEDICATED TO PROTECT. AT THE SAME TIME. HOWEVER. THE REVIEWING
OFFICER MUST BE PREPARED TO DEFEND EACH DETERMINATION THAT AN
ITEM OF INFORMATION IS CLASSIFIED OR OTHERWISE PROTECTED UNDER
THE FOIA. FURTtERMORE. THE OFFICER MUST BEAR IN MIND THAT
UNDER THE FOIA EACH "REASONABLY SEGREGABLE" ITEM OF UNPROTECTED
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
INFORMATION MUST BE RELEASED. SENTENCES ARE CARVED INTO THEIR
INTELLIGIBLE ELEMENTS. AND EACH ELEMENT IS SEPARATELY STUDIED.
WHEN THIS PROCESS IS COMPLETED FOR OPERATIONAL RECORDS. THE
RESULT IS USUALLY A COMPOSITE OF BLACK MARKINGS. INTERSPREAD
WITH A FEW DISCONNECTED PHRASES WHICH HAVE BEEN APPROVED FOR
RELEASE.
AFTER THE RESPONSIVE RECORDS HAVE BEEN PROPERLY REVIEWED.
THE PUBLIC DERIVES LITTLE OR NOTHING BY WAY OF MEANINGFUL
INFORMATION FROM THE FRAGMENTARY ITEMS OR OCCASIONAL ISOLATED
PARAGRAPH WHICH IS ULTIMATELY RELEASED FROM OPERATIONAL FILES.
YET WE NEVER CEASE TO WORRY ABOUT THESE FRAGMENTS. WE CAN
NEVER BE COMPLETELY CERTAIN WHAT OTHER PIECES OF THE JIGSAW
PUZZLE OUR ADVERSARIES ALREADY HAVE. OR WHAT ELSE THEY'NEED_JO
COMPLETE THE PICTURE. PERHAPS WE MISSED THE SOURCE-REVEALING
SIGNIFICANCE OF SOME ITEM. PERHAPS WE MISPLACED ONE OF THE
BLACK MARKINGS. THE REVIEWING OFFICER IS CONFRONTED WITH A
DIZZYING TASK OF DEFENDING EACH DELETION WITHOUT RELEASING ANY
CLUE TO THE IDENTITY OF OUR SOURCES. HE HAS NO MARGIN FOR
ERROR. THOSE WHO HAVE TRUSTED US MAY LOSE THEIR REPUTATION.
THEIR LIVELIHOOD. OR THEIR LIVESt THE WELL-BEING OF THEIR
FAMILIES IS AT STAKE IF ONE APPARENTLY INNOCUOUS ITEM FALLS
INTO HOSTILE HANDS AND TURNS OUT TO BE A CRUCIAL LEAD. AS LONG
AS THE PROCESS OF FOIA SEARCH AND REVIEW OF CIA OPERATIONAL
FILES CONTINUES. THIS POSSIBILITY OF ERROR CANNOT BE
ERADICATED. THE HARM DONE TO THE AGENCY'S MISSION BY SUCH
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
16
ERRORS IS. OF COURSE. UNKNOWN AND UNCALCULABLE. THE POTENTIAL
HARM IS. IN OUR JUDGMENT, EXTREME.
ASIDE FROM THIS FACTOR OF HUMAN ERROR. WE RECOGNIZE THAT
UNDER THE CURRENT FREEDOM OF INFORMATION ACT. SUBJECT TO
JUDICIAL REVIEW. NATIONAL SECURITY EXEMPTIONS DO EXIST TO
PROTECT THE MOST VITAL INTELLIGENCE INFORMATION. THE KEY
POINT, HOWEVER. IS THAT THOSE SOURCES UPON WHOM WE DEPEND FOR
THAT INFORMATION HAVE AN ENTIRELY DIFFERENT PERCEPTION.
I WILL EXPLAIN HOW THAT PERCEPTION HAS BECOME, FOR US. A
REALITY WHICH HURTS THE WORK OF THE AGENCY ON A DAILY BASIS.
THE GATHERING OF INFORMATION FROM HUMAN SOURCES REMAINS A
CENTRAL PART OF CIA'S MISSION. IN PERFORMANCE OF THIS MISSION.
AGENCY OFFICERS MUST, IN ESSENCE. ESTABLISH A SECRET
CONTRACTUAL RELATIONSHIP WITH PEOPLE IN KEY POSITIONS WITH
ACCESS TO INFORMATION THAT MIGHT OTHERWISE BE INACCESSIBLE TO
THE UNITED STATES GOVERNMENT.
THIS IS NOT AN EASY TASK. NOR IS IT QUICKLY ACCOMPLISHED.
THE PRINCIPAL INGREDIENT IN THESE RELATIONSHIPS IS TRUST. To
BUILD SUCH A RELATIONSHIP. WHICH IN MANY CASES ENTAILS AN
INDIVIDUAL PUTTING HIS LIFE AND THE SAFETY OF HIS FAMILY IN
JEOPARDY TO FURNISH INFORMATION TO THE U.S. GOVERNMENT, IS A
DELICATE AND TIME-CONSUMING TASK. OFTEN. IT TAKES YEARS TO
CONVINCE AN INDIVIDUAL THAT WE CAN PROTECT HIM. EVEN THEN. THE
SLIGHTEST PROBLEM. PARTICULARLY A BREACH OR PERCEIVED BREACH OF
TRUST. CAN PERMANENTLY DISRUPT THE RELATIONSHIP. A PUBLIC
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
17
EXPOSURE OF ONE COMPROMISED AGENT WILL OBVIOUSLY DISCOURAGE
OTHERS.
ONE MUST RECOGNIZE ALSO THAT MOST OF THOSE WHO PROVIDE US
WITH OUR MOST VALUABLE AND, THEREFORE, MOST SENSITIVE
INFORMATION LIVE IN TOTALITARIAN COUNTRIES. IN SUCH PLACES
INDIVIDUALS SUSPECTED OF ANYTHING LESS THAN TOTAL ALLEGIANCE TO
THE RULING PARTY OR CLIQUE CAN LOSE THEIR.LIVES. IN SOCIETIES
SUCH AS THESE. THE CONCEPTS BEHIND THE FREEDOM OF INFORMATION
ACT ARE TOTALLY ALIEN. FRIGHTENING, AND INDEED CONTRARY TO ALL
THAT THEY KNOW. IT IS VIRTUALLY IMPOSSIBLE FOR MOST OF OUR
AGENTS AND SOURCES IN SUCH SOCIETIES TO UNDERSTAND THE LAW
ITSELF. MUCH LESS WHY THE CIA OPERATIONAL FILES. IN WHICH THEIR
IDENTITIES ARE REVEALED, SHOULD BE SUBJECT TO THE ACT. IT-IS
DIFFICULT, THEREFORE. TO CONVINCE ONE WHO IS SECRETLY
COOPERATING WITH US THAT SOME DAY HE WILL NOT AWAKEN TO FIND IN
A U.S. NEWSPAPER OR MAGAZINE AN ARTICLE THAT IDENTIFIES HIM AS
A CIA spy.
ALSO. IMAGINE THE SHACKLES BEING PLACED ON THE CIA OFFICER
TRYING TO CONVINCE THE FOREIGN SOURCE TO COOPERATE WITH THE
UNITED STATES. THE SOURCE. WHO MAY BE LEANING TOWARDS
COOPERATION. WILL DEMAND THAT HE BE PROTECTED. HE WANTS
ABSOLUTE ASSURANCE THAT NOTHING WILL BE GIVEN OUT WHICH COULD
CONCEIVABLY LEAD HIS OWN INCREASINGLY SOPHISTICATED
COUNTER-INTELLIGENCE SERVICE TO APPEAR AT HIS DOORSTEP. OF
COURSE, ACCESS TO OPERATIONAL FILES UNDER F01A IS NOT THE ONLY
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CAUSE OF THIS FEAR. LEAKS, THE DELIBERATE EXPOSURE OF OUR
PEOPLE BY AGEE AND HIS COHORTS PRIOR TO YOUR PASSAGE OF THE
IDENTITIES LEGISLATION, AND ESPIONAGE ACTIVITIES BY FOREIGN
POWERS ALL CONTRIBUTE. BUT THE PERCEIVED HARM DONE BY THE FOIA
IS PARTICULARLY-HARD FOR OUR CASE OFFICERS TO EXPLAIN BECAUSE
IT IS SEEN AS A DELIBERATE ACT OF THE UNITED STATES GOVERNMENT.
ALTHOUGH WE TRY TO GIVE ASSURANCES TO THESE PEOPLE. WE HAVE
ON RECORD NUMEROUS CASES WHERE OUR ASSURANCES HAVE NOT
SUFFICED. FOREIGN AGENTS, SOME VERY IMPORTANT, HAVE EITHER
REFUSED TO ACCEPT OR HAVE TERMINATED A RELATIONSHIP ON THE
GROUNDS THAT. IN THEIR MINDS -- AND IT IS UNIMPORTANT WHETHER
THEY ARE RIGHT OR NOT -- BUT. IN THEIR MINDS THE CIA IS NO
LONGER ABLE TO ABSOLUTELY GUARANTEE THAT THEY CAN BE
PROTECTED. HOW MANY CASES OF REFUSAL TO COOPERATE WHERE'NO
REASONS ARE GIVEN ARE BASED ON SUCH CONSIDERATIONS. I CANNOT
SAY. I SUBMIT. HOWEVER, THAT KNOWING OF NUMEROUS SUCH CASES,
THERE ARE MANY MORE INSTANCES WHERE SOURCES WHO HAVE
DISCONTINUED RELATIONSHIPS OR REDUCED THEIR INFORMATION FLOW
HAVE DONE SO BECAUSE OF THEIR FEAR OF DISCLOSURE. NO ONE CAN
QUANTIFY HOW MUCH INFORMATION VITAL TO THE NATIONAL SECURITY OF
THE UNITED STATES HAS BEEN OR WILL BE LOST AS A RESULT.
THE FOIA ALSO HAS HAD A NEGATIVE EFFECT ON OUR
RELATIONSHIPS WITH FOREIGN INTELLIGENCE SERVICES. OUR STATIONS
OVERSEAS CONTINUE TO REPORT CONSTERNATION OVER WHAT IS SEEN AS
A POTENTIAL LEGAL REQUIREMENT TO DISCLOSE INFORMATION ENTRUSTED
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
TO US. AGAIN. THE UNANSWERABLE QUESTION IS HOW MANY OTHER
SERVICES ARE NOW MORE CAREFUL AS TO WHAT INFORMATION THEY PASS
TO THE UNITED STATES.
THIS LEGISLATION WILL GO A LONG WAY TOWARD RELIEVING THE
PROBLEMS THAT I HAVE OUTLINED. THE EXCLUSION FROM THE FOIA
PROCESS OF OPERATIONAL FILES WILL SEND A CLEAR SIGNAL TO OUR
SOURCES AND TO THOSE WE HOPE TO RECRUIT THAT THE INFORMATION
WHICH PUTS THEM AT RISK WILL NO LONGER BE SUBJECT TO THE
PROCESS. THEY WILL KNOW THAT THEIR IDENTITIES ARE NOT LIKELY
TO BE EXPOSED AS A RESULT OF A CLERICAL ERROR AND THEY WILL
KNOW THAT THE SAME INFORMATION WILL BE HANDLED IN A SECURE AND
COMPARTMENTED MANNER AND NOT BE LOOKED AT BY PEOPLE WHO HAVE NO
NEED TO KNOW THAT INFORMATION. IN HIS DECISION IN A LAWSUIT
BROUGHT BY PHILLIP AGEE AGAINST THE CIA. FBI, UJSA. DEPARTMENT
OF STATE. AND DEPARTMENT OF JUSTICE, JUDGE GERHARD GESELL OF
THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SUMMARIZED
THE PROBLEM THIS WAY: "IT IS AMAZING THAT A RATIONAL SOCIETY
TOLERATES THE EXPENSE. THE WASTE OF RESOURCES. THE POTENTIAL
INJURY TO ITS OWN SECURITY WHICH THIS PROCESS NECESSARILY
ENTAILS."
AT THE SAME TIME. AS I HAVE EXPLAINED BEFORE. BY REMOVING
THESE SENSITIVE OPERATIONAL FILES FROM THE FOIA PROCESS. THE
PUBLIC IS DEPRIVED OF NO MEANINGFUL INFORMATION WHATOSEVER.
THE PALTRY. RESULTS FROM FOIA REVIEW OF OPERATIONAL FILES
ARE INEVITABLE. THESE RECORDS DISCUSS AND DESCRIBE THE NUTS
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
20
AND BOLTS OF SENSITIVE INTELLIGENCE OPERATIONS. CONSEQUENTLY.
THEY ARE PROPERLY CLASSIFIED AND ARE NOT RELEASABLE UNDER THE
FOIA. THE REVIEWING OFFICERS WHO PRODUCE THESE MASTERPIECES OF
BLACK MARKINGS ARE DOING THEIR JOB AND DOING IT PROPERLY. THE
SIMPLE FACT IS THAT INFORMATION IN OPERATIONAL RECORDS IS BY
AND LARGE EXEMPT FROM RELEASE UNDER THE FOIA. AND THE FEW BITS
AND PIECES WHICH ARE RELEASABLE HAVE LITTLE OR NO INFORMATIONAL
VALUE.
WHEN I SPEAK OF REVIEWING OFFICERS ABSORBED IN THIS
PROCESS. IT IS IMPORTANT TO STRESS THAT THESE INDIVIDUALS ARE
NOT AND CANNOT BE SIMPLY CLERICAL STAFF OR EVEN "FOIA
PROFESSIONALS." IN ORDER TO DO THEIR JOB. THEY MUST BE CAPABLE
OF MAKING DIFFICULT AND VITALLY IMPORTANT OPERATIONAL
JUDGMENTS. AND. CONSEQUENTLY. MOST OF THEM MUST COME FROM-THE
HEART OF THE AGENCY'S INTELLIGENCE CADRE. MOREOVER. BEFORE ANY
ITEM OF INFORMATION IS RELEASED UNDER THE FOIA. THE RELEASE
MUST BE CHECKED WITH A DESK OFFICER WITH CURRENT KNOWLEDGE OF
THE OPERATIONAL ACTIVITY INVOLVED. HENCE. WE MUST NOT ONLY
CALL INTELLIGENCE OFFICERS ON A FULL-TIME BASIS AWAY FROM THEIR
PRIMARY DUTIES. WE MUST ALSO CONTINUALLY DIVERT THE ATTENTION
OF THE OFFICERS OF OUR OPERATING COMPONENTS. THAT IS SO
BECAUSE WE HAVE A PRACTICE IN THE OPERATIONS DIRECTORATE WHICH
REQUIRES THAT EVERY PIECE OF PAPER WHICH IS RELEASED. EVEN
INCLUDING THOS? COVERED WITH BLACK MARKS MUST BE REVIEWED BY AN
OFFICER FROM THE PARTICULAR DESK THAT WROTE THE DOCUMENTS OR
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
RECEIVED IT FROM THE FIELD. AND WE CANNOT ALTER THIS PRACTICE
BECAUSE THE RISK OF COMPROMISE IS SO GREAT. YOU CAN IMAGINE
THE DISRUPTION. FOR EXAMPLE. ON THE SOVIET DESK WHEN THE PEOPLE
THERE MUST TAKE TIME OFF FROM THE WORK THEY ARE SUPPOSED TO DO
TO REVIEW A DOCUMENT PREPARED FOR RELEASE UNDER THE FOIA.. AND
IT IS OBVIOUS. OF COURSE. THAT WHEN A CIA OPERATION MAKES THE
FRONT PAGES OF THE NEWSPAPERS. THE FOIA REQUESTS ON THAT
SUBJECT ESCALATE. THIS LOSS OF MANPOWER CANNOT BE CURED BY AN
AUGMENTATION OF FUNDING.- WE CANNOT HIRE INDIVIDUALS TO REPLACE
THOSE LOST. WE MUST TRAIN THEM. AFTER THE REQUISITE YEARS OF
TRAINING. THEY ARE A SCARCE RESOURCE NEEDED IN THE PERFORMANCE
OF THE AGENCY'S OPERATIONAL MISSION.
Mr. BRIGGS. Thank you, sir.
I will then summarize these problems and briefly discuss H.R.
5164.
As an intelligence agency, our records systems must be respon-
sive to both the functions of the CIA as well as to the security
needs of the Agency. Therefore, rather than having one overall
filing system with one central index, the CIA has numerous self-
contained file systems. Compartmentation fulfills a vital security
need and also allows each file system to reflect the needs of an in-
dividual agency component. Our operational files are even more
stringently compartmented because they reveal intelligence sources
and methods.
Another relevant security principle we operate under is that
agency personnel have access to specific files only on a "need to
know" basis. When an FOIA request is received by the CIA, these
principles of compartmentation and limited access are broken
down. An FOIA request on a generally described subject matter
must be distributed to several different agency components so that
a search can be made of any file system which might contain re-
sponsive records.
In many instances the results of these searches are prodigious.
Thousands of pages of records are amassed for review each year.
Thus, records otherwise residing in compartmented file systems are
pulled together and numerous agency personnel are given access to
information which they otherwise have no need to know.
Once responsive records are located, they must be carefully re-
viewed line by line, word by word, by highly skilled operational
personnel who have the necessary training and experience to iden-
tify source-revealing and other sensitive information which could
be used by our adversaries. The reviewing officer is fully aware of
the requirement of the FOIA that each "reasonably segregable"
item of unprotected information must be released and that he or
she must be prepared to defend each determination to withhold an
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
item of information because it is classified or otherwise exempted
from release under the FOIA.
This review process is particularly burdensome when it involves
our operational records. An FOIA requester who makes a request
for information to the CIA which involves records in our Director-
ate of Operations can now anticipate waiting 2 to 3 years to receive
a response. The backlog which stems from the time-consuming
process of reviewing operational records cannot be solved for the
CIA by simply hiring more reviewers. These individuals are not
and cannot be simply clerical staff or even "FOIA professionals."
In order to do their job, they must be capable of making difficult
and vitally important operational judgments, and, consequently,
most of them must come from the heat of the Agency's intelligence
cadre. Moreover, before any item of information is released under
the FOIA, the release must be checked with a desk officer with cur-
rent knowledge of the operational activity involved.
Hence, we must not only call intelligence officers on a full-time
basis away from their primary duties, but we must also continually
divert the attention of the officers of our operating components. I
am sure that you can understand the necessity for this practice
since the risk of compromise is so great. Unfortunately, even with
this practice we know that mistakes can be made and, therefore,
the element of human error in the review and release of operation-
al records is always present and always a concern.
After waiting 2 to 3 years, what does the FOIA requester receive
when operational records are involved? The paper released is usu-
ally a composite of blacked-out words, interspersed between discon-
nected phrases which have been approved for release. Thus, after
operational records have been properly reviewed pursuant to the ex-
isting exemptions in the FOIA, the public derives little or no mean-
ingful information from the fragmentary items or the occasional
isolated paragraph which is ultimately released from operational
files.
The fact that these exemptions are provided in the FOIA is gen-
erally lost on our human sources and friendly foreign intelligence
services. In their view, the very process of searching operational
files and reviewing the information contained in them poses a seri-
ous threat to the ability of the United States to protect either their
identity or the information they entrust to us.
In our view, Mr. Chairman, H.R. 5164 will substantially alleviate
the problems that I have just outlined. Only operational files as de-
fined by this bill would be removed from the FOIA search and
review process. As I have just explained, the operational informa-
tion contained in these files takes the longest to review and results
in the release of little, if any, meaningful information to the public.
The public, therefore, retains its access under the law to other
Agency records. This includes all intelligence which is disseminated
to our Nation's policymakers, as well as all matters of policy for-
mulated at agency executive levels.
In addition, under H.R. 5164, the CIA would continue to search
all its files, as it does today, in response to three types of requests:
These being requests by U.S. citizens or permanent resident aliens
for information concerning themselves, requests for information
concerning a covert action the existence of which is no longer clas-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
sified, and requests for information concerning the specific subject
matter of an investigation for any impropriety or illegality in the
conduct of an intelligence activity.
There are two other important provisions in H.R. 5164 which I
would like to touch upon. First, there is the requirement that no
less than once every.10 years the Director of Central Intelligence
shall review all the exemptions in force to determine whether any
can be removed. This could allow operational files to become acces-
sible to FOIA search and review when the sensitivity of the infor-
mation they contain has diminished as a result of the passage of
time or for other reasons.
And, second, H.R. 5164 sets forth the right of requesters to seek
judicial review of an Agency decision to withhold information based
on the provisions of this act.
As you know, Mr. Chairman, legislation very similar to this was
passed unanimously by the Senate last November. H.R. 5164 comes
to you after having been unanimously reported out of the House
Permanent Select 'Committee on Intelligence. I believe the strong
bipartisan support being shown for this legislation stems from the
recognition that this is a carefully crafted piece of legislation which
will benefit the public as well as the CIA. The public will benefit
because FOIA requesters will be able to receive responses to their
requests on a more timely basis without the loss of any meaningful
information.
We will be pleased to answer any specific questions you or the
other members may have.
[The prepared statement of Mr. Briggs follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STATEMENT OF
CHARLES A. BRIGGS
EXECUTIVE DIRECTOR
CENTRAL INTELLIGENCE AGENCY
MR. CHAIRMAN. MEMBERS OF THE SUBCOMMITTEE. IT IS A PLEASURE
TO APPEAR BEFORE YOU THIS MORNING TO DISCUSS H.R. 5164. THE
'CENTRAL INTELLIGENCE AGENCY INFORMATION ACT". WE LAST
APPEARED BEFORE YOU TO DISCUSS OUR CONCERNS WITH THE FREEDOM OF
INFORMATION ACT (FOIA) IN FEBRUARY 1980. SINCE THAT TIME, THE
CENTRAL INTELLIGENCE AGENCY (CIA) HAS PERSISTED IN ITS EFFORTS
TO ACHIEVE NEEDED RELIEF FROM THE UNIQUE PROBLEMS POSED TO IT
BY THE FOIA. WE BELIEVE THAT H.R. 5164 WILL PROVIDE THE CIA
WITH SUBSTANTIAL RELIEF FROM THESE PROBLEMS WITHOUT REDUCING
THE AMOUNT OF MEANINGFUL INFORMATION WHICH CAN BE RELEASED TO
THE PUBLIC.
AS YOU KNOW. MR. CHAIRMAN, DEPUTY DIRECTOR MCMAHON HAS
PRESENTED OUR PROBLEMS WITH THE FOIA IN GREAT DETAIL TO BOTH
THE SENATE AND HOUSE INTELLIGENCE OVERSIGHT COMMITTEES DURING
THE COURSE OF THE 98TH CONGRESS. WITH YOUR PERMISSION,
MR. CHAIRMAN, I WOULD LIKE TO SUBMIT FOR THE RECORD DEPUTY
DIRECTOR MCMAHON'S EXPLANATION OF THESE PROBLEMS. AS CONTAINED
IN THE STATEMENT HE GAVE BEFORE THE HOUSE PERMANENT SELECT
COMMITTEE ON INTELLIGENCE LAST FEBRUARY. I WILL THEN SUMMARIZE
THESE PROBLEMS AND BRIEFLY DISCUSS H.R. 5164.
AS AN INTELLIGENCE AGENCY, OUR RECORDS SYSTEMS MUST BE
RESPONSIVE TO BOTH THE FUNCTIONS OF THE CIA AS WELL AS TO THE
SECURITY NEEDS OF THE AGENCY. THEREFORE, RATHER THAN HAVING
ONE OVERALL FILING SYSTEM WITH ONE CENTRAL INDEX, THE CIA HAS
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
NUMEROUS SELF-CONTAINED FILE SYSTEMS. COMPARTMENTATION
FULFILLS A VITAL SECURITY NEED AND ALSO ALLOWS EACH FILE SYSTEM
TO REFLECT THE NEEDS OF AN INDIVIDUAL AGENCY COMPONENT. OUR
OPERATIONAL FILES ARE EVEN MORE STRINGENTLY COMPARTMENTED
BECAUSE THEY DIRECTLY REVEAL INTELLIGENCE SOURCES AND METHODS.
ANOTHER RELEVANT SECURITY PRINCIPLE WE OPERATE UNDER IS THAT
AGENCY PERSONNEL HAVE ACCESS TO SPECIFIC FILES ONLY ON A 'NEED
TO KNOW' BASIS. WHEN AN FOIA REQUEST IS RECEIVED BY THE CIA
THESE PRINCIPLES OF COMPARTMENTATION AND LIMITED ACCESS ARE
BROKEN DOWN. AN FOIA REQUEST ON A GENERALLY DESCRIBED SUBJECT
MATTER MUST BE DISTRIBUTED TO SEVERAL DIFFERENT AGENCY
COMPONENTS SO THAT A SEARCH CAN BE MADE OF ANY FILE SYSTEM
WHICH MIGHT CONTAIN RESPONSIVE RECORDS. IN MANY INSTANCES THE
RESULTS OF THESE SEARCHES ARE PRODIGIOUS. THOUSANDS OF PAGES
OF RECORDS ARE AMASSED FOR REVIEW EACH YEAR. THUS. RECORDS
OTHERWISE RESIDING IN COMPARTMENTED FILE SYSTEMS ARE PULLED
TOGETHER AND NUMBERS OF AGENCY PERSONNEL ARE GIVEN ACCESS TO
INFORMATION WHICH THEY OTHERWISE HAVE NO NEED TO KNOW.
ONCE RESPONSIVE RECORDS ARE LOCATED, THEY MUST BE CAREFULLY
REVIEWED LINE BY LINE. WORD BY WORD. BY HIGHLY SKILLED
OPERATIONAL PERSONNEL WHO HAVE THE NECESSARY TRAINING AND
EXPERIENCE TO IDENTIFY SOURCE-REVEALING AND OTHER SENSITIVE
INFORMATION WHICH COULD BE USED BY OUR ADVERSARIES. THE
REVIEWING OFFICER IS FULLY AWARE OF THE REQUIREMENT OF THE FOIA
THAT EACH 'REASONABLY SEGREGABLE' ITEM OF UNPROTECTED
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
INFORMATION MUST BE RELEASED AND THAT HE OR SHE MUST BE
PREPARED TO DEFEND EACH DETERMINATION TO WITHHOLD AN ITEM OF
INFORMATION BECAUSE IT IS CLASSIFIED OR OTHERWISE EXEMPTED FROM
RELEASE UNDER THE FOIA.
THIS REVIEW PROCESS IS PARTICULARLY BURDENSOME WHEN IT
INVOLVES OUR OPERATIONAL RECORDS. AN FOIA REQUESTER WHO MAKES
A REQUEST FOR INFORMATION TO THE CIA WHICH INVOLVES RECORDS IN
OUR DIRECTORATE OF OPERATIONS CAN NOW ANTICIPATE WAITING TWO TO
THREE YEARS TO RECEIVE A RESPONSE. THE BACKLOG WHICH STEMS
FROM THE TIME-CONSUMING PROCESS OF REVIEWING OPERATIONAL
RECORDS CANNOT BE SOLVED FOR THE CIA BY SIMPLY HIRING MORE
REVIEWERS. THESE INDIVIDUALS ARE NOT AND CANNOT BE SIMPLY
CLERICAL STAFF OR EVEN "FOIA PROFESSIONALS". IN ORDER TO DO
THEIR JOB. THEY MUST BE CAPABLE OF MAKING DIFFICULT AND VITALLY
IMPORTANT OPERATIONAL JUDGMENTS. AND. CONSEQUENTLY, MOST OF
THEM MUST COME FROM THE HEART OF THE AGENCY'S INTELLIGENCE
CADRE. MOREOVER, BEFORE ANY ITEM OF INFORMATION IS RELEASED
UNDER THE FOIA, THE RELEASE MUST BE CHECKED WITH A DESK OFFICER
WITH CURRENT KNOWLEDGE OF THE OPERATIONAL ACTIVITY INVOLVED.
HENCE. WE MUST NOT ONLY CALL INTELLIGENCE OFFICERS ON A
FULL-TIME BASIS AWAY FROM THEIR PRIMARY DUTIES, BUT WE MUST
ALSO CONTINUALLY DIVERT THE ATTENTION OF THE OFFICERS OF OUR
OPERATING COMPONENTS. I AM SURE THAT YOU CAN UNDERSTAND THE
NECESSITY FOR THIS PRACTICE SINCE THE RISK OF COMPROMISE IS SO
GREAT. UNFORTUNATELY. EVEN WITH THIS PRACTICE WE KNOW THAT
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
MISTAKES CAN BE MADE AND. THEREFORE. THE ELEMENT OF HUMAN ERROR
IN THE REVIEW AND RELEASE OF OPERATIONAL RECORDS IS ALWAYS
PRESENT AND ALWAYS A CONCERN.
AFTER WAITING TWO TO THREE YEARS. WHAT DOES THE FOIA
REQUESTER RECEIVE WHEN OPERATIONAL RECORDS ARE INVOLVED? THE
PAPER RELEASED IS USUALLY A COMPOSITE OF BLACKED OUT WORDS.
INTERSPERSED BETWEEN DISCONNECTED PHRASES WHICH HAVE BEEN
APPROVED FOR RELEASE. THUS. AFTER OPERATIONAL RECORDS HAVE
BEEN PROPERLY REVIEWED PURSUANT TO THE EXISTING EXEMPTIONS IN
THE FOIA. THE PUBLIC DERIVES LITTLE OR NO MEANINGFUL
INFORMATION FROM THE FRAGMENTARY ITEMS OR THE OCCASIONAL
ISOLATED PARAGRAPH WHICH IS ULTIMATELY RELEASED FROM
OPERATIONAL FILES.
THE FACT THAT THESE EXEMPTIONS ARE PROVIDED IN THE FOIA IS
GENERALLY LOST ON OUR HUYAN.SOUI;CES AND FRIENDLY FOREIGN
INTELLIGENCE SERVICES. IN THEIR VIEW, THE VERY PROCESS OF
SEARCHING OPERATIONAL FILES AND REVIEWING THE INFORMATION
CONTAINED IN THEM POSES A SERIOUS THREAT TO THE ABILITY OF THE
UNITED STATES TO PROTECT EITHER THEIR IDENTITY OR THE
INFORMATION THEY ENTRUST TO US.
IN OUR VIEW. MR. CHAIRMAN, H.R. 5164 WILL SUBSTANTIALLY
ALLEVIATE THE PROBLEMS I HAVE JUST OUTLINED. ONLY OPERATIONAL
FILES AS DEFINED BY THIS BILL WOULD BE REMOVED FROM THE FOIA
SEARCH AND REVIEW PROCESS. AS I HAVE JUST EXPLAINED. THE
OPERATIONAL INFORMATION CONTAINED IN THESE FILES TAKES THE
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
LONGEST TO REVIEW AND RESULTS IN THE RELEASE OF LITTLE, IF ANY,
MEANINGFUL INFORMATION TO THE PUBLIC. THE PUBLIC, THEREFORE.
RETAINS ITS ACCESS UNDER THE LAW TO OTHER AGENCY RECORDS. THIS
INCLUDES ALL INTELLIGENCE WHICH IS DISSEMINATED TO OUR NATION'S
POLICY-MAKERS, AS WELL AS ALL MATTERS OF POLICY FORMULATED AT
AGENCY EXECUTIVE LEVELS. IN ADDITION, UNDER H.R. 5164. THE CIA
WOULD CONTINUE TO SEARCH ALL ITS FILES. AS IT DOES TODAY. IN
RESPONSE TO THREE TYPES OF REQUESTS. THESE BEING REQUESTS BY
UNITED STATES CITIZENS OR PERMANENT RESIDENT ALIENS FOR
INFORMATION CONCERNING THEMSELVES, REQUESTS FOR INFORMATION
CONCERNING A COVERT ACTION THE EXISTENCE OF WHICH IS NO LONGER
CLASSIFIED. AND REQUESTS FOR INFORMATION CONCERNING THE
SPECIFIC SUBJECT MATTER OF AN INVESTIGATION FOR ANY IMPROPRIETY
OR ILLEGALITY IN THE CONDUCT OF AN INTELLIGENCE ACTIVITY.
THERE ARE TWO OTHER IMPORTANT PROVISIONS IN H.R. 5164 WHICH
I WOULD LIKE TO TOUCH UPON. FIRST, THERE IS THE REQUIREMENT
THAT NO LESS THAN ONCE EVERY 10 YEARS THE DIRECTOR OF CENTRAL
INTELLIGENCE SHALL REVIEW ALL THE EXEMPTIONS IN FORCE TO
DETERMINE WHETHER ANY CAN BE REMOVED. THIS COULD ALLOW
OPERATIONAL FILES TO BECOME ACCESSIBLE TO FOIA SEARCH AND
REVIEW WHEN THE SENSITIVITY OF THE INFORMATION THEY CONTAIN HAS
DIMINISHED AS A RESULT OF THE PASSAGE OF TIME OR FOR OTHER
REASONS. AND SECONDLY. H.R. 5164 SETS FORTH THE RIGHT OF
REQUESTERS TO SEEK JUDICIAL REVIEW OF AN AGENCY DECISION TO
WITHHOLD INFORMATION BASED ON THE PROVISIONS OF THIS ACT.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
As YOU KNOW, MR. CHAIRMAN, LEGISLATION VERY SIMILAR TO THIS
WAS PASSED UNANIMOUSLY BY THE SENATE LAST NOVEMBER. H.R. 5164
COMES TO YOU AFTER HAVING BEEN UNANIMOUSLY REPORTED OUT OF THE
HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE. I BELIEVE
THE STRONG BIPARTISAN SUPPORT BEING SHOWN FOR THIS LEGISLATION
STEMS FROM THE RECOGNITION THAT THIS IS A CAREFULLY CRAFTED
PIECE OF LEGISLATION WHICH WILL BENEFIT THE PUBLIC AS WELL AS
THE CIA. THE PUBLIC WILL BENEFIT BECAUSE FOIA REQUESTERS. WILL
BE ABLE TO RECEIVE RESPONSES TO THEIR REQUESTS ON A MORE TIMELY
BASIS WITHOUT THE LOSS OF ANY MEANINGFUL INFORMATION.
THIS CONCLUDES MY TESTIMONY. t1R. CHAIRMAN. I HAVE WITH ME
THE DEPUTY DIRECTOR OF THE OFFICE OF LEGISLATIVE LIAISON,
ERNEST MAYERFELD. AND LARRY STP.AWDERMAN. CHIEF OF THE
INFORMATION AND PRIVACY DIVISION. WE WILL BE PLEASED TO ANSWER
ANY SPECIFIC QUESTIONS YOU OR THE OTHER MEMBERS MAY HAVE.
Mr. ENGLISH. Thank you very much, Mr. Briggs.
Mr. Briggs, in 1982, the CIA established a routine use for all of
its Privacy Act systems of record permitting disclosure when "nec-
essary or appropriate" to enable CIA to carry out its responsibil-
ities. As I am sure you know, I objected to-the routine use at the
time. The main reason was that it is so broad that it fails to meet
the Privacy Act requirement that agencies describe how records
are used. The CIA could, I felt, easily comply with the Privacy Act
by publishing a more descriptive notice.
If other agencies adopted this same approach, then the notice
provisions of the Privacy Act would be a joke. What would be so
difficult about including a more detailed description of how records
are disclosed?
Mr. BRIGGS. Well, the fundamental problem, Mr. Chairman, I
think is that the additional revelation could well involve the reve-
lation of classified information. We take very seriously the Privacy
Act. My own association with it goes back some 10 years when it
and the FOIA both closed something of a traumatic experience for
us with our preceding history of secrecy across the board.
And one of the things that we attempted unequivocably to dem-
onstrate was that our decisions were not arbitrary or capricious.
Our General Counsel, I believe, has concluded that the definition,
as we have attempted to utilize it, is within the context of the law.
I do have Mr. Makowka here from our General Counsel's Office,
and if you wish, I would be happy to have him elaborate a little
more.
Mr. ENGLISH. We would like for him to.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. MAKOWKA. Mr. Chairman, I am,Bernard Makowka.
Mr. ENGLISH. Would you care to pull a chair up to the table and
the microphone, and would you identify yourself with your title so
that we will have it for the record.
Mr. MAKOWKA. Mr. Chairman, I am Bernard Makowka, from the
Office of General Counsel at CIA.
The simple answer to your question is, as a lawyer, I would like
to believe that where there is a will, there is a way. However, we
have tried and we have tried and we have tried, but we have faced
a couple of problems that we have described to you before. I will
summarize them again.
The first stems the very nature of the CIA's business, which is to
acquire information and disseminate it for a large number and a
wide variety of uses and recipients, both within the executive
branch and the Congress. To the extent that our responsibilities in-
volve information about Americans, we are very closely regulated,
after the events of the last few years, not only by statute and Exec-
utive order, but also by procedures approved by the Attorney Gen-
eral of the United States.
In order to ensure not only that all of the purpose for which the
CIA is authorized to disseminate information are covered but also
to ensure that all the limitations are taken into account, an ex-
tremely comprehensive and elaborate statement would be required.
Second, some of those procedures by the very nature of our busi-
ness, must be classified, and there is no way, to the extent that
they are classified, that they can be revealed in a public document.
Nevertheless, we attempted to do our best to prepare an unclassi-
fied statement and went through various drafts.
By the way, we did not amend our eventual routine use state-
ment on our own initiative. We did it at the request of the Depart-
ment of Justice, and the purpose and intent of this particular rou-
tine use statement was to bring our entire list of statements more
in line with the Privacy Act. This was the reason why we attempt-
ed the job in the first place.
We looked through numerous variations and eventually conclud-
ed that the best and most efficient way to be comprehensive was to
cross reference all of the various statutes, Executive orders, proce-
dures applicable to the Agency and bring them into the routine use
statement. Although it appears on its face to be very general I be-
lieve it incorporates by reference all of the specific reasons for
which we may disseminate information about Americans.
At that time we had looked at the systems of record of other
agencies, and we found a number of agencies in the Government
that had comparable types of statements. So we did not feel that
our statement was out of line with what many other agencies were
promulgating in their statements.
When you wrote our Director a letter, I believe it was last year,
indicating your concerns, we were very much surprised because we
thought we had been moving closer to what is required under the
Privacy Act. Your letter caught us completely by surprise, and the
Director and we took your comments very seriously.
Since we received your letter, we have gone beyond our office ex-
perts to OMB for assistance. We invited their Privacy Act experts
out to our Agency. We showed them all the rules and regulations
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
and invited them to help us come up with something better if that
were possible. Many hours were spent on that particular endeavor.
They have concluded informally after considerable effort that our
statement was the most efficient and best way to undertake this
matter.
Now, I think I speak for the CIA in saying that we would consid-
er any help that we could get from your committee and consider
any other possible way of better dealing with your concerns in this
area and get back to you on the subject.
Mr. ENGLISH. We appreciate that. I think I know where you went
astray. It was when you involved OMB. I think that is where you
got in trouble. We have had some hearings, and, quite frankly, we
have had some real criticisms about the way they are overseeing
the Privacy Act. So that may be where you got some bad informa-
tion.
But we would be delighted to work with you. First of all, I should
explain, I am not an attorney. But second, we have a great deal of
faith in you and we think that perhaps you could tighten that up
just a little bit. I want to ask you if you would go back and take
another look at it.
I appreciate your offer to work with our staff, both majority and
minority counsel. Perhaps we could see if we could make a little
more progress there. And if you would be willing to, I would like to
see if we could get some discussions started and make some
progress perhaps by the first of June. So if your office would be
willing to work with our folks, I would appreciate your cooperation
in that effort.
Mr. MAKOWKA. Absolutely. We will look into it, and we will be
happy to get back with you by that time.
Mr. ENGLISH. And, again, I am sorry that you got led astray. I
understand how that happens. Thanks again.
Mr. Kindness?
Mr. KINDNESS. Thank you, Mr. Chairman.
Mr. Briggs, we had some information to the effect that you have
some 24 people working full time on Freedom of Information Act,
Privacy Act, and Executive Order 12356 requests. Is that approxi-
mately correct information?
Mr. BRIGGS. That is Mr. Strawderman's group, and with your
permission, I will have him answer the question.
Mr. STRAWDERMAN. Actually, we do have 24 people centrally lo-
cated to deal with requests from the public, and their role is to re-
ceive them, analyze them and pass them on to the various compo-
nents in the Agency for their search and review of responsive
records. Those documents then come back to our central office, and
we then deal with the public and other agencies in responding to
those requests.
There are more than 24 people working full time on the process,
but the central office only has 24 people. That is correct.
Mr. KINDNESS. Are these people trained to deal with those acts
and Executive orders in particular?
Mr. STRAWDERMAN. Yes, sir, they are. They come from a wide va-
riety of backgrounds in the Agency, the majority of them are at the
senior officer level.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
We also have a cadre of clerical people, of course, to do the log-
ging in and many of the other clerical duties associated with the
request. We give them training when they come into the office to
acquaint them with the Privacy Act, the Freedom of Information
Act, as well as Executive Order 12356, since we have to deal with
all three of those stipulations in receiving requests from the public.
So we try to train them as well as we can, both internally and by
participation in governmentwide training programs around town
here.
Mr. KINDNESS. But these 24 people are all people who are drawn
from other senior roles in the Agency?
Mr. STRAWDERMAN. Well, not necessarily in our shop. Some of
them are what we refer to as case officers who deal with the public
day to day, who write the letters, who deal with how we are going
to ask a request and where we are going to ask it. That cadre of 8
or 10 people have the wider experience throughout the Agency.
The real crux of the experience comes with the director of oper-
ations when they receive the request and begin the search and
review process. That is the expertise that has to deal with the DO
problem, such as how were the documents originated and which
can be released and which cannot.
So we are kind of the hub of a wheel, and we go out to the
spokes, to the components, and they have the real expertise in
searching for their records and reviewing their records for deter-
mining release. We then amalgamate the documents in a package
for the public.
Mr. KINDNESS. What I was trying to get at, I think, is that there
are 8 or 10 people who have to be drawn from other tasks at a
senior level in the Agency to perform the work involved in the con-
tact with the public.
Mr. STRAWDERMAN. I believe, to clarify that a little, that doesn't
occur in my office, that occurs in the component where the director
of operations, for example, deals with the day-to-day review of doc-
uments, and they are going to have to call on the expertise of a
desk officer who is actively running operations to rule on records
that they find responsive.
So it is beyond my office that this calling on expertise in the op-
erations area or in the science and-technology area or in the Direc-
torate of Intelligence occurs.
Mr. KINDNESS. I guess maybe we,have to go back over it one
more time then.
Mr. BRIGGS. Mr. Kindness, in a previous incarnation after spend-
ing 15 years in the overt side of the house, I went over to the
covert side for about 4 years, and I headed up the senior staff as
what was then a GS-16 level, an office director level. I was the re-
viewing officer for the clandestine service. I was the final point at
which a decision was made as to whether a document could or
could not be released, had the form in which it had been sanitized.
Those releases then went from the Operations Directorate, were
combined with similar review documents from the Scientific and
Technical Directorate and the other components of the Agency and
came to what was then the equivalent of Mr. Strawderman's office
where the final packaging was done for release to the Government.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
The difficult job of deciding on sources and methods protection
was done at several different layers at several different levels of se-
niority in the Operations Directorate. What is today Larry's office
had to try to insure that the right hand knew what the left hand
was doing.
If a document that reflected, for example, the travel of an indi-
vidual from the Operations Directorate showed up in our Adminis-
tration Directorate and we had sanitized out something in the
Operational Component, we had to make sure that we didn't forget
to sanitize it in the Administrative Directorate. So it is a packa--
ing, but it is also a consistency check that they are doing in Larry s
office.
Generally, the level of his people is probably middle level, I
would say.
Mr. STRAWDERMAN. I would say midrange senior officers.
Mr. BRIGGS. But the level of seniority could go all the way up, as
I say, to GS-18 in the Operations Directorate.
There was a step beyond that if there was an appeal. We had an
Information Review Board which consisted of several deputy direc-
tors, whose level was another one or two notches above even the
GS-18 level.
Mr. ENGLISH. Mr. Briggs, Mr. Kleczka will be back very briefly,
and he will ask his questions at that point. We will try to keep this
moving as much as we can. We may have several votes today, and
we certainly don't want to delay any more than we have to. We
will try to stagger it as much as we can, but we will have brief
intermissions.
[Recess taken.]
Mr. KLECZI{A [presiding]. Will H.R. 5164 result in the withhold-
ing of any information that is now made public?
Mr. BRIGGS. No, sir, it will not.
Mr. KLECZKA. H.R. 5164 seems to have been carefully based on
the way in which the CIA organizes its files. How stable has the
CIA structure been over the years?
Mr. BRIGGS. To the best of my knowledge, and I served in all four
directorates and knew something of the files, the file structure has
not changed since the beginning of the organization.
Mr. KLECZKA. Is the file organization at the CIA unique among
other intelligence agencies?
Mr. BRIGGS. I am not as informed on what the others have as
compared with ours. It is my impression that we are unique in re-
quiring a degree of compartmentation based on need to know. Mr.
Mayerfeld has been deeply engaged in this process for many years.
Maybe he could say something a little more explicit.
Mr. MAYERFELD. Mr. Chairman, we did try in the process of seek-
ing relief from the unique burdens of the intelligence agencies, all
of them, from the FOIA, in that process we had extensive conversa-
tions with the other agencies in the community, such as the DIA,
the Intelligence Division of the FBI, the INR Office in the Depart-
ment of State, and so forth, to see whether the unique burden that
is ours, which is the accessibility to our operational files, exists in
these other agencies as well.
We found, after extensive discussion, examination of their
system, that their problems were different and although they cer-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
tainly do have problems with the FOIA, it was not fixable in the
way that we do it here. They did not have-their file systems were
not organized in such a way that the records which document the
conduct of intelligence activities, the collection and so forth, are
segregable from those that contain the intelligence product.
The Agency is unique in that regard. In fact, we are the .only in-
telligence agency organized along these lines. We have an Intelli-
gence Directorate whose function it is to produce and analyze intel-
ligence and, for example, the Operations Directorate and the Scien-
tific and Technical Directorate, they are in the collection business;
so, therefore, their files reflect their functions, and they are easily
so separated.
The other agencies in the community are not so organized.
Mr. KLECZKA. The CIA has made some commitments about the
handling of FOIA requests after the enactment of H.R. 5164. I want
to go over them. Director Casey has agreed to establish a specific
program designed to substantially reduce, if not eliminate, the cur-
rent FOIA backlog.
Director Casey has also agreed that the CIA will not reduce its
budgetary and personnel allocation for FOIA activity during the 2-
year period following enactment. Is this correct, Mr. Briggs?
Mr. BRIGGS. Yes, Sir, Mr. Chairman. I can assure the subcommit-
tee that we are committed not to reduce our budget for the person-
al allocation over a period of 2 years following the enactment of
the legislation.
Mr. STRAWDERMAN. I might add the major focus will be the re-
moval of several hundred cases from the processing queue that we
have today and allowing for more significant turnaround time in
FOIA cases. We will monitor and analyze that process after enact-
ment to see how effective we can be in that regard.
Mr. KLECZKA. I want this subcommittee and the public at large
to be able to monitor these commitments. For the 2-year period re-
ferred to by Director Casey, will you agree to file with this subcom-
mittee semiannual status reports on the processing of requests, the
assignment of personnel, and the size of the backlog?
Mr. STRAWDERMAN. Yes, we will be able to do that.
Mr. BRIGGS. Yes, sir.
Mr. KLECZKA. I would also like you to agree that the semiannual
report will be unclassified so that anyone who wants to see it will
be able to do so.
Mr. BRIGGS. Yes, sir, we will do that.
Mr. KLECZKA. Since the bill is so heavily based on the current'
CIA filing system, I would like you to agree to report in advance
any major structural changes at the CIA that would affect the
agreements embodied in H.R. 5164.
Mr. BRIGGS. Mr. Chairman, we can agree to that.
Mr. KLECZKA. Let us clarify how the provisions will work regard-
ing actual investigations into improprieties or violations of the law.
For example, suppose that a citizen makes a nonfrivolous allega-
tion that the CIA is or has engaged in some improper activity. An
appropriate authority collects or reviews records regarding the alle-
gations.
Am I correct that those records will remain subject to search and
review under the FOIA?
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. BRIGGS. Yes, sir, Mr. Chairman, you are correct. They will.
Mr. KLECZKA. Are there any exceptions? In other words, can the
authority and H.R. 5164 be used to deny access to records of im-
proper CIA activities that are accessible now under FOIA?
Mr. BRIGGS. No, sir.
Mr. KLECZKA. Do you object to the mandatory review for proce-
dure under Executive order for security classification?
Mr. BRIGGS. Could you repeat that please?
Mr. KLECZKA. Does the CIA object to the mandatory review for
declassification procedure in the Executive order or on security
classification?
Mr. BRIGGS. No, Mr. Chairman, we do not.
Mr. KLECZI{A. Did you ask the President to delete the mandatory
review procedure from the order issued in 1982?
Mr. MAYERFELD. We did not, Mr. Chairman, no.
Mr. KLECZKA. In 1977, acting CIA Director John Blake said that
the 1974 FOIA amendments constituted a somewhat traumatic ex-
perience and had required a considerable adjustment in the atti-
tude and practice. He concluded, I believe, that the Agency is
better off for it.
That statement has been quoted quite a bit. I wonder if you
would care to comment on Mr. Blake's remarks?
Mr. BRIGGS. I know Jack very well. He was a close friend and an
old colleague. I probably would have disagreed with him at the
time. I think what he must have meant is that prior to that time it
was a part of the culture that everything was secret and when I
first came in the Agency the names of those who were on the overt
side of the house were secret.
The fact that we had domestic offices located in the United
States was top secret. So there was a general mentality that result-
ed in secrecy as a concept being applied across -the board and the
experience that we had, traumatic as he said it was did, in fact
cause us to look more closely at that which required continued
classification.
And as I said, we spent a good bit of time, Ernie and I particular-
ly, in those days in insuring that we were not acting arbitrarily
and capriciously. The environment on the outside certainly had
changed. I think that is probably what he meant.
Mr. KLECZI{A. Thank you.
Mr. Kindness, do you have any questions of the witnesses?
Mr. KINDNESS. I just have, I believe, one. other question.
I am trying to get a measurement, as the earlier line of question-
ing indicated, of the sort of work hours, work years of senior per-
sonnel that are involved. I believe we had information to the effect
that approximately 121 work years were devoted to the handling of
requests including review time by case officers.
And I believe that was for a fiscal year-the last past fiscal year.
Mr. STRAWDERMAN. That was calendar year 1983.
Mr. KINDNESS. Now, if I understand correctly that is the work
years estimated for all of the personnel involved in the handling of
those requests included in your group and in the operational
group?
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. STRAWDERMAN. That is correct and it involves more than 121
people. It could be as many as 200 contributing hours per week on
individual cases.
Mr. KINDNESS. Right. Are there some situations of which you are
aware in the Agency in which a very substantial portion of the
time that a senior person is involved in these requests that attracts
as much as 20 to 25 percent of that person's time from their
normal duties?
Mr. BRIGGS. Let me start on that anyway although my informa-
tion is a little outdated because it was,back earlier when the bill
was first amended, but I spent more than 50 percent of my time as
a GS-16 in this process. For example, in the review of the Oswald
files, there was something like 52 manila folders constituting his
entire personnel file.
And I had to read every single line of every document in those
files. It is particularly true, of course, when a case goes into litiga-
tion and I have to sign an affidavit and at one point I think my
name was on 65 different affidavits at the same time.
I have to make sure that every single statement is accurate and
the exemptions claimed are valid. So I literally did spend more
than 50 percent of my time as a GS-16 doing this when I was in-
volved in it.
Mr. KINDNESS. Are there currently situations somewhat similar
to that?
Mr. STRAWDERMAN. I would think there are. It is hard for me to
measure that from my central staff, but I know from the Director
of Operations they do involve case officer time presently to review
documents they find in their searches. So presumably with passage
of H.R. 5164, if you don't review the files, you don't have docu-
ments to review, there will be some savings, but I don't know the
extent or degree.
We can get back to you with a more formal answer on that if you
would like.
Mr. BRIGGS. I don't think there is a GS-18 involved today, but I
do think there is a supergrade officer involved or at least a GS-15
level.
Mr. KINDNESS. It would help to have something of a measure-
ment. I don't want to create an unnecessary project, but getting
sort of a measurement of what we are dealing with would be some-
what helpful.
Mr. STRAWDERMAN. We would be happy to do that.
Mr. MAYERFELD. May I comment on that? We certainly will
supply more accurate statistics, but if I may take a minute to de-
scribe the process particularly in the operations directorate which
is the one that suffers the greatest burden under the current ar-
rangement, it is required that before any piece of paper, before any
document is released out of the Operations Directorate, the person
who has the substantive responsibility in that particular area must
review it to make absolutely certain and that nothing slips out by
inadvertence, so to speak.
So to take a hypothetical example, the subject matter of the re-
quest concerns-well, let's say the Soviet Union. The particular
person who has the responsibility for operations in the U.S.S.R.
area must actually eyeball the document which usually at that
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
point contains more black marks than it contains words before it is
permitted to be sent out.
So, this is the kind of burden that we were talking about on the
substantive people. I cannot personally at this moment quantify
that, but we would be happy to supply that for the record.
Mr. KINDNESS. I don't seek to make a large task of something
that would be used for purposes of argumentation in support of the
bill, but that is basically what it amounts to.
Mr. Chairman, if I may ask one more question here. Has Execu-
tive Order 12356 made any substantive difference in classification
and declassification decisions made by the Agency that is in com-
parison with the previous Executive order?
Mr. STRAWDERMAN. We found no discernable change in using the
Executive Order 12356 and the prior Executive order. In both cases
in reviewing documents, you have to weigh whether you should
keep the information, classified or whether it should go into the
public domain. So that same balancing test is, in effect, in today's
world, as it was previously as far as we can tell.
Mr. KINDNESS. Thank you. I yield back to Mr. Chairman.
Mr. KLECZKA. Are there any further questions?
Hearing none, the committee would like to reserve the right to
submit additional questions in writing to you, Mr. Briggs. If there
are no further questions, we would like to thank you all for appear-
ing this morning.
Mr. BRIGGS. Thank you very much.
Mr. ENGLISH. The subcommittee would like to now call Mr. Mark
Lynch, representing the American Civil Liberties Union. Mr.
Lynch, we will be happy to receive your testimony now. If you
would care to summarize your testimony, without objection your
written testimony, in full, will be made a part of the record.
STATEMENT OF MARK H. LYNCH, AMERICAN CIVIL LIBERTIES
UNION, WASHINGTON, DC
Mr. LYNCH. Thank you, Mr. Chairman. That's a good procedure.
The ACLU appreciates the chairman giving us the opportunity
to appear this morning to testify on this bill. To get to the bottom
line, after long and careful consideration and the application of a
considerable amount of skepticism, we have come to the conclusion
that this bill, as it has been reported by the House Intelligence
Committee, would result in a net gain for public access to informa-
tion at the Central Intelligence Agency, and therefore we urge its
prompt enactment without further amendment.
The reasons for coming to this conclusion are that the bill will
not result in the withholding of any information which is now cur-
rently available and it will reduce the 2- to 3-year backlog in proc-
essing requests that has made the act all but useless except for
those people who are extraordinarily patient.
This backlog is intolerable. It negates the usefulness of the act,
and steps to eliminate it seem to be of paramount importance if
the act is to have any effectiveness with respect to the CIA.
Now, why have we come to the conclusion that this bill would
not result in the withholding of any information which is now
available? Let me say, first of all, that we qualify this as meaning-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
ful information. As the CIA representatives indicated earlier this
morning, documents from operational files sometimes are released
with a vast percentage of the document deleted and nothing but
random words or phrases released.
Those documents are not meaningful in our judgment. So when
we say no meaningful information will be lost, we do understand
that these documents with random words may not be available any
longer, but that doesn't mean that anyone is going to be losing any
meaningful information.
There are occasions on which meaningful information has been
released from operational files to the Central Intelligence Agency,
and this bill is carefully crafted to insure that that kind of infor-
mation will continue to be available in the future.
The three circumstances are: First of all, requests by U.S. citi-
zens or permanent resident aliens for information about them-
selves; second, information about covert operations where the exist-
ence of the operation is not itself properly classified; and third, and
most important, information concerning the specific subject matter
of an investigation into an impropriety and illegality in the con-
duct of an intelligence activity.
Now, some people, and in particular, Mr. Mackenzie, who is
going to be testifying later this morning, have pointed out exam-
ples of information from operational files that in their view will be
lost under this bill, if passed.
However, I have gone through Mr. Mackenzie's testimony care-
fully and with respect to every single example of which I have per-
sonal knowledge-and that is probably a third to a half of the ex-
amples he cites in his testimony-I have concluded that the kind of
information he has cited is the kind of information that is covered
by these three exceptions.
That is, it is information that was the subject matter of a specific
investigation into impropriety or illegality or information that in-
volved a covert action, the existence of which was no longer proper-
ly classified.
One example, in particular, that I might give the committee in
that regard is a request that, in fact, was handled by my colleague,
Susan Schaffer, for information about the CIA's technical assist-
ance in the March 1982 election in El Salvadore.
That request was made on August 23, 1982, and it was based on a
July 30, 1982, letter to the editor in the New York Times from Di-
rector of Central Intelligence, William Casey, in which Mr. Casey
said, and I quote: "We provided election authorities with invisible
ink which existed and will be detected only under ultraviolet light.
This was to insure an honest vote to protect against the retaliation
with which the guerrillas had threatened anyone who voted."
Our request was for technical assistance in that election. The
Agency released a document cited in Mr. Mackenzie's testimony
concerning the use of invisible ink. This document was released be-
cause the Director had confirmed that the Agency had provided
this invisible ink, and under the provision of the bill providing for
the continued release of information concerning covert operations,
the existence of which is no longer classified, this document would
still be searchable and still be releasable if this bill went into
effect. -
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
I would like to assure the committee and the public at large that
the Center for National Security Studies, which is an ACLU project
and which I have represented in a number of litigations, is one of
the largest institutional users of the Freedom of Information Act at
the CIA and has a very great interest in the application of the
FOIA to the CIA.
We have gone over the Center's file cabinets full of documents
obtained under the Freedom of Information Act and we are confi-
dent that we are not going to lose anything that we have gotten in
the past. We wouldn't support this bill if we thought we were going
to lose information. We have the view that this bill has been care-
fully crafted to maintain the level of access which is currently
available, but at the same time to reduce this intolerable backlog
so that information which is releasable can get out in a timely
fashion.
One of the other important provisions I should dwell on is the
one dealing with the specific subject matter of an investigation into
illegality or impropriety. Mr. Mackenzie makes the point that
many of the documents he cites in his testimony would not be
available, because they were not reviewed by the people doing the
investigations.
That is precisely the point of the difference between the House
bill, which is before this committee, and the Senate bill. The
Senate bill only did cover information which had been the subject
of an investigation if, in fact, the documents had been reviewed or
relied upon by the people doing the investigating.
We objected to that limitation in testimony before the House In-
telligence Committee, and the committee took the approach that
the entire specific subject matter would be subject to search, and
review, even if it hadn't actually been examined by an investigator.
Consequently all documents dealing with Operation Chaos, which
was a specific subject matter of inquiry, all documents dealing with
Operation Resistence, which was specific subject matter of inquiry,
all documents dealing with Operation Merrimac, which was a spe-
cific subject matter of inquiry-all of those documents, irrespective
of whether they were ever actually reviewed by anybody on the
Church committee, will continue to be subject to research and
review under this bill.
I think these examples illustrate why we have come to the con-
clusion we have come to, and why we think this is a bill that is
worth supporting. That, I think, summarizes our position.
I would be happy to answer any further questions the committee
has.
Mr. ENGLISH. Thank you.
[The prepared statement of Mr. Lynch and attachments follow:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STATEMENT OF MARK H. LYNCH
ON BEHALF OF
THE AMERICAN CIVIL LIBERTIES UNION
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT INFORMATION, JUSTICE, AND AGRICULTURE
HOUSE COMMITTEE ON GOVERNMENT OPERATIONS
MAY 10, 1984
Mr. Chairman:
Thank you for your invitation to the American Civil Liberties
Union to testify on H.R. 5164. The ACLU is a nonpartisan organi-
zation of over 250,000 members dedicated to defending the Bill
of Rights. The ACLU regards the Freedom of Information Act as
one of the most important pieces of legislation ever enacted by
Congress because the Act positively implements the principle,
protected by the First Amendment, that this nation is committed
to informed, robust debate on matters of public importance.
Accordingly, the ACLU is extremely wary of all proposals to
amend the FOIA. This is especially true with respect to the
CIA, for the FOIA has been a significant part of a larger process
over the past ten years of bringing that Agency under public
and congressional scrutiny. While maintaining this skepticism,
we have concluded after long and careful consideration of H.R.
5164 that this bill will be a gain for public access to CIA
information and we therefore support the bill.
Anyone who has made an FOIA request to the CIA knows that
the wait for a substantive response is intolerable -- two to
three years. There is good reason to believe that this delay
is primarily due to the amount of time that it takes to review
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
41
records in the Agency's operational files. We also know from
nearly ten years of litigation with the CIA that, with very few
exceptions, documents from operational files, as that term is
narrowly defined in the bill, are exempt under the provisions
of the FOIA and that the courts do not order the release of
such information. (In some instances, the CIA has released
documents from operational files with everything deleted but
random words that have no meaning, and therefore we do not
regard these releases as meaningful.)
These factors suggest that if operational files are exempt
from routine search and review, with exceptions to cover substantive
material which is now released, the delay in responding to
requests will be reduced and no meaningful information which is
currently released will be lost. Accordingly, we took the
position that if both these conditions were met -- improved
service and no loss of currently available information -- we
would support legislation to exempt CIA operational files from
routine search and review. We believe that H.R. 5164 meets
these tests and should be enacted.
Operational files are defined in the bill as: (1) files in
the Directorate of Operations "which document the conduct of
foreign intelligence or counterintelligence operations or intelligence
or security liaison arrangements or information exchanges with
foreign governments or their intelligence or security services;"
(2) files in the Dirctorate for Science and Technology "which
document the means by which foreign intelligence or counter-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
intelligence is collected through scientific and technical
systems;" and (3) files in the Office of Security "which document
investigations conducted to determine the suitability of potential
foreign intelligence or counterintelligence sources." The
Report of the House Intelligence Committee makes clear that the
files in these three components covered by these definitions
"concern the intelligence process as distinguished from the
intelligence product."
Files within these three components which do not meet
the statutory definitions will not be eligible for exemption
from search and review. Furthermore, records in all other
parts of the CIA, including information which originated in the
operational components, will continue to be subject to search
and review. For example, all documents which go to the Director
of Central Intelligence, even if they concern the most intimate
details of an operation, will be subject to search and review.
Furthermore, all intelligence collected through human and technical
means will continue to be covered by the FOIA because the operational
components forward such information to the analytic components
of the Agency. What will be exempt from search and review is
information about how intelligence is collected -- for example,
how a source was spotted and recruited, how much he is paid,
and the details of his meetings with his case officer. Such
information is invariably exempt from disclosure under the FOIA
and will continue to be exempt under any conceivable standard
for classification.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
43
In some instances, collected intelligence is so. sensitive
that it is disseminated to analysts and policy-makers on an
"eyes only" basis and then returned to the operational component
for storage. To cover these situations and to guard against
the possibility of an expansion of this practice to circumvent
the intent of this legislation, the bill also includes a proviso
that files maintained within operational components as the sole
repository of disseminated intelligence cannot be exempt from
search and review.
The bill provides for three circumstances in which operational
files will be subject to search and review. First, information
about covert operations in operational files will be subject to
search and review if the fact of the existence of the operation
is not exempt from disclosure under the FOIA. This provision
codifies well-established case law that in some instances the
existence of such operations can be properly classified. However,
if the existence of a covert operation is not properly classified,
the Agency will be required to review all its records concerning
the operation.
Second, any information in operational files which concerns
the subject matter of an investigation for impropriety or illegality
in the conduct of an intelligence activity will be subject to
search and review. Such investigations may conducted by the
Agency's Inspector General or General Counsel, by the congressional
oversight committees, or by the President's Intelligence Oversight
Committee. It is important to note from the legislative history
of the bill that the CIA undertakes investigations whenever it
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
receives an allegation of illegality or impropriety from any
member of the public, except where the individual has repeatedly
made frivolous allegations. The House Intelligence Committee
Report makes clear that "frivolous allegations" are those such
as "the CIA is manipulating by brain waves."
Whenever such an investigation is conducted, all information
concerning the subject matter will be subject to search and
review even if the investigators did not review the particular
documents. This is an important improvement over the Senate
bill which reaches only information that was reviewed or relied
on in the course of an investigation.
This provision on the subject matter of investigations is
very important for two reasons. First, for historical purposes,
it insures that all information concerning the abuses that were
addressed by the Church and Pike Committees will continue to be
accessible. Second, if future abuses come to light, the public
-- acting either on its own or through the congressional oversight
committees -- can trigger investigations which will make relevant
information in operational files subject to search and review.
Thus, the bill insures that operational files cannot be used to
hide information on improper and illegal activities of the CIA.
Third, the bill requires that operational files must be
searched in response to requests by United States citizens and
permanent resident aliens for information about themselves.
This provision recognizes the importance of the right of individuals
to be able to seek information about themselves in all CIA
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
45
files and also preserves the degree of s.acess currently afforded
by the Privacy Act.
In hearings before the House Intelligence Committee, we
urged the Committee to consider whether the concept of first-
person requests should be broadened to include United States
political, religious, academic, and media organizations. The
Committee staff investigated this issue carefully-and found
that it is very difficult to identify the nature of organizations
from the CIA's indices without actually reviewing the files.
Consequently, the Committee concluded that including organizations
within the scope of first-person requests would require extensive
file searches and thus jeopardize the goal of eliminating the
delay in processing FOIA requests. _
We are willing to live with this judgment because of the
proviso in the bill that requires the CIA to search operational
files for the subject matter of an investigation. Under this
proviso, an organization that suspects it is being improperly
used or targeted by the CIA can request an investigation, and
the information concerning that investigation will be subject
to search under the FOIA. Consequently, we believe that the
interests of organizations involved in First Amendment activity
are adequately protected by this bill.
The bill also contains a provision to insure that information
in operational files will not necessarily be exempt from search
and review forever. Every ten years the CIA is required to
review its operational files to determine whether files, or
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
portions of files, of historic value or other public interest
can be removed from exempt status and made subject to search
and review. As an example of this process, the CIA has already
assured the Senate Intelligence Committee that the files of the
OSS, which are currently maintained by the operations Directorate,
will not be exempt from search and review. Another provision
of the bill also requires the Agency, in consultation with the
Archivist, the Librarian of Congress, and historians selected
by the Archivist, to submit a report to Congress by June 1,
1985, on the feasibility of reinstituting systematic declassification
reviews of historically significant information. Although
this provision is not directly connected to the FOIA, it responds
to the complaints of historians over the Reagan Administration's
elimination of systematic declassification reviews.
In the area of judicial review, the House bill is a marked
improvement over the Senate bill. In hearings last June before
the Senate Intelligence Committee, the CIA took the position
that there should be no judicial review of whether a particular
file meets the definition of operational or whether particular
documents are improperly placed solely in operational files.
The Committee, at our urging, rejected this position and insisted
on judicial review. However, the Senate bill and the accompanying
report left some confusion over whether the standard of review
was de novo, as under the FOIA, or a more generous arbitrary
and capricious standard. H.R. 5164 resolves this confusion by
making it crystal clear that review is de novo. The bill
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
also codifies certain litigation procedures concerning the
parties' submissions, discovery, and in camera proceedings that
do not depart from the practices which the courts currently
apply in FOIA cases involving classified information.
The House bill also contains an improvement over the Senate
bill with respect to the issue of retroactivity. The provisions
of both bills will cover all requests pending at the administrative
stage on the date of enactment. This provision makes sense
because if the bill had only prospective effect, it would take
another two to three years to eliminate the backlog and thus
defeat one of our principal interests in this legislation.
However, the House bill, unlike the Senate bill, does not apply -
retroactively to any lawsuit which was pending on February 7,
1984. This date was selected because it was the day before
the hearings before the House Intelligence Committee where
members of the Committee expressed opposition to the retroactivity
provision of the Senate bill. To avoid a rush to the courthouse,
the Committee chose that date rather than the date of enactment
as the cut-off point.
For the foregoing reasons we believe that this bill will
not enable the CIA to withhold any meaningful information which
the Agency is now required to release or which it would be
required to release under any conceivable standard for classification.
Furthermore, the Director of.Central Intelligence has provided
the House Intelligence Committee with a written assurance that
he will establish a specific program of measures to speed up
the processing of FOIA requests. The Director has also agreed
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
not to reduce the current budgetary and personnel allocations
for FOIA processing for the first two years after enactment of
the bill so that the resources now devoted to processing operational
files will be devoted to eliminating the backlog in processing
requests for all other information. Another positive effect of
the legislative process which has produced this bill is that
the two intelligence committees and their staffs have become
intimately familiar with and interested in the administration
of the FOIA at the CIA. Consequently, we can expect vigorous
oversight in this area and attentive follow-through to insure
that the CIA delivers on its promises to improve FOIA processing.
Since both our criteria for this legislation have been
met, we support H.R. 5164 and urge its prompt enactment without
further amendment. Furthermore, we must stress that 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. Since the CIA supports H.R. 5164 as it
is, there should be no obstacle to enacting the bill without the
need for a conference.
Thank you Mr. Chairman.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
To the Editor:
In his Op-Ed article of July 27, for-
mer United States Ambassador to El
Salvador Robert White placed a false
interpretation on a piece in The Wall
Street Journal of July 16, which re-
ported me as saying, "For instance. we
helped in the El Salvador election. In
Honduras, we put people through
school and gave them instruments that
can detect bow. much metal a truck is
carrying. Some countries we help with
photographic information, or sensors,
or training for antiterrorist forces."
Mr. White takes only the first sea
tence, thus stripping the quotation of
detail. This frees him to convert "help
in the election" to "meddle in the elect
tion."
I was referring to the C.I.A.'s assist-
ancE in meeting a genuine concern on
the part of both the United States and
the Salvadoran Governments that the
election be held, and that people not be
intimidated from voting. ,
The whole American television audi?
ence_ on the evening of the national
election saw with their own eyes how
guerrilla forces succeeded in aborting
the election in the provincial capital of
Usulutan by terrorizing its citizens.. We
provided the Salvadoran Government
with information and capabilities
which helped it to ieduce the supply of
weapons from Cuba and Nicaragua
and to break up guerrilla formations
intended to destroy' the election by
cseatin$ disruptive violence in o::,er
communities throughout El Salvadoi.
In addition, we provided election au.
thorities invisible ink, which could be
placed on the wrist of each voter and
be detected again only under ultravio-
let light. This was needed to assure an
honest vote and to protect voters from
retaliation, with which the guerrillas
had publicly threatened anybody who
.voted. ' WILLIAM J. CASEY
Director of Central Intelligence
Washington, July 29,1982
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
50
Center for National Security Studies
Information and Privacy Coordinator
Central Intelligence Agency
Washington, D.C. 20505
This is an appeal pursuant to subsection (a)(6) of the Free-
dom of Information Act (5 U.S.C. 552).
On August 6, 1982, I requested from your agency copies of
all documents which:
1) concern CIA technical assistance to the government
of El Salvador in connection with the March, 1982
elections, and any other CIA activities undertaken
in connection with the elections;
2) concern the prevision of "information and capabil-
ities" to assist the government of El Salvador in
blocking the flow of arms to guerrilla forces or
in otherwise prosecutiing its conflict with guer-
rilla forces; and
3) describe or authorize CIA covert operations in
Central America which were approved by President
Reagan in the last year.
As you know, the FOIA provides that an agency must make a
determination of whether to comply with a request within
ten working days. To date, there has been no response to
my request from the CIA. I am treating your failure to
determine whether to comply with my request as a denial of
my request. This letter is a formal appeal of that denial.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
I am asking that you consider this appeal immediately because
of the urgent public interest in the situation in El Salvador.
The Center for National Security Studies, on whose behalf
this request is being made, has testified before Congress on
the certification issue, and we have been asked for comment
and information on the subject by journalists and the public.
we anticipate receiving many similar requests. More generally,
the issue of U.S. aid to El Salvador is a matter of intense
and widespread public debate. Thus, there is a compelling
need for release of the requested material within the twenty-
day limit specified in the Act.
If you have any questions regarding this appeal, please phone
me at 544-5380.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
52
CENTRAL INTELLIGENCE AGENCY
Susan W. Shaffer, Esquire
American Civil Liberties Union
Foundation
122 Maryland Avenue, N.E.
Washington, D.C. 20002
Re: Peterzell, et al. v. Department of State and CIA
Civil Action No. 82-2853--Count VII - Subparts 1 and 2
I am writing to you on behalf of the Central Intelligence
Agency (CIA) with regard to the Freedom of Information Act (FOIA)
request of your client, Monica Andres. By letter dated 6 August
1982, Plaintiff Andres requested access to copies of all docu-
ments relating to three specific subjects. According to your
client's request, it is claimed that these three activities were
acknowledged by Director of Central Intelligence, Mr. Casey, in a
letter to The New York Times dated 30 July 1982 and in an article
within The New York Times of the same date entitled "CIA Chief
Tells of Attempt to Aid Salvador Vote." As you are aware,
Plaintiff Andres' 6 August 1982 request has become Count VII of
the above-referenced litigation. This letter deals only with
Subparts 1 and 2 of Ms. Andres' request, namely, her request for
documents:
(1) Concerning CIA technical assistance to the
government of El Salvador in connection with the March
1982 elections, and any other CIA activities undertaken
in connection with the elections;
(2) Concerning the provision of 'information and
capabilities' to assist the government of El Salvador in
blocking the flow of arms to guerrilla forces of and
otherwise prosecuting its conflict with guerrilla
forces.
On 6 December 1982, we met with you and your client,
Mr. Halperin, to discuss processing of the various counts. At
that time, we advised you that a search for documents responsive
to Count VII, Subparts 1 and 2, would require searching through
an enormous number of documents with a concomitant delay in
processing. Mr. Halperin then suggested that background material
may exist which formed the basis for Director Casey's letter to
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
The New York Times. Mr. Halperin further proposed that the
Agency attempt to locate such background material as an
alternative means of satisfying Ms. Andres' request on Subparts 1
and 2. We agreed to this proposal and agreed that the search
would be completed and you informed of the results by 10 January
1983. This letter is to inform you and your clients that
processing of Count VII, Subparts 1 and 2, as modified by our
agreement of 6 December 1982, has been completed.
The Agency has completed its search for records which could
have formed the basis for the information contained in Director
Casey's letter to the editor dated 30 July 1982. We wish to
initially note that the Director has received numerous oral
briefings on the El Salvador situation. Nevertheless, with this
caveat in mind, we did in fact search for documents which could
possibly come within Subparts 1 and 2.
As to Subpart 1, the Director, in his letter, did not use
the term "technical assistance," but rather specifically men-
tioned the provision of "invisible ink." Using this limitation
during our search, the Agency has located four documents which
possibly fall within your request. Descriptions of the four
documents and the Agency's determinations as to release or with-
holding are as contained in Attachment A of this letter.
Subpart 2 is couched in extremely general terms. The Agency
has conducted a thorough search of our records and has located
one document which possibly falls within your request. This
document is a one-page memorandum with a two-page attachment.
This document must be denied in its entirety on the basis of
exemptions (b)(1) and (b)(3) of the FOIA. The Agency also
believes that this document would be alternatively protectable
under the Executive Privilege, if invoked. Finally,, this
document cannot be sanitized in any meaningful way for release to
your clients.
As you know, exemption (b)(1) encompasses,matters which are
specifically authorized under criteria established by Executive
Order 12356 to be kept secret in the interest of national defense
or foreign policy and which are in fact currently and properly
classified. Exemption (b)(3) pertains to information exempt from
disclosure by statute. The relevant statutes are subsection
102(d)(3) of the National Security act of 1947, as amended, 50
U.S.C. 403(d)(3), which makes the Director responsible for pro-
tecting intelligence sources and methods from unauthorized
disclosure, and section 6 of the Central Intelligence Agency Act
of 1949, 50 U.S.C. 403g, as amended, which exempts from the dis-
closure requirement information pertaining to the organization,
functions, names, official titles, salaries, or numbers of per-
sonnel employed by the Agency.
This constitutes the CIA's position with regard to the
documents responsive to Count VII, Subparts 1 and 2. If you have
any questions concerning this response, please do not hesitate to
call me on 351-6928.
CC: Jason Kogan
AUSA/D.C.
Sincerely yours,
E. PaageK moffekt
Assistant General Counsel
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
DDO Document No. 1'
This is a two-page document dated 22 January
1982. This document is being released in part to you
at this time. The information withheld is exempt from
disclosure on the basis of exemptions (b)(1) and
(b)(3).
DDO Document No. 2
This is a one-page document dated 10 February
1982. This document is withheld in its entirety under
exemptions (b)(1) and (b)(3).
DDO Document No. 3
This is a one-page document dated 9 February
1982. This document is withheld in its entirety under
exemptions (b)(1) and (b)(3).
DDO Document No. 4
This is a one-page document dated 9 February
1982. It is withheld in its entirety under exemptions
(b)(1) and (b)(3).
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
PAGE 001
? L?Y`?-^--c`_?a_ -_---------_y'1 - ------------.
.?V.,~ .ter Y~_v.::.. z. :+-'..,; ?: c. ~.'_ ?- .s-?.,1=-~?~?''2..,
II.:J: 22"'~+;`~ J'R1 82 >x ` yiiri 2l1 s C.
art
ACE
T-, I
~!47? f ~ `"3 .max '~t1 ^~.~ ?`J
~,2 ,..a -~~._?.-. f. _ .. _.~cr ~=_ "-.ate'-'`i. ~'_~l;~i~.. ..~. ,y....__'T~
' ua.iECT: SALE GRAN E~ FCTIOt S
r ... y.r?.'~."` ~ ~ =mow. ~... -?-..rT~>n,r "
p ]n,~Fi TBI.E. 7NK FDR F.LECTIOWS. THE U.S. WILL
DELIVER 140 LATER THAN
)-LkCH I THE OUAHTITY. TYPE AND CONTAINER SPECIFIED
`
"
Ira ~'~r~.-' "?er9e..--~ `
~
-
`
`
-
rr.~{
s
cam ~:,*y~
i
_
x....~Ga~~as~.~ 5-
AWC'UT A SYSTEM EHPLOYIFI AN IKVISIOLE DYE hHIC_H t?.,gLr!p_
Sh_ UP U'DER SPECIAL LIGHTING '-?_ _ '-"'"y--~ 3
r "THIS 1'%OULD REQUIRE A 111411'UH OF bra SELF-COt.t~NED
At:D POY?ERED FLASHLIGHTS OR OTHER. LIGHTIHG,SOURCE.
GIVE1: THE SHORT PERIOD OF TINE AVAILABLE, THIS MAY
t.OT BE POSSIBLE AND WE SHOULD NOT RISK DELAY ON
o PHOCUkEt?:E!:T OF THE PE UL+?. INK REQUESTED Ir_Q.~.D=ID
HATEVER
A
'
E
U
'
P
HATIVE TH
T I
?
P
_UE THIS OPTION. -IT TS T
_5Y51Er IS USED BET: COU+I' -17O-L' + . 1NARCH I
Tt'F-C7tO1 ILjIY OF IHE nYIO PPOCI55 HI1:0ES C:: TtiE
It; BEI';G AVAILABL -----
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. ENGLISH. Mr. Lynch, I believe you probably have more expe-
rience with FOIA practices of the CIA than anyone else outside the
Federal Government, at least as far as we know. Do you think that
the CIA has done a reasonable job in handling FOIA requests and
litigation?
Mr. LYNCH. Well, I think there are a number of answers to that.
I think that at the initial processing stage in a number of instances
I know of and have cited in other testimony I have given on this
bill, that the Agency has, in fact, been rather unreasonable.
On the other hand, I think I would regard their litigation posi-
tions, while sometimes stretching vigorous advocacy to the limit,
still on the side of reasonableness.
Now, the biggest problem is at the administrative processing
level and that is one of the things that this bill hopefully will clear
up.
I am not happy with the way the CIA processes requests, but I
recognize as a human being that if you are given the job of process-
ing lots of documents which are never going to be released, you get
pretty worn down by that process, because there is an awful lot of
wasted effort.
It contributes to a siege mentality, a sort of glazed eyeball men-
tality. One of the things that we are looking for is that by remov-
ing documents that are never released in this process, the people
who are doing the processing will find more purpose and sense to
their task so the process can go forward in a much more reasona-
ble and cooperative spirit.
I also should be frank to say that I don't mean to lay all this on
Mr. Strawderman's staff. They do have to respond to and live with
the people in the Operations Directorate, and I think an awful lot
of the hanky-panky that we have identified has probably been in-
spired by people in the Operations Directorate who are worn down
by this process of processing documents that in the end they don't
release.
So, I think that though the Agency has not always been reasona-
ble in handling Freedom of Information requests, and they have
abused members of the public in instances which I am aware of.
But I do think that this bill, combined with the commitments that
the Agency has made at the highest level, will go a substantial way
toward improving that situation.
And I might also note that another very positive aspect of the
legislative process that has produced this bill is that we now, for
the first time, have the members and the staffs of the Senate and
House Intelligence Committee intimately educated about Freedom
of Information problems at the CIA and deeply concerned about
those problems.
So I think that we can anticipate vigorous oversight and followup
in this area from the staffs of the two Intelligence Committees, and
this committee, which has got to look at the whole government,
will have a little help in overseeing FOIA activity at the CIA.
Mr. ENGLISH. Would you go so far as to say that the CIA has ap-
proached the Freedom of Information Act in bad faith? I guess
what I am talking about in those instances that you were citing
there, do you feel like that is an Agency policy, either written or
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
unwritten or is that more an indication of individual personalities
within the Agency?
Mr. LYNCH. I have never charged the Agency with bad faith in
litigation. I think that I would characterize some of the individual
processing problems I have seen as bad faith. But again, those are
at the lower levels of the bureaucracy and I think there are a lot of
bureaucratic and human reasons for those problems having arisen.
So, I don't think I would say that the Agency's policy on the
whole has been one of determined bad faith, although there are
perhaps individual instances of very unfortunate occurrences.
Mr. ENGLISH. So, you come down more on the side of individual
personalities as opposed to an Agency policy?
Mr. LYNCH. I think so. But I should say that despite the fact that
I have had a lot of litigation experience, it is very hard for an out-
sider to know precisely how the bureaucracy works in the adminis-
trative sense.
I have a much better sense of how the General Counsel's office
works than I do about how the Director of Operations' works in
processing these things, but that is the nature of the contact and
exposure I have to the Agency.
Mr. ENGLISH. The bill specifically preserves the right of citizens
and resident aliens to ask for information about themselves that is
contained in the operational files. Are you familiar with a recent
Justice Department and OMB regulation, regarding the relation-
ship of FOIA and the Privacy Act?
Mr. LYNCH. I am, Mr. Chairman. I think they are extremely ill-
considered, contrary to the legislative history, and all-together fool-
ish. I would note, however, that the OMB provisions do not require
agencies to adopt the interpretation that they now find permissible
after having lived with a contrary interpretation for some time.
And the CIA has committed itself to both of the Intelligence Com-
mittees to maintain its current interpretation of the interface be-
tween the Privacy Act and the FOIA. So that we have some assur-
ance that the foolish OMB policy will not be implemented at CIA.
Mr. ENGLISH. So, even though we have this coming out of OMB
and the Justice Department, certainly that is a distraction at the
very least?
Mr. LYNCH. I agree, and certainly, if the Privacy Act were
amended to straighten that problem out on a governmentwide
policy, it would pin the CIA beyond any doubt. But with respect to
the CIA and in the context of this particular bill, the Agency has
promised its two oversight committees that it is not going to go
down the OMB route, and that is a pretty substantial commitment
in my view.
Mr. ENGLISH. Mr. Kindness?
Mr. KINDNESS. Thank you, Mr. Chairman.
Mr. Lynch, am I correct in understanding your testimony here
today that the American Civil Liberties Union has, through its
usual procedures, taken this position of support of H.R. 5164?
Mr. LYNCH. That is correct, Mr. Kindness. I am speaking on
behalf of the executive director and the organization as a whole.
Mr. KINDNESS. In another area, have you been able to discern
any substantive difference in classification and declassification de-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
cisions under the Executive Order 12356 as compared to the presid-
ing Executive order?
Mr. LYNCH. Yes, sir. I think that the new Executive order issued
by President Reagan sent a very unfortunate signal to the bureauc-
racy. Every President, until President Reagan, has made it more
difficult to classify information. President Eisenhower tightened up
on the Executive order that had been issued by President Truman.
President Nixon tightened up on the Executive order that had
been issued by President Eisenhower. President Carter tightened
up on President Nixon's Executive order.
For 30 years, we had a process of making it harder to classify
information, and then the current administration, unfortunately,
issued an order that made it easier to classify information.
Now, the details of the changes are very complicated lawyers'
business, but the signal that went out to the bureaucracy was that
you have been declassifying too much information.
We want you to keep more information secret, and I think, yes,
that has had an unfortunate impact on classification decisions
throughout the Government.
Mr. KINDNESS. Maybe it is a little early to be able to judge that
on a practical basis, but do you have any particular experiences
that would indicate that there is a change in result as well as atti-
tude?
Mr. LYNCH. Oh, yes. To take one instance which I am litigating
right now-and I believe it is actually a matter that this committee
has looked into-the National Security Agency has classified docu-
ments which were on the shelves of a public library for some years
and which the Agency knows were reviewed by a number of re-
searchers and in some instances, were even copied and taken away
from the library.
Notwithstanding those facts, NSA has used the authority con-
ferred on it by the Reagan Executive order to classify information
which plainly has been in the public domain for some period of
time.
That is the kind of result we see because of the atmospheric
change that the Reagan Executive order has affected. I am repre-
senting the American Library Association, the Organization of
American Historians, and the American Historical Society, in chal-
lenging that action.
Mr. KINDNESS. Thank you, Mr. Chairman. I yield back.
Mr. ENGLISH. Mr. Lewis?
Mr. LEWIS. No questions, Mr. Chairman.
Mr. ENGLISH. Thank you very much, Mr. Lynch. We appreciate
your testimony. It is very helpful to us and very enlightening.
Mr. LYNCH. Thank you, Mr. Chairman.
Mr. ENGLISH. Our next witness will be Mr. Charles H. Rowe, who
is the editor and copublisher of the Free-Lance Star in Fredericks-
burg, VA, representing the American Newspaper Publishers Asso-
ciation and the American Society of Newspaper Editors.
It is good to see you again, Mr. Rowe.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STATEMENT OF CHARLES S. ROWE, EDITOR AND COPUBLISHER,
THE FREE-LANCE STAR, FREDERICKSBURG, VA, REPRESENT-
ING THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION,
AND THE AMERICAN SOCIETY OF NEWSPAPER EDITORS, AC-
COMPANIED BY TONDA F. RUSH, COUNSEL/GOVERNMENT AF-
FAIRS, ANPA
Mr. ROWE. With me is Tonda Rush of the American Newspaper
Publishers Association legal staff.
Mr. ENGLISH. Ms. Rush, it is a pleasure to see you. Thank you for
coming.
I might say as well, Mr. Rowe, if you would care to summarize
your written statement, feel free to do so. Without objection, that
will be made a part of the record.
Mr. ROWE. I think I can eliminate some parts of it, and I will try
to speed up my Virginia drawl to finish in just a very few minutes.
Mr. ENGLISH. Fine, sir.
Mr. ROWE. In addition to representing ANPA, I am also repre-
senting the American Society of Newspaper Editors here today.
Both of these organizations like you, Mr. Chairman, remain firmly
committed to the existing Freedom of Information Act.
Through FOIA, the principles of open Government on which this
country was founded have become a reality. The act stands as tan-
gible proof that a free people are entitled to information about how
their Government operates and how its desires are made.
When publishers and editors defend FOIA, we do so not solely in
our personal interest, but in the interests of our free society and all
its individual citizens.
There is an important point which must be remembered in look-
ing at the Central Intelligence Agency and its problems with FOIA.
The existing statute contains the exceptions required to strike the
delicate balance between openness in Government and the need for
a degree of secrecy in our intelligence operations.
Exemptions 1 and 3 of FOIA, in conjunction with section
102(D)(3) of the National Security Act of 1947, protect classified na-
tional security information and intelligence sources and methods
from disclosure. Courts have given great deference to the CIA in
implementing these exceptions.
Mr. Chairman, over the past few years, we have carefully fol-
lowed various FOIA exemption proposals dealing with the CIA. We
strongly opposed a blanket exemption of the CIA from the require-
ments of FOIA.
We have also had serious reservations concerning the provisions
of S. 1324 which would exempt certain CIA operational files from
the search and review requirements of FOIA.
At the same time, I must point out that representatives of the
newspaper business have not rejected out of hand the CIA's pleas
for relief from FOIA search and review requirements. Over the
past few years, we have met several times with CIA officials to de-
velop a dialog on this issue.
With respect to S. 1324, which passed the Senate November 17,
1983, we were concerned that the legislation could unnecessarily
deny information to the public which now is available, and we
were not satisfied with report language on CIA efforts to address
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the backlog of FOIA requests. We also favored a much stronger ju-
dicial review provision than was included in the Senate bill.
I would now like to address these three concerns in the context
of H.R. 5164 as reported by the House Permanent Select Intelli-
gence Committee.
Under this version, certain operational files will be exempt from
the search and review requirements of FOIA. The stated rationale
for this exemption is that these files almost never contain informa-
tion releasable under the act, and that by unburdening the CIA
from laborious review requirements, the Agency will be able to
clean up its backlog and generally give more expeditious consider-
ation to other FIOA requests.
This legislation gives the CIA Director the responsibility to desig-
nate the files covered by the exemption.
However, there are two underlying premises which must work in
unison if the stated ends are to be achieved. First, we must place
our faith and trust in the CIA to carefully execute its responsibil-
ities in accordance with the statute.
Second, we must look to the Congress for stringent oversight to
guard the public interest against excesses by the Agency.
Mr. Chairman, the historical record of the CIA, most recently
punctuated by the mining of the Nicaraguan harbor, brings each of
these premises into serious question. Under the Intelligence Over-
sight Act of 1980, the CIA is to keep the House and Senate Intelli-
gence Committees "fully and currently informed of all intelligence
activities."
Nevertheless, the chairman of the Senate Select Intelligence
Committee and several other members of the committee claimed
they were not adequately informed about CIA mining of a Nicara-
guan harbor.
Clearly, the question which comes to mind is, "If the CIA does
not meet its responsibilities under the Intelligence Oversight Act,
can we expect it to respect the parameters of this legislation?"
And further, "If the oversight committees are not being ade-
quately informed of CIA activities, how will they be able to monitor
effectively the implementation of H.R. 5164?"
This bill provides that operational files concerning the subject
matter of an official investigation will not be exempt from FOIA
search and review. But can we expect such an investigation ever to
be triggered if the Intelligence Committees are shielded from infor-
mation on important activities of the CIA?
Mr. Chairman, in testimony before the House and Senate Intelli-
gence Committees we emphasized the need for frequent and thor-
ough oversight of the CIA's implementation of this legislation.
Today we emphatically repeat our call for skeptical oversight.
The CIA, through this legislation, will be vested with a great deal
of power which, if misused, could subvert the spirit of public access
to information.
This committee should monitor classification of files to ensure
that the exemptions built into this legislation, for requesters seek-
ing information concerning themselves, covert actions and investi-
gations for impropriety or illegality, are adhered to by the Agency.
Further, the CIA should be strictly accountable to this committee
for cleanup of the backlog and development. In testimony before
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the House Select Permanent Intelligence Committee, John McMa-
hon, Deputy Director of the CIA, stated that currently there are
operations' staffers assigned to FOIA requests, and upon passage
of the legislation, these staffers will be transferred back to the Op-
erations Directorate.
We want to ensure that the FOIA office is adequately staffed to
handle FOIA requests. The legislation should provide for annual
reports by the CIA to the House and Senate Intelligence Commit-
tees and to your committee on the handling of FOIA requests, in-
cluding the existence of a backlog, the average response time to a
FOIA request, and staffing levels.
We are pleased with the much-improved judicial review provision
contained in H.R. 5164. We view de novo judicial review as a cor-
nerstone of the Freedom of Information Act. Under H.R. 5164, the
court will exercise de novo review of the Agency's file designation.
Unfortunately, Mr. Chairman, the Congress' effort to balance the
public's need for information with the need to keep national de-
fense secrets may all be for nought given recent Department of
Justice/OMB regulations.
Under these regulations, any records exempted from disclosure
under the Privacy Act of 1974 are also exempt from disclosure
under the Freedom of Information Act. This is a reversal of the De-
partment of Justice and OMB's position which it has held since
passage of the Privacy Act in 1974.
The Department of Justice/OMB regulations are also contrary to
the well-reasoned opinion of the Court of Appeals for the District of
Columbia. The issue is one which the U.S. Supreme Court has de-
cided to review.
Under subsections (j) and (k) of the Privacy Act, the CIA has ex-
empted records and systems of records from disclosure. However,
first and third party requestors have a right to use the FOIA to
make a request for these same records; in this case, exemptions 1
and 3 of FOIA govern the disclosure of information. These exemp-
tions are less broad than those available under the Privacy Act.
The effect of the new OMB interpretation would be to allow
agencies such as the CIA to exempt broad categories of records
under the authority of the Privacy Act, thus foreclosing FOIA
access beyond even the authority of this bill.
This was not the intent of Congress when it passed the Privacy
Act. Section 552A(b)(2) was specifically inserted into the Privacy
Act in order to preserve the public's right under FOIA.
Mr. Chairman, we recommend that the Justice/OMB interpreta-
tion of the relationship between the Privacy Act and FOIA be over-
turned through legislation to reflect the original and true meaning
of Congress.
We believe that this bill goes far enough in the direction of ac-
cording discretion to the Agency in FOIA area. We do not want the
CIA to be able to foreclose access under FOIA by invoking * the
broad Privacy Act exemptions.
In conclusion, Mr. Chairman, our Nation's newspapers recognize
the need for a degree of secrecy in our intelligence operations. But
this need must not overshadow the principle of open Government
in our free society. As Justice Black stated in New York Times v.
United States:
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
"Secrecy in Government is fundamentally anti-democratic, per-
petuating bureaucratic errors. Open debate and discussion of public
issues are vital to our national health."
Mr. Chairman, this committee, and in particular this subcommit-
tee, has legislative responsibility for the Freedom of Information
Act. We in the press are very grateful for your ongoing role in pro-
tecting the FOIA from assault.
If the pending legislation is to be enacted, we ask you to exercise
careful vigilance over the CIA's implementation of its provisions.
The public relies on you to safeguard its right to an open Govern-
ment and to assure that information releasable under current law
remains accessible.
[The prepared statement of Mr. Rowe follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
64
STATEMENT
CHARLES S. ROWE
EDITOR & CO-PUBLISHER
THE FREE LANCE-STAR
FREDERICKSBURG, VIRGINIA
FOR THE
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION
AND THE
AMERICAN SOCIETY OF NEWSPAPER EDITORS
SUBCOMMITTEE ON GOVERNMENT INFORMATION, JUSTICE & AGRICULTURE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
U.S. HOUSE OF REPRESENTATIVES
H.R. 5164
THE CENTRAL INTELLIGENCE AGENCY INFORMATION ACT
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, MY NAME IS
CHARLES ROWE AND I AM THE EDITOR AND CO-PUBLISHER OF THE FREE
LANCE-STAR IN FREDERICKSBURG, VIRGINIA. I AM TESTIFYING TODAY ON
BEHALF OF THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION AND THE
AMERICAN SOCIETY OF NEWSPAPER EDITORS. WE APPRECIATE THE OPPOR-
TUNITY TO SHARE OUR CONCERNS WITH YOU ABOUT THIS LEGISLATION TO
EXEMPT CERTAIN OPERATIONAL FILES FROM THE SEARCH AND REVIEW PRO-
VISIONS OF THE FREEDOM OF INFORMATION ACT.
THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION IS A NONPROFIT
MEMBERSHIP CORPORATION ORGANIZED UNDER THE LAWS OF THE COMMON-
WEALTH OF VIRGINIA. ITS MEMBERSHIP CONSISTS OF NEARLY 1400 NEWS-
PAPERS ACCOUNTING FOR MORE THAN 90 PERCENT OF U.S. DAILY AND SUN-
DAY CIRCULATION. MANY NON-DAILY NEWSPAPERS ALSO ARE MEMBERS,
THE AMERICAN SOCIETY OF NEWSPAPER EDITORS IS A NATIONWIDE,
PROFESSIONAL ORGANIZATION OF MORE THAN 850 MEN AND WOMEN WHO HOLD
POSITIONS AS DIRECTING EDITORS OF DAILY NEWSPAPERS THROUGHOUT THE
UNITED STATES.
MR. CHAIRMAN, LIKE YOU, THE AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION AND THE AMERICAN SOCIETY OF NEWSPAPER EDITORS ARE
FIRMLY COMMITTED TO THE EXISTING FREEDOM OF INFORMATION ACT (FoIA
OR THE ACT). THROUGH FoIA, THE PRINCIPLES OF OPEN GOVERNMENT
UPON WHICH THIS COUNTRY WAS FOUNDED BECOME A REALITY. THE ACT
STANDS AS TANGIBLE PROOF THAT A FREE PEOPLE ARE ENTITLED TO IN-
FORMATION ABOUT HOW THEIR GOVERNMENT OPERATES AND HOW ITS DECI-
SIONS ARE MADE. WHEN PUBLISHERS AND EDITORS DEFEND FoIA, WE DO
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
THERE IS AN IMPORTANT POINT WHICH MUST BE REMEMBERED IN
LOOKING AT THE CENTRAL INTELLIGENCE AGENCY (CIA) AND ITS PROBLEMS
WITH FOIA. THE EXISTING STATUTE CONTAINS THE EXCEPTIONS REQUIRED
TO STRIKE THE DELICATE BALANCE BETWEEN OPENNESS IN GOVERNMENT AND
THE NEED FOR A DEGREE OF SECRECY IN OUR INTELLIGENCE OPERATIONS.
EXEMPTIONS 1 AND 3 OF FOIA, IN CONJUNCTION WITH SECTION 102(D)(3)'
OF THE NATIONAL SECURITY ACT OF 1947, PROTECT CLASSIFIED NATIONAL
SECURITY INFORMATION AND INTELLIGENCE SOURCES AND METHODS FROM
DISCLOSURE. COURTS HAVE GIVEN GREAT DEFERENCE TO THE CIA IN IM-
PLEMENTING THESE EXCEPTIONS.
MR. CHAIRMAN, OVER THE PAST FEW YEARS WE HAVE CAREFULLY FOL-
LOWED VARIOUS FoIA EXEMPTION PROPOSALS DEALING WITH THE CIA, WE
STRONGLY OPPOSED A BLANKET EXEMPTION OF THE CIA FROM THE REQUIRE-
MENTS OF FoIA. WE HAVE ALSO HAD SERIOUS RESERVATIONS CONCERNING
THE PROVISIONS OF S 1324 WHICH WOULD EXEMPT CERTAIN CIA OPERA-
TIONAL FILES FROM THE SEARCH AND REVIEW REQUIREMENTS OF FoIA. AT
THE SAME TIME, I MUST POINT OUT THAT REPRESENTATIVES OF THE NEWS-
PAPER BUSINESS HAVE NOT REJECTED OUT OF HAND THE CIA'S PLEAS FOR
RELIEF FROM FoIA SEARCH AND REVIEW REQUIREMENTS. OVER THE PAST
FEW YEARS, WE HAVE MET SEVERAL TIMES WITH CIA OFFICIALS TO
DEVELOP A DIALOGUE ON THIS ISSUE.
WITH RESPECT TO S 1324, WHICH PASSED THE SENATE NOV. 17,
1983, WE WERE CONCERNED THAT THE LEGISLATION COULD UNNECESSARILY
DENY INFORMATION TO THE PUBLIC WHICH NOW IS AVAILABLE, AND WE
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
WERE NOT SATISFIED WITH REPORT LANGUAGE ON CIA EFFORTS TO ADDRESS
THE BACKLOG OF FoIA REQUESTS, WE ALSO FAVORED A MUCH STRONGER
JUDICIAL REVIEW PROVISION THAN WAS INCLUDED IN THE SENATE BILL.
I WOULD NOW LIKE TO ADDRESS THESE THREE CONCERNS IN THE CON-
TEXT OF HR 5164 AS REPORTED BY THE HOUSE PERMANENT SELECT INTEL-
LIGENCE COMMITTEE.
UNDER THIS VERSION, CERTAIN OPERATIONAL FILES WILL BE EXEMPT
FROM THE SEARCH AND REVIEW REQUIREMENTS OF FOIA. THE STATED
RATIONALE FOR THIS EXEMPTION IS THAT THESE FILES ALMOST NEVER
CONTAIN INFORMATION RELEASABLE UNDER THE ACT, AND THAT BY UNBUR-
DENING THE CIA FROM LABORIOUS REVIEW REQUIREMENTS, THE AGENCY
WILL BE ABLE TO CLEAN UP ITS BACKLOG AND GENERALLY GIVE MORE EX-
PEDITIOUS CONSIDERATION TO OTHER FOIA REQUESTS. THIS LEGISLATION
GIVES THE CIA DIRECTOR THE RESPONSIBILITY TO DESIGNATE THE FILES
COVERED BY THE EXEMPTION.
HOWEVER, THERE ARE TWO UNDERLYING PREMISES WHICH MUST WORK
IN UNISON IF THE STATED ENDS ARE TO BE ACHIEVED. FIRST. WE MUST
PLACE OUR FAITH AND TRUST IN THE CIA TO CAREFULLY EXECUTE ITS
RESPONSIBILITIES IN ACCORDANCE WITH THE STATUTE. SECONDLY, WE
MUST LOOK TO THE CONGRESS FOR STRINGENT OVERSIGHT TO GUARD THE
PUBLIC INTEREST AGAINST EXCESSES BY THE AGENCY,
MR. CHAIRMAN, THE HISTORICAL RECORD OF THE CIA, MOST RECENT-
LY PUNCTUATED BY THE MINING OF THE NICARAGUAN HARBOR, BRINGS EACH
OF THESE PREMISES INTO SERIOUS QUESTION. UNDER THE INTELLIGENCE
OVERSIGHT ACT OF 1980, THE CIA IS TO KEEP THE HOUSE AND SENATE
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
INTELLIGENCE COMMITTEES "FULLY AND CURRENTLY INFORMED OF ALL IN-
TELLIGENCE ACTIVITIES." NEVERTHELESS. THE CHAIRMAN OF THE SENATE
SELECT INTELLIGENCE COMMITTEE AND SEVERAL OTHER MEMBERS OF THE
COMMITTEE CLAIMED THEY WERE NOT ADEQUATELY INFORMED ABOUT CIA
MINING OF A NICARAGUAN HARBOR. CLEARLY, THE QUESTION WHICH COMES
TO MIND IS. "IF THE CIA DOES NOT MEET ITS RESPONSIBILITIES UNDER
THE INTELLIGENCE OVERSIGHT ACT, CAN WE EXPECT IT TO RESPECT THE
PARAMETERS OF THIS LEGISLATION?" AND FURTHER, "IF THE OVERSIGHT
COMMITTEES ARE NOT BEING ADEQUATELY INFORMED OF CIA ACTIVITIES,
HOW WILL THEY BE ABLE TO MONITOR EFFECTIVELY THE IMPLEMENTATION
OF HR 5164?" THIS BILL PROVIDES THAT OPERATIONAL FILES CONCERN-
ING THE SUBJECT MATTER OF AN OFFICIAL INVESTIGATION WILL NOT BE
EXEMPT FROM FOIA SEARCH AND REVIEW. BUT CAN WE EXPECT SUCH AN
INVESTIGATION EVER TO BE TRIGGERED IF THE INTELLIGENCE COMMITTEES
ARE SHIELDED FROM INFORMATION ON IMPORTANT ACTIVITIES OF THE CIA?
MR. CHAIRMAN, IN TESTIMONY BEFORE THE HOUSE AND SENATE IN-
TELLIGENCE COMMITTEES WE EMPHASIZED THE NEED FOR FREQUENT AND
THOROUGH OVERSIGHT OF THE CIA'S IMPLEMENTATION OF THIS LEGISLA-
TION.. TODAY WE EMPHATICALLY REPEAT OUR CALL FOR SKEPTICAL OVER-
SIGHT. THE CIA, THROUGH THIS LEGISLATION, WILL BE VESTED WITH A
GREAT DEAL OF POWER WHICH, IF MISUSED, COULD SUBVERT THE SPIRIT
OF PUBLIC ACCESS TO INFORMATION.
THIS COMMITTEE SHOULD MONITOR CLASSIFICATION OF FILES TO
ENSURE THAT THE EXEMPTIONS BUILT INTO THIS LEGISLATION - FOR
REQUESTERS SEEKING INFORMATION CONCERNING THEMSELVES, COVERT AC-
TIONS AND INVESTIGATIONS FOR IMPROPRIETY OR ILLEGALITY - ARE AD-
HERED TO BY THE AGENCY.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
FURTHER, THE CIA SHOULD BE STRICTLY ACCOUNTABLE TO THIS COM-
MITTEE FOR CLEAN UP OF THE 3ACKLOG AND DEVELOPMENT. IN TESTIMONY
BEFORE THE HOUSE SELECT PERMANENT INTELLIGENCE COMMITTEE, JOHN
MCMAHON, DEPUTY DIRECTOR OF THE CIA, STATED THAT CURRENTLY THERE
ARE "OPERATIONS" STAFFERS ASSIGNED TO FoIA REQUESTS, AND UPON
PASSAGE OF THE LEGISLATION THESE STAFFERS WILL BE TRANSFERRED
BACK TO THE OPERATIONS DIRECTORATE. WE WANT TO ENSURE THAT THE
FoIA OFFICE IS ADEQUATELY STAFFED TO HANDLE FoIA REQUESTS, THE
LEGISLATION SHOULD PROVIDE FOR ANNUAL REPORTS BY THE CIA TO THE
HOUSE AND SENATE INTELLIGENCE COMMITTEES AND TO YOUR COMMITTEE ON
THE HANDLING OF FoIA REQUESTS, INCLUDING THE EXISTENCE OF A BACK-
LOG, THE AVERAGE RESPONSE TIME TO A FoIA REQUEST, AND STAFFING
LEVELS,
THIS COMMITTEE, TO SATISFY ITSELF THAT THE CIA IS KEEPING
ITS PROMISES - BOTH AS TO THE BACKLOG AND THE FILE DESIGNATIONS
-SHOULD BE WILLING TO HEAR FROM FOIA REQUESTERS WHO SERIOUSLY
BELIEVE THE SPIRIT OF THIS BILL IS NOT BEING RESPECTED BY THE
AGENCY.
WE ARE PLEASED WITH THE MUCH IMPROVED JUDICIAL REVIEW PROVI-
SION CONTAINED IN HR 5164. WE VIEW DE NOVO JUDICIAL REVIEW AS A
CORNERSTONE OF THE FREEDOM OF INFORMATION ACT. UNDER HR 5164,
THE COURT WILL EXERCISE DE NOVO REVIEW OF THE AGENCY'S FILE
DESIGNATION.
WHILE THIS LEGISLATION GENERALLY EXEMPTS OPERATIONAL FILES
FROM FoIA SEARCH AND REVIEW THERE HAS BEEN AN ATTEMPT IN THE
LEGISLATION TO CAREFULLY DELINEATE THE TYPE AND LOCATION OF FILES
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
WHICH FALL INTO THIS CATEGORY. THERE ARE EXCEPTIONS FOR FIRST
PARTY REQUESTERS, COVERT ACTIONS AND OFFICIAL INVESTIGATIONS OF
IMPROPRIETY.
UNFORTUNATELY, MR. CHAIRMAN, THE CONGRESS' EFFORT TO BALANCE
THE PUBLIC'S NEED FOR INFORMATION WITH THE NEED TO KEEP NATIONAL
DEFENSE SECRETS MAY ALL BE FOR NOUGHT GIVEN RECENT DEPARTMENT OF
JUSTICE/OMB REGULATIONS. UNDER THESE REGULATIONS, ANY RECORDS
EXEMPTED FROM DISCLOSURE UNDER THE PRIVACY ACT OF 1974 ARE ALSO
EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT.
THIS IS A REVERSAL OF THE DEPARTMENT OF JUSTICE AND OMB's POSI-
TION WHICH IT HAS HELD SINCE PASSAGE OF THE PRIVACY ACT IN 1974.
THE DEPARTMENT OF JUSTICE/OMB REGULATIONS ARE ALSO CONTRARY TO
THE WELL REASONED OPINION OF THE COURT OF APPEALS FOR THE DIS-
TRICT OF COLUMBIA IN GREENTREE V. CUSTOMS SERVICE 674 FED 74
(D.C. CIRCUIT 1983). THE ISSUE IS ONE WHICH THE U.S. SUPREME
COURT HAS DECIDED TO REVIEW.
UNDER SUBSECTIONS J AND K OF THE PRIVACY ACT, THE CIA HAS
EXEMPTED RECORDS AND SYSTEMS OF RECORDS FROM DISCLOSURE.
HOWEVER, FIRST AND THIRD PARTY REQUESTORS HAVE A RIGHT TO USE THE
FoIA TO MAKE A REQUEST FOR THESE SAME RECORDS -- IN THIS CASE,
EXEMPTIONS 1 AND 3 OF FoIA GOVERN THE DISCLOSURE OF INFORMATION.
THESE EXEMPTIONS ARE LESS BROAD THAN THOSE AVAILABLE UNDER THE
PRIVACY ACT.
THE EFFECT OF THE NEW OMB INTERPRETATION WOULD BE TO ALLOW
AGENCIES SUCH AS THE CIA TO EXEMPT BROAD CATEGORIES OF RECORDS
UNDER THE AUTHORITY OF THE PRIVACY ACT, THUS FORECLOSING FoIA
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
ACCESS BEYOND EVEN THE AUTHORITY OF THIS BILL. THIS WAS NOT THE
INTENT OF CONGRESS WHEN IT PASSED THE PRIVACY ACT. SECTION 552A
(B)(2) WAS SPECIFICALLY INSERTED INTO THE PRIVACY ACT IN ORDER TO
PRESERVE THE PUBLIC'S RIGHTS UNDER FoIA.
MR. CHAIRMAN, WE RECOMMEND THAT THE JUSTICE/OMB INTERPRETA-
TION OF THE RELATIONSHIP BETWEEN THE PRIVACY ACT AND FoIA BE
OVERTURNED THROUGH LEGISLATION TO REFLECT THE ORIGINAL AND TRUE
MEANING OF CONGRESS. WE BELIEVE THAT THIS BILL GOES FAR ENOUGH
IN THE DIRECTION OF ACCORDING DISCRETION TO THE AGENCY IN FOIA
AREA. WE DO NOT WANT THE CIA TO BE ABLE TO FORECLOSE ACCESS
UNDER FoIA BY INVOKING THE BROAD PRIVACY ACT EXCEPTIONS.
OUR NATION'S NEWSPAPERS RECOGNIZE THE NEED FOR A DEGREE OF
SECRECY IN OUR INTELLIGENCE OPERATIONS. BUT THIS NEED MUST NOT
OVERSHADOW THE PRINCIPLE OF OPEN GOVERNMENT IN OUR FREE SOCIETY.
As JUSTICE BLACK STATED IN NEW YORK TIMES V. UNITED STATES, 403
U.S. 713, 724 (1971),
"SECRECY IN GOVERNMENT IS FUNDAMENTALLY ANTIDEMOCRATIC,
PERPETUATING BUREAUCRATIC ERRORS. OPEN DEBATE AND DIS-
CUSSION OF PUBLIC ISSUES ARE VITAL TO OUR NATIONAL
HEALTH."
MR. CHAIRMAN, THIS COMMITTEE, AND IN PARTICULAR THIS SUBCOM-
MITTEE, HAS LEGISLATIVE RESPONSIBILITY FOR THE FREEDOM OF INFOR-
___MATION ACT. WE IN THE PRESS ARE VERY GRATEFUL FOR YOUR ONGOING
ROLE IN PROTECTING THE FoIA FROM ASSAULT. IF THE PENDING LEGIS-
LATION IS TO BE ENACTED, WE ASK YOU TO EXERCISE CAREFUL VIGILANCE
OVER THE CIA'S IMPLEMENTATION OF ITS PROVISIONS. THE PUBLIC
RELIES ON YOU TO SAFEGUARD ITS RIGHT TO AN OPEN GOVERNMENT AND TO
ASSURE THAT INFORMATION RELEASABLE UNDER CURRENT LAW REMAINS
ACCESSIBLE.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. ROWE. Thank you, sir.
Mr. ENGLISH. Thank you very much, Mr. Rowe. I appreciate it.
Will H.R. 5164 restrict the ability of the press to investigate in-
telligence abuses?
Mr. ROWE. Not if the CIA acts in accordance with the exception
there on the improprieties and illegalities. If they, I think, ap-
proach this in good faith, it should not be a serious barrier to press
investigation of those issues.
Mr. ENGLISH. One of the major benefits of this legislation from
the perspective of FOIA users is the fact that it is going to elimi-
nate the backlog. How important is this to the organizations you
are representing?
Mr. ROWE. It is critically important, Mr. Chairman. Timeliness is
a vital factor in many of the requests made by press representa-
tives and the more quickly we can clear up that backlog and get
the time lag down to some reasonable figure, the better it will be
for us.
Mr. ENGLISH. Earlier, of course, you heard the commitments that
were made by the CIA with respect to this legislation.
Can you think of any other assurances that we should seek per-
taining to this legislation?
Mr. RowE. I think it would be extremely helpful if your commit-
tee as well as intelligence committees could get periodic reports
from agencies on the size of the backlog, the time lag that is in
effect at a given time, and just so you can monitor the progress
they are making.
They talk of keeping a 2-year commitment of a funding level and
I think we just should assure ourselves that in that 2-year period,
they do attack the backlog and chop it down.
Mr. ENGLISH. They have assured us that we will receive semi-
annual reports for at least 2 years, so we will, indeed, be monitor-
ing that very closely.
Mr. Kindness?
Mr. KINDNESS. Thank you. No questions, Mr. Chairman.
Thank you very much, Mr. Rowe.
Mr. ENGLISH. Mr. Kleczka?
Mr. KLECZKA. No questions, Mr. Chairman.
Mr. ENGLISH. Mr. Lewis?
Mr. LEWIS. Mr. Chairman, I have one question.
Mr. Rowe, do you believe that there is a responsibility on both
sides of the issue here, both the CIA and the print media, in re-
spect to the safeguard of proprietary information as far as the de-
fense of this country as well as making the determination of what
should and should not be printed even by accident?
Mr. ROWE. I am not quite sure what you mean by proprietary in-
formation, Mr. Lewis.
Mr. LEWIS. Well, you are quoting Justice Black, "Secrecy in gov-
ernment is fundamentally anti-democratic," which I don't totally
agree with, basically, because of his total record on the court.
But at the same time, I believe there is proprietary information
that can be accidentally provided to the print media or any other
media, and I believe there is a responsibility there as well to try to
safeguard that if you are aware of this.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Do you feel that there is a responsibility on the part of the print
media to protect this type of information?
Mr. ROWE. The press is in a very difficult position in these cases.
Many times we would not know of the sensitivity of information if
it has been released by the CIA and inadvertently disclosed as
something they did not want to disclose. We would not necessarily
have knowledge of that.
Mr. LEWIS. Not even if the unknown source told you not to men-
tion their name when they gave you this information?
The reason I bring this statement up, there was an article about
the tragedy of General Bond being killed a few weeks ago and I
read the story which just absolutely tore me apart about where
this reporter almost provided the information from unknown
sources, whether correct or incorrect, and certainly allowed for a
demise, in my judgment, of the intelligence operation that we have
as well as maintaining secrecy. I believe there is a responsibility
there.
I am asking you, do you feel there is a responsibility in that case
or any other case like that?
Mr. ROWE. I am very, very hesitant to say that the press should
involve itself in self-censorship in these cases, Mr. Lewis.
I think for us to make the judgments of how vital intelligence
information might be puts us on the wrong side of the fence. I
think it is up to the CIA, Defense Department, et cetera, to utilize
the very effective procedures they have for protecting information.
Once that information becomes public knowledge, I don't believe it
should be the role of the press to say, "No, we will deny this infor-
mation to the American people."
I recall that some years after the Bay of Pigs episode, President
Kennedy said quite candidly that he wished the press had been
more aggressive in reporting what was going on in the training of
Cuban refugees, that perhaps if they had done so, we would not
have had the debacle at the Bay of Pigs.
Mr. LEWIS. I guess we will just have to disagree on that. It is un-
fortunate that you are telling me basically that there is not a re-
sponsibility here that the information should flow out even though
there may be a question as to whether this information, though au-
thentic, should be made public.
I am very concerned about that, which means that there could
even be stronger privacy acts and there could even be stronger
methods used to subdue this type of information.
Mr. ROWE. I would not contend the press would never fail to pub-
lish information because of their security concerns, but what I am
saying is I think the press should not be in a position of every time
somebody in Government says "I wish you would not print that be-
cause it is very sensitive," even though it got out, I think we are
going to be involved in a censorship situation that will not be
healthy.
Mr. LEWIS. Thank you, Mr. Chairman.
Mr. ENGLISH. I thank the gentleman. I think there is one point
that many times is overlooked. Particularly it is in this case that
the gentleman was citing, and that is that the Freedom of Informa-
tion Act exempts classified information so there is nothing within
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the Freedom of Information Act that allows for the release of clas-
sified information.
Regardless of how tight, how restrictive we write the laws to pro-
tect information, if those individuals who are in the employ of this
Government see fit to leak that information, even though it is in
violation of the law, even though that information is protected by
law, then about the only thing we can do is close the gate after the
horse is gone by trying to prosecute those people. And, of course,
we do have laws that deal with that subject if you can identify and
find those individual persons.
But I think that it is very, very important, particularly as far as
the Freedom of Information Act is concerned, to underscore the
fact that classified information is protected. It is not releasible by
the Freedom of Information Act.
Now, if errors are made, if individuals are going to provide infor-
mation for their own purposes-and goodness knows many times
that it is political-I heard one newsperson in a discussion of this
subject point out that the biggest leak in Washington is in the
White House. That is where classified information gets leaked as
often as any place else, just for political purposes.
There are all sorts of reasons why people will leak information.
There are also those who simply sell it, but those are human fail-
ures.
As I said, we have laws that are directed toward trying to dis-
courage and prevent that type of activity. But to turn around and
blame a law that we have on the books, which is there for the pur-
pose of allowing the public to know about its Government, those
items that are not classified, I think, would be an error.
I think the public is given the perception that the Freedom of
Information Act is the reason that someone leaks information, and
I think that is entirely wrong.
Mr. LEWIS. Mr. Chairman, if I may, I was raising the question
primarily as to the areas of responsibility and I frankly believe
that responsibility is on both sides.
Mr. ENGLISH. Right. I understand that and the gentleman's
point, but I wanted to stress very clearly as far as the act itself,
that it does not provide for any release of classified information.
That is not to say that errors won't be made and I think the gen-
tleman cited one case, for instance, where if information was re-
leased inadvertently by error, it should not have been released.
Of course, the press' problem is, how do you determine whether
this is information that should be released or not unless somebody
calls you up before it is actually printed? But I would hate to see-
and I feel very strongly that I would hate to see-restrictive lan-
guage dealing with the freedom of the public to know what its Gov-
ernment is doing as far as nonclassified items are concerned in re-
sponse to the leaking of classified material. These are two different
items, two different problems.
Any other questions?
I want to thank you very much, Mr. Rowe. I appreciate it and
thank you for your testimony.
Mr. ROWE. Thank you for your time.
Mr. ENGLISH. Next we will have a panel with Mr. Angus Mac-
kenzie with the Freedom of Information Project in San Francisco,
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CA, and Mr. Ralph McGehee, who is representing the Fund for
Open Information and Accountability, Inc., New York, NY.
I want to welcome both of you gentlemen.
Mr. Mackenzie, we will let you start off. As we told our other
witnesses, if you would like to summarize your testimony, without
objection, your full testimony will be made a part of the record,
and that also applies to you as well, Mr. McGehee.
STATEMENT OF ANGUS MACKENZIE, DIRECTOR, FREEDOM OF
INFORMATION PROJECT
Mr. MACKENZIE. I will do that, Mr. Chairman.
Thank you very much for allowing me to come today. I first
would like to explain that I am a freelance reporter. I am the di-
rector of the Freedom of Information Project at the Center for In-
vestigative Reporting in San Francisco. I have covered Government
press relations for Columbia Journalism Review and a number of
other periodicals.
I am also a plaintiff in a suit under the Freedom of Information
Act against the CIA in an attempt to get records relating to some
domestic activities.
Before I begin, I would like to bring a message on behalf of the
Newspaper Guild president, Charles A. Perlik, Jr., who has asked
me to deliver his sentiments to you. The Newspaper Guild is
against this legislation. The Newspaper Guild asks this committee
not to report this legislation to the House. As you know, the News-
paper Guild represents many working reporters on the biggest dai-
lies in the country. I am happy to bring that message to you on
behalf of President Perlik.
By way of introduction, I would like to explain how I got in-
volved in the Freedom of Information Act and perhaps the commit-
tee members then can understand my concerns.
I started out working for the Columbia Journalism Review to
write an article called "Sabotaging the. Dissident Press," about the
Government's program during the Vietnam war to infiltrate and
suppress domestic newspapers that were against that war.
I must say, much to my surprise during that investigation, I
came across CIA domestic activities and in 1979, I filed a Freedom
of Information Act request for files that I had reason to believe the
CIA possessed regarding domestic newspapers.
I am somewhat puzzled to come here today and find everybody
talking about a 2- to 3-year delay in Freedom of Information Act
requests in the CIA, because I asked for that material in 1979 and I
have gotten only 38 documents since I filed suit in 1982. The CIA
and I reached a stipulated agreement in September 1982, and that
agreement was for production of records. The period of the sched-
uled production was up on November 9, 1983, and I have yet to re-
ceive some of the documents that were promised to me.
These documents relate to "Operation Chaos." "Operation
Chaos" was the subject of an investigation by Senator Church's
Committee on Governmental Affairs with respect to intelligence.
So at least according to the good intentions of Mr. Lynch and as
some people might read this bill, I should still have access to those
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
"Operation Chaos" documents under the legislation, as it is now
worded.
The legislation says, "The specific subject matter of investigation
by the intelligence committees to the Congress," would be accessed.
The question I ask the committee, the CIA and I asked Mr. Mayer-
feld is, since the Church committee never examined the records of
CIA infiltration and controlling the local police informants inside
of domestic newspapers, are they specific subject matter? How are
these words defined?
I asked Mr. Mayerfeld when he was at the House Intelligence
Committee hearings, as I was, on this legislation, "Mr. Mayerfeld,
could you tell me which of the files that you have on domestic
newspapers that were not examined by the Church committee
would be exempt under this legislation?"
He said, "Well, Mr. Mackenzie, I will have to do more research
on that."
I think that was an honest answer, but it is a question I would
like the committee to pose to the CIA. Are we still going to be able
to get "Operation Chaos" files that were never looked at before?
We have heard that the CIA has an attitude, quite correctly from
its point of view, that it intends to keep its secrets. If I were the
CIA, I would not want to release those files. The CIA, at least in
practice, has used every means at its disposal to keep that informa-
tion from me and from the American public.
If this legislation is not to be used to cover up that information,
then I think that there should be some specific promises about
"Operation Chaos" that should be included in the report.
Since I am sort of attuned to domestic intelligence operations, I
read this bill perhaps a little differently than some people might.
I should say I have done quite a bit of research into this legisla-
tion. I have determined that the initial draft certainly was written
in close consultation with the CIA. In fact, the following language
is CIA language.
If we look at section 701, section (b)(1) where it defines the term
"operational files," it says, "The files of the Directorate of Oper-
ations which document the conduct of foreign intelligence or coun-
terintelligence operations or intelligence or security liaison ar-
rangements." I submit that wording could be interpreted to mean
that counterintelligence operations are excepted from the review
requirements of the Freedom of Information Act.
I have found that the counterintelligence is the word or the cloak
that the Agency has used to describe its domestic operations be-
cause it says, well, we are always looking for foreign involvement.
"Intelligence" certainly could include domestic operations. It is
well known that the CIA has maintained "security liaison arrange-
ments" with local police departments and has become very inti-
mately involved with local police departments in the past regard-
ing political matters in this country.
I don't believe that it is the intent of this committee or the Con-
gress to exempt records of past or future domestic CIA operations.
If it is not the intent of Congress to exempt domestic operational
files from the search and review requirements of the FOIA, regard-
less of whether the operations happened in the past or might
happen in the future, then I would hope that this wording could be
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
changed so that it is very specific to exempt only operational files
having -to do with intelligence operations on foreign soil.
I would hope that this legislation would not be enacted but if it
is enacted, I think it should be veL y carefully worded so that it
cannot be used to cover up CIA domestic activities.
Counterintelligence activities, as you know, were authorized by
President Reagan December 4, 1981, by Executive Order No. 12333.
According to the White House chief of staff, William Casey, Direc-
tor of Central Intelligence, was involved in political espionage
when he was the President's campaign manager in 1980.
I am saying that whether we have this Director of Central Intel-
ligence or some future Director of Central Intelligence, it is not out
of the question that the CIA will become involved with domestic
political activities in some way or another.
When the CIA was created by the National Security Act, Con-
gress was very careful to insert a prohibition on CIA internal secu-
rity functions. I think that the spirit of that 1947 National Security
Act could be carried forth better into H.R. 5164 if it is enacted.
I would also like to say regarding the section that allows access
to the specific subject matter of an investigation, that in my experi-
ence at least, in trying to obtain documents that I can prove exist
on the underground press in CIA files, that the Agency has used
every means at its disposal to keep those files from me since 1979
and that we could spend the next 2 or 3 years in court arguing
about whether or not this specific subject was a matter of investi-
gation. I would like to see that cleared up.
If I could refer to my notes here for a second, I did research into
what this act might cover up and of course the problem with dis-
cussing this whole piece of legislation is that the files that we are
talking about are secret and, of course, I can't go in and look at
them.
Well, I obtained from Senator Leahy a list that the CIA provided
him of lawsuits that may be affected by this legislation.
Now, I understand that the House bill has a cutoff date that
would allow most of those suits to continue which, of course, I am
in favor of, but especially since I am a plaintiff.
But at the. same time, by looking at the CIA list of lawsuits that
may be affected, we may be able to look at what might be covered
up by this legislation. Because even if those lawsuits are allowed to
continue, those lawsuits will contain information that the Agency
considers this legislation would hide.
Why else would the Agency think the lawsuits would be affected
by this legislation? So what I am saying is in that list of lawsuits
that may be affected are the seeds of discovering indeed what this
legislation from the CIA's point of view really. might cover up.
And I submit to this committee that this legislation could,
indeed, be used to cover up a great deal.
Now, I am prepared to go into some depth about those lawsuits. I
have examined the court filings. I have pulled them from court-
houses around the country. The conclusions of my research are
contained in my prepared remarks for your consideration. I don't
want to take too much time, and I do understand that this particu-
lar bill, as it stands, would allow those lawsuits to continue.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
But suffice it to say that if the CIA under the previous bills says
that my lawsuit seeking files and domestic newspapers would be af-
fected by this bill, then, indeed, whether or not my lawsuit may
continue this bill has the potential for covering up domestic activi-
ties of questionable legality current, future or past.
And I think that it is incumbent on everybody to take a very
close look at that. I don't believe that is the intent of Mr. Lynch or
of this committee and it may not even be the intent of many of the
good officials of the CIA who are opposed themselves to the Agency
becoming involved in domestic activities.
Indeed, the Agency was very careful to keep its domestic oper-
ations and particularly its domestic operations involving dissident
newspapers secret from the rest of the Agency, because there are
many people in the CIA who wouldn't have agreed with those oper-
ations.
And so, when Mr. Mayerfeld and Mr. Strawderman talk about
the problems of breaking down the need to know, I think that they
are right, but I don't think that is always a bad thing from the
point of view of the American public.
Because while we certainly would all agree that there are legiti-
mate secrecy needs of the CIA, we would also agree that any
agency is capable of making mistakes and certainly the CIA has
been proven to be capable of becoming involved in domestic politi-
cal activities. We must ensure that this legislation not be used to
cover those activities up, and I believe that as it now is written, it
could.
And I also believe, the Agency could choose-and I am not saying
they would-but they could choose to take this H.R. 5164 into
court, and use it to fight my lawyers and drag out my attempts to
get at these files for many more years.
I have brought today some of those operational files that have
been released by the CIA that contain only a few words that you
have been told today are meaningless. And I want to show you how
reporters, we with the worn-out shoe leather, use those few words
and how those documents from operational files that have been re-
leased are extremely important to the few reporters who cover the
intelligence community.
For instance, I spoke with Henry Hurt of Reader's Digest, and he
expressed the same . sentiments to me. While the released oper-
ational files contain very little information, it is the only informa-
tion we get, and it is the basis upon which we begin our investiga-
tions.
Now, I will give you a good example: I hope you have copies of
my opposition to defendants' motion for extension of time, Civil
action 82-1676. In the back I have submitted to the court docu-
ments released from the Directorate-of Operations, subject, "LNS
Personnel in WDC." The document says, "Following people from
the LNS, Andy-Marx, 4 May 1971."
[Civil action 82-1676 is reprinted, appendix 2.]
Mr. KLECZKA. Mr. Chairman, could the witness refer to the page
number, please?
Mr. MACKENZIE. I am sorry, but there isn't a page number. It is
in appendix B. I can hold the page up to let people see. I have m7
own notation that says 653 in the bottom corner, but that doesn t
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
have anything to do with the rest of the page numbers in the brief-
ing.
The pages look like this. I can understand why people would say
this is not any useable information. Look at the page. There are
only about 10 words on it. It is perfectly understandable that
people would think this isn't useful, but I find it extremely useful.
As a matter of fact, it is the basis of my investigations into CIA
infiltration of Liberation News Service, and a newspaper here in
Washington, DC, called "The Quicksilver Times."
I was able to figure out where on May 4 that the people from the
Liberation News Service were. The document of April 25 reports
that the editor from Liberation News Service, which is what LNS
means, is in Washington, DC, over the weekend. From these docu-
ments, we were able to tell that the CIA indeed was monitoring the
daily activities of the main newspaper syndicate that was supply-
ing information against the war in Vietnam.
And I submit that is significant information-information
gleaned from these operational files that don't have anything
meaningful in them if you listen to some sources.
I maintain that those operational files are very important to re-
porters even though they don't have much information in them,
and that for this legislation to cut off this source, although it is but
a trickle of information, I will agree, would be most unfortunate.
And certainly these documents prove that there are operational
files that are being released or that have been released which do
contain very important information for an investigative reporter.
Now, they may not have the whole story on one page so that you
could understand it, but this is what we work with, and I believe
this is what would be denied to us.
I have determined from my investigations that the CIA itself
does not know what operational files it has released.
The CIA is now in the process of computerizing its releases and
that is one of the reasons why the Agency has denied that it pos-
sesses records that it has already released.
It has denied to me in court that it possesses records that it has
released to other people. For example, we have a document back
here and again, the pages are not numbered, I am sorry. It says
Project Resistance, appendix E.
Headquarters is interested in the following: "High school Inde-
pendent News Service. This requirement is immediate, and should
continue until cancelled by headquarters."
Now, we have a CIA document requesting information on a high
school independent press service. This file I have been trying to
obtain from the CIA since 1979. Now, if I can't even get this mate-
rial under current law, I submit, is H.R. 5162 going to make it any
easier for me, or is it going to make it harder?
And I see in H.R. 5164 the possibilities for making this informa-
tion harder to obtain. I would be glad to entertain any questions. I
have a few more points that I would like to make which are includ-
ed in my prepared statement. I don't want to take up too much
time, with your permission, Mr. Chairman.
Mr. ENGLISH. Go ahead.
Mr. MACKENZIE. Mr. Lynch said that he had reviewed the docu-
ments that I have referred to and determined that most of them
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
would be releasable under H.R. 5164. I appreciate Mr. Lynch's be-
liefs. I would hope that he is right, but we don't have those assur-
ances from the CIA. I know that Mr. Lynch, for one, believed that
my case requesting documents on the underground press would not
be affected by this legislation, and yet, it showed up on the CIA's
may-be-affected list.
If this legislation wouldn't affect those documents-if those docu-
ments could still come out-why then were those cases on the may-
be-affected list?
Well, there was a meeting between the Senate Intelligence Com-
mittee staffers and the CIA lawyers regarding why those cases
were on the may-be-affected list. Two of the cases I should say are
Center for National Security cases, which the ACLU is involved
with.
If, indeed, the legislation wouldn't cover those up, why were
those cases named on the may-be-affected list? Now, I can't answer
that question for you, but I think it may be a question that your
committee could ask the CIA. I would hope that you would make
the answers public, because in the meeting between the Senate In-
telligence Committee staffers and the CIA lawyers regarding those
cases, the CIA requested that that meeting be kept secret.
I think they are important questions. Thank you, Mr. Chairman.
[The prepared statement of Mr. Mackenzie follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STATEMENT OF ANGUS MACKENZIE BEFORE THE GOVERNMENT INFORMATION,
JUSTICE, AND AGRICULTURE SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT
OPERATIONS MAY 10, 1984 REGARDING H.R. 5164, THE C.I.A. - F.O.I.A.
EXEMPTION. (Room 2203, Rayburn House Office Building)
Mr. Chairman, and members of the committee, it is my
pleasure to appear today, bringing to your attention my research
into the proposed C.I.A. exemption to the Freedom of Information
Act.
By way of introduction, I am Angus Mackenzie, director of
the Freedom of Information Project at the Center for
Investigative Reporting in San Francisco. I am a freelance
reporter; this year my stories have appeared in Jack Anderson's
column in more than 550 newspapers, on the cover of the Society
of Professional Journalists magazine, The Quil 1, which goes to
28,000 scribes, and in the publication of the Newspaper Guild,
called the Guild Reporter, among others.
I gained my expertise in the FOIA by banging my head against
agency reluctance to supply documents that I know exist.
Specifically, in 1979 while on assignment for the Columbia
Journalism Review, themost prominent publication of its kind,
I requested that the Central Intelligence Agency release files it
accumulated during its campaign against the dissident U.S. press.
As you know, the agency is prohibited from internal -security
functions by the 1947 National Security Act, and because the
exemptions to the FOIA enacted by Congress are NOT supposed to be
used to cover up illegal activities, I expected the CIA to
release them.
With permission of the chairman, I wish to submit for the
record of this hearing several of my articles describing the
efforts of the CIA to keep those records from me. Suffice it to
say that one of the goals of this legislation is to keep from me,
and from the American public, information on how the CIA led the
U.S. intelligence community on a war against domestic newspapers
that were opposed to the Vietnam conflict.
The CIA infiltrated newspapers like the Quicksilver Times of
Washington, D.C., and kept control of police informants through
double-blind arrangements so local informants in such places as
Lubbock, Texas, did not know that the information they were
giving local police regarding the publication of mimeographed
sheets against the war was really going to the Central
Intelligence Agency.
At the time my article, "Sabotaging the Dissident Press,"
was published by the Columbia Journalism Review in March, 1981,
not one document had been released to me under the FOIA by the
CIA. I am still trying to obtain CIA documents regarding that
campaign.
The first obstacle the agency threw in my path was a large
fee for the search of its records. The agency wanted a down
payment of $30,000 and a promise to pay a total of $61,501 for
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the search, in return for which the agency said it might find no
documents releaseable. On the same day that my article was being
picked up by the Associated Press, both in newspapers and radio
stations nationwide, the agency stated that my work would not
benefit the general public and so no fee waiver would be granted
in this case.
With pro bono counsel provided by Steptoe and Johnson,
obtained for me by the Reporters Committee for Freedom of the
Press, I filed suit against the CIA June 14, 1982, and that case
is still very much before the courts. Judge Pratt in this
district has ordered the CIA to finish processing records on
Ramparts magazine by May 15. However, from what we have seen so
far it is clear that the agency is severely censoring most of the
documents I have requested. In other instances, the agency has
not admitted to possessing records which I can prove to this
committee exist. In other instances, the agency has released
records to others, but not to me, showing in my opinion some
degree of arbitrariness. To the agency's credit, it forgot all
about the $61,501 fee very soon after I stepped into federal
court with my complaint. The agency granted me a fee waiver in
that case, but not in most of my other pending FOIA requests.
So that gives a brief explanation of how I come to be here
today, and why I have gained some expertise with the FOIA, and
how it applies to the CIA.
I oppose H.R 5164. I bring from The Newspaper Guild
President, Charles A. Perlik, Jr., who regrets that he cannot be
here today, a message for the corimmittee. The Newspaper Guild is
against this legislation, and asks you not to report it to the
Hou se.
This legislation has sailed through the Senate, and through
one House committee, without even one public discussion of what
this bill would cover up. Indeed, we have heard that this bill
would hide nothing. The CIA says that. The ACLU says that. But
I don't say that. I bring to you today research to show exactly
what the agency intends this bill to hide, including some very
eribarassing CIA activities, like those actions against the
dissident U.S. -press.
I will also raise some political questions concerning
whether or not Congress at this point really thinks it wise to
grant to the Director of Central Intelligence sweeping new powers
to keep secrets when he has been roundly blasted for keeping
information from Congress regarding the mining of Nicaraguan
ports. But first, allow me to examine with you the precise
wording of the legislation before us -- wording that my research
indicates was drafted by the CIA.
What does H.R. 5164 really say, and why? It says that
operational files of the CIA may be exempted by the Director of
Central Intelligence from the provisions of the FOIA.
Then, Sec. 710 (b) defines "operational files." That term
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
means "(1) files of the Directorate of operations which document
the conduct of foreign intelligence OR intelligence OR security
liaison arrangements OR information exchanges with foreign
governments or their intelligence or security services."
Now I have capitalized the ORs here. Because what this bill
as now written says is that intelligence activities of the CIA as
recorded in DO are exempt from disclosure. The committee should
understand that this amounts to an exemption from the search and
release requirements of the FOIA for CIA domestic operations
which were prohibited and still are prohibited by the 1947
National Security Act. This is because since 1967, CIA domestic
operations have been run in part by the Directorate of
Operations, and so files on any future domestic intelligence
operations in the Directorate of Operations would be hidden by
this legislation. I do not believe that it is Congress's intent
to with this bill allow the CIA to cover up domestic operations
of questionable legality. Yet that is exactly what this
legislation will do, if passed.
Further, the bill as now written will allow the CIA to hide
from the search and release requirements of the FOIA its liaison
arrangements with local U.S. police departments. Again, the 1947
National Security Act prohibits CIA police functions, and we know
that at least from 1967 onward the agency has worked very
closely with local police, including running local police
informants who were inside dissident publications. Now, as
written,the proposal would allow the agency to hide
documentation of any such continuing relationships of
questionable legality with local police departments.
Likewise, the bill would allow the CIA to cover up its past
and any future domestic operations by calling those operations
"counterintelligence." This bill provides that
counterintelligence files no longer have to be searched and
released. Fine. Counterintelligence is the word the agency used
to describe its entire program against the civil rights movement,
the antiwar movement, and the so-called underground press. In
other words, by approving this language, the Congress will be
providing statutory permission for the CIA to cover up its
domestic operations, which many fine people in the CIA agree are
illegal. And that point, I am afraid, has not been raised in
previous hearings on this proposal.
As I have said, I am opposed to this legislation, largely
for the above reasons. If you are going to approve this measure,
I would strongly hope that this committee would change the
language of the measure, removing the ORS so that just foreign
counterintelligence operations on foreign soil be exempted, and
that only foreign security liaision arrangements be exempted.
The least that could be done is not make -this bill a coverup for
domestic activities of questionable legality. I need not remind
the committee that on December 4, 1981, President Reagan
authorized CIA domestic counterintelligence activities again, and
that the Director of Central Intelligence has been implicated by
the White House chief of staff in domestic political espionage.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
84
So the question of CIA domestic political activities is not
exactly a thing of the past, necessarily.
Section 710 c) (3) presents another problem. It says that I
will be able to request records when those documents have been
"the specific subject matter of an investigation by the
intelligence committees of the congress, etc."
Well, now, my request for CIA records of operation CHAOS
which targeted the underground press, comes under this section.
Indeed, because CHAOS was the subject of an investigation by Sen.
Church?s committee on Government Operations with respect to
intelligence activities, it might seem that those records would
be accessible to me. But no. The Church committee did not
SPECIFICALLY inspect the agency's files on the underground press,
and this proposal would allow the CIA to therefore deny my
request. Provisions such as this provide the CIA with loopholes
which render the FOIA virtually useless.
At the House Intelligence Committee hearings on this
legislation I specifically asked Mr. Mayerfeld what files on the
dissident U.S. press might be available under FOIA should this
legislation be enacted -- given that Sen. Church?s committee
overlooked them. Mr. Mayerfeld said that he'd have to do more
research into that question. The agency has used every legal and
less-than-legal trick in the book to keep those files from me,
and Mr. Mayerfeld's non-answer means that this section of the
proposal would be used in court to deny my access to those
files that now are almost 15 years old. At any rate, we might be
tied up in court for the next five years figuring out whether
that language means those files are exempt. The CIA has more
money to pay lawyers than any newspaper in the nation, and any
proposed legislation that would delay the release of information
while what the meaning of the language is hashed out in court,
accordingly serves the agency's intent.
So, to conclude this section of my testimony, I hope that I
have begun to show that while the agency says this proposal would
cover up nothing, that this is far from the case. The proposed
law would in reality cover up much that is embarrassing to the
agency.
Whether or not the proposed law is a coverup is a hard
question to answer. First, C.I.A. files are secret. So no one
outside the agency knows much about operational files. Second,
the F.O.I.A. is so technical, especially in regards to the
C.I.A., that only a handful of experts understand the bills.
However, this investigation has discovered that C.I.A.
officials intend the proposed law to cover up some of its most
embarassing illegal operations -- and some of its blunders.
Worse, C.I.A. officials at a hearing on the proposal at the
Capitol February 8 asked the House Intelligence Committee to
remove one of the only checks on the agency's power -- judicial
review of its files as provided for in the F.O.I.A.
F.O.I.A. requesters who are refused documents may file civil
suit in federal court for the release of information. Judges may
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
then summon the requested papers to their chambers, read them,
and decide whether the agency's withholding decision was correct.
So far the C.I.A. has not lost a single case on appeal.
Nevertheless, it unnerves intelligence officials to have judges
inspect their files.
In addition, C.I.A. officers dislike judicial review because
the possibility of inspection prompts the agency to disclose
information that it might otherwise withhold.
After F.O.I.A. suits are filed, officials release
information to head off the possibility that a judge might
reverse the agency's decision to withhold documents.
One section of the bill passed by the Senate may
retroactively remove judicial review by permitting the dismissal
of pending cases that now seek C.I.A. operational files. Last
year Senator Patrick J. Leahy, Democrat from Vermont, asked the
C.I.A. to specify which lawsuits the proposed law might dismiss
of the sixty-odd pending against it. The C.I.A. responded on
September 22 with a list of 12 that it said "may be affected."
This investigation has centered on that unpublished list and has
pulled the complete filings out of courthouses from around the
nation -- a task not performed by either of the congresssional
intelligence committees which approved this legislation.
This C.I.A. list of suits that this legislation may affect
essentially remains the only indiction of agency intent in a
debate stymied by the cloak over the files in question. Here,
then, are the suits the agency says might be dismissed by the
proposed law, giving some indication of the type of information
the agency wishes to hide under this proposed law.
* Ann Arbor, Michigan -- Glen L. Roberts owns a computer
software company. He publishes a newsletter that describes
itself as "a fresh outlook on government arrogance." He
requested C.I.A. files on David S. Dodge, formerly the acting
American University president in Beirut who was kidnapped there
July 19, 1982, and released July 21, 1983.
The C.I.A. failed to produced its records. Roberts sued. On
September 28', 1983, U.S. District Court Judge Charles W. Joiner
ordered the C.I.A. to produce information by January 26, 1984.
One day prior to that deadline, the agency express mailed Roberts
five Directorate of Operations documents which indicated
inconclusively that the agency did not have much direct knowledge
of the Dodge affair. The papers were heavily censored.
Roberts is now seeking more of the withheld Dodge documents.
His lawsuit remains on the C.I.A.?s "may be affected" list
apparently because the information he wants is held by the
agency's Directorate of Operations, which is one of the
departments of the agency to be exempt from disclosure under the
proposed law.
* Washington, D.C. -- On August 6, 1982, Monica Andres,
formerly the librarian for the American Civil Liberties Union's
Center for National Security Studies, requested C.I.A. documents
regarding agency involvement in the El Salvador elections of
March, 1982. The C.I.A. failed to produce and the Center sued on
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
October 5, 1982. In response, the agency released some
information.
One memorandum of January 22, 1982, two months before the
election, appears to describe what the agency proposed to assist
the balloting. Subpoint A in that memo details the intended use
of "indelible ink" to identify those who might try to vote more
than once, and the need for 8,000 lights to illuminate the
identifying ink on voters' hands. Other subpoints were deleted.
One expert on Central America, Robert Armstrong, says, "On
the basis of those documents, we can say the C.I.A. was involved
in the El Salvador elections in areas other than had previously
been admitted by the Director of Central Intelligence. If we get
the rest of those documents, we could see what that role was."
A C.I.A. affidavit filed with the court says the release of
more information "would reasonably be expected to increase
tensions between the U.S. and the country at issue."
* Washington,D.C. -- The C.I.A. responded to another Center
for National Security Studies suit by releasing reports from
C.I.A. infiltrators inside the Students for a Democratic Society
(the defunct radical group), the Vietnam Veterans Against the
War, radical U.S.'bookstores and newspapers, and the Los Angeles
antiwar convention at the University of California July 21 and
22, 1972. The agency also released an informant report on
Pacific News Service, the San Francisco-based syndicate. Those
domestic operational files are of particular interest because the
agency is prohibited from "internal-security functions" by the
1947 National Security Act.
The C.I.A. included this lawsuit in its "may be affected"
list, perhaps because, as CNSS attorney Graeme W. Bush says,
"We've gotten a whole lot of documents from the operational
files. Although some say the files are worthless, the Center has
found useful stuff in them."
Washington, D.C. -- J. Gary Shaw of Cleburne, Texas, is
investigating with a coalition of researchers the President John
F. Kennedy assassination. So he requested C.I.A. files on
suspects including right-wing French terrorists in Dallas that
fateful day who hated Kennedy. The C.I.A. refused Shaw's 300
requests for information, so he sued the agency 32 times. Since
those lawsuits began, the agency has released to Shaw four linear
feet of files, his attorney says.
Shaw's suits have been consolidated, and now six of them
constitute half of the 12 on the "may be affected" list, making
the Kennedy-related information the single biggest pile of paper
the agency has said it wants to hide under the proposed law.
One source who attended a secret meeting to discuss the list
between representatives of a congressional committee and C.I.A.
attorneys says the Kennedy-related requests are indeed for
operational files and so clearly would be dismissed by the
Senate's version of the legislation.
Reader's Digest writer Henry Hurt says the Kennedy C.I.A.
files are "essential" and he is incorporating those released to
Shaw in his forthcoming book on the tragedy. Shaw says the
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
nuggets of information contained in the files already released to
Shaw contradict C.I.A. claims that any operational files that
have been released contain little useful information.
Says Hurt, "There's no one left at the C.I.A. who
understands the relevance of those files. If they DO think
there's anything useful in them, they WON'T release it. It is my
job to make sense out of those thousands of pages. Each nugget I
discover contributes to the larger picture. It is chil ling to
think of having those files cut off by this legislation."
* New York City -- Digest writer Hurt wrote a book on Dr.
Nicholas George Shadrin, who had commanded a Russian navy
destroyer before he defected to the U.S. in 1959. On December 20,
1975, something went wrong. Shadrin disappeared from Vienna,
Austria and is presumed dead.
Hurt and others have accused the C.I.A. of mishandling
Shadrin, of twisting his arm to become a double agent, a role
that ended with his disappearance. Tad Szulc in New York
magazine roasted the agency for using Shadrin as "bait for the
Russians."
To clarify matters, on July 9, 1979, Reader's Digest
requested Shadrin's C.I.A. file. The C.I.A. refused. On
September 11, 1979, the Digest sued. In court, C.I.A. officials
said 50,000 pages of information were involved -- a document
count that later ran the agency into trouble with the judge.
Intelligence officials also said, "The Shadrin case is of such
sensitivity that the disclosure of even fragementary
details... could jeopardize the lives of our sources."
Nevertheless, under the gun of judicial review, the agency
between January and May, 1980, released 61 Shadrin documents.
U.S. District Court Judge Robert J. Ward was convinced by the
C.I.A. that "this information should not be revealed," and he
prepared to dismiss the case.
The C.I.A. then changed its document count from 50,000 to
205,000 and displayed other inconsistancies so gross that the
judge reversed his inclination to dismiss the case and
complained, "The court has been lead on a merry chase." The judge
asked the U.S. attorney if pending legislation might affect the
case, on which the judge was spending, so much time. The U.S.
attorney indicated no such legislation was pending. However,
unknown to the judge, legislation that might affect the case had
been introduced to Congress three years earlier in 1979, and was
high on the C.I.A.?s list of congressional priorities.
The judge ordered the Shadrin file brought from C.I.A.
headquarters into his chambers for his inspection because he
could no longer believe the C.I.A. Ten months later, on April
22, 1983, the C.I.A. had yet to deliver the papers to the judge.
"The old government game is at work, that if we delay long
enough, they will go away," complained the judge. Finally, only
5,000 pages were brought to his chambers. His decision is
pending on whether to make that information public.
* Washington, D.C. -- The C.I.A. list of suits that may be
affected includes one that seeks information on behalf of this
correspondent regarding the agency's targeting of dissident U.S.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
per'-odica1s, expose': in "Sal:otagir.g the Dss?dent Press,"
Columbia Journalism Review, March/April, 1981. C.I.A.
congressional liaision Ernest Mayerfeld refused to specify to
this repoztex which of its files on U.S. publications the agency
would seek to hide with this proposed law. To answer that, he
said, would require further research. This suit seeks withheld
documents on the New York-based radical Guardian, the defunct
Washington, D.C., Quicksilver Times, which was infiltrated by
C.I.A. agent Salvatore John Ferrera, and Ramparts magazine.
The C.I.A. claims the proposed law would cover up nothing.
But really the measure would allow the agency to hide some of the
most controversial information in its possession. Even if
pending lawsuits were allowed to continue, as provided for in the
House bill, the proposal would give the C.I.A. more ammo in court
with which to fight future releases of information. Indeed, the
court battles under the proposed law would be so expensive and
lengthy that attempts to obtain information by F.O.I.A. lawsuit
might be beyond the resources of journalists. The agency, never
a friend of free information, always leaning naturally toward
secrecy, will certainly use this proposed law to keep its
operations secret.
Reporters need access to government documents to inform the
public. To allow Mr. William Casey to designate which of his
agency's documents will be kept from the public is a conflict of
interest not allowed other agency chiefs. And when that CIA head
himself was, as the President's campaign manager, involved in
domestic political espionage, as exposed by Debategate scandals,
the broadening of his already-considerable power to keep secrets
seems a dubious proposition, especially when he is under fire for
illegally withholding information from Congress regarding the
mining of Nicaraguan ports. Instead, Congress might better
safeguard open government by strengthening, not weakening, the
power of the judiciary to inspect and order the release of
information concerning the activities of all government agencies,
especially the CIA, whose covert operations here and abroad
continue to be so controversial.
And finally I would like to answer one question -- why, when
the Department of Defense, like the CIA, holds much classified
data, does the DOD so promptly respond to FOIA requests, while
the CIA maintains such a large backlog? The answer was given to
me by an old State Department and CIA hand, who attended the
House Intelligence Committee hearing on this legislation. He said
that the DOD has always kept on eye on public opinion, and has
had to lobby hard and publicly for its appropriations. So when
the public asks DOD for something under the FOIA, DOD responds as
the laws says it must. But, pointed out this observer, the CIA
has never had to worry as much about public opinion, nor about
the public debate over its appropriations. That for me explained
the mystery of why the CIA drags its feet on the FOIA when DOD,
also full of secrets, makes an effort to comply with the time
limits of the FOIA. What the CIA needs is not this legislation
to clear up its paperwork, but rather instructions from Congress
that it must now comply with the FOIA.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STATEMENT OF RALPH McGEHEE, REPRESENTING THE FUND
FOR OPEN INFORMATION AND ACCOUNTABILITY, INC.
Mr. McGEHEE. I appreciate the opportunity, Mr. Chairman, to
appear before the Government Operations Committee to express
the concerns of the Fund for Open Information and Accountability,
Inc.
I should introduce myself. I am a retired CIA officer who, during
my career, was awarded numerous medals. I had a commendation
from the Director of the CIA for developing an operation to report
information on a communist insurgency and to defeat a communist
insurgency. I received a commendation and a cash award, and
upon retirement in 1977 I was awarded its prestigious Career Intel-
ligence Medal.
During my term with the CIA, I unfortunately had a lot of time
working in the files. At one point, I was Deputy Chief of one of its
major file holdings; and at another period I supervised the review
of a massive number of files that we were looking at for the possi-
bility of destroying documents. We completed the review within a
matter of months. I had approximately 10 people under my super-
vision, and we didn't have to dislocate our normal activities to com-
plete this review. It is not that difficult of a task. If there is a good-
will effort to declassify documents, it is not that difficult to do. It
can be done.
H.R. 5164 would remove from the FOIA those documents that
deal primarily with liaison operations. The Church committee re-
ported in its final report that the vast majority of the CIA oper-
ations are liaison operations. I estimate, that some 80 to 90 percent
of the DDO's files would be exempt from FOIA legislation based on
this proposed legislation.
I might mention my own case in trying to get information out of
the CIA. Several years ago, I asked for my personnel file, one of
the most easily releaseable documents, because it is all in cryp-
tonym and psuedonym. And I have read the documents many
times. I know what they say. I requested this file over 2 years ago
and have not yet received it.
I have requested documents that have already been released
under FOIA to CBS's lawyers and Westmoreland's lawyers relating
to the Vietnam war. This has been a primary concern of mine, and
the Agency said, "We don't have a record of those documents. We
will pull them together."
So they finally pulled them together. "We don't have a room for
you to review them in," so I still am not able to look at them. So
finally, they did have a room, they did have the documents pulled
together, and I said, "All right, I would like to look at them now."
They said, "We will have to refer the matter to the Justice Depart-
ment. We don't know if the lawyers for CBS or Westmoreland will
allow you access to those documents."
The Washington Post had a stack several feet high of these docu-
ments, and if I had press credentials I could go to the Washington
Post library and look at these documents. But they are being
denied to me under the FOIA Act.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
My own experience with clearing my book with the CIA I think
is informative as to how the Agency goes about obeying the law. I
wrote a book about my experiences and I submitted it to the CIA,
as required by the secrecy agreement, and in writing the book I
didn't attempt to expose any secrets; I just wanted to say, "Here
are problems within the CIA."
The Agency found 400 security violations in that manuscript, and
I, over a period of more than a month, went through those viola-
tions one by one and pointed out that they had released that same
information for other authors, or it had been released under FOIA
and it was just a tactic to prevent me from publishing my book.
Ultimately, when I went down these violations one by one, they fi-
. nally said, "OK, you can shop around with this manuscript," which
I did, and I found a publisher. The publisher said, "Fine, you have
to put the manuscript in autobiographical format," which I did.
And I resubmitted the manuscript to the CIA. It didn't have any
other details in it that weren't in the initial manuscript.
At this point, with Casey now the CIA Director, the Agency virtu-
ally told me that they were not going to allow me to publish my
book. I said, "Well, you cannot stop me from doing it, because you
may not reclassify information as the rules that you operate under
say right now." And their response to me, in essence, was, "That's
tough; we are going to do it anyhow."
It was only by going to the media, the Washington Post, who
then wrote an article exposing what the CIA was doing to violate
the law, that I was finally allowed to publish my manuscript.
I might mention the case of Admiral Turner, who is not a favor-
ite of the CIA. He also tried to write a book. The CIA caused him
numerous problems. They weren't going to let him release the in-
formation, and this was bragged about in staff meetings-"We are
really sticking it to Turner."
The point of my comments here is that there is no good faith in
the CIA, from my own experiences and the experiences of many
others. They are determined to keep the information in-house and
not let it out, whether it is classified or not.
I might mention, as far as classifying information, I wrote a
study on communist procedures in Asia drawn exclusively from the
writings of communist authors such as Ho Chi Minh, Mao Tse
Tung, Vo Nguyen Giap and other authors-exclusively on these au-
thors. The agency would not allow me, to publish that document
without classifying it. I did not want to classify it because I wanted
to talk about it later when I got out of the Agency, but they.would
not let me publish that information without classifying it.
I would mention that 80 or 90 percent of the Agency's informa-
tion would be included under these exclusions in the proposed leg-
islation, but that doesn't include the unilateral assets that also
work in liaison operations. So you might have an expansion of that
percentage if you looked at it in that perspective, as the CIA most
certainly will do.
Details of virtually all of its operations in Vietnam and now be-
cause of liaison in Central America-details of those operations
would be exempt from the provisions of FOIA under this home
rule.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
A CIA representative testified that 25 people worked full time on
FOIA, and there were 8 to 10 case officers, and Congressman Kind-
ness was trying to get this pinned down. Many of my retired associ-
ates have been rehired at reduced pay to process this sort of infor-
mation. It is an operation that is conducted basically by some of us
old retired war horses, not by persons in critical decisionmaking po-
sitions as the CIA alleges. They haven't called on me to serve, but I
can understand that.
I would like to go a little bit into the CIA's testimony very brief-
ly. On the first page, "As an intelligence agency, our record sys-
tems must be responsive to both the function of CIA as well as the
security needs of the agency. Therefore, rather than having one
overall filing system with one central index, the CIA has numerous
self-contained filing systems." This, they do have, but they also
have in the Directorate of Operations a centralized file system that
most of these systems contribute to, and most of the information is
in this centralized file system.
The information is-it was my own experience in supervising file
traces-people from the DDO can go into the central record system
and get the files from any other component within the DDO. There
are some restrictions, but basically if you want a 201 file-a file on
one person-or an operational report, you can get it through the file
trace system.
I might also add that I submitted a recommendation that result-
ed in the file systems of all of the directorates having some connec-
tions between them. I can't get into details but the CIA's statement
that there are just scattered file systems is not very accurate.
If the CIA, each time it processed a document, would Xerox the
document, record on a computer the document's identifying letters
and numbers, include a list of subjects covered in the document,
then each time that document or these subjects came up for
review-all that need to be done is to re-Xerox the already proc-
essed document-within a matter of 6 months to 1 year, using this
procedure, virtually all of its past documents would be processed
and ready for immediate release. Devising a system for complying
with FOIA is easy, devising a method of forcing the CIA to comply
with the law is difficult.
There are other points I could make, but I think I have made the
basic points; and rather than use of the time of this committee, I
would like to thank you very much for this opportunity to express
my concerns.
[The prepared statement of Mr. McGehee follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STATEMENT OF RALPH W. MCGEHEE
AUTHOR OF
DEADLY DECEITS MY 25 YEARS IN THE CIA
AND A REPRESENTATIVE OF THE FUND FOR OPEN
INFORMATION AND ACCOUNTABILITY, INC.
BEFORE
THE GOVERNMENT OPERATIONS COMMITTEE OF THE HOUSE OF REPRESENTATIVES
ON
PROPOSED LEGISLATION TO REMOVE CERTAIN CIA FILES FROM TILE REQUIREMENTS
THE FREEDOM OF INFORMATION ACT.
I APPRECIATE THE OPPORTUNITY TO APPEAR BEFORE THE GOVERNMENT
01'ERA'J'IONS COMMI'TTNE TO EXPO EEC '1'111 CONCERNS OF TIIE FUNI) FOR OPEN
INFORMATION AND ACCOUNTABILITY, INC. RE THE PROPOSED LEGISLATION.
I AM A RETIRED CIA OFFICER WHO EARNED NUMEROUS AWARDS AND MEDALS
[NC1,UDING Till-; CIA'S PRESTIGIOUS CAREER INTELLIGENCE MEDAL. WHILE IN
THE' CIA I HAD EXTENSIVE EXPERIENCE IN DOCUMENT MANAGEMENT AND I'I11E
SYSTEM MANAGEMENT IN 'T'HE DIRECTORATE OF OPERATIONS. I AM ALSO
KNOWLEDGEABLE ABOUT '1'111; FILE SYSTEMS OP TILE DIRECTORATE OF SUP1'ONl'
AND TIN; DIRI;CTOGA'1'h; OF SCIENCE AND TECHNOLOGY. ONE OF MY SUGGESTIONS
RESULTED IN A MAJOR CHANGE IN THE PROCESSES FOLLOWED IN THE VARIOUS
DIRECTORATE ~IIF SYSTEMS.
I AT ONE TIME SUPERVISED A VAST FILE REVIEW COVERING A PERIOD
OF SOME MONTHS. MY EXPERIENCE DISPROVES CIA CLAIMS THAT IT CANNOT
ADIi;QUA'11IdLY 11ANDLE F01/I REQUESTS. SUCH CAN BE ACCOMPLLSIIED QUICKLY
TF THERE TU T111-; 1N'I'EN'1' TO COMPLY WITH THN REQUIREMI:NTS OF I'IIN FV1A ACT.
TI]N CIA HAS ONE OF 1'Ill.; WORST RECORDS I N RESPONDING TO I''OTA REQUESTS
NO] DUI? TO `(f1I? DIFFICULTY OF THE TASK BUT BECAUSE OF ITS DELIBERATE
DELAYS.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
THE PROPOSED LEGISLATION EXEMPTS FROM THE PROVISIONS OF
FOIA THE FILES OF THE DIRECTORATE OF OPERATIONS WHICH DOCUMENT
THE CONDUCT OF FOREIGN INTELLIGENCE OR COUNTERINTELLIGENCE
OPERATIONS OR INTELLIGENCE. OR SECURITY LIAISON ARRANGEMENTS OR
INFORMATION EXCHANGES WITH FOREIGN GOVERNMENTS OR THEIR INTELLIGENCE
SERVICES. AS NOTED IN THE U.S. SENATE'S CHURCH COMMITTE INVESTIGATION
OF TILE CIA, LIAISON OPERATIONS ARE A VAST MAJORITY OF ITS TOTAL
OPERATIONS. A ROUGH ESTIMATE INDICATES THAT SOME 80 TO 90 PERCENT
OF ITS FILES WOULD FALL INTO THE LIAISON CATEGORY AND TIIEREFORL
WOULD BE EXEMPT FROM L''OIA PROVISIONS.
IN THE 1960'S AND EARLY 1970'S THE CIA CONDUCTED AN ILLEGAL,
OPERATION CALLED MHC(IAO:;. M1ICI!AOS ASSETS MONITORED VIA LIAISON
WITH FOREIGN SECURITY AND INTELLIGENCE SHRVLCES C,()CALLY AND
1N'1'ERNA'1'LONALL,Y-13ASE1) DOMESTIC DISSIDENTS. THE CIA 13l!RGIJIRTRE;D
THEIR HOTEL ROOMS, THEIR HOME;:; AND I3UGGED TOOII CONVERSATIONS.
VIA SUCH LIAISON ACTIVT'.l'Y MIICHAO; COMPILED F11,LS ON ON II '1'IIOU,;AND
DOMI?STIC OROANI%A'I'TONI; AND TNDP;XND TNT? NAMES OF !!UNDRb;I)0 OE' 'I'IIOU;;AND;;
OF AMERICANS. INFORMATION ABOUT SUCH ILLEGAL, OPERA'T'IONS WOULD DN
Di?NTP;D FOTA REQUT TS UNDER THE PROVISIONS OF Till; PROPOSED 15N(IrSLA'L'ION.
Till,; DIRECTORATE OF OPERATIONS UNILATERALLY AND IN LIAISON WITH
OTIIE;R SECURI`.PY SERVI'.CES SPONSOREDTIF1 WRITING OF MORE TITAN A 'I'IIOU:;ANF)
BOOKS. LT PLANTED INI"LRMATION TN TIP; U.S. MEDIA VIA FOREIGN ASSETS.
IT 1;l111VER9'i~;1) ANT) USEID, E'I!EQUHNTLY VIA I,IATSON OPE:RAT!ON:y I:I;LI(110110,
LABOR, VERTERAN, YOUTH, LTD DENT, TLACIII R AND BUSINESS THOU PS.
ALL OF `PHIS INFORMATION WOILLD BE EXEMPT FROM THE PROVISIONS Of, FOIA.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
THE DIRECTORATE OF OPERATIONS, IN LIAISON WITH FOREIGN SECURITY
SERVICES, ATTEMPTED TO ASSASSINATE FOREIGN LEADERS. IN THE LAST
FEW YEARS THE DDO HAS,IN LIAISON WITH FOREIGN SECURITY SERVICES,
PLANTED A "COMMUNIST" ;WEAPONS S11I1'MEIN'I' AND FOIGED DOCUMENTS TO
DECEIVE THE AMERICAN PEOPLE AND CONGRESS TO GET THEM TO SUPPORT
ITS COVERT ACTION GOALS;. TILES!; AND UNDUUBTABLY NUMEROUS OTHER
SUCH INCIDENTS OCCUR WITHOUT THE KNOWLEDGE OF CONGRESS OR THE
AMERICAN PEOPLE AND DETAILS OF SUCH WOULD BE DENIED FOIA QUERIES
UNDER THE PROPOSED LEGISLATION.
THE PROPOSED LEGISLATION WOULD LXEMP'1 FROM FOIA REVIEW FILES
OF THE DIRECTORATE FOR SCIENCE AND TECHNOLOGY WHICH DOCUMENT THE
MEANS HY WHICH FOREIGN INTELLIGENCE OR COUN'1'E1tIN'1'E;LI,IGI?NCE IS COLLECTED
THROUGH SCIENTIFIC AND TECHNICAL SYSTEMS.
IN THE I'AL"T THE 01 IIEUTORAWI': FOR SCI,ENCK AND '1'ECIINUI,OCY TESTED,
UN UNNIT'TING SUBJECTS, A VARIETY OF DRUGS AND MIND ALTERING TECHNIQUES.
ONE U.S. ARMY CU!ONEL COMMITTED SUICIOK AFTER BEING TO SUGII
TESTING. THE DDS&T HAS ALSO EXPERIMENTED IN TILE EFFECTS OF RADIATION,
E1.EC'1'RIC SHUCK, 1'SYCIIOLOGICAL, SOCIOLOGICAL AND HARASSMENT 'PECIINIQUE:;.
DETAILS OF '1'l1ESE ILLEGAL AND DANGEROUS OPERATIONS WOULD B{ DENIIKD
1'I1K PUBLIC (INDE11 THE PROPOSED LEGISLATION.
THE PROPOSED LEGISLATION WOULD EXEMI-TTHE FILES OF '1'1HE OFFICE
OF SEOURL'I'Y WHICH DUCUPIEINT LNVES1'IGATIONS CONDUCTED TO DINTERMINN
1'11K SU1.TAOLLVPY OF 11O'TENTIAL, FOREIGN OR COUNTER1N'iELLIGENCE; SUURCES.
IN THE PAST THE OFFICE UI SECURITy HAS MASSIVELY VIOLA'TIED
U.S.LAW USING SUCH JUSTIFI OITIONS. .._... .
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
OSTENSI131,Y LOOKING FOR FOREIGN AND DOMESTIC DISSILHNCE TIlE OS
VIA OPERATION MERRIMAC INFILTRATED MORE THAN 10 ORGANIZATIONS
INCLUDING 79114 WA1;IIINGTON ETHICAL SOCIETY, 'I'llE WAR RESISTERS LIEAGU0,
THE CONGRESS FOR RACIAL EQUALITY, THE WOMENS STRIKE FOR PEACE, THE
HUMANIST SOC:11;'l'Y AND THE URBAN 1 EAGU0.
ANOTHER OS PROJECT, RESISTANCE, WAS OSTENSIBLY DESIGNED TO
PROTECT AGENCY RECRUITER:; ON COLLEGE CAMI'USEEES BUT SOON EXPANDED INTO
A MAJOR INTELLIGENCE EXCHANGE OPERATION WITH DOMESTIC AND FOREIGN
POLICE SERVICES. IN ADD1'1'.ION TIP; US SURVN1I,LED NUMEROUS INDIVIDUALS,
USED 32 WIRETAPSi, BUGGED 32 INSTALLATIONS AND BROKE INTO. 12
ESTAHLISI IML;NTS.
THE FILES OF THE OS AS OF MLD 1975 CONTAINED OVER 900,000 FILES
ANL 950,000 CARD 1.NDEXP;1; ON O'1'IIER LNDIVLDUA1,S. NIX OS HAD SECURITY
FILES ON 75 SITTING MEMBERS OF CONGRESS. VIRTUALLY ALL OF THIS
I.NFORMA`1'ION WOULD BE REMOVI;D FROM THE PROVISION; OF TOE FUTA ACT
UNDER THE PROPOSED LEGISLATION.
'IN TIIIS CURRENT ERA OW I'OIJPLTCAI. IN'1'0I,ERANCE WHEN III I: ADMINJ.SI'RA'17UN
HAS; REWRITTEN THE CI,ASSI:FICAT:I:ON SYSTEM '10 ASSURE MORE INFORMATION
1:; CLA;;SLP1EI), IIA11 RP;D'I'RLC't'ED TIE FLOW OY' FILMS.LNTO AND OUT U1''
TILE COUNTRY, HAS ATTEMPTED -- BUT WAS FOILED BY CONGRESSIONAL ACTION TO 1;UI)JEC'I' CUVEONMEN'I' 0111 CI ALL TO LIFETIME CENSORSIIIP, IIAS; THREATENED
UNIVElHi1.'P1.111; CONCERNING '1'IIL;1R RIGHT TO 1'U13L1S11 AND DISCUSS UNCLASS.IVIED
INFORMA'T'ION AND NOW A'I"CAGK L THE; EUTA IN 'I'IIJ.S AND l UTURE LI,;G1SLA'1'IUN
I SUGGEST THA'I' THE OVERRIDING OBJECTIVE OF CONGRESS SHOULD BE TO
VIGOROUSJ.,Y I'ROTI;CT ANU EXPAND RATHER THAN LIMIT THE FOIA ACT.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
THE PROPOSED LEGISLATION PERMITS THE INTELLIGENCE COMMITTEE'S
OF CONGRESS, THE INTELLIGENCE OVERSIGHT BOARD AND THREE ELEMENTS
OF THE CIA (SIC) TO REQUEST SEARCH AND REVIEW. THE CIA HAS NEVER
VOLUNTEERED TO CONGRESSIONAL OVERSIGHT THE DETAILS OF ITS ILLEGAL
ACTIVITIES; ITS DRUG 'TESTING/MIND CONTROL OPERATIONS, ITS MAIL
OPENING ACTIVITIES, ITS PENETRATION OF AMERICAN ACADEMIA, MEDIA,
LABOR, STUDENTS, YOUTH, RELIGIOUS AND OTHER GROUPS, ITS SURVEILLANCE
OF AMERICAN NEWSMEN, ITS ILLEGAL BREAKINS OF HOMES AND FOREIGN
EMBASSIES, ITS MASSIVI-; AND TOTALLY ILLEGAL CHAOS OPERATION AIMED
AT AMERICAN POLITICAL ACTIVITIES, ITS ATTEMPTS VIA FOREIGN LIAISON
TO ASSASSINATE FOREIGN LEADERS AND NUMEROUS OTHER ILLEGAL ACTIVITIES.
EVEN THE NATIONAL SECURITY COUNCIL WAS NOT BRIEFED ON 70 TO 80
PERCENT UI' ITS COVERT OI'ERA'I'IONS.
IT IS RELEVANT TO NOTE TIIAT'THE MAJOR INVESTIGATIONS OF TILE
CIA BY CONGRESS HAVE BEEN TRIGGERED BY MEDIA EXPOSES BASED IN A
LARGE PART ON INFORMATION ACQUIRED VIA THE PROVISIONS OF FOIA.
CUNGRIJG;IIONAL INTLII,LIGENCI-; COMMITTEES DO NOT HAVE, 'T'ILL; MAN1'OWVLIR TO
DELVE INTO ALL THE MYRIAD AREAS OP ILLEGAL CIA OPERATIONS -- AND 'T'llh;
CIA IIAS PROVED THAT IT WILL NOT VOLUNTEER SUCH INFORMATION TO (;ONCRP;Ss;.
TO APPROVE THIS LEGISLATION IS TO UNLEASH, WITH SMALL OPPORTUNITY OF
DI..;COVI:RY, THE TERRIBLE REALITIES OF SECRET GOVERNMENT, TO WEAKEN
OUR 1)I-;MUCHA'T7:C :LN:;'1'ITUTLONS AN I) TO REINFORCE; CURRENT POLICE ES OF
CREATING A NATIONAL P01dCE: S'T'ATE. I FERVENTLY HOPE THAT SOMETHING
CAN BE DONE TU PREVENT TILTS FROM l1A1'1'ENINU. 'T'HANK YOU.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. ENGLISH. Thank you very much, Mr. McGehee.
I want to say from the outset that I will be asking the CIA to
comment on both Mr. Mackenzie's statements and questions and
the comments that you made, as well. I appreciate your testimony
in that area.
[The information follows:]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
98.
Central 1nte1h nceAg ncy
The Honorable Glenn English
Chairman
Subcommittee on Government Information,
Justice and Agriculture
Committee on Government Operations
House of Representatives
Washington, D.C. 20515
The Executive Director asked me to reply to your letter of
16 May requesting a written response to Messrs. Mackenzie and
McGehee's arguments against H.R. 5164.
Mr. Mackenzie's main argument in opposition to the bill is
that enactment of H.R. 5164 would preclude public access to
various records documenting illegal or improper intelligence
activities and would reduce the amount of meaningful
information released by the Central Intelligence Agency (CIA).
With respect to improper intelligence activities, Mr. Mackenzie
states that enactment of the bill would. cut off public access
to records documenting improper or illegal intelligence
activities that have not been reviewed by an investigatory
body. This statement is inaccurate. H.R. 5164 was
specifically modified from the Senate bill so that information
concerning the specific subject matter of an investigation
would remain subject to search and review regardless of whether
those conducting the investigation reviewed records containing
the information in the course of the investigation.
Mr. Mackenzie also asserts that files documenting improper
counterintelligence operations conducted against the political
activities of U.S. persons and liaison activities with local
U.S police would be exempted from the Freedom of Information
Act (FOIA) because the definition of the term "operational
files" in the bill is broad enough to encompass both of these
activities. Mr. Mackenzie is mistaken on both points. The
definition of the term "operational files" would include
counterintelligence operations conducted by the Directorate of
Operations (DO), but these types of operations are defined in
the House Permanent Select Committee on Intelligence (HPSCI)
report to encompass gathering of information and conducting
activities to protect against espionage and other intelligence
activities, sabotage, or assassinations conducted on behalf of
foreign powers, organizations or persons, including
international terrorist activities. Since there is no legal
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
authority to collect information on U.S. persons because of
their domestic political activities, the term
"counterintelligence operations" in H.R. 5164 does not and
could not include gathering information or conducting
operations against U.S. persons solely on the basis of the
conduct of activities that are protected by the First
Amendment, which includes domestic political activities.
Documents pertaining to liaison relationships with U.S. local
police would be found in the office of Security and could not
be designated as exempt from the FOIA since they do not
document investigations conducted to determine the suitability
of potential foreign intelligence or counterintelligence
sources.
Mr. Mackenzie also asserts that the term "specific subject
matter of an investigation" in subsection 701(c)(3) is
imprecise and would give rise to extensive litigation as to
whether particular documents would be accessible to a FOIA.
requester under the improprieties exception. I believe that
the answer to Mr. Mackenzie's concerns on this issue can be
found in the HPSCI report on H.R. 5164, which addresses the
specificity requirement in some detail. That report states the
following on this issue:
"The specificity requirement in the phrase "specific
subject matter of the investigation" tailors the scope of
information remaining subject to the FOIA process to the
scope of the specific subject matter of the investigation.
This tailoring was intended to avoid the possibility of an
unreasonably expansive interpretation of paragraph
701(c)(3) to include as subject to search and review
information wholly unrelated to any question of illegality
or impropriety."
The report then goes on to give an example of how the Committee
intends this tailoring to work. I believe the attention given
this issue in the HPSCI report should help in avoiding
extensive litigation over what the phrase "specific subject
matter of an investigation" means.
To back up his assertion that enactment of H.R. 5164 would
reduce the amount of meaningful information released,
Mr. Mackenzie alleges that sanitized operational documents
released by the Agency have provided important clues to
journalists in their investigation of stories. I believe that
any objective observer who reviews the operational documents
that have been released would agree with us that in almost all
cases these sanitized documents do not contain any meaningful
information. In a few instances, it is possible that the
Agency may have inadvertently disclosed information that would
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
compromise an intelligence source or reveal other sensitive
classified information. It is also possible that the Agency
may have disclosed a piece of information in the FOIA process
intentionally, believing the information to be innocuous, when
in fact it provides the final clue which enables an individual
to identify a CIA source or to deduce other important
classified information. Rather than being an argument against.
H.R. 5164, this possibility confirms the need for this
legislation since the Agency cannot always guard against the
accidental release of classified information or information
believed to be innocuous, unless operational files are exempted
from the FOIA process.
Mr. Mackenzie also states in his testimony that proof that
enactment of H.R. 5164 would reduce the amount of meaningful
information released to the public can be found in the
possibility that.certain FOIA cases would have been affected by
enactment of H.R. 5164 if there had not been a limit on the
retroactivity provision contained in the bill. As Mark Lynch
noted in his testimony, Mr. Mackenzie's assertions about which
cases could have been affected are not entirely correct.
Furthermore, in making this argument, Mr. Mackenzie is
proceeding from a mistaken assumption--namely, that the type of
operational records in dispute in these cases would be released
to the public but for enactment of this bill. We believe it is
highly likely that the court will sustain our argument that the
type of operational information in dispute in these cases is
exempt from disclosure under the FOIA. This confidence is
based on the fact that CIA has never been forced in litigation,
by a final judgment not subject to appeal, to disclose
information which the Agency believes to be properly exempt
from the FOIA. Thus the possibility that this bill could have
affected several cases in litigation if there had been'no limit
on the retroactivity provision in the bill does not detract
from the proposition that the bill would not result in the loss
to the public of meaningful information since it is unlikely
that operational documents in dispute in these cases would be
released in full text to the public pursuant to a FOIA
request. Lastly, I would like to point out to the Subcommittee
that the issue of whether the bill would result in a loss to
the public of meaningful information was closely examined in
the course of hearings held on this bill. In this connection,
a public interest group submitted to the Agency, through the
Intelligence Committees, a list of previously released
information and asked us to comment on whether this information
would continue to be accessible after enactment of the FOIA
relief legislation. Our analysis indicated that this
information would continue to be available. I have enclosed
our analysis for your information.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Ernest Mayerf `$ld
Deputy Director, Office of Legislati a Liaison
Mr. McGehee's opposition to the bill also centers around
the possibility that the public could be denied access to
important information regarding illegal or improper
intelligence activities. In his prepared testimony,
Mr. McGehee states that enactment of H.R. 5164 would preclude
public access to documents involving numerous instances of
improper or illegal intelligence activities. This is simply
not so. Under H.R. 5164, the public would continue to have
access to the records documenting improper or illegal
intelligence activities that have been investigated, subject to
the individual FOIA exemptions.
Mr. McGehee also claims that the FOIA is not really a
burden on intelligence officers within the Directorate of
Operations since the Agency hires retired annuitants to process
FOIA requests within the Directorate of Operations. While it
is true that the Agency has hired some retired annuitants to do
the initial review of DO documents responsive to a FOIA
request, most officers involved in this initial review come
from other positions within the DO. Furthermore, these
individuals cannot make the final judgment on whether the DO
documents contain source revealing or other sensitive
information since they are not familiar with current
intelligence operations. Only intelligence officers with
current knowledge of CIA operations can make this delicate
judgment. Thus even with the help of retired annuitants, it is
still necessary to divert experienced operations officers from
their intelligence duties to review records for FOIA processing.
Mr. McGehee in his oral presentation also challenges the
extent of compartmentation with the DO. He states that the DO
has a central record system and that individuals within the DO
can obtain files from any other component through this
centralized system. What Mr. McGehee is probably referring to
is the Information Management Staff of the DO, which controls
the creation, maintenance and destruction of DO records. The
record system of the DO does not, however, allow for
individuals to easily obtain operational records. In fact,
active operational files are not held by the Information
Management Staff; rather, they are held at the component within
the DO responsible for managing the operation. An intelligence
officer in the DO could not obtain these operational files
without first demonstrating to the component holding the file a
"need to know" the information contained in the files. The
FOIA process breaks down this compartmentation since CIA must
search all record systems which might reasonably be expected to
contain responsive documents, and must compile the retrieved
records in one place for review by individuals who would not
have a "need to know" the information in the absence of FOIA.
Enactment of H.R. 5164 would prevent this breakdown in
compartmentation.
If you have any questions or concerns which have not been
addressed in this letter, please contact me at your
convenience. I look forward to working with you on achieving
the speedy enactment of H.R. 5164.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CIA ANALYSIS OF WHETHER DOCUMENTS DESCRIBED IN
ATTAC11MENT WILL CONTINUE TO BE AVAILABLE
UNDER H.R. 5164
C-1 This category describes a letter, with attachments,
from the DCI to the President. Because this letter was written
by the DCI, it would be located in the Executive Registry.
Since the Executive Registry would not be exempt from search
and review, this type of material would continue to be
accessible.
C-5 This category describes documents which were referred
to in a report presented by the DCI to the Senate Appro-
priations Committee. It would, therefore, be located in the
Executive Registry. Since the Executive Registry would not be
exempt from search and review, this type of material would
continue to be accessible.
C-5(a) This document describes the organization and
function of the Domestic Operations Division. This document
is part of the Directorate of Operation's (DO) own internal
regulations. Since copies of these regulations would be
contained in non-designated files, this type of material
would continue to be accessible.
C-5(c) This category describes correspondence between the
DCI and an individual outside the Agency. This type of
correspondence would be located in the Executive Registry.
Therefore, this type of document would continue to be
accessible to search and review.
C-5(d) This category describes a document analyzing the
international youth movement. These types of documents would
be located in the DDI. Since the DDI record system could not
be designated as exempt from search and review, these types of
documents would continue to be accessible.
C-5(e) This category describes a document to all employees
from the DCI. Documents from the DCI to all employees would be
stored in the Executive Registry. Since the Executive Registry
will not be designated as exempt from search and review, these
types of documents will still be accessible.
C-6 These documents describe an agreement between the
Federal Bureau of Investigation (FBI) and the CIA. Copies of
these documents would likely be contained in the files of the
FBI. Since the bill does not affect documents contained in
federal agencies other than CIA, this type of material will
continue to be accessible.
C-8 This category describes a memo to the DCI from the
IG. Documents from the IG to DCI would be located in the files
of the IG and Executive Registry. Since the Executive Registry
and IG record systems would not be exempt from search and
review, this type of material would continue to be accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
C-10 This category of documents describes a memo that was
examined by the Rockefeller Commission and referred to in the report
of that Commission. Since material that was transmitted to an
official investigatory body in the course of conducting an
investigation into an illegal or improper intelligence activity will
continue to be accessible to search and review, the types of
documents described in this category will remain accessible.
C-11 These documents describe events in Chile during 1970. The
document dated 18 September 1970 and the document describing Allende
would have been contained in the Office of Public Affairs. Since
the files of the Office of Public Affairs would not be exempt from
search and review, this type of material would continue to be
accessible. With respect to the document entitled "Developments
During the Week of 20 September 1983,' we cannot make a definitive
determination on the accessibility of this type of document because
it is unclear where this document was filed within the CIA record
system.
C-12(a) This category describes documents pertaining to
activities outside the CIA's charter. These documents were
generated in response to a DCI directive requesting CIA to report
activities outside the charter of the Agency. This material would
likely be located in the Executive Registry since it was in response
to DCI request for information. The material would also be located
in the IG record systems since it was part of an IG investigation.
Since the files of the IG and Executive Registry would not be exempt
from search and review, the type of material described in this
category would continue to be accessible.
C-13/15 This category describes documents regarding Project
RESISTANCE and MERRIMACK, which was run by the Office of Security.
These types of documents will not be located in record systems to be
designated by the Office of Security. They, therefore, will remain
accessible'.
C-16 This category describes a memo to the DCI concerning
restrictions on covert operations. Documents sent to the DCI would
be located in the Executive Registry. Since the Executive Registry
would not be exempt from search and review, this type of material
will continue to be accessible.
C-19 This category describes documents located within CIA that
originated from other federal agencies. Since this bill is
restricted to CIA, documents produced by other federal agencies will
be available from other federal agencies.
C-21 This category describes a memo from the General Counsel to
the DCI. Memos from the General Counsel to the DCI will be located
in the Executive Registry and the OGC. Since the Executive Registry
and the files of OGC will not be exempt from search and review, this
type of material will continue to be accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
C-22 This category describes National Intelligence
Estimates relating to the Cuban Missile crisis. This type of
intelligence product would be located in the DDI record system,
which could not be a designated. as exempt from search and
review under the bill. Thus, these types of documents would
continue to be accessible to search and review.
C-24 This category describes documents detailing
non-operational relationships between CIA and the University of
California. Since documents concerning non-operational
relationships would be located in nondesignated files, these
types of materials will continue to be accessible.
C-25 This category describes documents concerning the
Agency's relationship with a law firm hired to represent the
Agency. Documents concerning such a relationship would be in
the OGC. Since the files of OGC would not be exempt from
search and review, these types of documents will continue to be
accessible. This category also describes documents dealing
with CIA's relationship with a public relations firm. It is
not possible to determine whether this type of document would
continue to be accessible without obtaining a copy of the
document.
C-26 This category describes documents dealing with
Oswald's connection with Cuba, which was provided to the
Rockefeller Commission. Since material referred to or relied
upon an official investigatory body in the course of conducting
an investigation into an illegal or improper intelligence
activity will continue to be accessible to search and review,
the types of documents described in this category will remain
accessible.
C-27 This category contains documents describing CIA drug
experiments. These documents would be accessible because they
were relied upon by an official investigatory body in the
course of conducting an investigation into an illegal or
improper intelligence activity.
C-28 This category describes a memo from the IG to the DCI
concerning CIA's mail interception operation. Memos from the
IG to the DCI would be located in the Office of the Inspector
General and Executive Registry. Since the Executive Registry
and the files of IG will not exempt from search and review,
this material will continue to be accessible.
C-29 This category describes a memo from the General
Counsel to the DCI regarding CIA activities in Laos. Memos
from the General Counsel to the DCI will be located in the
Executive Registry and the OCC. Since the Executive Registry
and the files of OGC will not be exempt from search and review,
this type of material will continue to be accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
C-30 This category describes documents dealing with the
government's investigation of Jack Anderson. This type of
material will not be included in files which are to be.
designated within the Office of Security. It would therefore
be accessible to search and review. This material may also be
accessible because it was relied upon in an investigation of
illegal'or improper intelligence activities. A definitive
opinion on this matters cannot be given without obtaining the
actual documents.
C-32 This category describes Director of Central
Intelligence Directives. DCID would be located in the
Executive Registry. Since documents in the Executive Registry
would not be exempt from search and review, this type of
material will continue to be accessible.
C-33 This category describes documents pertaining to the
disappearance of Professor Riha. Certain of the documents
pertain to correspondence between DCI Colby and the SSCI and
therefore would be contained in the Executive Registry. As to
the rest of the documents, it is not possible from the
description to ascertain whether they would continue to be
accessible. It would therefore be necessary to obtain the
actual documents.
C-34 This category describes documents pertaining to Peter
Camejo, Head of the Socialist Workers Party and to operation
CHAOS. It is likely that documents on Camejo were released
pursuant to a Privacy Act request. Since Privacy Act requests
will continue to be searched without restriction, this type of
material will remain accessible. With regard to the CHAOS
material, it is likely that this material was relied upon by
the Rockefeller Commission and Church Committee investigation
into illegal or improper intelligence activities. It therefore
will continue to be accessible.
C-36 This category describes documents pertaining to
meetings held by the DCI Helms and statements by DCI Colby
concerning the Agency's mail intercept operation. Since these
types of documents would likely be found in the Executive
Registry, which would not be exempt from search and review,
this type of material will continue to be accessible.
C-37 This category describes a memorandum from the General
Counsel to the DCI. This type of memorandum would be stored in
OGC and Executive Registry. Since the files of QGC and
Executive Registry would not be exempt from search and review,
.this type of material will continue to be accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
C-40 This category describes material concerning CIA
assistance to local police departments. This type of material
is likely to be found in Office of Security files that will not
be designated. Therefore, this type of material will continue
to be accessible.
C-41 This category describes a CIA critique of a Bar
Association report. This type of material will likely be found
in OGC files, which cannot be designated. This type of
material will, therefore, continue to be accessible.
C-42 This category describes documents pertaining to the
testimony before Congress of two Directors of Central
Intelligence. Documents pertaining to congressional testimony
of the DCI will be found in the Executive Registry and Office
of Legislative Liaison. Since records in the Executive
Registry and Legislative Liaison office will not be designated,
this material will continue to be accessible to search and
review.
C-44 Same as answer to C-13/15.
C-45 Same as answer to C-24.
C-46 Same as answer to C-13/15.
C-47 This category describes documents pertaining to CIA's
relationship with a journalist that was sent to the House and
Senate Intelligence Committees and the Rockefeller Commission.
CIA documents sent to Congress would be contained in the Office
of Legislative Liaison. Since the files in the Office of
Legislative Liaison will not be exempt from search and review,
these materials will continue to be accessible.
C-48 These documents pertain to contacts between the CIA
and the Internal Revenue Service regarding Rampart Magazine.
These documents originated within the office of General Counsel
(OGC). Since the files of OGC will not be exempt from search
and review, this type of material will continue to be
accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
10,7
C-49 This category describes White House press releases,
CIA documents listing the contents of the Agency's biological
arsenal, and the text of international agreements prohibiting
developments of such weapons. CIA biological weapons were the
subject of investigation by the church Committee and it is
likely that the documents described in this category were
relied upon in the course of the investigation. Therefore,
these documents would be accessible because they were the
relied upon in the course of an investigation into improper
intelligence activities.
C-54 This category describes correspondence of a private
citizen intercepted by CIA. It appears that these items were
requested by this private citizen. Since the bill provides
that request by individuals for information concerning
themselves will be searched without restriction, the
accessibility of documents described in this category will not
be affected by the passage of the bill.
C-55 This category describes unclassified publications
sent to various colleges and universities on Soviet Government
personnel, international terrorism and other subjects.
Unclassified documents analyzing the Soviet Government and
international terrorism will likely be found in the DI, which
cannot be designated as exempt from-search and review.
Therefore this type of material will continue to be accessible.
C-58 This category describes documents analyzing trends in
international terrorism: This type of analysis will likely be
found in the DI, which cannot be designated as exempt from
search and review. Therefore, this type of material will
continue to be accessible.
C-61 This category describes a three page statement by the
DCI regarding contact with university officials. Written
statements by the DCI are likely to be contained in the
Executive Registry. Since the Executive Registry will not be
exempt from search and review, this type of document will
continue to be accessible.
C-63 This category describes articles written in the
"Studies of Intelligence." Since "Studies of intelligence"
will be located in nondesignated files, this material will
continue to be accessible.
C-64 This category describes documents regarding plans by
CIA to assassinate various foreign officials. It is likely
that these documents were provided to the Rockefeller
Commission and Church Committee investigation into improper
intelligence activities. Since documents which are relied upon
in the course of an investigation into improper intelligence
activity will be subject to search and review, this type of
material will continue to be accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
108
C-65 This category describes documents pertaining to overt
and covert relationship between the CIA and various
universities. Material relevant to overt relationships would
be contained in nondesignated files. It is not possible from
the description of the documents pertaining to covert
relationships with universities to determine whether they will
continue to be accessible.
C-66 This category describes documents pertaining to DCI
Colby's efforts to keep the Glomar Explorer story out of the
newspaper. These documents were retrieved from the Executive
Registry. Therefore, these types of documents will continue to
be accessible to search and review.
C-69 This category describes documents obtained through
discovery in the course of a litigation. Since the bill will
not affect the scope of search and review in response to a
discovery request, documents requested through the discovery
process will continue to be accessible.
C-70 This category describes correspondence with
universities regarding CIA Academic Relations. These types of
correspondences would be contained in the Office of Public
Affairs. Since files of the Office of Public Affairs will not
be designated as exempt from search and review, this type of
material will continue to be accessible. This category also
describes CIA regulations regarding relations with the academic
community, which would also be in files of the Office of Public
Affairs, and other nondesignated files.
C-71 This category describes deletions from a book
submitted for prepublication review. Classified information
deleted from books or articles submitted for prepublication
review will be found in files of the Office of Public Affairs.
Since the files of the Office of Public Affairs will not be
designated, this type of material will continue to be subject
to search and review.
C-75 This category describes documents pertaining to a
meeting between former DCI Turner and several university
officials. Since these types-of records will be found in the
Executive Registry, they will continue to be accessible to
search and review.
C-91 This category describes a transcript of CIA testimony
before HPSCI. Since unclassified transcripts can be obtained
from Congress, this type of material will continue to be
accessible.
C-95 Same as answer to C-13/15.
C-96 This category describes a, special study on the Berlin
Tunnel Operation. Since these special studies will not be in
designated files, this type of material will continue to be
accessible.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
C-100 This category describes documents which relate to
CIA's relationship with Tufts UniversJ. Material relevant to
overt relationships would be container in nondesignated files.
Those documents which concern an intelligence activity which
was the specific subject of an investigation by an official
investigatory body would also be subject to search and review
under the legislation.
C-107 This category describes documents regarding Project
OFTEN. These documents would be accessible ti_v w,_r.
relied upon by an official investigatory body in the course of
conducting an investigation into the legality or propriety of
an intelligence activity.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
C. CENTRAL
INTELLIGENCE AGENCY
C-l. COLBY REPORT; December 24. 1974 64
pages. A latter from Colby to the Pnsident
ragardbcg a December 22. 1974 Neu Yoh
Tim. article -vealto5 CIA domestic
Intdliien- aotMties. Nine attn.,., are
atached to the kner, which include di-salons
of the Huston Plan, Interagency propane, a
counterintelligerue office. Sshlninger s request
askbtg employees to report nonchanered CIA
1RtiNtias Im sty be antlered as C-S(dl. and.
Much S, 1974 memo tervdnatin5 Operation
CHAOS. (56.61/ropy)
C-S. This series of document (through C-S.)
w.--leered to in. report on CIA domestic
activities presented by Director Colby to the
Senate Appropriations Conmdtten 00 January
15. 1975:
C-St). ORGANIZATION AND FUNCTIONS,
DOMESTIC OPERATIONS DIVISION AND
STATION (DODS); Eebnury 11. 1963; 1 page.
The mission of the DODS is described as
directing. s.pponisg and coondinrating
"disdestlnl operational activities ... within
the United States against fo-ipn Ia.Sets . .
10.10/copy)
C-S(b). REDESIGNATION OF
COMPONENT; January 28. 1972; 1 page. An
Imes-agency memo from Thomas
Karawessines. Deputy Director for Flan,
announcing the change in the name of the
Domestic Operations Division (DO) to Fo-ipm
Resotnes Division (FR). 10.10/copy)
C-S(s). CORRESPONDENCE BETWEEN
DAVID GINSBURG. EXECUTIVE DIRECTOR
OF THE NATIONAL ADVISORY
COMMISSION ON CIVIL DISORDERS. AND
RICHARD HELMS. DIRECTQR OF THE CA;
August 29. 1967 and September 1. 1967. 3
pages. C.mtdne a request by Ombuss for
bdoroution on any civil disorder Intelligen-
the CIA may lave. and Helms* reply.
10.30/copy)
C-S(d). RESTLESS YOUTH: September 1968.
No. 0613/68; 41 page. The report analy- the
international youth movment of the late
1960.. studies I. sociological but., and
attempts to understand its stnMU-. purpose.,
"...and possible ramifications. The report
rites the Crvi1 Rights Movement of the early
106010 es proving to d'rssid.nts later in the
decade that m ironutional politics it the only
w of accomplithtug political slung. Sea
also C-12(b)(56.10/copy)
C-5(0. MEMORANDUM FOR ALL CIA
EMPLOYEES FROM JAMES R.
SCHLESINGER. DIRECTOR: May 9. 1973; 2
pages. Th. Du.ctor requests dot all CIA
penonnl report to him any pad or present
activities which .to
outside the Agencyy't
charier. and directs that If an order is given to
a CIA employee which is Incontinent with l0.
Agmcyt darter, the employee should report
the Incident to the Director. See also C-1.
10.20/copy)
C-I. DELIMITATION AGREEMENT OF 1948;
September and October 1968; 7 pas-. The
documents eomtitatn a asreenwnt bewtm the
FBI and the CIA pemdttln8 CIA 00010010 with
emigre group and individuals I. the Urslted
States. 10.70/copy)
C-I. -POTENTIAL FLAP ACTIVITIES."
MEMO TO WILLIAM COLBY FROM
WILLIAM V. BROE, INSPECTOR GENERAL;
May 21,2973; 26 pages. The fine portion of
the Memo discusses CIA contacts with
Waterpt figures, and CIA participation In she
Intelligence Evaluation Commits- and Staff,
established to -lust, domestic intdligatca
studies. The ..brad portion of the Memo
coven, Support, Red Estate, Procuremenl.
Cover. Activities Directed Against U.S.
Oliaens. and Collection Activities.
102.60/copy)
C-10. FORMAL MEMORANDUM ON
RESPECTIVE RESPONSIBILITIES OF THE FBI
AND CIA IN THE UNITED STATES:
February 7.2966; 2 pees. This memo -Imed
to on pap 37 of the Rockefeller Commission
Report. The net- contain, an Woreation not
Included In that Report. 10.20/ropy)
('-I1 1)(N'1!Ml %IS RI:Ft RRII) 10 IN
-Clt\'1'R I A('110 . 1\ ('1111.1: I961.1971';
Xapcmhr 19711 and undarcd:II p;q?.. I hi.
Ilk contain, thrcc (IA d.wunsnt. n?kawd In
('\\\.hnmgh,h, 1()IA 6'ligurw.n and ukwvihing
, in l'hik during .rpnmhar 1971). I lo.
arcrym. c.mcanl uIlcgN --pun Its mh. (Titian
lira nisi Ibm. talc o.c, -dia cask,,..
Wit, ~t. shin rhr (h,i.ti o Ihm.eru&' Pan).
rte youth d -Parka 7 1 iMnud' and
Alkndcl demner and auncr. 151.1111
C-121.). FAMILY JEWELS-ACTIVITIES
CONSTRUED TO BE OUTSIDE THE CIA
CHARTER; May 1970 - May 1973; 65 pages.
DCI I.- Schlesinger , directive of May 9.
1973 (at.. C-S(e)) requested CIA employees to
report activities which could be considered
outside the darter of the Agency. The request
released this partial file of questionable
activities, bcluding domntk su-,a-
operations, arrangements with American fume.
assistance to local police d.pwmmtt. and
Office of Security support to the Bureau of
Narcotics and Dangaom Dnup. 106.50/copy).
?C-12(b). RESTLESS YOUTH: 1968; 245
pages. A version of the CAL 1968 study of
worldwide student dissiden- which includes a
199-page section reporting on student
vemmts in 19 foreign countries. Pan I is
identical to C-3(d) except that It includes some
photographs and one puagaph deleted from
that emsim. 1026.50/copy)
? C-121(1. -FAMILY)EWELS" MEMORANDA;
1968 and 1973; 18 pass.. Memoranda to the
DCI from various offices responding to his
-quest that CIA aotidtles which may be
ouNde the Asency'. charter be reposed. The
memoranda show that the Agency examined
satellite photograph, In analysing domestic
civil disturbances. that the Domestic Contact
Service collect. information on foreign students studying in the U.S.. and that In 1969 and 1970
several studies were prepared on bled radical
oovemenn In the Caribbean, one of which
(oared on possible bobs to the U.S. black
power movement. (51.801copy)
?C-12/15. CA/DOCUMENTS ON PROJECTS
RESISTANCE AND MERRIMAC: 1966-1975;
1987 pages. Documrnb in this file, released to
CLASS through the FORA, contain a number of
discrepancies (rom, or additt_ to, the account i
of the p.ohets I. the Rockefeller and Church
Reports. These -last to the use of Idorount.
In Rntsun-: the scope of Reciuan-: the use
of Army counterinteSigmce Information in
Resistance reports; a proposed expansion of
Merrimac in 1968; and Merrimac operations
outside the Wadrington, D.C. u.. 6150.00;
selected docrmrora 53.50)
Ak.. araierhk it a 2-1-pp, uhiavt id,, to the
Retcoann ikrrimae d.wvnw?nt. dc.crihing
taw data. numhr rat page.. pnup, ment.awd
r.) tactk~ dcw?rihd in each ni 64, dnvrm?-nt..
)5..7.1, pct
C-16. RESTRICTIONS ON OPERATIONAL
USE OF ACADEMICS; 1970 and 1973; 6
pages. Tom Huston. 1970 memo bdmvdnrg
DCI Hdma that restrictions on domestic teat of
a-eeal Intdlig oc, athobtg tecnigtes had
been lifted; and gulddbes reprinted In 1973
prohibiting the Agency from coves funding of
U.S. Educational or private voluntary
organizations. (11.80/copy)
C-19. EVES ON CHE GUEVARA: 19561976;
166 pager. A request to the CIA for .ll files on
Che Guevara and others produced responw
from the State Dept., FBI. DA. and Navy.
The file includes accounts of Ch,. alleged
activities I. Cuba, Latin America. Africa and
Vietnam; numerous false reports of hit death;
and several accounts of his capm- and
execution in Bolivia 1. 1967. (516.40/sopy)
C42. TWO MEMORANDA FROM CIA
GENERAL COUNSEL TO CIA DIRECTOR;
up to January 1962 - April 1962; 8 pages. The
? ... memoranda from CIA General Counsel
Lawrence Houston to the Director discuss the
legality of subvention and sabotage, and
paramilitary cold-war actkitin. These
v-rands argue that cove operations art
legal despite the lack of congnssimul
authorisation to the 1947 NSC Act.
60.60/Copy)
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
112
% II'\11(1 III I'AK IMI\I
11?KI1\11 \1 K1(.~\KI11 ?1.
I\11 ?111? r.Ilsl\ 111 I'1 /ti\1541 l l'K 1111\AI
It 1111111 AKI\I\l: 111' 1111 till
\t-I I\'1111 \: 1954.1975: 19 Pag- the
.u ardum Inrm I IA I.cncral (0unw1 1A I lnu.tnn w? else' I)irtt'Inr 0t (entrul Inlellrgcnc/
InUin? tlrc -IUUncing ill inlcrosI k--
,hr Jot) to enforce the Isw ... and the Dime-.
ecupomibilily for protecting intelligence
sourer and methods.' Included is a
brief summary of Inertly ass in which
liolaliont of criminal astute, were repined
to the Department of Justice between 1954 and
1975. A detailed culmination of ein,umsmnces
molted in the drug prosecution of Mr.
Iturtuporn Khramkhruan. former CIA
cn phgc.. in aM included. (S1.90 0011)1
C-39. CIA CONTRACTS WITH THE
UNIVERSITY OF CALIFORNIA-SAN DIEGO;
1966.1976; 121 page. Capin of a negotiated
contract between the CIA and U. of Cal. San
Diego, describing completion date.. scope of
work, location where research will be
conducted, deliverable items and .,is. The
CA contracts wen for research in the fold of
image processing, a review of Soviet
Geochemial literature. and a study of
agriculture I. Communst China. (512.10/copy)
C-OO. THE CIA AND LOCAL POLICE: 1967-
1973; 177 pages. A series of memos and letters
nceming direct CIA assistance to 12
municipal and/or county police departenens
including those of New York. Los Angela,
Boston. and Washington. The docoments trace
the history of CIA training seminars In photo
and audio surveillance, narcotic.. and "radical
terrorist control. 1517.70/copy)
C41. CIA CRITIQUE OF BAR
ASSOCIATION REPORT; October 29,197.1;
39 pages. In mapoese to a pamphlet. -The
Central Intelligence Agency: Oversight and
Accountability," prepared by Committee of
the Association of the Bar of the City of New
York, the CIA issued "a careful critique of the
Ieport.... roger)- with a short summary "
As the Agency explained. "This paper is nee a
brief in opposition: its deipsd to question
the validity of some of the research and thus
ue legitimate questions as to some of the
statements and conclusions." I. includes
section. on factual errors and miwonreptiona,
misquotations, and material taken out of
reelect. (53.90/copy)
C-42. SECRET LEGISLATIVE HISTORY OF
THE CIA: 1947-1943; 143 pages. Thee
documents reveal the secret congressional
testimony of the fine two Directors of Central
Intelligence, LI. General Hoyt S. Vandenberg
and Rear Admiral R.H. Hillenkoenee. Direnror
Hillenkoetter a April 1948 testimony befere the
House Armed Services Committee describes the
problems which the fledgling Intelligence
agency faced in Its lint two years. The
Vandenberg testimony was presented to the
Senate Armed Services Committee I. April
1947 in support of the National Security Act of
1947 which provided for unification of the
armed services and establishment of the CIA.
(514.30/copy)
?Ca4. CIA/RESISTANCE/BLACK STUDENT
UNIONS: 1966-1971: 33 pages. This file was
eeleasad to researcher More Glass following a
request for CIA file. on the Black Student
Union at the University of Califomla at Santa
Barbara. The documents show that Prefect
Resistance and other CIA programs regularly
used informants. The Church Report stated
that Resistance did not run unilateral informant
operations.-Ed.I (53.30)
?C-45. CIA FILE ON UNIVERSITY OF
MICHIGAN AND CENTER FOR CHINESE
STUDIES; 1965-1976; 279 pages. This file was
requested under FOIA by the editors of
Michigan Daily. It documents confidential
contacts between various CIA research offices
and China scholars at the University of
Michigan. II also shows the Agency's attempt
to maintain academic contacts in a period
when she propriety of classified genemmenl
arch was increasingly called into question.
A 1966 CIA memo in the file state: It a
university wishes to stipulate provisos or
qualification. we will be glad to con.idee Them.
The u rsity and only say what they are."
(537.90/copy)
'C-46. CIA/RESISTANCE/PEACE AND
FREEDOM PARTY: 196041974: 65 page. This
file was obtained by the Peace and Freedom
Panty under FOIA. The Party was an object of
CIA domestic surveillance under Project
Resistance. This file shows that m re than
50,000 name of PFP members from . single
pare ICalifomia) were indexed by Resistance:
the figure given by the Church Committee was
12-16,ODO names nationwide. These indexes
were retained at least as late as May 1974.
(56.50/copy)
*C47. CIA/POLICY ON RELATIONSHIPS
WITH JOURNALISTS/MATERIAL SENT TO
INTELLIGENCE COMMITTEES: 1973-1976: 47
pages. After litigation under FOIA, these
do, .a'. were released to Journalist Judith
Miller I. response to a request for all material
onCIA use of journalists which had been sent
to the House and Senate Intelligence
CommRtees and the Rockefeller ComM6 ea.
The file contains little [actual information, but
does i dude statements of CIA policy. Certain
mmens in the file raise the possibility that
CIA contacts with journalists were more
extensive than eepored to the Committees.
(54.70/copy)
C-O'. CIA/IRS RECORDS ON RAMPARTS
MAGAZINE/SPECIAL SERVICE STAFF. 1964,
1967. 7972: 12 pages. When Rompers disclosed
in 1967 that the CIA was funding the National
Student Association, the CIA initiated an
mvntigation of the ass status of the magazine.
Also in the file are statements of the mission of
the Special Service Staff, an IRS office which
collected information on taxpayers based on
political air". (51.20/copy) -
C49 CIA/WHITE HOUSE/DESTRUCTION
OF BIOLOGICAL WEAPONS AND TOXINS;
1967-1970; 49 pages. In 1969 and 1970,
President Nixon ordered the destruction of
existing stockpiles of biological and toxic
weapon.. This file Include. White Hotue pert.
release.. CIA documents listing the contents of
the Agency's biological arsenal accumulated
under MKNAOMI, and the text of
International agreemenes prohibiting the
development, production and use of such
weapon.. (51.90/copy)
C-S4. CORRESPONDENCE OF VICTOR
REUTHER INTERCEPTED BY THE CIA, 1966;
11 pages. Five-item, of Victor Reuther's
rte.pondence intercepted in 1963. At that
time an official of the United Auto Workers
(UAWI. Reuther. name was also en
HTLINCUAL'a "watch list" for mail intercepts
from 1969-1971.(51.10/copy)
C-55. CIA DISTRIBUTIONS TO
ACADEMICS: 1976: 11 pages. lists of more
than 40 colleges and univerntia to which the
CIA sent unclassified publicatioca produced by
its oven research branch on Soviet government
personnel, international terrorism, and other
subjects. (51.70/copy)
C-53. INTERNATIONAL TERRORISM IN
1976: July 1977: 22 pages. A. analysis of
trends in international interim which fads,
among other things, that while the nurebee of
terrorist incidents increased in 1976, the
number of acts involving kidnaping and
hostage., and the proportion of ans directed
against US citsens and property, declined.
Cuban exile formations emerged as "among the
man active and most disruptive terrorist
groups." (52.20/copy)
Cll. DCI TURNER'S STATEMENT ON
HARVARD GUIDELINES: August 1977.3
pages. Turner main that the CIA will ignore
Harvard's requirement that university officials
be stormed of all CIA contacts with university
personnel, and dodge the issue of coven
recruitment on amp- (5.30/copy)
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
114
Documents -Addendum
A-20 Procedures Goserning the
.Actisiire, of DOD I melligence
Components that Affect United
States Persons: Nosembee 1979. 131
pp. Regulations issued by the
Department of Defense in Accor-
Depanment of Defense in accor-
dance with Executive Order 12036.
which stipulates that certain intelli-
gence activities governing U.S.
persons be governed by procedures
issued by the agency head and
approved by the Attorney General.
Among the procedures outlined are
those for the collection. storage and
dissemination of information. re-
quirements for electronic surveil-
lance. physical and mail searches and
surveillance. undisclosed partici.
pation in organizations. and exper-
imentation on human subjects.
(S13.10.copy)
C-100 CIA/TUFTS UNIVERSITY; 1963-
1978; 88 pages. These CIA files released to
Tufts under the FOIA include a 1969 list
prepared by the Agency's CHAOS office of
all SDS chapters isationwide. The files also
reflect open CIA-University ties including
overt recruiting, participation of Tufts
professors in CIA-sponsored seminars, and
possible employment of a professor by the
CIA during sabbaticals. One document,
apparently supplied to the CIA by the Tufts
administration, is a break-down of a first
year class with emphasis onforeign students.
C-107 CIA/BEHAVIOR CONTROL/
PROJECT OFTEN; 1962-1973; 2020 pages.
Files released under the FOIA from the
CIA's Project OFTEN, a successor to
MKULTRA. Files on the project, con-
ducted by the Agency's Office of. Research
and Development, include a history of the
project, discussions of interrogation.
incapacitation. psychological assessment,
microwave tolerance in humans, electrical
stimulation of the brain, and plant and
animal studies. (5202.00/copy. Portions of
the file may be ordered separately at
IOe/page)
1.74 (b). FBI/NATIONAL CAUCUS OF
LABOR COMMITTEES; 1974-1976; 176
pages. FBI files on the National Caucus of
Labor Committees obtained under the
FOIA by Harvey Kahn and The Public Eye.
The. files describe she history. finances.
organization, front groups, and ideology of
the NCLC. They also contain detailed
information about its violent attacks on
leftist organizations, illegal possession of
concealed weapons by its members. and
NCLC's repeated attempts to inform the
FBI of alleged terrorist activities for which
the group had no evidence. The FBI used
informants in several investigations of the
group for possible violation of sedition.
foreign agent registration. and other laws.
(The FBI is prohibited from releasing these
and other files on the NC LC by a 1974 court
order. See 1.74(a).1 IS 17.60/ copy)
I-82. FBI, TUFTS UNIVERSITY: 1969-
1972: 69 pages. FBI files released under the
FOIA show that the Bureau investigated
bombing threats and allegations of foreign
espionage at Tufts University. The files
contain some information on political
activity at the University. (56.90/copy)
145. REPORT ON INQUIRY INTO CIA-
RELATED ELECTRONIC SURVEIL.
LANCE ACTIVITIES (ANDSUM MARY);
June 1976 - March 1977: 242 pages. The
Justice Department's inquiry identified
eleven areas of questionable activity in
addition to the seven discussed in the
Rockefeller Commission Report. on which
the Department's study was based. The
Department concluded that five such
activities may "contain the elements of
Federal criminal offenses- but recommended
against prosecuting because of the lack of
clarity of laws concerning government
electronic surveillance. the difficulty of
assigning responsibility for illegal acts. and
the risk of compromising sensitive informa.
tion. Instead. the report made a number of
weak recommendations and stressed that
reform in this area depends on congressional
action. The report does include detailed
information about the electronic surveillance
programs, for example: that tapping by the
CIA's Office of Security was more extensive
and continued later than stated in the
Rockefeller Report: that Britain's Govern-
ment Communications Headquarters inter-
cepted and provided the NSA with U.S.-
originated telex and other communications:
that after 1960 the NSA photographed all
international message traffic carried by U.S.
corporations such as RCA and ITT: that
there was an additional major program (name
and description deleted) similar to the
MINARET program in which the NSA
intercepted the inter notion, Icommunicu.
tions of domestic activists w hose names were
submitted to the NSA by other agencies: and
that assigning the CIA responsibility for
narcotics intelligence and control 'commits
the community to directly support domestic
enforcement' an apparent conflict with the
agency's charter. The documents were
obtained under the FOIA by James Bamford
for use in The Pucele Palace. a book about the
NSA. (524.20 copy)
K-3. ARMY/PAX AMERICANA: Febru-
ary 28 1966: 1813 pages. A major study of
released under the FOIA of the U.S. Army's
projected role in an evolving "U.S. imper-
ium." The study, also known by the title
Strategic Alignments and Military Objec-
tives. 1965-1983, was prepared under Army
contract by Douglas Aircraft Company and
originally classified secret. Volume One
contains a summary and conclusions.
including discussions of U.S. "imperial
responsibilities." the low probability of
significant general or limited wars, the
increasing disparity between rich and poor
nations, and likely developments in NATO
and communist countries. (93 pages)'
Volume I I attempts to analyze the "elements
of national power,"assess the relative power
of major nations, and predict possible future
"world configurations."(277 pages) Volume
111 contains four supporting studies on
Europe, the Soviet bloc, China, and U.S.
domestic prospects. (233 pages) Volume IV
tontitns venous actualand meshodologital
appendices. (1190 pages) (5181.30/copy.)
,Individual volumes may be ordered sepa-
rately at We/ page.)
R-3. LEIU/SEATTLE: 1975-1980; 258
pages. LEIU files obtained by the Seattle
Coalition on Government Spying from the
King County Department of Public Safety
through litigation under Washington's
public disclosure law. The files, which
consist of LEIU by-laws, bulletins, and
minutes of meetings, show that LEIU in the
past collected noncriminal information but
has recently adopted guidelines limiting
collection to organized crime information
and prohibiting collection of political
information. The organization has else
instituted new compliance procedures fot
members and has attempted to purge its filet
of improperly held information. (525.801
copy)
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
QUESTIONS FOR THE CIA
1. In 1982, the CIA established a routine use for all of
its Privacy Act systems of records permitting disclosures
"necessary or appropriate" to enable the CIA to carry out its
responsibilities. I objected to this routine use at the
time. It is so broad that is fails to meet the Privacy Act
requirement that agencies describe how records are used. The
CIA could easily comply with the Privacy Act by publishing a
more descriptive notice.
a) If other agencies adopted the same approach, then
the notice provisions of the Privacy Act would be a
joke. What would be so difficult about including a more
detailed description of how records are disclosed?
b) I am concerned about the CIA's unwillingness to
comply with the Privacy Act on this point. If the CIA
takes the same cavalier attitude toward H.R. 5164 that
it has taken toward the Privacy Act, then H.R. 5164 will
not work. Will you agree to review this issue again and
report back to the Subcommittee by June 1? I want to have
a response before we markup the bill.
2. Will H.R. 5164 result in the withholding of any
information that is now made public?
3. H.R. 5164 seems to have been carefully based on the
way in which the CIA organizes its files.
a) How stable has the CIA file structure been
over the years?
b) Is the file organization at the CIA unique among
other intelligence agencies?
c) Was consideration given to extending H.R. 5164 to
cover other intelligence agencies? If so, why was this
approach rejected?
4. The CIA has made some commitments about the handling
of FOIA requests after the enactment of H.R. 5164. I want to
go over them.
a. Director Casey has agreed "to establish a specific
program designed to substantially reduce, if not eliminate,"
the current FOIA backlog. Director Casey has also
agreed that the CIA will not reduce its budgetary and
personnel allocation for FOIA activity during the two
year period following enactment. Is this correct?
Can you provide some details about how the CIA will go
about doing this?
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
b. I want this Subcommittee and the public at large
to be able to monitor these commitments. For the two
year period referred to by Director Casey, will you
agree to file with this Subcommittee semi-annual status
reports on the processing of requests, the assignment of
personnel, and the size of the backlog?
c. I also would like you to agree that this semi-annual
report will be unclassified so that anyone who wants
to see it will be able to do so.
d. Finally, since H.R. 5164 is so heavily based on
the current CIA organization and filing system, I would
like you to agree to report, in advance, any major
structural changes at the CIA that would affect the
agreements embodied in H.R. 5164.
5. I want to clarify how the provisions will work
regarding access to information about investigations into
improprieties or violations of law. Suppose that a citizen
makes a non-frivolous allegation that the CIA is or has
engaged in some improper activity. An appropriate authority. -
collects or reviews records regarding the allegation.
a. Am I correct that those records will remain
subject to search and review under the FOIA?
b. Are there any exceptions? In other words,
can the authority in H.R. 5164 be used to deny access
to records of improper CIA activities that are now
accessible under the FOIA?
6. Does the CIA object to the mandatory review for
declassification procedure in the Executive Order on Security
Classification? Did the CIA ask the President to delete the
mandatory review procedure from the order issued in 1982?
7. In 1977, Acting CIA Director John Blake said that
1974 FOIA amendments had "constituted a somewhat traumatic
experience" and had "required a considerable adjustment in
attitude and practice." He concluded: "I think the Agency
is better off for it." This statement has been quoted quite
a bit. I wonder if you would care to comment on Mr. Blake's
remarks.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. ENGLISH. I would like to ask both of you, do you feel that the
House bill is a better bill than the Senate bill? ...
Mr. Mackenzie, do you want to start off on that?
Mr. MACKENZIE. Of course, I would have to answer yes, because
the House bill at least will allow my particular case to continue. I
think, however, that the overall effect is basically going to be the
same.
Specifically, the CIA releases information to requestors very
often only after a requestor has filed suit in court. That has been
my case. I refer in my prepared testimony to a study that was done
by the Comptroller General, that found indeed agencies do release
information at a much greater rate after they have been sued. And
the proposed bill, H.R. 5164, while in some respects it is better than
the Senate measure, would in effect put the burden of proof on the
plaintiff and would make it much more difficult to sue the Agency
and, in doing so, would remove the chief impetus for the Agency to
release information.
In that matter, H.R. 5164, while it is better than the Senate bill,
still has the same basic problem; and that in itself,. by making it
more difficult to sue the CIA, will slow down the release of infor-
mation-not speed it up.
Mr. ENGLISH. Mr. McGehee?
Mr. MCGEHEE. I don't feel that I am particularly competent to
comment on that. I am not aware of this.
Mr. ENGLISH. Mr. McGehee, I know that you submitted your tes-
timony to the CIA for review before you submitted it to us.
Did the CIA ask you to make any changes?
Mr. MCGEHEE. No, they did not. I find that the CIA, when I am
submitting testimony before Congress, they don't have any prob-
lems. However, when I submit articles for newspapers or editorial
comments or whatever, they have many problems and objections.
Mr. ENGLISH. Both of you state that the information about illegal
CIA operations would be denied under the provisions of H.R. 5164.
I thought that the bill specifically provides that this type of infor-
mation is not covered by the new exemption.
Could you be a bit more specific as to your concern? Mr. McGe-
hee, I will let you start off on that.
Mr. MCGEHEE. Well, my concern is, basically the legal language
is there; those files would be available for review. But the intent
and the activities that go on within the-'CIA-and I' am quite famil-
iar with them-there is very little intent to comply. And if you can
use any justification for not complying with the law, you do use it,
as we have seen recently with the mining situation in Nicaragua.
There is very little intent to comply with the laws.
If you can say this is a liaison operation, then how does that one
exemption impact on the other exemption? I don't understand it,
but I know how it would be viewed within the CIA from practical
experience.
Mr. ENGLISH. Mr. Mackenzie.
Mr. MACKENZIE. Yes. The bill, as it now is written, does exeii t
counterintelligence operations files. At the same time, it says that I
should have access to the specific subject matter of an investigation
by an intelligence committee.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Well, if those investigations are not specific enough-in other
words, can we argue about what "specific" means here? What is
the specific subject matter? If we are looking at domestic oper-
ations, that is not a very specific subject matter. If we are looking
at some portions of "Operation Chaos," does that mean the two
roomfuls of files at CIA headquarters are accessible under this
measure?
I just don't think that the language is clear. I think that any-
place the language isn't clear the Agency is going to assume that it
should keep secrets. That is the business, after all, of an intelli-
gence agency. They would not be doing their job if they didn't
think that way; and I wouldn't be doing my job if I didn't try to
obtain the documentation.
So what I am saying is that, yes, this bill, in my opinion, would
allow the Agency to contest in court the release of the files on the
domestic dissident press, because they were not the specific subject
matter of an investigation, or at least you could question whether
they were.
Now, maybe the agency won't choose to do that; I am not here to
say the Agency will do this. But it is certainly conceivable. And
given their past practice, at least in relationship to my requests, I
would expect them to do that. I hope I am wrong. But if there were
some specific assurances obtained by this committee regarding
that, and the specific assurances were included in the report lan-
guage, that might help a judge make the decision should the
Agency choose to use every little thing that it could. I am not
saying it will.
The question I also raise is: What happens when there are do-
mestic intelligence operations that are not the subject of an investi-
gation? Shouldn't that be accessible if there is a question about
their legality?
Mr. ENGLISH. Mr. Kindness.
Mr. KINDNESS. Thank you, Mr. Chairman.
I would like to thank our witnesses for their testimony. I don't
have any questions, and I yield back.
Mr. ENGLISH. Mr. Kleczka.
Mr. KLEczKA. No questions, Mr. Chairman.
Mr. ENGLISH. Mr. Lewis.
Mr. LEWIS. No questions, Mr. Chairman.
Mr. ENGLISH. Again, I want to thank both of you for your testi-
mony. As I mentioned, we will ask the CIA to comment on it, and
we appreciate it. It has been very helpful to us. Thank you very
much.
Mr. MACKENZIE. Thank you, Mr. Chairman.
Mr. ENGLISH. That completes the testimony that we have at
today's hearing, and with that we will recess subject to the call of
the Chair.
[Whereupon, at 11:55 a.m., the subcommittee adjourned, to recon-
vene subject to the call of the Chair.]
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
APPENDIX
APPENDIX 1. EXECUTIVE ORDER 12333 OF DECEMBER 4,
1982, "UNITED STATES INTELLIGENCE ACTIVITIES" AND
EXECUTIVE ORDER 12334 OF DECEMBER 4, 1981, "PRESI-
DENT'S INTELLIGENCE OVERSIGHT BOARD"
E.O. 12333 Title 3-The President
Executive Order 12333 of December 4, 1981
United States Intelligence Activities
? Table of Contents
ICFR
Page]
Preamble ................................................................................................................................ [200]
Part 1. Goals, Direction, Duties, and Responsibilities With Respect to
the National Intelligence Effort
1.1
Goals .........................................................................................................................
201
1.2
The National Security Council ............................................................................
201
1.3
National Foreign Intelligence Advisory Groups .............................................
201
1.4
The Intelligence Community ................................................................................
202
1.5
Director of Central Intelligence ..........................................................................
202
1.6
Duties and Responsibilities of the Heads of Executive Branch Depart-
ments and Agencies ..........................................................................................
204
1.7
Senior Officials of the Intelligence Community ..............................................
204
1.8
The Central Intelligence Agency ........................................................................
205
1.9
The Department of State ...........................................
206
...........................................
1.10 The Department of the Treasury ........................................................................
206
1.11 The Department of Defense .................................................................................
207
1.12 Intelligence Components Utilized by the Secretary of Defense ..................
207
1.13 The Department of Energy ...................................................................................
209
1.14 The Federal Bureau of Investigation .................................................................
210
Part 2. Conduct of Intelligence Activities
2.1
Need ..........................................................................................................................
210
2.2
Purpose .....................................................................................................................
210
2.3
Collection of Information ..................................................... .................:..............
211
2.4
Collection Techniques ...........................................................................................
212
2.5
Attorney General Approval .................................................................................
212
2.6
Assistance to Law Enforcement Authorities ...................................................
212
2.7
Contracting ..............................................................................................................
213
2.8
Consistency With Other Laws ............................................................................
213
2.9
Undisclosed Participation in Organizations Within the United States
213
.....
2.10 Human Experimentation ......................................................................................
213
2.11 Prohibition on Assassination ........:.....................................................................
213
2.12 Indirect Participation ............................................................................................
214
Part 3. General Provisions
3.1 Congressional Oversight ......................................................................................
3.2 Implementation .......................................................................................................
3.3 Procedures ...............................................................................................................
3.4 Definitions ...............................................................................................................
3.5 Purpose and Effect .................................................................................................
3.6 Revocation ...............................................................................................................
214
214
214
214
216
216
Timely and accurate information about the activities, capabilities, plans,
and intentions of foreign powers, organizations, and persons and their
agents, is essential to the national security of the United States. All reason-
able and lawful means must be used to ensure that the United States will
receive the best intelligence available. For that purpose, by virtue of the au-
thority vested in me by the Constitution and statutes of the United States of
America, including the National Security Act of 1947, as amended, and as
President of the United States of America, in order to provide for the effec-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
120
Executive Orders E.O. 12333
tive conduct of United States intelligence activities and the protection of
constitutional rights, it is hereby ordered as follows:
Part 1
Goals, Direction, Duties and Responsibilities With Respect to the National
Intelligence Effort
1.1 Goals. The United States intelligence effort shall provide the President
and the National Security Council with the necessary information on which
to base decisions concerning the conduct and development of foreign, de-
fense and economic policy, and the protection of United States national in-
terests from foreign security threats. All departments and agencies shall co-
operate fully to fulfill this goal.
(a) Maximum emphasis should be given to fostering analytical competition
among appropriate elements of the Intelligence Community.
(b) All means, consistent with applicable United States law and this Order,
and with full consideration of the rights of United States persons, shall be
used to develop intelligence information for the President and the National
Security Council. A balanced approach between technical collection efforts
and other means should be maintained and encouraged.
(c) Special emphasis should be given to detecting and countering espionage
and other threats and activities directed by foreign intelligence services
against the United States Government, or United States corporations, estab-
lishments, or persons.
(d) To the greatest extent possible consistent with applicable United States
law and this Order, and with full consideration of the rights of United
States persons, all agencies and departments should seek to ensure full and
free exchange of information in order to derive maximum benefit from the
United States intelligence effort.
1.2 The National Security Council.
(a) Purpose. The National Security Council (NSC) was established by the
National Security Act of 1947 to advise the President with respect to the
integration of domestic, foreign and military policies relating to the national
security. The NSC shall act as the highest Executive Branch entity that pro-
vides review of, guidance for and direction to the conduct of all national
foreign intelligence, counterintelligence, and special activities, and attend-
ant policies and programs.
(b) Committees. The NSC shall establish such committees as may be neces-
sary to carry out its functions and responsibilities under this Order. The
NSC, or a committee established by it, shall consider and submit to the
President a policy recommendation, including all dissents, on each special
activity and shall review proposals for other sensitive intelligence operations.
1.3 National Foreign Intelligence Advisory Groups.
(a) Establishment and Duties. The Director of Central Intelligence shall es-
tablish such boards, councils, or groups as required for the purpose of ob-
taining advice from within the Intelligence Community concerning:
(1) Production, review and coordination of national foreign intelligence;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
(2) Priorities for the National Foreign Intelligence Program budget;
(3) Interagency exchanges of foreign intelligence information;
(4) Arrangements with foreign governments on intelligence matters;
(5) Protection of intelligence sources and methods;
(6) Activities of common concern; and
(7) Such other matters as may be referred by the Director of Central
Intelligence.
(b) Membership. Advisory groups established pursuant to this section shall
be chaired by the Director of Central Intelligence or his designated repre-
sentative and shall consist of. senior representatives from organizations
within the Intelligence Community and from departments or agencies con-
taining such organizations, as designated by the Director of Central Intelli-
gence. Groups for consideration of substantive intelligence matters will in-
clude representatives of organizations involved in the collection, processing
and analysis of intelligence. A senior representative of the Secretary of
Commerce, the Attorney General, the Assistant to the President for Nation-
al Security Affairs, and the Office of the Secretary of Defense shall be in-
vited to participate in any group which deals with other than substantive
intelligence matters.
1.4 The Intelligence Community. The agencies within the Intelligence
Community shall, in accordance with applicable United States law and
with the other provisions of this Order, conduct intelligence activities nec-
essary for the conduct of foreign relations and the protection of the national
security of the United States, including:
(a) Collection of information needed by the President, the National Security
Council, the Secretaries of State and Defense, and other Executive Branch
officials for the performance of their duties and responsibilities;
(b) Production and dissemination of intelligence;
(c) Collection of information concerning, and the conduct of activities to
protect against, intelligence activities directed against the United States, in-
ternational terrorist and international narcotics activities, and other hostile
activities directed against the United States by foreign powers, organiza-
tions, persons, and their agents;
(d) Special activities;
(e) Administrative and support activities within the United States and
abroad necessary for the performance of authorized activities; and
(f) Such other intelligence activities as the President may direct from time
to time.
1.5 Director of Central Intelligence. In order to discharge the duties and
responsibilities prescribed by law, the Director of Central Intelligence shall
be responsible directly to the President and the NSC and shall:
(a) Act as the primary adviser to the President and the NSC on national
foreign intelligence and provide the President and other officials in the Ex-
ecutive Branch with national foreign intelligence;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
(b) Develop such objectives and guidance for the Intelligence Community as
will enhance capabilities for responding to expected future needs for na-
tional foreign intelligence;
(c) Promote the development and maintenance of services of common con-
cern by designated intelligence organizations on behalf of the Intelligence
Community;
(d) Ensure implementation of special activities;
(e) Formulate policies concerning foreign intelligence and counterintelli-
gence arrangements with foreign governments, coordinate foreign intelli-
gence and counterintelligence relationships between agencies of the Intelli-
gence Community and the intelligence or internal security services of for-
eign governments, and establish procedures governing the conduct of liai-
son by any department or agency with such services on narcotics activities;
(f) Participate in the development of procedures approved by the Attorney
General governing criminal narcotics intelligence activities abroad to
ensure that these activities are consistent with foreign intelligence
programs;
(g) Ensure the establishment by the Intelligence Community of common se-
curity and access standards for managing and handling foreign intelligence
systems, information, and products;
(h) Ensure that programs are developed which protect intelligence sources,
methods, and analytical procedures;
(i) Establish uniform criteria for the determination of relative priorities for
the transmission of critical national foreign intelligence, and advise the Sec-
retary of Defense concerning the communications requirements of the Intel-
ligence Community for the transmission of such intelligence;
(j) Establish appropriate staffs, committees, or other advisory groups to
assist in the execution of the Director's responsibilities;
(k) Have full responsibility for production and dissemination of national
foreign intelligence, and authority to levy analytic tasks on departmental in-
telligence production organizations, in consultation with those organiza-
tions, ensuring that appropriate mechanisms for competitive analysis are
developed so that diverse points of view are considered fully and differ-
ences of judgment within the Intelligence Community are brought to the at-
tention of national policymakers;
(1) Ensure the timely exploitation and dissemination of data gathered by na-
tional foreign intelligence collection means, and ensure that the resulting in-
telligence is disseminated immediately to appropriate government entities
and military commands;
(m) Establish mechanisms which translate national foreign intelligence ob-
jectives and priorities approved by the NSC into specific guidance for the
Intelligence Community, resolve conflicts in tasking priority, provide to de-
partments and agencies having information collection capabilities that are
not part of the National Foreign Intelligence Program advisory tasking con-
cerning collection of national foreign intelligence, and provide for the devel-
opment of plans and arrangements for transfer of required collection task-
ing authority to the Secretary of Defense when directed by the President;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
(n) Develop, with the advice of the program managers and departments and
agencies concerned, the consolidated National Foreign Intelligence Program
budget, and present it to the President and the Congress;
(o) Review and approve all requests for reprogramming National Foreign In-
telligence Program funds, in accordance with guidelines established by the
Office of Management and Budget;
(p) Monitor National Foreign Intelligence Program implementation, and, as
necessary, conduct program and performance audits and evaluations;
(q) Together with the Secretary of Defense, ensure that there is no unneces-
sary overlap between national foreign intelligence programs and Depart-
ment of Defense intelligence programs consistent with the requirement to
develop competitive analysis, and provide to and obtain from the Secretary
of Defense all information necessary for this purpose;
(r) In accordance with law and relevant procedures approved by the Attor-
ney General under this. Order, give the heads of the departments and agen-
cies access to all intelligence, developed by the CIA or the staff elements of
the Director of Central Intelligence, relevant to the national intelligence
needs of the departments and agencies; and
(s) Facilitate the use of national foreign intelligence products by Congress
in a secure manner.
1.6 Duties and Responsibilities of the Heads of Executive Branch Depart-
ments and Agencies.
(a) The heads of all Executive Branch departments and agencies shall, in
accordance with law and relevant procedures approved by the Attorney
General under this Order, give the Director of Central Intelligence access to
all information relevant to the national intelligence needs of the United
States, and shall give due consideration to the requests from the Director of
.Central Intelligence for appropriate support for Intelligence Community
activities.
(b) The heads of departments and agencies involved in the National Foreign
Intelligence Program shall ensure timely development and submission to the
Director of Central Intelligence by the program managers and heads of
component activities of proposed national programs and budgets in the
format designated by the Director of Central Intelligence, and shall also
ensure that the Director of Central Intelligence is provided, in a timely and
responsive manner, all information necessary to perform the Director's pro-
gram and budget responsibilities.
(c) The heads of departments and agencies involved in the National Foreign
Intelligence Program may appeal to the President decisions by the Director
of Central Intelligence on budget or reprogramming matters of the National
Foreign Intelligence Program.
1.7 Senior Officials of the Intelligence Community. The heads of depart-
ments and agencies with organizations in the Intelligence Community or the
heads of such organizations, as appropriate, shall:
(a) Report to the Attorney General possible violations of federal criminal
laws by employees and of specified federal criminal laws by any other
person as provided in procedures agreed upon by the Attorney General and
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
124
Executive Orders E.O. 12333
the head of the department or agency concerned, in a manner consistent
with the protection of intelligence sources and methods, as specified in
those procedures;
(b) In any case involving serious or continuing breaches of security, recom-
mend to the Attorney General that the case be referred to the FBI for fur-
ther investigation;
(c) Furnish the Director of Central Intelligence and the NSC, in accordance
with applicable law and procedures approved by the Attorney General
under this Order, the information required for the performance of their re-
spective duties;
(d) Report to the Intelligence Oversight Board, and keep the Director of
Central Intelligence appropriately informed, concerning any intelligence ac-
tivities of their organizations that they have reason to believe may be un-
lawful or contrary to Executive order or Presidential directive;
(e) Protect intelligence and intelligence sources and methods from unauthor-
ized disclosure consistent with guidance from the Director of Central
Intelligence;
(f) Disseminate intelligence to cooperating foreign governments under ar-
rangements established or agreed to by the Director of Central Intelligence;
'(g) Participate in the development of procedures approved by the Attorney
General governing production and dissemination of intelligence resulting
from criminal narcotics intelligence activities abroad if their departments,
agencies, or organizations have intelligence responsibilities for foreign or
domestic narcotics production and trafficking;
(h) Instruct their employees to cooperate fully with the Intelligence Over-
sight Board; and
(i) Ensure that the Inspectors General and General Counsels for their orga-
nizations have access to any information necessary to perform their duties
assigned by this Order.
1.8 The Central Intelligence Agency. All duties and responsibilities of the
CIA shall be related to the intelligence functions set out below. As author-
ized by this Order; the National Security Act of 1947, as amended; the CIA
Act of 1949, as amended; appropriate directives or other applicable law, the
CIA shall:
(a) Collect, produce and disseminate foreign intelligence and counterintelli-
gence, including information not otherwise obtainable. The collection of for-
eign intelligence or counterintelligence within the United States shall be co-
ordinated with the FBI as required by procedures agreed upon by the Direc-
tor of Central Intelligence and the Attorney General;
(b) Collect, produce and disseminate intelligence on foreign aspects of nar-
cotics production and trafficking;
(c) Conduct counterintelligence activities outside the United States and,
without assuming or performing any internal security functions, conduct
counterintelligence activities within the United States in coordination with
the FBI as required by procedures agreed upon by the Director of Central
Intelligence and the Attorney General;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
E.O. 12333 Title 3-The President
(d) Coordinate counterintelligence activities and the collection of informa-
tion not otherwise obtainable when conducted outside the United States by
other departments and agencies;
(e) Conduct special activities approved by the President. No agency except
the CIA (or the Armed Forces of the United States in time of war declared
by Congress or during any period covered by a report from the President to
the Congress under the War Powers Resolution (87 Stat. 855))* may conduct
any special activity unless the President determines that another agency is
more likely to achieve a particular objective;
(f) Conduct services of common concern for the Intelligence Community as
directed by the NSC;
(g) Carry out or contract for research, development and procurement of
technical systems and devices relating to authorized functions;
(h) Protect the security of its installations, activities, information, property,
and employees by appropriate means, including such investigations of ap-
plicants, employees, contractors, and other persons with similar associ-
ations with the CIA as are necessary; and
(i) Conduct such administrative and technical support activities within and
outside the United States as are necessary to perform the functions de-
scribed in sections (a) through (h) above, including procurement and essen-
tial cover and proprietary arrangements.
1.9 The Department of State. The Secretary of State shall:
(a) Overtly collect information relevant to United States foreign policy
concerns;
(b) Produce and disseminate foreign intelligence relating to United
States foreign policy as required for the execution of the Secretary's
responsibilities;
(c) Disseminate, as appropriate, reports received from United States diplo-
matic and consular posts;
(d) Transmit reporting requirements of the Intelligence Community to the
Chiefs of United States Missions abroad; and
(e) Support Chiefs of Missions in discharging their statutory responsibilities
for direction and coordination of mission activities.
1.10 The Department of the Treasury. The Secretary of the Treasury shall:
(a) Overtly collect foreign financial and monetary information;
(b) Participate with the Department of State in the overt collection of gener-
al foreign economic information;
(c) Produce and disseminate foreign intelligence relating to United States
economic policy as required for the execution of the Secretary's responsibil-
ities; and
(d) Conduct, through the United States Secret Service, activities to deter-
mine the existence and capability of surveillance equipment being used
against the President of the United States, the Executive Office of the Presi-
dent, and, as authorized by the Secretary of the Treasury or the President,
other Secret Service protectees and United States officials. No information
The correct citation is (87 Stat. 555).
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Executive Orders E.O. 12333
shall be acquired intentionally through such activities except to protect
against such surveillance, and those activities shall be conducted pursuant
to procedures agreed upon by the Secretary of the Treasury and the Attor-
ney General.
1.11 The Department of Defense. The Secretary of Defense shall:
(a) Collect national foreign intelligence and be responsive to collection
tasking by the Director of Central intelligence;
(b) Collect, produce and disseminate military and military-related foreign
intelligence and counterintelligence as required for execution of the Secre-
tary's responsibilities;
(c) Conduct programs and missions necessary to fulfill national, depart-
mental and tactical foreign intelligence requirements;
(d) Conduct counterintelligence activities in support of Department of De-
fense components outside the United States in coordination with the CIA,
and within the United States in coordination with the FBI pursuant to pro-
cedures agreed upon by the Secretary of Defense and the Attorney General;
(e) Conduct, as the executive agent of the United States Government, sig-
nals intelligence and communications security activities, except as other-
wise directed by the NSC;
(f) Provide for the timely transmission of critical intelligence, as defined by
the Director of Central Intelligence, within the United States Government;
(g) Carry out or contract for research, development and procurement of
technical systems and devices relating to authorized intelligence functions;
(h) Protect the security of Department of Defense installations, activities,
property, information, and employees by appropriate means, including such
investigations of applicants, employees, contractors, and other persons with
similar associations with the Department of Defense as are necessary;
(i) Establish and maintain military intelligence relationships and military in-
telligence exchange programs with selected cooperative foreign defense es-
tablishments and international organizations, and ensure that such relation-
ships and programs are in accordance with policies formulated by the Di-
rector of Central Intelligence;
(j) Direct, operate, control and provide fiscal management for the National
Security Agency and for defense and military intelligence and national re-
connaissance entities; and
(k) Conduct such administrative and technical support activities within and
outside the United States as are necessary to perform the functions de-
scribed in sections (a) through (j) above.
1.12 Intelligence Components Utilized by the Secretary of Defense. In car-
rying out the responsibilities assigned in section 1.11, the Secretary of De-
fense is authorized to utilize the following: `
(a) Defense Intelligence Agency, whose responsibilities shall include;
(1) Collection, production, or, through tasking and coordination, provision of
military and military-related intelligence for the Secretary of Defense, the
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Joint Chiefs of Staff, other Defense components, and, as appropriate, non-
Defense agencies;
(2) Collection and provision of military intelligence for national foreign in-
telligence and counterintelligence products;
(3) Coordination of all Department of Defense intelligence collection
requirements;
(4) Management of the Defense Attache system; and
(5) Provision of foreign intelligence and counterintelligence staff support as
directed by the joint Chiefs of Staff.
(b) National Security Agency, whose responsibilities shall include:
(1) Establishment and operation of an effective unified organization for sig-
nals intelligence activities, except for the delegation of operational control
over certain operations that are conducted through other elements of the in-
telligence Community. No other department or agency may engage in sig-
nals intelligence activities except pursuant to a delegation by the Secretary
of Defense;
(2) Control of signals intelligence collection and processing activities, in-
cluding assignment of resources to an appropriate agent for such periods
and tasks as required for the direct support of military commanders;
(3) Collection of signals intelligence information for national foreign intelli-
gence purposes in accordance with guidance from the Director of Central
Intelligence;
(4) Processing of signals intelligence data for national foreign intelligence
purposes in accordance with guidance from the Director of Central
Intelligence;
(5) Dissemination of signals intelligence information for national foreign in-
telligence purposes to authorized elements of the Government, including the
military services, in accordance with guidance from the Director of Central
Intelligence;
(6) Collection, processing and dissemination of signals intelligence informa-
tion for counterintelligence purposes;
(7) Provision of signals intelligence support for the conduct of military oper-
ations in accordance with tasking, priorities, and standards of timeliness
assigned by the Secretary of Defense. If provision of such support requires
use of national collection systems, these systems will be tasked within ex-
isting guidance from the Director of Central Intelligence;
(8) Executing the responsibilities of the Secretary of Defense as executive
agent for the communications security of the United States Government;
(9) Conduct of research and development to meet the needs of the United
States for signals intelligence and communications security;
(10) Protection of the security of its installations, activities, property, infor-
mation, and employees by appropriate means, including such investigations
of applicants, employees, contractors, and other persons with similar asso-
ciations with the NSA as are necessary;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
128
(11) Prescribing, within its field of authorized operations, security regula-
tions covering operating practices, including the transmission, handling and
distribution of signals intelligence and communications security material
within and among the elements under control of the Director of the NSA,
and exercising the necessary supervisory control to ensure compliance with
the regulations;
(12) Conduct of foreign cryptologic liaison relationships, with liaison for in-
telligence purposes conducted in accordance with policies formulated by
the Director of Central Intelligence; and
(13) Conduct of such administrative and technical support activities within
and outside the United States as are necessary to perform the functions de-
scribed in sections (1) through (12) above, including procurement.
(c) Offices for the collection of specialized intelligence through fPeconnais-
sance programs, whose responsibilities shall include:
(1) Carrying out consolidated reconnaissance programs for specialized
intelligence;
(2) Responding to tasking in accordance with procedures established by the
Director of Central Intelligence; and
(3) Delegating authority to the various departments and agencies for re-
search, development, procurement, and, operation of designated means of
collection.
(d) The foreign intelligence and counterintelligence elements of the Army,
Navy, Air Force, and Marine Corps, whose responsibilities shall include:
(1) Collection, production and dissemination of military and military-relat-
ed foreign intelligence and counterintelligence, and information on the for-
eign aspects of narcotics production and trafficking. When collection is con-
ducted in response to national foreign intelligence requirements, it will be
conducted in accordance with guidance from the Director of Central Intelli-
gence. Collection of national foreign intelligence, not otherwise obtainable,
outside the United States shall be coordinated with the CIA, and such col-
lection within the United States shall be coordinated with the FBI;
(2) Conduct of counterintelligence activities outside the United States in co-
ordination with the CIA, and within the United States in coordination with
the FBI; and
(3) Monitoring of the development, procurement and management of tacti-
cal intelligence systems and equipment and conducting related research,
development, and test and evaluation activities.
(e) Other offices within the Department of Defense appropriate for conduct
of the intelligence missions and responsibilities assigned to the Secretary
of Defense. If such other offices are used for intelligence purposes, the pro-
visions of Part 2 of this Order shall apply to those offices when used for
those purposes.
1.13 The Department of Energy. The Secretary of Energy shall:
(a) Participate with the Department of State in overtly collecting informa-
tion with respect to foreign energy matters;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
129
E.O. 12333 Title 3-The President
(b) Produce and disseminate foreign intelligence necessary for the Secre-
tary's responsibilities;
(c) Participate in formulating intelligence collection and analysis require-
ments where the special expert capability of the Department can contribute;
and
(d) Provide expert technical, analytical and research capability to other
agencies within the Intelligence Community.
1.14 The Federal Bureau of Investigation. Under the supervision of the At-
torney General and pursuant to such regulations as the Attorney General
may establish, the Director of the FBI shall:
(a) Within the United States conduct counterintelligence and coordinate
counterintelligence activities of other agencies within the Intelligence Com-
munity. When a counterintelligence activity of the FBI involves military or
civilian personnel of the Department of Defense, the FBI shall coordinate
with the Department of Defense;
(b) Conduct counterintelligence activities outside the United States in co-
ordination with the CIA as required by procedures agreed upon by the Di-
rector of Central Intelligence and the Attorney General;
(c) Conduct within the United States, when requested by officials of the In-
telligence Community designated by the President, activities undertaken to
collect foreign intelligence or support foreign intelligence collection require-
ments of other agencies within the Intelligence Community, or, when re-
quested by the Director of the National Security Agency, to support the
communications security activities of the United States Government;
(d) Produce and disseminate foreign intelligence and counterintelligence;
and
(e) Carry out or contract for research, development and procurement of
technical systems and devices relating to the functions authorized above.
Conduct of Intelligence Activities
2.1 Need. Accurate and timely information about the capabilities, inten-
tions and activities of foreign powers, organizations, or persons and their
agents is essential to informed decisionmaking in the areas of national de-
fense and foreign relations. Collection of such information is a priority ob-
jective and will be pursued in a vigorous, innovative and responsible
manner that is consistent with the Constitution and applicable law and re-
spectful of the principles upon which the United States was founded.
2.2 Purpose. This Order is intended to enhance human and technical col-
lection techniques, especially those undertaken abroad, and the acquisition
of significant foreign intelligence, as well as the detection and countering of
international terrorist activities and espionage conducted by foreign
powers. Set forth below are certain general principles that, in addition to
and consistent with applicable laws, are intended to achieve the proper
balance between the acquisition of essential information and protection of
individual interests. Nothing in this Order shall be construed to apply to or
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
130
-Executive Orders E.O. 12333
interfere with any authorized civil or criminal law enforcement responsibility
of any department or agency.
2.3 Collection of Information. Agencies within the Intelligence Community
are authorized to collect, retain or disseminate information concerning
United States persons only in accordance with procedures established by
the head of the agency concerned and approved by the Attorney General,
consistent with the authorities provided by Part 1 of this Order. Those pro-
cedures shall permit collection, retention and dissemination of the following
types of information:
(a) Information that is publicly available or collected with the consent of
the person concerned;
(b) Information constituting foreign intelligence or counterintelligence, in-
cluding such information concerning corporations or other commercial orga-
nizations. Collection within the United States of foreign intelligence not oth-
erwise obtainable shall be undertaken by the FBI or, when significant for-
eign intelligence is sought, by other authorized agencies of the Intelligence
Community, provided that no foreign intelligence collection by such agen-
cies may be undertaken for the purpose of acquiring information concerning
the domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence,
counterintelligence, international narcotics or international terrorism
investigation;
(d) Information needed to protect the safety of any persons or organiza-
tions, including those who are targets, victims or hostages of international
terrorist organizations;
(e) Information needed to protect foreign intelligence or counterintelligence
sources or methods from unauthorized disclosure. Collection within the
United States shall be undertaken by the FBI except that other agencies of
the Intelligence Community may also collect such information concerning
present or former employees, present or former intelligence agency contrac-
tors or their present or former employees, or applicants for any such em-
ployment or contracting;
(f) Information concerning persons who are reasonably believed to be po-
tential sources or contacts for the purpose of determining their suitability or
credibility;
(g) Information arising out of a lawful personnel, physical or communica-
tions security investigation;
(h) Information acquired by overhead reconnaissance not directed at specif-
ic United States persons;
(i) Incidentally obtained information that may indicate involvement in ac-
tivities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate
information, other than information derived from signals intelligence, to
each appropriate agency within the Intelligence Community for purposes of
allowing the recipient agency to determine whether the information is rele-
vant to its responsibilities and can be retained by it.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
131
E.O. 12333 Title 3-The President
2.4 Collection Techniques. Agencies within the Intelligence Community
shall use the least intrusive collection techniques feasible within the United
States or directed against United States persons abroad. Agencies are not
authorized to use such techniques as electronic surveillance, unconsented
physical search, mail surveillance, physical surveillance, or monitoring de-
vices unless they are in accordance with procedures established by the
head of the agency concerned and approved by the Attorney General. Such
procedures shall protect constitutional and other legal rights and limit use
of such information to lawful governmental purposes. These procedures
shall not authorize:
(a) The CIA to engage in electronic surveillance within the United States
except for the purpose of training, testing, or conducting countermeasures to
hostile electronic surveillance;
(b) Unconsented physical searches in the United States by agencies other
than the FBI, except for:
(1) Searches by counterintelligence elements of the military services direct-
ed against military personnel within the United States or abroad for intelli-
gence purposes, when authorized by a military commander empowered to
approve physical searches for law enforcement purposes, based upon a
finding of probable cause to believe that such persons are acting as agents
of foreign powers; and
(2) Searches by CIA of personal property of non-United States persons law-
fully in its possession.
(c) Physical surveillance of a United States person in the United States by
agencies other than the FBI, except for:
(1) Physical surveillance of present or former employees, present or former
intelligence agency contractors or their present of former employees, or ap-
plicants for any such employment or contracting; and
(2) Physical surveillance of a military person employed by a nonintelligence
element of a military service. .
(d) Physical surveillance of a United States person abroad to collect foreign
intelligence, except to obtain significant information that cannot reasonably
be acquired by other means.
2.5 Attorney General Approval. The Attorney General hereby is delegated
the power to approve the use for intelligence purposes, within the United
States or against a United States person abroad, of any technique for which
a warrant would be required if undertaken for law enforcement purposes,
provided that such techniques shall not be undertaken unless the Attorney
General has determined in each case that there is probable cause to believe
that the technique is directed against a foreign power or an agent of a for-
eign power. Electronic surveillance, as defined in the Foreign Intelligence
Surveillance Act of 1978, shall be conducted in accordance with that Act,
as well as this Order.
2.6 Assistance to Law Enforcement Authorities. Agencies within the Intel-
ligence Community are authorized to:
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
132
Executive Orders E.O. 12333
(a) Cooperate with'appropriate law enforcement agencies for the purpose of
protecting the employees, information, property and facilities of any agency
within the Intelligence Community;
(b) Unless otherwise precluded by law or this Order, participate in law en-
forcement activities to investigate or prevent clandestine intelligence activi-
ties by foreign powers, or, international terrorist or narcotics activities;
(c) Provide specialized equipment, technical knowledge, or assistance of
expert personnel for use by any department or agency, or, when lives are
endangered, to support local law enforcement agencies. Provision of assist-
ance by expert personnel shall be approved in each case by the General
Counsel of the providing agency; and
(d) Render any other assistance and cooperation to law enforcement au-
thorities not precluded by applicable law.
2.7 Contracting. Agencies within the Intelligence Community are author-
ized to enter into contracts or arrangements for the provision of goods or
services with private companies or institutions in the United States and
need not reveal the sponsorship of such contracts or arrangements for au-
thorized intelligence purposes. Contracts or arrangements with academic in-
stitutions may be undertaken only with the consent of appropriate officials
of the institution.
2.8 Consistency With Other Laws. Nothing in this Order shall be con-
strued to authorize any activity in violation of the Constitution or statutes
of the United States.
2.9 Undisclosed Participation in Organizations Within the United States.
No one acting on behalf of agencies within the Intelligence Community may
join or otherwise participate in any organization in the United States on
behalf of any agency within the Intelligence Community without disclosing
his intelligence affiliation to appropriate officials of the organization, except
in accordance with procedures established by the head of the agency con-
cerned and approved by the Attorney General. Such participation shall be
authorized only if it is essential to achieving lawful purposes as determined
by the agency head or designee. No such participation may be undertaken
for the purpose of influencing the. activity of the organization or its mem-
bers except in cases where:
(a) The participation is undertaken on behalf of the FBI in the course of a
lawful investigation; or
(b) The organization concerned is composed primarily of individuals who
are not United States persons and is reasonably believed to be acting on
behalf of a foreign power.
2.10 Human Experimentation. No agency within the Intelligence Communi-
ty shall sponsor, contract for or conduct research on human subjects except
in accordance with guidelines issued by the Department of Health and
Human Services. The subject's informed consent shall be documented as
required by those guidelines.
2.11 Prohibition on Assassination. No person employed by or acting on
behalf of the United States Government shall engage in, or conspire to
engage in, assassination.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
2.12 Indirect Participation. No agency of the Intelligence Community shall
participate in or request any person to undertake activities forbidden by
this Order.
General Provisions
3.1 Congressional Oversight. The duties and responsibilities of the Direc-
tor of Central Intelligence and the heads of other departments, agencies,
and entities engaged in intelligence activities to cooperate with the Con-
gress in the conduct of its responsibilities for oversight of intelligence activ-
ities shall be as provided in title 50, United States Code, section 413. The
requirements of section 662 of the Foreign Assistance Act of 1961, as
amended (22 U.S.C. 2422), and section 501 of the National Security Act of
1947, as amended (50 U.S.C. 413), shall apply to all special activities as de-
fined in this Order.
3.2 Implementation. The NSC, the Secretary of Defense, the Attorney Gen-
eral, and the Director of Central Intelligence shall issue such appropriate
directives and procedures as are necessary to implement this Order. Heads
of agencies within the Intelligence Community shall issue appropriate sup-
plementary directives and procedures consistent with this Order. The Attor-
ney General shall provide a statement of reasons for not approving any
procedures established by the head of an agency in the Intelligence Com-
munity other than the FBI. The National Security Council may establish
procedures in instances where the agency head and the Attorney General
are unable to reach agreement on other than constitutional or other legal
grounds.
3.3 Procedures. Until the procedures required by this Order have been es-
tablished, the activities herein authorized which require procedures shall be
conducted in accordance with existing procedures or requirements estab-
lished under Executive Order No. 12036. Procedures required by this Order
shall be established as expeditiously as possible. All procedures promulgat-
ed pursuant to this Order shall be made available to the congressional in-
telligence committees.
3.4 Definitions. For the purposes of this Order, the following terms shall
have these meanings:
(a) Counterintelligence means information gathered and activities conduct-
ed to protect against espionage, other intelligence activities, sabotage, or
assassinations conducted for or on behalf of foreign powers, organizations
or persons, or international terrorist activities, but not including personnel,
physical, document or communications security programs.
(b) Electronic surveillance means acquisition of a nonpublic communication
by electronic means without the consent of a person who is a party to an
electronic communication or, in the case of a nonelectronic communication,
without the consent of a person who is visably present at the place of com-
munication, but not including the use of radio direction-finding equipment
solely to determine the location of a transmitter.
(c) Employee means a person employed by, assigned to or acting for an
agency within the Intelligence Community.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
134
Executive Orders E.O. 12333
(d) Foreign intelligence means information relating to the capabilities, in-
tentions and activities of foreign powers, organizations or persons, but not
including counterintelligence except for information on international terror-
ist activities.
(e) Intelligence activities means all activities that agencies within the Intel-
ligence Community are authorized to conduct pursuant to this Order.
(f) Intelligence Community and agencies within the Intelligence Community
refer to the following agencies or organizations:
(1) The Central Intelligence Agency (CIA);
(2) The National Security Agency (NSA);
(3) The Defense Intelligence Agency (DIA);
(4) The offices within the Department of Defense for the collection of spe-
cialized national foreign intelligence through reconnaissance programs;
(5) The Bureau of Intelligence and Research of the Department of State;
(6) The intelligence elements of the Army, Navy, Air Force, and Marine
Corps, the Federal Bureau of Investigation (FBI), the Department of the
Treasury, and the Department of Energy; and
(7) The staff elements of the Director of Central Intelligence.
(g) The National Foreign Intelligence Program includes the programs listed
below, but its composition shall be subject to review by the National Secu-
rity Council and modification by the President:
(1) The programs of the CIA;
(2) The Consolidated Cryptologic Program, the General Defense Intelligence
Program, and the programs of the offices within the Department of Defense
for the collection of specialized national foreign intelligence through recon-
naissance, except such elements as the Director of Central Intelligence and
the Secretary of Defense agree should be excluded;
(3) Other programs of agencies within the Intelligence Community designat-
ed jointly by the Director of Central Intelligence and the head of the depart-
ment or by the President as national foreign intelligence or counterintelli-
gence activities;
(4) Activities of the staff elements of the Director of Central Intelligence;
(5) Activities to acquire the intelligence required for the planning and con-
duct of tactical operations by the United States military forces are not in-
cluded in the National Foreign Intelligence Program.
(h) Special activities means activities conducted in support of national for-
eign policy objectives abroad which are planned and executed so that the
role of the United States Government is not apparent or acknowledged pub-
licly, and functions in support of such activities, but which are not intended
to influence United States political processes, public opinion, policies, or
media and do not include diplomatic, activities or the collection and produc-
tion of intelligence orrrelated support functions.
(i) United States person means a United States citizen, an alien known by
the intelligence agency concerned to be a permanent resident alien, an un-
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
incorporated association substantially composed of United States citizens
or permanent resident aliens, or a corporation incorporated in the United
States, except for a corporation directed and controlled by a foreign gov-
ernment or governments.
3.5 Purpose and Effect. This Order is intended to control and provide di-
rection and guidance to the Intelligence Community. Nothing contained
herein or in any procedures promulgated hereunder is intended to confer
any substantive or procedural right or privilege on any person or
organization.
3.6 Revocation. Executive Order No. 12036 of January 24, 1978, as amend-
ed, entitled "United States Intelligence Activities," is revoked.
THE WHITE HOUSE,
December 4, 1981.
Editorial Note: The President's statement of Dec. 4, 1981, on United States intelligence activities
is printed in the Weekly Compilation of Presidential Documents (vol. 17. p. 1335).
President's Intelligence Oversight Board
By the authority vested in me as President by the Constitution and statutes
of the United States of America, and in order to enhance the security of the
United States by assuring the legality of activities of the Intelligence Com-
munity, it is hereby ordered as follows:
Section 1. There is hereby established within the White House Office, Ex-
ecutive Office of the President, the President's Intelligence Oversight Board,
which shall be composed of three members. One member, appointed from
among the membership of the President's Foreign Intelligence Advisory
Board, shall be designated by the President us Chairman. Members of the
Board shall serve at the pleasure of the President and shall be appointed by
the President from among trustworthy and distinguished citizens outside the
Government who are qualified on the basis of achievement, experience and
independence. The Board shall utilize such full-time staff and consultants
as authorized by the President.
Sec. 2. The Board shall:
(a) Inform the President of intelligence activities that any member of the
Board believes are in violation of the Constitution or laws of the United
States, Executive orders, or Presidential directives;
(b) Forward to the Attorney General reports received concerning intelli-
gence activities that the Board believes may be unlawful;
(c) Review the internal guidelines of each agency within the Intelligence
Community concerning the lawfulness of intelligence activities;
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
136
Executive Orders E.O. 12335
(d) Review the practices and procedures of the Inspectors General and
General Counsel of the Intelligence Community for discovering and report-
ing intelligence activities that may be unlawful or contrary to Executive
order or Presidential directive; and
(e) Conduct such investigations as the Board deems necessary to carry out
its functions under this Order.
Sec. 3. The Board shall, when required by this Order, report directly to the
President. The Board shall consider and take appropriate action with re-
spect to matters identified by the Director of Central Intelligence, the Cen-
tral Intelligence Agency or other agencies of the Intelligence Community.
With respect to matters deemed appropriate by the President, the Board
shall advise and make appropriate recommendations to the Director of Cen-
tral Intelligence, the Central Intelligence Agency, and other agencies of the
Intelligence Community.
Sec. 4. The heads of departments and agencies of the Intelligence Commu-
nity shall, to the extent permitted by law, provide the Board with all infor-
mation necessary to carry out its responsibilities. Inspectors General and
General Counsel of the Intelligence Community shall, to the extent permit-
ted by law, report to the Board concerning intelligence activities that they
have reason to believe may be unlawful or contrary to Executive order or
Presidential directive.
Sec. 5. Information made available to the Board shall be given all necessary
security protection in accordance with applicable laws and regulations.
Each member of the Board, each member of the Board's staff, and each of
the Board's consultants shall execute an agreement never to reveal any
classified information obtained by virtue of his or her service with the
Board except to the President or to such persons as the President may
designate.
Sec. 6. Members of the Board shall serve without compensation, but may
receive transportation, expense, and per diem allowances as authorized by
law. Staff and consultants to the Board shall receive pay and allowances as
authorized by the President.
THE WHITE HOUSE,
December 4, 1981.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
APPENDIX 2.-PLAINTIFF'S IN MACKENZIE V. CIA
(FEB. 6, 1984)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA T11e
r 6 l?8~
CENTRAL INTELLIGENCE AGENCY,
ET AL.,
OPPOSITION TO DEFENDANTS'
MOTION FOR EXTENSION OF TIME TO
COMPLETE PROCESSING OF DOCUMENTS,
AND PLAINTIFF'S CROSS-MOTIONS FOR
DISCOVERY AND A VAUGHN INDEX
Plaintiff respectfully requests this Court to deny
defendants' motion for an extension of time to complete process-
ing documents subject to plaintiff's FOIA request. Defendants
have had nearly seventeen months since they entered into a
Stipulation as to production, and have failed to show circum-
stances which warrant an extension of time.
In addition, plaintiff respectfully moves this Court
to lift the stay of proceedings,-agreed to by the parties in
the Stipulation of September 9, 1982, to permit plaintiff
appropriate discovery as to whether all document responsive
to plaintiff's FOIA request have been properly identified.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Plaintiff asserts that the search and production completed by
the CIA thus far has been inadequate and incomplete.
Finally,. plaintiff respectfully moves the Court to
Order defendants to prepare a Vaughn index, itemizing and
describing the factual basis upon which they claim exemptions
from FOIA's disclosure requirements, for all documents responsive
to plaintiff's request, as delimited by the September 9, 1982
Stipulation.
In support of this Opposition and these Cross-Motions,
plaintiff submits herewith a memorandum of points and authorities,
and a proposed order.
Plaintiff requests the Court to grant an oral hearing
on these motions.
Kevin J. Brosch
STEPTOE & JOHNSON
Chartered
1250 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 862-2000
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89BOO236ROO0200240007-9
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No.
82-1676
CENTRAL INTELLIGENCE AGENCY,
et. al.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO DEFENDANTS' MOTION FOR EXTENSION
OF TIME AND IN SUPPORT OF PLAINTIFF'S CROSS-MOTIONS
FOR DISCOVERY AND A VAUGHN INDEX
Plaintiff respectfully submits this memorandum in
opposition to defendants' January 16, 1984, Motion for an
Extension of Time to Complete Processing of Documents; and in
support of plaintiff's Cross-motions for Discovery and for
preparation of a Vaughn Index.
PLAINTIFF OPPOSES DEFENDANTS' REQUEST FOR
AN EXTENSION, AND SEEKS AN ORDER COMPELLING
PRODUCTION OF ALL REQUESTED DOCUMENTS WITHIN
THIRTY (30) DAYS
The current motion and cross-motions before the Court
result from the failure of the defendants, the Central Intel-
ligence Agency, et al., (hereinafter "defendants" or "CIA"), to
Approved For Release 2008/11/06: CIA-RDP89BOO236ROO0200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
140
comply with the terms of a Stipulation entered into by the
parties and approved by this Court on September 9, 1982 (Here-
inafter, "The Stipulation"). Pursuant to that Stipulation,
defendants agreed search its files for materials responsive to
a Freedom of Information Act ("FOIA") request made by plaintiff
Angus Mackenzie (hereinafter "Mackenzie" or "plaintiff").
Plaintiff's request was for documents in the CIA's files relat-
ing to thirty-eight domestic newspapers or periodicals. Defen-
dants were obliged, under the Stipulation, to report by November
9, 1982 if processing of any files would take more than one
year, and to provide a schedule for production. Absent that,
production was to have been completed by November 9,. 1983. The
defendants failed to meet these agreed-upon deadlines, and on
or about November 16, 1982 informed plaintiff that it would be
several weeks late in meeting its schedule for its final pro-
duction. Moreover, defendants informed plaintiff at that time
that they would not be able to produce any documents relating
to plaintiff's request for files relating to one of those
thirty-eight domestic periodicals -- Ramparts magazine -- and
asked for a six-month extension.
Plaintiff was regrettably unable to agree to defen-
dants' request. While plaintiff has continually sought, during
the past four-and-one-half years since his initial FOIA request
was filed, to accommodate the CIA, and to lessen its adminis-
trative burden, in achieving production of documents in this
case, plaintiff could only conclude that the CIA intended only
pro forma compliance with the terms of the Stipulation reached
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
on September 9, 1982. The CIA has not complied with either the
substance or spirit of that Stipulation. Therefore, plaintiff
has little option at this time other than to request relief
from this Court in the form of an order requiring the defen-
dants to complete production of the documents subject to the
stipulated agreement within thirty (30) days, and for other
relief set forth in sections II & III of this memorandum. In
order for the court to fully appreciate plaintiff's position, a
short summary of the circumstances that have transpired thus
far in this case is appropriate.
A. Plaintiffs FORA request for documents
has already been pending for more then
four and one half years.
Plaintiff Angus Mackenzie is a free-lance journalist
who has specialized since 1977 in investigating and reporting
about government relations with the press. Mackenzie's
articles have appeared in the Columbia Journalism Review, The
Progressive, The Nation, Jack Anderson's syndicated Merry-Go-
Round and in more than 550 newspapers throughout the United
States. Mr. Mackenzie has received acclaim for his work,
including the 1983 Award for Investigative Journalism from The
Media Alliance, a San Francisco journalism society.
In 1979, Mackenzie was conducting research, on
assignment for Columbia Journalism Review, regarding allege CIA
interference with the "underground" or "dissident" press.
After discovering evidence of a CIA operation which targetted
the dissident press in the United States, Mackenzie filed a
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
request under the FOIA, 5 U.S.C. S 552 et sec, with the Central
Intelligence Agency on June 25, 1979. Because the topic of his
research primarily benefitted the general public nationwide
Mr. Mackenzie requested that the CIA waive normal duplication
and production fees.
The CIA responded by denying Mr. Mackenzie's request
for the documents and for a fee waiver and required, instead, a
$61,500 search fee. However, the CIA stated that it would pro-
duce and waive fees for those newspapers "whose authorized
representatives . . . provided appropriate release in your
favor.'./ While Mr. Mackenzie continued to assert his rights
under FOIA for production of the files related to all the
requested newspapers, he did seek, and ultimately obtained,
waivers or releases from about twenty newspapers, and submitted
those to the CIA. The CIA never produced the requested docu-
ments for those twenty newspapers in spite of Mr. Mackenzie's
compliance with this "waiver" request. Throughout 1979 and
1980 Mr. Mackenzie continued to seek the documents and a fee
waiver from the CIA but to little avail. By April 9, 1981,
Mr. Mackenzie had pursued appeals of this denial at various
administrative levels at the CIA and was informed by the CIA
that he had exhausted all administrative remedies.
This "waiver" requirement is beyond any requirement found
in FOIA or the agency's implementing regulations. Besides, it
placed a virtually insurmountable block in Mr. Mackenzie's path
because most of the newspapers for whom requests had been made
had disbonded in the early 1970's.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
In March 1982, plaintiff requested administrative
reconsideration of the CIA's denial on the grounds that more
recent publications of his research in national periodicals and
prominent newspapers had provided clear evidence of the public
benefit from his work. In that same request for reconsidera-
tion, plaintiff offered to reduce substantially the size of his
original FOIA request to lessen the CIA's burden. At that
time, the plaintiff identified a discrete list of several dozen
newspapers which formed the basis of his revised request, and
in addition requested several specifically named files. The
CIA responded by stating that it would recalculate its esti-
mated search fee but refused to reconsider plaintiff's entitle-
ment to a fee waiver. The CIA asserted that it was continuing
to process the files for which Mr. Mackenzie had obtained
"waivers" but estimated, in a letter dated April 13, 1982, that
it would take an additional two years to produce those docu-
ments even though the CIA had promised to produce as early as
1979. Despite diligent efforts by the plaintiff to reach an
accommodation with the CIA, the agency showed no willingness to
compromise. Therefore, on June 9, 1982, Mr. Mackenzie was forced
to file suit in this case to assert his right to production of
these documents and fee waiver under the Freedom of Information
Act.
In the ensuing two months, plaintiff's counsel and
counsel representing the CIA conducted continuous negotiations
attempting to reach a settlement. On September 9, 1982, the
parties reached an accord and entered into The Stipulation. In
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
essence, the plaintiff agreed to limit his request to documents
relating to thirty-eight (38) D.S. underground or dissident
newspapers and CIA agreed to produce those documents on a
schedule which was-to last approximately one year. The CIA
also agreed, in a separate letter, to waive all fees for search
and production.
B. Defendants were aware of the volume
of the Ramparts files at the time they
agreed to t he Stipulation.
One of the reasons that. plaintiff agreed in theiStip-
ulation to a year's production schedule for his substantially-
reduced request was that the CIA told plaintiff, during the
period of negotiation, that it anticipated problems with
regards to production of documents for four of the 38 domestic
newspapers: the Liberation News Service, the Guardian,
2
Quicksilver Times, and Ramparts., The CIA stated that it
needed a sufficiently long period of production to respond to
the request, especially since it anticipated large numbers of
documents from these four periodicals. In fact, the CIA
insisted on the inclusion of paragraph 7 of the Stipulation
which specifically states that:
Paragraph 6 does not apply to the
following four publications or entities: (a)
Liberation News Service; (b) Guardian; (c)
Ramparts; (Z-) uicksilver Times. At the end
of the two months search period, CIA shall
1
2/ Ramparts was a leading journal of protest in the 6.0's and
70'5 whose editorial staff included well-known journalists like
Robert Scheer, now a reporter with the Los Angeles Times.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
provide an estimate as to the time for pro-
cessing. and releasing documents relating to
these four publications or entities, subject
to paragraphs 5 and 11.
Thus, defendants were well aware that the Ramparts files in
particular were extensive at the time they agreed to a one-year
production period.
Moreover, plaintiff has learned, upon infomation and
belief, that defendants have previously processed numerous
documents from the Ramparts files as part of its settlement of
Scheer v. CIA, Civil No. 77-1492 (N.D. Cal.) (filed July 7,
1977) (Poole, J.). Mr. Robert Scheer, currently a reporter for
the Los Angeles Times, and formerly a Ramparts editor, received
numerous documents from the CIA marked "Subj: Ramparts", or
similarly denominated as part of the CIA's Ramparts files.
Having already conducted that search, and completed production,
for that request, defendants knew more than just the general
size of Ramparts files; they were aware of the number of
documents likely to be involved. Thus, during the negotiation
period, and from the very beginning of the search and produc-
tion period designated in the Stipulation, the CIA knew that
the Ramparts production would be substantial, and agreed to the
one-year production period with that in mind.
C. The processing required for the first thirty-seven
requests has placed little burden on the CIA, and it
is therefore not entitled to any additional time.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
consider how diligent the CIA has been in responding to plain-
tiff's FOIA request since September 9, 1982. The total number
of documents actually produced to Mr. Mackenzie in more than
fourteen months' time has been thirty-six (36). Moreover, only
282 documents were identified by the CIA as even being "respon-
sive" to plaintiff's request. Plaintiff believes that the CIA
is actually in possession of many more documents that have been
reported, and has evidence which demonstrates the CIA's search
has been inadequate. See section II of this memorandum,
infra. Nonetheless, the agency's. expenditure of more than
fourteen months simply to identify just 282 documents and to
produce only 36, cannot reasonably be termed "diligent."
In spite of this, the Affidavit of Louis J. Dube,
Information Review Officer for the CIA's Director of Opera-
tions, submitted in support of defendant's motion (hereinafter
"Dube Affidavit"), states that "the Agency has processed the
plaintiff's FOIA request in the utmost good faith and with
evident due diligence." He states at paragraph 4 that "we
completed the processing of the 37 requests within the one year
time frame set forth by the stipulation. We have expended an
enormous amount of resources, and terms of both money and per-
sonnel time, in accomplishing this processing of plaintiff's
multi-faceted request." This language is conclusory and mis-
leading, and the Court should ignore it. The truth is that
plaintiff has received only a handful of documents from the CIA
in the past seventeen months. An analysis of what the plain-
tiff has received thus far exposes Mr. Dube's claims of due
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
diligence on the part of the CIA; such an assertion cannot be
supported by the meager search and production accomplished thus
far in this case.
Initially, Mr. Dube's statement that the CIA has com-
pleted processing "37 of the 38" requests gives a misleading
impression. The CIA reported to plaintiff on November 9, 1982
that there were no responsive documents whatsoever for nine of
these 37 newspapers. Thus, the CIA had absolutely no burden in
producing requests for nine newspapers, and at most, the CIA
can claim to have had the burden of processing 28 requests, and
not 37.
Moreover, the time expenditure required for the
search of those twenty-eight requests can hardly have been
"enormous." Whatever search method the CIA employed, it
uncovered, as mentioned earlier, only 282 responsive docu-
ments. This is hardly a fourteen-month task, and Mr. Dube's
affidavit is devoid of any explanation for such obvious
inefficiency.
And, as noted above, the CIA has actually produced
very few documents of those 282. The CIA has claimed exemp-
tions for, and has withheld in entirety, 80 of the 282 docu-
ments. In addition, the CIA has not produced another 166 of
the 282 documents because it claims that those documents belong
to other agencies. It claims either to have returned those
documents to the originating agencies, or has notified the
plaintiff that production will be "coordinated" with another
government agency.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. Dube's claim that production is "complete" for
the first thirty-seven requests is also inaccurate. To date,
of the documents which the CIA claimed would be coordinated
with other agencies, the plaintiff has received only two;
plaintiff is still awaiting report from the CIA on what will be
done with regard to those "coordinated" documents.
Thus, of the 282 documents which the CIA has identi-
fied since September 9, 1982 only a handful have actually been
delivered and produced in some form to the plaintiff. Processing
of the documents could not have taken "enormous" time as Mr.
Dube claims. For example, several of the 36 documents produced
were simply reproductions of Congressional reports, public
Commission documents and generally available indexes for which
no claims of exemptions would have been available to the CIA;
therefore, little review or analysis by CIA staff was
required. The CIA was simply faced with a simple reproduction
task in those cases.
Also, the CIA has been put to little time or effort
in evaluating the documents or in developing rationale for its
claims of exemptions for the 116 documents either withheld in
entirety or produced in deleted form. That is because the CIA
has made no attempt to explain its withholding of documents.
In virtually every case, it simply listed the "(b)(1)" national
security exemption or the "(b)(3)" sources and methods exemp-
tion as its basis for its withholding without providing any
further description of the documents, any analysis of why the
documents qualified for such an exemption claim nor any other
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
149
information which might require some expenditure of time or
effort on the CIA's part.
D. Defendants are bound to complete production in
accordance with the terms of the Stipulation, and
have not demonstrated "unexpected" difficulties which
would entitle them to an extension.
Defendants seek to excuse their failure to comply
with the production schedule established in the Stipulation by
relying on the authority granted this Court, under 5 U.S.C.
S 552(a)(6)(C), to extend certain statutory deadlines, and on
the language of the Court of Appeals decision in Open America
v. The Watergate Special Prosecution Task Force, 547 F.2d 605
(D.C. Cir. 1976) (hereinafter, "Open America"). Defendant's
reliance is misplaced for several reasons.
5 U.S.C. S 552(a)(6)(C) is only intended to permit
extension of the strict statutory deadlines for production
established under 5 U.S.C. S 552(a)(6)(A) & (B). The language
of the statute itself, the legislative history of FOIA, and the
Court of Appeals decision in Open America make that clear.
While the defendants Memorandum quotes partial language of 5
U.S.C. S 552(a)(6)(C), it omits the prior sentence which
defines the purpose of that subsection's grant of authority to
permit extensions. The statute provides:
(C) Any person making a request to any
agency for records under paragraph (1), (2),
or (3) of this subsection shall be deemed to
have exhausted his administrative remedies
with respect to such request if the agency
fails to.comply with the applicable time
limit provisions of this paragraph. If the
Government can show exceptional circumstances
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
exist and that the agency is exercising due
diligence in responding to the request, the
court may retain jurisdiction and allow the
agency additional time to complete its review
of the records. Upon any determination by an
agency to comply with a request for records,
the records shall be made promptly available
to such person making such request.
dants later acknowledge in
S 552(a) (6) (C) "was put in
of the administration that
(A) and (B) (of 5 U.S.C. S
Open America, supra at 610
Plaintiff is not
their memorandum, 5 U.S.C.
as a safety valve after the protests
the rigid limits of subparagraphs
552(a)(6)) might prove unworkable."
(emphasis added).
insisting that the defendants
produce documents subject to any deadline required by 5 U.S.C.
S 552(a)(6). The standards established in Open America only
apply to circumstances where those rigid deadlines are sought
to be enforced, and that is not this case. During the entire
history of this request, plaintiff has repeatedly attempted to
accommodate the CIA, and has agreed to production schedules far
longer than permitted by FOIA. In the Stipulation, plaintiff
agreed to a production schedule which would permit the CIA
sixty days to complete an initial review of its files and to
produce a schedule of release, and then an additional year to
complete its production. In Open America, plaintiffs were
3/ In fact, plaintiff's accomodations to the CIA has already
extended beyond the agreed-upon period. When informed by
counsel for defendants in November, 1983, that the CIA would
not meet the agreed upon deadline, plaintiff agreed to fore-
stall filing a Motion to Compel with this Court and attempted
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
attempting to enforce strictly the twenty-day statutory period;
here, defendants agreed to, and have been granted fourteen
months under the terms of the Stipulation. This is simply not
an Open America situation.
Thus, Open America may establish the standard for
determining whether a government agency will be excused from
complying with its statutorily-imposed deadlines, but is
inapposite in circumstances where, as here, the government
agency has committed itself to separate, contractual obliga-
tions to produce. Plaintiff submits that the Court must
determine whether the CIA has lived up to its contractual
obligations. Plaintiff asserts that the CIA plainly has not.
Those obligations were as follows: Under the terms
paragraphs 4 & 5 of the Stipulation, defendants were required
to complete initial search within two months, and to estimate
its time of processing which "may be as long as one year."
The CIA was then required, under paragraph 6, to process and
release documents relating to at least seven publications
every sixty days. Had the CIA identified documents for all 38
requested publications, production of all documents would have
required, at most, one year.
Paragraph 7 permitted the CIA to exempt four publica-
tions, including Ramparts, from the schedule in paragraph 6,
to negotiate an extension of time to produce which would be
reasonable and certain. Defendants would not agree to a firm
date and ultimately filed their Motion for extension.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
but specifically required the CIA, at the end of the sixty day
search period, to inform plaintiff if any additional time would
be required.
The Stipulation did allow for some flexibility in
adjusting the schedule. Two paragraphs of the stipulation are
notable in this regard. Under Paragraph 8, the CIA undertook
to produce the documents expeditiously and in good faith, and
to release documents earlier than the schedule required if
possible:
When possible, when all documents
pertaining to a particular newspaper have
been processed, such documents shall be
released (subject to withholding or deletion)
without waiting for the conclusion of the
entire process. Also, if possible, periodic
releases of documents relating to the four
publications or entities in paragraph 7 will
be made without waiting for the conclusion of
the entire processing.
Paragraph 11 of the stipulation permitted the CIA to
seek by agreement of the parties or application to the Court an
extension of the time period
"If unexpected difficulties are encountered;
for example, if documents discovered in the
search lead to a substantial number of addi-
tional documents.
(Emphasis added.)
These two provisions were specifically included in
the stipulation in order to ensure that the CIA would comply
with the production schedule in good faith, but to allow some
flexibility where "unexpected difficulties" occurred.
Defendants have simply failed to comply with any of
these obligations. First, defendants failed to fulfill their
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
obligations, under paragraph 7, to provide at the end of the
two-month search period, "an estimate as to the time for
processing and releasing documents relating to these four
publications or entities . . ." (including Ramparts). The
CIA's November 9, 1982 letter stated that "it is estimated that
it will take twelve months to complete the processing . . ."
If the CIA was to seek extension of the production period
because of Ramparts, it was obliged under paragraph 7 to report
this fact in the November 9, 1982 letter. It did not do so.
Second, the CIA did not completed its production by
November 9, 1983. As mentioned above, it produced no documents
for Ramparts; it has never finished processing the "coordinated
documents;" it did not even complete the first thirty-seven
requests until December 5, 1983.
Finally, the CIA has not shown "unexpected difficul-
ties" which would excuse its performance under the terms of
paragraph 11. Mr. Dube's affidavit fails to mention any
difficulties in production which were not known to, or could
not have reasonably been anticipated by the CIA at the time the
Stipulation was signed on September 9, 1982. The CIA clearly
knew that the Ramparts production would be more voluminous than
the other requests; the CIA had previously researched and pro-
duced a substantially similar request for Mr. Scheer. More-
over, the CIA surely knew that the Ramparts file was large
because it said so during negotiations and because it had
expressly reserved the right, which it failed to exercise, to
seek an extension on the Ramparts production by informing
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
plaintiff by November 9,.1982 of time estimates for that
production.
Mr. Dube's affidavit, in this regard, is singularly
unfortunate and distressing because he provides no dates or
time references to support his assertions. He states:
When we searched ... for Information on
Ramparts . we discovered a voluminous
amount of documents existed on that topic.
At that point we realized that it would be
impossible to complete processing and review
of the Ramparts request within the time set
forth in the stipulation. This unantici-
pated occurrence should not cloud [the CIA's
other efforts).
Plaintiff submits that Mr. Dube's affidavit in this
regard is wholly unadequate to demonstrate that "unexpected
difficulties [were) encountered," as required by paragraph 11
of the Stipulation. Notably absent from the Dube affidavit is
any statement of approximate date on which this "unanticipated"
discovery was made. The affidavit attempts to leave the
impression that the CIA had never estimated the size of the
Ramparts files until just recently and after it had completed
processing Mr. Mackenzie's first thirty-seven requests. In
light of the CIA's own Stipulation reservation regarding
Ramparts, and the prior Scheer production involving Ramparts
materials, plaintiff suggests that the. affidavit is mislead-
ing.
In this same regard, Mr. Dube fails to state how the 6,500
Apotentially responsive" Ramparts documents now identified
compares with the number of Ramparts documents identified on
November 9, 1982 at the conclusion of the search period. He
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Finally, Mr. Dube fails to explain why the CIA could
not process the Ramparts materials in the required fourteen
months when it had uncovered a list of only 282 documents, and
produced only 36 documents, for the other thirty-seven periodi-
cals combined. Mr. Dube wholly ignores the CIA's obligation,
under paragraph 8 of the Stipulation to release, where possi-
ble, documents prior to the conclusion of the entire processing
period. Certainly a serious question of CIA compliance with
the intent and spirit of the Stipulation exists where it took
the entire one-year processing period to produce just thirty-
six documents.
Much of the rest of the Dube affidavit, and of
defendant's memorandum, dwells on the large number of other
requests which the CIA must process. While this might be an
appropriate consideration in an Open America situation where
the government agency is being asked to comply with strict
statutory deadlines, it is of little consequence in this case
because this large number of requests cannot be said to con-
stitute "unexpected difficulties," the test to be applied
pursuant to paragraph 11 of the Stipulation. In fact, it is
clear that dealing with a large number of FOIA cases is a
regular fact of life for the CIA. See Dube Affidavit 9 6, at
does not state that it is any different, or explain why this
"voluminous"'number was not discovered and reported to plain-
tiff on November 9, 1982 in accordance with the requirements of
paragraph 7 of the Stipulation.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
5-6. Defendants admit that there has been a continued high
level of FOIA requests "since 1976." Defendants' Memorandum at
6. Even assuming the CIA did have a large number of cases to
process, it clearly understood those pressures when it entered
into the Stipulation on September 9, 1982. A large FOIA case
load was simply not "unexpected," and therefore does not excuse
defendants' failure to meet their contractual obligations.
The most troubling aspect of the CIA's request for
extension until April 30 is that it does not even guarantee
that it will complete processing-by that date. Mr. Dube's
affidavit, and the defendants' proposed order, state only that
the CIA will "make every reasonable effort," to come into com-
pliance by that date, but reserve the right to seek further
extensions at that time if they deem it necessary. This is
particularly unreasonable and must be rejected. It will soon
be nearly five years since Mr. Mackenzie made his initial
request; nearly two years since plaintiff offered to reduce the
scope of his request to accommodate the CIA; twenty-one months
since suit was filed in this case; eighteen months since the
parties entered into a Stipulation as to production; and nearly
three months since the production period was to end. The time
has come to put an end to the CIA's clear pattern of delay and
to require compliance with the intent of FOIA. Therefore, the
plaintiff respectfully requests that this Court enter an order
compelling production of all documents subject to plaintiff's
request within thirty (30) days.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
II. PLAINTIFF CROSS-MOVES FOR AN ORDER PERMITTING DIS-
COVERY TO DETERMINE WHETHER THE CIA HAS IDENTIFIED
FEWER THAN ALL DOCUMENTS IN ITS POSSESSION
A. The CIA has failed to identify and produce all
documents in its files responsive to plaintiff's
request.
Throughout the period of the past 17 months during
which the CIA has been producing documents, plaintiff has been
continually surprised by the small number of documents which
the CIA has identified as responsive to his request. Despite
defendants' initial assertions, made during negotiations over
the Stipulation, that plaintiff's requests were very extensive
and would require at least one year to respond to, only 282
documents have ultimately been identified for 37 domestic
periodicals and magazines. It is plaintiff's belief, based
.both on the initial CIA representation as to the scope of his
request, and also based.on research that he has conducted over
the past six years, that the CIA has many more responsive
documents than they have thus. far identified.
As the Court is well aware, the difficulty with
making such an assertion is that the CIA alone has access to
its files, and plaintiff has limited ability to demonstrate
instances of. withholding. However, Mr. Mackenzie has been able
to obtain CIA documents, from various sources during his
research, which indicate that in a number of instances the CIA
.has documents responsive to these plaintiff's request but has
neglected to identify or produce those documents.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Plaintiff has discovered that on November 30, 1976,
the CIA responded to a FOIA request from Mr. Andrew R. Marks, a
former employee at Liberation News Service. Liberation News
Service was a news-syndicate serving about 400 anti-war news-
papers in the late 1960's, and is one of plaintiff's 38
requests. Mr. Marks had asked for documents in the CIA's
possession which concerned him personally. A number of these
documents were documents which had been gathered by the CIA as
part of their operations targeting the Liberation News Service
where Mr. Marks served as managing and international editor
during the period February 1969 to July 1972 and again from
August 1977 through August 1981. See Marks Affidavit at
Appendix A.
In its production to Marks, the CIA identified a
number of documents in its possession related to the Liberation
News Service; it has failed to identify a number of these same
documents in its production to Mr. Mackenzie. For example, it
produced to Mr. Marks an expurgated copy of a memo dated January
23, 1971. That document, appended hereto as Exhibit B, appears
to be a CIA memorandum whose subject was the Liberation News
Service. Similarly, an internal memo dated April 25, 1971,
to Mr. Marks, the CIA also identified but did not release
other dispatches or memoranda with dates between February
and July 12, 1972. These were withheld from Mr. Marks on
basis of various claims of exemption. Plaintiff suspects
a number, or all of these documents were related to the
seven
1972
the
that
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Liberation -News Service because these dates directly correspond
to Mr. Marks' employment with that news syndicate. The CIA had
the responsibility to at least identify the existence of those
documents subject to plaintiff's request, and then, if it felt
appropriate, to make claims of exemptions. But it did not do
so, and in fact,identified none of these documents in its
report to Mr. Mackenzie.
Similarly, the CIA has previously produced, subject
to a request by the Center for National Security Studies
("CNSS"), a copy of a "Situation Information Report", dated
9/9/68 and attached hereto as Appendix C. This report, which
was released in total to CNSS,. represents finished intelligence
conducted by the CIA. That report specifically discusses the
Liberation News Service,.and yet, was not listed among the
documents which the'CIA has told Mr. Mackenzie are in its files
regarding Liberation News Service. Again, the CIA is required
.under the terms of the request. made by Mr. Mackenzie to
identify this document.
More recently, the CIA replied to a.FOIA request made
by Mr. Bill Conn of the College Press'Service. The CIA reply,
dated February 17, 1983, released. several documents including a
memo dated January 8, 1969. and authored by Howard J. Osborne,
Director of-Security. This document-makes reference both to
the Liberation News Service. and to the High,School Independent
News Service. See Appendix D, attached hereto. Both of these
periodicals are among the.38 requests made by Mr. Mackenzie.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Liberation News Service or the High School Independent Press
Service, the CIA did not identify or release this document.
The High School Independent Press was also mentioned
in a CIA document Gated April 2, 1969, previously released to
the CNSS, but again was not identified as responsive to Mr.
Mackenzie's request. This document is especially noteworthy in
that it states that CIA headquarters had an immediate and con-
tinuing requirement for information regarding. . ." [deleted)
coordinating news service for high school underground
newspapers called HIP--High School Independent Press--located
at the offices of Liberation News Service, 160 Claremont Ave.,
N.Y.C., 10027." See Appendix E, attached hereto. Despite this
document--and the reference found in it revealing the CIA's
continued interest in this news service--the CIA reported in
its letter on November 9, 1982, that there were no documents
responsive to Mr. Mackenzie's request for High School
Independent Press Service.
Even those few documents which have been released to
plaintiff indicate that there are other documents in the CIA
files which were not identified. For example, Document No. 9
of the CIA's production, which concerns Alternative Features
Services, refers to information obtained about this periodical
in CIA report "HQS-5547, 18 Oct. 71." See Appendix F, attached
hereto. That source document was not identified or listed as
responsive to Mr. Mackenzie's request for Alternative Feature
Service. Similarly, Document No. 17 is a report concerning the
Berkeley Barb and lists four other documents which served as
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
source documents. One, dated July 7,.1967, was-not identified
as responsive to Mr..Nackenzie's-request. for Berkeley Barb
documents. See Appendix G, attached hereto.
These omissions in?identifying responsive documents
has led plaintiff to. believe that the search.that has been con-
ducted by the CIA-to date has been woefully inadequate. While
plaintiff does not, at this time, assert. tha=t_ th?i?.s omissions
result from bad faith on the part of the Defendants, he
respectfully suggests that the manner in which the search of
agency files has been conducted,>.and the standards which agency
employees were directed touse to recognize. responsive docu-
ments, have resulted in an..the incomplete- and inadequate
identification.
(a) Wider circumstances where-there
is evidence of.a less than
adequate-FOIA~search, plaintiff
is entitled to--discovery.
This Court, andvthe::D:.C'; Circuit Court of..Appeals,
have recognized that' &iscov.ery.. is an-appropriate remedy where
factual. disputes arise as to -whether_(an--agency)- did in fact
hand over all' data- requested in a FOIA petition.,"__Murphy v.
FBI, 490T. Supp.-1134,-1137.(D;D.C. 1980); citing.Weisburg v.
Department of.Justice, 543 F.2d 308.(D.C. Cir. 1976) and Exxon
Corp .:.;v.''FTC,3384 F. Supp. 755 (D'.D.C. 1974)._ See also Founding
Church of Scientology; of Washington, D.C.:Inc. v. National
Security 'Agency,-610 F.2d 824. (D.C. ?Cir. :19:79)- (FOIA case
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
remanded for further proceeding where there was doubt as to
adequacy of agency search.)
In Weisburg, supra, our Court of Appeals reversed and
remanded the District Court's dismissal of a FOIA case to permit
the plaintiff to pursue discovery concerning information which
he had requested and which had not been disclosed. The Court
of Appeals found that the plaintiff had identified certain sci-
entific data regarding the assassination of President Kennedy,
which he believed to be in existence, but which had not been
identified, and ordered further discovery to determine the
"existence or non-existence" of the evidence. 5 See also Exxon
v. FTC, supra at 758 (court authorizes discovery to determine
adequacy of FTC's document search in FOIA case).
In Founding Church of Scientology, supra, the D.C.
Court of Appeals was faced with a very similar situation as
here. There, defendant NSA had failed to identify certain
documents responsive to plaintiffs request and had attempted to
justify their search procedures on the basis of unspecific and
highly conclusory affidavits. The Court of Appeals remanded
the case for further proceedings, stating that discovery as to
the adequacy of an agency's search is critical to plaintiff and
to the proper judicial administration of the FOIA. "To accept
its claim of inability to retrieve the requested documents in
if Although the plaintiff in Weisburg had attempted to
proceed by interrogatories, the Court of Appeals indicated that
a more advisable procedure would be to proceed by "depositions
or a court hearing." Weisburg, supra at 311.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the circumstances presented is to raise the specter of easy
circumvention of the Freedom of Information Act . . . (a)nd if,
in the face of well-defined requests and positive indications
of overlooked materials, an agency can so easily avoid adver-
sory scrutiny of its search techniques, the Act will inevitably
become nugatory." Founding Church of-Scientology of Washington,
D.C., Inc. V. National Security Agency, 610 F.2d 824, 836-37
(D.C. Cir. 1979) (emphasis added).
In addition, this District Court has ordered addi-
tional discovery where, as here,. the small number of documents
.listed as "responsive" to a request suggests that the agency
may have utilized an overly narrow interpretation of the FOIA
request, and where the documents produced themselves demon-
strate the existence of other responsive documents. See
Virginia Independent Schools Association v. Commissioner, 76-1
U.S.T.C. 1 9322 (D.D.C. 1976) at 83,758-62.
The Court in, Murphy v. FBI, supra, indicated that
discovery is permissible to test the adequacy of an agency's
FOIA search where (a) the agency had released the data regard-
ing its search; (b) the agency had filed affidavits claiming
complete compliance with the FOIA request; and (c) there
remained a factual dispute as to the adequacy of the search.
490 F.2d at 1137. All of these, circumstances are present in
this case.
First, the CIA has provided a list which it alleges
contains all documents in its files responsive to all plain-
tiff's requests (except Ramparts); second, the CIA has provided
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the affidavit of Mr. Dube which claims complete compliance with
plaintiff's requests (except Ramparts); and third, plaintiff
has demonstrated that documents, clearly responsive to some of
these requests and-in the control of the CIA, were nonetheless
not identified as responsive. Plaintiff is, therefore,
entitled to pursue appropriate discovery to determine whether
his requests were adequately complied with.
III. THIS COURT SHOULD REQUIRE DEFENDANTS TO PREPARE AND
PROVIDE A VAUGHN INDEX
Thus far, defendants have listed 282 documents as
allegedly responsive to plaintiffs request for CIA files on 37
periodicals and newspapers. Defendants have withheld eighty
(80) of those documents in their entirety; thirty-two (32)
other documents have been released only in expurgated versions,
some so totally masked as to constitute a de facto withholding
in entirety. Defendants have provided no descriptions of the
documents, no explanation of the nature of content, nor any
justification for withholding these documents, either in whole
or in part, other than cursory references--e.g., "(b)(1)" or
"(b)(3)"--to various disclosure exemptions under FOIA.
in paragraph 10 of the September 9, 1982 Stipulation
between the parties, plaintiff expressly reserved his "right to
challenge documents withheld or information deleted by the CIA
which would otherwise be responsive to this request." Plain-
tiff's ability to mount such a challenge, and indeed his
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
ability to decide whether such a challenge is appropriate, is
hampered by the fact that he has been told nothing about the
nature of.the documents being withheld. Plaintiff asserts that
the CIA's-justifications for withholding and claims of
exemption are inadequate to meet the agency's burden of proof
under.FOIA?of-establishing that it is-.entitled to'such
exemptions. Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir.
1973) (hereinafter, "Vaughn").
PTher_efore, pI-ai-ntiff requests this Court to enter an
order compel-ling-the defendants to prepare a detailed justifi-
cation-statement--for each document which it has either totally
or partially withheld from plaintiff in accordance with the
procedure recognized.. as appropriate in FOIA cases by our
Circuit Court in Vaughn. Plaintiff requests that this order
extend prospectively to all-documents responsive to Plaintiffs
Ramparts request, as.well as to the documents.already identi-
fied and withheld for-files of the other thirty-seven domestic
periodicals listed in plaintiff's request.
This.type of detailed justification -- commonly
referred to as-a Vaughn index--is the mechanism recommended by
our Court of Appeals for-insuring full and fair disclosure
.under FOIA. Vaughn involved a request for disclosure of
various Civil Service Commission records purportedly.consti-
tuting evaluations of the-personnel management programs ofl
certain federal agencies. When the Commission refused to
produce the records, the.plaintiff filed..-suit under FOIA. The
agency then submitted an affidavit containing conclusory and
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
generalized allegations of exemptions. The agency's motion for
summary judgment was granted inthe District Court, but the
Court of Appeals reversed and remanded, holding that the FOIA's
requirement of de novo review and its imposition on the agency
of the burden of proving exemptions mandated that the agency be
required to "undertake to justify in much less conclusory terms
its assertion of exemption and to index the information in a
manner consistent" with the guidelines enunciated by the
Court. 484 F.2d at 828.
The Court of Appeals stated:
"it is anomalous but obviously inevitable
that the party with the greatest interest
in obtaining disclosure is at a loss to
argue with desirable legal precision for
the revelation of the concealed information
. . The best [plaintiff) can do is to
argue that the exception is very narrow and
plead that the general nature of the docu-
ments sought make it unlikely that they
contain such [exempt] 'information."
484 F.2d at 823-24.
The Vaughn court mandated a procedure to allow the
law suit to proceed efficiently and in an traditionally adver-
sary manner. The government is required to submit a detailed
index and description of the withheld or deleted documents so
that the burden of proof remains on the government to justify
fully its claims of exemptions as the Act requires. The
detailed procedure, was necessary because
existing customary procedures foster ineffi-
ciency and create a situation in which the
Government need only carry its burden of
proof against a party that is effectively
helpless and a court system that is never
designed to act in the adversary capacity.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89BOO236ROO0200240007-9
It is vital that some process be formulated
that will-(1) assure-that a party'.s right to
information is not submerged beneath govern-
mental_.obfuscation and mischaracterization,
and (2) permit the court system effectively
and efficiently to . evaluate. the factual
nature.of-disputed information.
The Vaughn procedures.--. which require the agency to
produce both an i.temized,?indexed inventory, and detailed
justifications-statement for all requested documents for which
exemptions have been claimed -- have been-reaffirmed in many
other D.C._Circuit opinions. See, e.g.,_Cuneo v. Schlesinger,
484 F.2d 1086- (D.C. Cir. 1973), cert.-denied 415 U.S. 977
(1974); Mead'Data Central, Inc. v. Department of the Air Force,
566?F:2d?242--{D.C..Cir. 1977) ;-Ray v. Turner, 587 F.2d 1187
(D.C.'Cir.11978)?; Founding-Church of Scientology. of Washington,
D.C..,'Inc.-v:'Bell 603-F..2d 945 (D.C. Cir. 1979.). -'They have
been.utilized by other circuit courts., see,-e.g. Ollestad v.
Kelley,'573 F.2d 1109 (9th Cir. 1978); Seafarers International
Union,v..Baldoyin, 508 F.2d.125, vacated as moot,-511 F.2d 1161
(5th Cir. 1975),. and have been-specifically endorsed by Con-
Rep. No. 93-854, 9.3rd Conga 2d Sess., at page 15
(1974),, reprinted in'Staff of Senate Committee on-the Judiciary
.:and House. Committee on Government Operations,. Freedom.of Infor-
mation--Act and-Amendments of 1974.(P.L.-93-5072).? 'Vaughn
.Motions," arid-orders implementing-Vaughn -type relief are now
-standard practice in the district courts in"the District of
Columbia, see a-.g., information?Acquisition Corp. v. Department
of-Justice,.444 F. Supp. 458 (D.D.C.'1978) (Sir.ica, J.); Owens
Approved For Release 2008/11/06: CIA-RDP89BOO236ROO0200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
v. United States Bureau of Prisons, 379 F. Supp. 547, 549-50,
fn. 5 (D.D.C. 1974) (Waddy, J.); Cutler v. CAB, 375 F. Supp.
722, 724-25 (D.D.C. 1974) (Gesell, J.), and in other district
courts. Chamberlain v. Alexander, 419 F. Supp. 235 (S.D. Ala.
1976); Bell v. Department of Defense, 71 F.R.D. 349 (D.N.B.
1976); Mobil Oil Corp. v. FTC, 406 F. Supp. 305 (S.D.N.Y.
1976), on rehearing 430 F. Supp. 849 (S.D.N.Y. 1977).
Mr. Mackenzie, like the plaintiff in Vaughn, is in
the anomalous position of having a great interest in seeking to
enforce the FOIA's policy favoring an "overwhelming emphasis
upon disclosure, Vaughn, supra at 823, and yet finds himself
"at a loss to argue with desirable legal precision for the
revelation of the concealed information." Id. The relief
sought by this Motion would remedy this anomalous situation by
insuring that the CIA will not be able to discharge its burden
of proving exemptions through blanket claims and by providing
plaintiff with the information he must have to effectively
present his position on disputed exemption claims.
This Cross-Motion, if granted, will permit plaintiff
to test the CIA's exemption claims and lay the foundation for a
final determination of any disputes by this Court. The Court
will be in a position to make a truly de novo review as
mandated by FOIA and there will be a complete and appropriate
record in the event of an appeal.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
STEPTOE 6 JOHNSON
Chartered
1250 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 862-2000
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
For the reasons stated in this memorandum, it is
respectfully submitted that the Court should deny defendants'
request for an extension of time, and order prompt production
within thirty (30) days. Moreover, the Court should permit the
plaintiff to conduct discovery to assertain if the CIA's
production has been complete, and should require defendants to
prepare a Vaughn index.
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
I. ?Amdrew Marx, was employed at Liberation News Service from
February 1969?through.-3v1y_1972 and again -from August 1977 through
August. 1981. During that time Liberation News Service moved from
its former headquarters at 160 Claremont Ave., New York City, to
17 W. 17th St., New York City. My job titles included international
editor and managing editor.
EMILY SL JLC=
4PAYr1 PLtlk. St.1 el Np' $
Nt. 41.1239lSO
a"101 e m away Cntlnty
.. armluien Eapim hove //, 11$
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
(..N-i RAL INTEL
%YASMIMG7r APPENDIX B
Document
2. Memorandum, 6 November 1967.
S. Memorandum, 25 April 1971.
EXe-Dt iOns
())(1), (k)(1),
Privacy
())(1), (k)(1),
())(1), Ck)(I),
Privacy
()) (I); (k) (1),
Privacy
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Mr. Andrew R. Marx
c/o The Amherst Record
P.O. Box 7
Amherst, MA 01002
This is in reply to your request for information concern-
ing you which is held by this Agency. I' regret our delay in
responding. We are still at work on our backlog of similar
requests.
Our search of the files has produced the documents listed
below. They have been reviewed, and I have divided them
accordingly into three groups--those which are released in full,
those which are released with deletions, and those which have
been found not releasable. In the latter instances, I have
cited the applicable subsections of the Privacy Act for each
of the items in question.
The following is released in full:
1. Liberation News Service, '31 March 1971.
The following are released in sanitized form:
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Document
6. Memorandum, 4 May 1971.
Exemptions
(j)(1), (k)(1)
7. Dispatch, 14 Februrary 1972.
8. Dispatch, 2 March 1972.
9. Dispatch, 23 March 1972.
10. Dispatch, 18 April 1972.
11. Dispatch, 13 May 1972.
12. Dispatch, 6 July 1972.
13. Memorandum, 12 July 1972.
For your. information, subsection (j)(1) applies to
material which the Director of Central Intelligence is author-
ized to exempt from disclosure--in this instance, intelligence
sources and methods, which includes the names of certain Agency
employees and organizational components. Subsection (k)(1)
applies to material which has properly been classified under
Sections 1 and S(B) of Executive Order 11652. In the Spirit of
the Act, we have also deleted the. names of persons other than
yourself, in the interests of their own privacy.
Under the provisions of the Act, I am advising you of
your right to appeal our decisions. In the event that you
choose to do so, please write me, stating the basis of your
appeal, and I will see that it reaches the proper senior
official.
In addition to the foregoing, we found reference to
documents originated by the Federal Bureau of Investigation
in which you name appears. I am advised that you have sub-
mitted a similar request to the Bureau, 'and that this material
will be included in its reply to you.
Sincerely,
Gene F. Wilson
Information and Privacy Coordinator
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
I '.c^lnR S'olor
DJniel L. FJie,mon
Foul M. Gulielmeill
Dec, p
z
Mr. Gene F. Wilson
Information E Privacy Looroznator
Central Intelligence Agency
Washington, D.C. 20505
Cl,.ifl u:D Nr
C/i1
P.O.. $1.11 ..+ 70 CDDI
?
Da .tar r W
Dlllpn, 3 .rt 3
1.1 1
SN.r I. .Nr.. t.r...r ?Nre l.,.. rr..
/ ~ IT
1117
.
u.ncu en. rm..Ir.t ar.. _ ..............._
IT
. ..........
[
-S loan 3000 NO INSURSNCI COV[RSCI PRVID10- ?...r4..
J. n. SR7N NOT ION INTERNATIONAL MAIL
Andrew R. Marx has requested the above office
to pursue the appeal regarding the above-referenced Freedom
of Information request (see attached authorization of
Andrew R. Marx). Specifically, this letter shall consti-
tute the appeal of your determination via letter dated
30 November 1976. Mr. Marx appeals said determination
on the following grounds:
a. Though Mr. Marx's request was made pursuant
to the Freedom of Information Act, you have unilaterally
and unlawfully considered and responded to that request
as if it were a Privacy Act request. In particular, you
assert exemption (j)(1) of the.Privacy Act, which exemption
is not provided for under the F.O.I.A. and cannot be
asserted to -resist F.O.I.A. requests. Therefore, any
assertion of Privacy Act exemption (j)(1) to the instant
request is a nullity. In addition, though the F.O.I.A.
does have a corresponding exemption to the Privacy Act
exemption (k)(1), your assertion of this Privacy Act
exemption is also null for the reasons set forth above.
b. As to the "sanitized" documents provided,
we appeal your determination that the minimal portions
provided therein constitute the only reasonably segregable
portions you must, by law, provide.
c. As to those documents you do not provide,
we appeal-your determination that they cannot be provided
and/or that reasonably segregable portions cannot be
provided.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
To: 1$r. Gene F. Wilson
?1e: F.O.I.A. Request of Andrew R. 1arx
Page Two
d. We appeal any assertion of any exemption on
the grounds that the collection of said documents by the
'Central Intelligence Agency, and the possession thereof
by said agency, invades the First Amendment rights of Mr.
Marx, both as an individual citizen and as a journalist.
The exemptions of the F.O.I.A. (or the Privacy Act) are not
available to conceal the unconstitutional activities of
a federal agency, but only to protect against disclosure
of an agency's lawful activities and, even then, only in
the most specific and narrow circumstances..
e. The collection and possession of domestic
intelligence by the Central Intelligence Agency is prohibited
by statute.' Upon information and belief, most if not all
of the witheld and censored information relates to the domestic
activities of Mr. Marx and, therefore, the collection and
possession of it by the Central Intelligence Agency is illegal.
in providing for exemptions to both the F.O.I.A. and the
Privacy Act disclosure requirements, it was not contemplated
that the exercise of said exemptions would be applicable to
the ultra wires acts of government. No claim of "national
security", an3-certainly not the spurious ones.claimed herein,
can be used to conceal the at best extralegal and at worst
criminal activities of any government agency. We therefore
appeal your use of any exemption to the instant request on
the ground that the collection and possession of the information
it seeks is unlawful and that all F.O.I.A. and Privacy Act
exemptions are,. therefore, inapplicable.
Wherefore', the determination of releasability con-
tained in your letter of 30 November 1976 should be reversed
and all listed materials should be provided in full.
Very truly yours,
Richard J. Wagner
Legal Assistant
rjW
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
'RE
~
1
~
t'riY !T ~1 ~duY h..t i. Y..3.
Y) 4N ~~ `~ ?`?.
?
f
~
'
7
.
~Z~s
v
~
.MJ, t~l
c
k Jb
"
Mx, ,R
?
yy - !>t ~~! ws/if M t d vill S*t h t T 7.
.
3 S ~~ r
~ "~ 'r tL
~
~
~
~ i~
`~
? r.+w`1~-ici{:. ~
': ? ~' a?. .Ih~'I'-
" t
'
?ft ~? _~:C
r~ 'S.
~
j f, ~
I.
A
t
,
F
L
P
:M1f S ? ` Ya ,~?
t \ 11, ;.: LbSif^.: .;: r t ?
APFRO
.. -.-.
Jrf 'ti 4 y~~t~S a~ lf?tC~~.. +y y~t y~Yy~ :/?f 2fIY ~:~~~'
..'}.. ~..'.f_ b_?r:iif.s~..5a`w;.. :n :~1.n..`+~.?' C.?1'~:w~! I~?
r;?y.- z ? 1.Yr.^.`~nwL:.'I~t:n PFi
-
.: 4
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
h f . -0, 5 / s
Although the Democratic National Convention has managed
to complete its business in Chicago without serious loss of life, limb
or property, it does not signal the beginning of a period of peace and
tranouillity throughout the nation. Except for the vast security measures
undertaken by local, state, and Federal authorities in connection with
the DNC, it is generally conceded that disorder and disruption would
have been escalated.
All the elements that existed prior to the Ccnvention remain
and in some cases have intensified. Although fortunate that serious
racial disorder did not erupt in Chicago and that most dissident activists
were hippies, yippies, anti-war demonstrators, and members of the
far left, the racial agitators and militants do remain and it is projected
that they will become active again when faced with a less prepared
counterforce. Colleges and high schools will soon be reopening and
there are indications that many are already marked for turmoil. The
presidential campaign will lend itself as a constant target for disruptive
tactics or worse with many politicians using the stump for harangues
and agitation while others necessarily expose themselves to dissident
action of all degrees. Tom HAYDEN and other leaders of the National
Mobilization Committee, obviously highly elated at the success of their
efforts to bring about confrontations with the police and National Guard
? at the Democratic National Convention, have already indicated that they
intend to use same or similar tactics to produce "other Chicago's" and
will also see that the Presidential candidates and others ire continuously
harassed throughout the campaign period. Tom HAYDEN exulted that
the DNC was a "1005c victory in propaganda."
SDS plans to disrupt the openings of major u7.versities next
mnnth. They hoped to gather new members from the ranks of the
dissenters at the DNC. The 3 steps toward SDS'are from dissenter to
radical to revolutionary.
According to ?. Edgar HOOVER in the September - "FBI
Law Enforcement Bulletin" - Many of SDS's members and some of its
National leaders openly confess their faith in communist concepts and
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
180
but rather they appear to have been deliberately planned.
While there is still a deep resentment against conditions on the
part of a considerable number of Negro ghetto residents, the Negro'
community as a whole has not participated in the 1968 disorders to the
extent they took part in or sympathized with the riots in 1967. Part
of this may be due to the program initiated by the NAACP, CORE and
=Lhe National Urban Lcagoc=to improve life in the big-city slums, and
part from a decision not to tangle with the U-S. Army which .would be
called if rioting of the 1967 type should break out. The ambush and
sniping tactics, principally by Black Power extremists and the hit and
run tactics of the teen-agers has never reached proportions that would
necessitate calling in Army troops. While the 1968 disorders have not
been the massive type or as destructive as those that scourged Newark,
Detroit, Watts, and other cities, they have been more numerous than
prevailed last year and they present problems against which out-,cities,
states and the Federal Government do not. have a ready and sure-fire
response.
Editor's Note: It has been observed that the prompt and massive "over-
reaction" by the Los Angeles Police Department at the time of the recent
disorders following the 3rd Watts Anniversary activities kept them from
significant acceleration. Further, it was observed that the DNC dis-
orders failed to induce participation by Chicago's black ghettos whose
loaders had ordered militants to cool it in face of the considerable
forces or law and order mustered in advance of the Convention.
A modern phenomenon which has evolved in the last three or
four years is the vast growth of the Underground Press. Underground
means of mass communication utilized to avoid suppression by legal
authority and/or attribution is not new to this age, but its volume is and
the apparent freedom and ease in which filth, slanderous and libelous
statements, and what appear to be almost treasonous anti - establishment
propaganda is allowed to circulate is difficult to rationalize.
There are perhaps 150 - 200 underground papers, almost all
of them less than 3 years old and most, of them published under shaky
financial condition in large cities or college towns. Largely created to
reflect and shape the withdrawn life style of hippies and dropouts with
a successful formula based on sex, drugs, rock music, Oriental religion
and "the San Francisco look" in psychedelic art, they have taken a sharp
turn toward radical politics. Now the material is yielding to coverage of
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89BOO236ROO0200240007-9
student uprisings, the peace movement, guerrilla activities, draft
resistance and muck-raking attacks on the political and social estab-
lishment. Much of the disruptive activity so rampant currently is
propagandized and directed through the facilities of this press and its
e,ctra utilization for publicizing as well as printing handbills, brochures,
and 'other assorted items.
The .under grouni3-journals range from the brash young political
papers like the Giant Speckled Bird of Atlanta, to the solid affluence of
the Los Angeles Free Press. But the general trend is toward radical
politics. Like many editors. Max SCHERR of the Berkeley Barb believes
that police "harassment" is the largest single factor in politicizing the
alienated audience for underground papers. Much of the disenchantment
of the.^.ower people and the like is now being channeled into political
radicalism by -the war in Vietnam, pressure from the draft and the
recent student revolts at Columbia and the Sorbonne.
Since the 1st of the year, the few older papers, such as The
Barb and The San Francisco Free Press, have been joined by some 3D
new radical underground papers, most of them heavily i- uenced by the
leftist Students for a Democratic Society. Many of them, like the SDS,
consider American society hopelessly corrupt and advocate disruption
of "the system." In general the underground papers keep a sharp watch for
misconduct by the police and for any evidence, however tenacious, that the
U.S. is run by an interlocking directorate of the selfish and the complacent.
The BPP gets heavy coverage, but otherwise race is not usually a priority
issue. News -coverage is consciously subjective and one-sided. The theory
is that truth is rooted in personal experience, and that the standard news
media, by insisting on impartial and detached coverage, omit and distort
the underlying'reality of crucial news events. In shorter form, the
argument goes that no newspaper is objective - the underground papers
are just the only ones acknowledging it.
The papers are not held together by massive objectivity, but
by trust. This same trust led to the "Underground Press Service," an
agreement among some 60 underground editors to reprint from one
anothcr's papers without special permission, attribution or rechecking.
The underground papers are not a quality press.. Eight out of 10 would'
fail if a few phonograph record companies stopped advertising in them.
The advantage of the political papers is that they know exactly
what their goal is, and a good.deal of the credit for their rise if being
assigned to Liberation News Service. Liberation News was founded in
Washington, D. C. in 1967 by Ray MUNGO (Boston Univesity-1966) .
Approved For Release 2008/11/06: CIA-RDP89BOO236ROO0200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
and Marshall BLOOM (Amhurst 1966), both radical editors of their
college papers."-It provides inexpensive political coverage (515.00
a month for 2 or 3 weekly packets.) to 400 outlets, including some 100
underground papers, and has reportedly persuaded many "drug culture"
papers to emphasize politics.
The basic belief is that a "new journalism" is taking shape in
}lmerica, totally outsidesthe province of Established Journalism and
that radicals are leading the movement. It also assumes that the es-
tablished media are incapable of printing the truth about anything
important. In a bitter dispute recently, the Liberation News Agency
split into two factions, both of which are attempting to continue
publication as the one and only Liberation News Service.
Stokely'CARMICHAPL, recently disassociated from SNCC
amidst much fanfare, reportedly may be trying to organize his own
group or to establish an association with The Black Liberators, a
militant black organization with headquarters in St. Louis, Missouri.
He continues to speak out urging blacks to arm, prepare for guerrilla
warfare and to have an undying hatred for whites.
SOURCE: Police sources through FBI - Ii.' 82365
Although CAR MICHAEL seemingly has moved closer to the
Black Panther Party, it appears that the BFF leadership is not yet
ready to further share their power. CARMICHAEL's ouster from SNCC
has left SNCC with internal dissension as a number of CARMICHAEL
supporters remain in SNCC and do not fully accept the current leadership.
The long murder trial of Huey P. NEWTON, Black Panther
leader, went to the jury on 5 September 1968. The only Negrc member
of the jury was elected its foreman. The verdict will be awaited with
considerable interest. Ever since NEWTON's arrest the case has
received great attention and publicity and has marked by almost con-
tinuous protests and demonstrations. The BPP and others have threatened
extensive retribution if NEWTON is not freed and has brazenly stated
that they will secure his release legally or by. other means. It must be
assumed that a verdict of "guilty" will result in some disorder and
disturbance. Its proportions cannot be forecast.
According to COMBAT, the new conservative National. Review,
newsletter - Hippies poured a fortune in LSD into reservoirs expecting "to
turn the Convention on." They were dismayed at the lack of results.
Combat said - Chlorinated water instantly neutralizes LSD.' The con-
taminators were caught by police and arrested, but the news wasn't
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
CENTRAL INTELLIGE11
WASHINGTON. D.C..20505
Bill Sonn
College Press Service
1140 Delaware Street, Suite 3
Denver, CO 80204
17 FEE X33
This is a final reply to your.30 May 1979 letter in which
you requested, under the Freedom of Inforamtion Act (POIA),
documents retrievable under the present and past names of your
Organization.
As you may recall, we had provided you an interim response
on 6 July 1979; this final response also includes and updates
what we had earlier provided Mr. Paul Feroe of your organization
on 18 April 1975.
After a thorough search of our records systems we located
documents under 'College Press Service, "Collegiate Press
Service," and "United States Student Press Association," which
are listed below. The following determinations have been made on
their releasability.
Enclosed, Tab A, are copies of two documents which we are
releasing to you with no deletions made.
Documents
1. Letter, 6 January 1969.
2. Article from the University News, University of
Missouri, Kansas City; MO., April 1971.
We also note that our files reflect the existence of another
open source article published in the 21 September 2967 Issue of
the Christian Science Monitor.
Enclosed, Tab B, are copies of documents in which deletions
were made under exemption provisions (b)(1) and (b)(3) of the
FOIA.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Documents
3-6. Memoranda, 1 November 1966, .8 January 1969,
19 February 1969, and 3 August 1970.
7. Extract, 12 October 1971.
8. Attachment to Dispatch, "Radical Publications and
Organizations," undated.
In addition, there are 9 other documents which must be
withheld from you In their entirety under provisions (b)(1) and
(b)(3) of the FOIA. We attach at Tab C an explanation of these
provisions.
The denying official for the documents withheld in toto, as
well as for documents 3,6,7, and 8, is Mr. Louis J. Dube,
Information Review Office for the Directorate of Operations. The
denying official for documents 4 and 5 was Mr. Warren Priestley,
Former Chief, Information Review Group, Office of Security.
I am advising you of your right to appeal the above
decisions by addressing your appeal to the CIA Information Review
Committee, in my care. Should you decide to do this, please set
forth the basis of.your appeal.
We wish to apologize for the length of time it has taken us
to complete the processing of your request. We have been
inundated, however, by a large number of requests over the past
several years. Under the circumstances, we can only do our best
to apportion our time and efforts in a manner calculated to
satisfy all of our requesters. Thus, we have adopted the policy
of first-received, first-answered. Tnank you for your patience
and consideration while we were completing the processing of your
request.
Lary w Strawderman
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
g T,4 tJ l 9% 7
MEMORANDUM FOR- L`e?uy Dir+r.?or for Sc pozt '
SUBJECT New Lett 1e.Muaue is ti. C.azm?e. Press
Ap;roved Ser eRelar s
1. This ~. ra'' -? is far _Io ^a io_ e_T. - .-s
Z. There has be.o ao flrz r=- a ici: tJI , . et lie
ra_ D+r of c&=-=s.s pvhl ca.tie3s i_ IL. L'=:tto.d States ..Lick a.-e
eo_troii.d a.-d/or i-11aaae.d by the S`IVDj-'NT5 FOR A DEMOCRATIC
SOCLrTY aad other radical New 1.et org?-'~? tors.. I= rete=
Lse-.Psiea w-tb FBI liaiso . L? was d.ter.L .. tbsa t .. B= .a. .
thongb alert to indi'ridnal aci' ri:iss of u -yes joe-alists. La.s
tact saeq a dt-afl.-2 overri.w of LLn pro&l e=. :?r a .:
- 3. Over ti. past tire-o 7..ara, bo..r.r. a?.?orts runett
a.o iacr..asLg appaa_a s of New 1.c4 m.&tvrial is =say ez=?us
po'siicitiva. direCly dm* to c.i fls aid cootr .i-ioas by Ste,
?LI3LRAT1ON PR=SS SzRVICE. UND=RC.RDIIIrD ?R1:S5 S RVICE,
the SDS RAI]iCAL EDUCATION PROJECT. -etc. ? A fo-=.r Ceo.ral
Socrv:-- ry of the L ecri11 UNITED S1ATEEZ STUDEF:T-?R=SS ? ?-,
ASSOC1AnON (IISEPA4 no- Leas. ens o-J tS. radix'- me.?s s?.r.ics,
iud USS?t. has Lax charged is the press with spwao:i~ a
Novrab. r 1968 "=i=?ar S.kith hl e-s s c o d i_o a r-=fc r?e acs of
Bower advou.:es... o.id.t charges of CIA .po:sorsiip
of the -s._-aiaa to ur mi]- art!' T ea Nezro ?1)ey.:p .v
earapo.e. io t . SorstL_":.(TAD A) _...r - ?.e_ ,:?v f s1"
hat'-e icet.dz-
.4. ? PwrLps?tas best tmetl al rs of tae New
LrM"*rac.s is as ca. epos press are the 1=1Io.izg c a plea of tie
ar:iviii.s of soree of the Rer-thaogi.f a't_'rors of the pahliesBcas:
1966.-- On 29 D.erber 1966. a letter eras eaat to
the President of the IIrited Stz.tes orer the sigaatr rcc of "stodcat-
body prwst .a is or sta.d.e t editors of 200 eol1eyes a:d s3rrs7's1tis9
to tb. IIaited Stai.s." The letter. ti. to.--- of wr,.!? ch was ?ral.as.d
to the press by the .tg .a ari.s, artpreseod ' ecrioo. to,--w "deebt."
aboet the Viet-??= cc'ofliet and was er'_tcal of the Selecir Service
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
A~oag guests P.T-idrd travel a.d 1c,62!=; expenses by USSPA to
atte :d the seniaar were Rev. N:atLaa WVR]GNT, oraaaiser of
.the N'W .RK BLACK PCWYz? CCi:F. AENCT s_ne screral asr~bers
of I.L. STt Z ZNT ANN-VSGLENT CCCRMINATING CCW3i1TTZE
Also aeeordl-mg to the, press, tae sets r.az bad no agenda a.
? virtra.Uy all the discussion ceatessd on the Slag Po+rr concept
in theory a=d in praetlea.^ A1tDwg3 a has-k~ of white etm+--?.
attended the aernimax. It vas reported that tbose in atteadiee
war: "pri=n.-ill ir9e Negro enllejes L-on ttiaahingtan soc:h to
Texas... M"y of tLe ssudon:s }4 t3iez7pax in anti-s.ar cs=oo-
ira io.:.s is a - jtx tro w&---is ago." .
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
TAB A
UNITED S.TAT=S STUD: 1:T PRESS ASSCCLi,TION
The UNITED STATES STUDENT P.7-SS ASSOCIATION
(USSPA) was founded in 1962, and for onaboci aucb of its life
shard off c.e spe.ee sad a eon=oz telepboaa systea r-3 the
DNITED STATES ) ATIO? AL STUDLNT.1.SSOCIATION (US.tSA),
at 7117 S Street, N. W., {pas .ngt D. C., in a buildizg iden:ifted
in the press as haviag bs.a provie..c' U5T3A by this A.-racy.
The 1968 vale. 'e of tae L cyc1cpeds of Orya=iaa=oaf Lots the
above address for USSSPA and I eludes the cc=-aa: tit it
"operates ow of the offices of the U_f:.2 States Niatioral Strdasl
Assotia or. bat the two org.^=-at!oas are not related to any
policy-ma3~-mg way." 1sow.ver, is a s'-'~- ed to a reporter
for the St. Louis Post-Dispatch on 4 No*erber 1966,
David ld. Petcraoa, eseec:t:vc director of USSPA, stated
the atndcrr press E,-o=p Lad n r--=wl.dge of the al3e2ed US.N A
tins with the CIA, and had since severed its relatioasbip wsth t l--&
US.V$A.
Z'},e L'SS?A c].aj s a ,a be;ehip of 310 and a Ravi of frre.
It operates the COL.1. LC IATZ P?ESS S= RY3CE (CPS), wh1C
reportedly proridca news sad ftaabra ^t.ories abca:t dcestie
and for etg }nth, student and ndueaton aettrities. The Service
is sold to stuoc=t nrwep.apurs, arodrnt go.srn.--V.11s, .ratio sad
ttleviaion stations, eolleg? puLie relatoraa offices, eesca` oa
?- aoia.Licn a, am-- eaTaercisl newsyepera a--.4 n a.. Lnloua.
USSPA also - aiz.-Ia'ns a clippl:a service of student newspepurs;
Prepares reports on variaas prob)cas of the stode= press;
operate^ a critique -ervice is w cI.prufasatooil and t'-n-'?e==
your..alists aaaiTse the oases and preaerltion of student pr.1-
Iicaticas; and issa?s the following irregula_- pohIc& oea: the
DSSPA B?al.tet n aa_^u+ls for stnriest editars, and anthologies of
ar icles on specific problems of the stvde_ preas. The zrocp
bolds rwgzlar regional cnsfereaceP, a f?r.-%ryek sn=mer sc=Lmar.
and an anaaal c vc _ oa-a+est the litter uanal)y is Ang-.est.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
The former Ceoeral Sccreta.ry of USS?A (sti11 1is:ed as
each in the 1965 Encyclopedia. of G:gaai_tia_s), Xla-s*mzM I. BLOOM
In identified as tbs co-foaader f. October 1967 of the radical
New Lest J-13=LAT3DN NEWS #ZRYSC E. G3LOO)., a for=e7 es._PSas
fournalist a: l:nhe:s_t; received netori.ty vebes suspended frp--n
the Loneoa School of E.eonoaica for orgaaisirq a sr-..fern priest
nectl g.) The LIBEBAMON Sr-?VICE claims to provide
thrice-.meekly a,ailiags mad a wire service to sa=e 400 subserib.rs',
mo,atly :safe :rvuad and eo11e+. papers, w41c3 pro-elides a reader-
ship of five million. L- b:arc 1965, t3r-LI3Z?-1t'1ON NEWS ?
ST-2Y1CE shared Was3iatgton. D. C- offices at 3 T3r..6Ls Circle, X. W.
ssith tb. WfrS},-I'4CTON F Ft_i ?R?=55, V113V C=NT PRL`TLO .4-ND
CRAP!-:1E, the reg!v-a].ot4cs of STUDENTS FOR A DZY.OCflATIC
SOLE T T, azZ a unit of the DICK CR rORT TOR PR CLUBS.
More receanly, i_ has bees reported that LI3_.ATION NEWS
SERVICE is operated ro_ BLOOM'S Le= in y-.sachasrtts and
from a New York City address. F:-can the le ter a42.reas it a1w
opera:-es F T-4' (1-3CFI SCIiOOL INDEPENDENT PRESS SiVfICZ)
to provid? N c w Left p:aoto.'and features tc high .cbool.o:3e'a1
and ,nds.rood publics io ~.
USS?A rectally (4 ?:o.?e:nber 1965), receive. no'n:iety ss
a reso2t of a weekcetl arrninas which it sponsor. f -so :be:a
.eoll+ga newspaper editors is Georgia- Ia the words of
a reporter for the St. l-ou1. Post-Pis:.ateh: "Want was billed as
a wPeekrad seminar for Soother, collet'o newspaper. .ditors hlc. ed
into a eoafereace of Black Power aewcates be:_ today- P~i-tnat'-mj
the gathering was a carpe that the #L`Lir was p1a='.ed s.arar the
a.uspics+ of the Ce=tral 1 .LelligCncc Agency to --nozitor =iliteat
actirr-y on Negro collrye c -n;r..aes in the Soa?.h."
DSSPA denSrd the charges of C LA lcrolvsn-,e:t, dis.c1z ,-
jug act' afS.listioa with CIA beyond that Agebc7's f nan .e. th:vugh
USSPA of the travel to the U. S. of at Is~'ias .tnds_? is 2965.
US5?A sirrilnrly d.o1.o continued ties with.the USNSA.
Aceordi :g to the press, nort of the cootro+ersLei ae=iaar
woes coxiuctard in a motel in a predoi3artly Negro sector of AD--- -
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
189
1967 -- The newly-for=.d NATIONAL 1S5Of1ATiON
OF STOD_NT PRESID#1NTS AND EDITCZS, is MAY 1967 sponsored
a "peace teach-iz" ton=ally titled "A Nati=zal Day of 1z uJry,"
which was eoaveyed by racio a=d telephone book-tip to approxi-
rnately awe. t7 university and eollcge ca npuses in the Etat sad
ScruLh, asd "involved" some eigbty c poses across the
United States. T3e.sponsoring organization Was described as
being eonpo -.c of more thin 20D preside-Ai of atvde_? rx:arls
or goverment* Lod editors of college p olicatioea. AppcarL=g
on the broadcast portion of the t.ac3-in were such V iett=a critics
as John Kenneth GALBRAITH. Jo) Ki.g IAM9A}C(. Jerc=o CC} ,
Staley HD72- (AN. a=d Henry Steele C0)4V-AGFA.
1968 -- Is a four page awe sae. eta spo:sons by
"Lay=en Canteraad" in the New York Ti=es of 3 May 1968.
two-l:u^e-ed x,4 ninety-eight i. ividuaL idee L1 as ec =r s of
college and ,^i.er stay pu2+licat:Dxs in the U=-'act' StaLes apses--rd
among si.r stories to a statue : r. - -- g "We, preside=s.s of
St^ude_t Cov.r==en_ and F-dito: s of ea_-I?s nsvapap.ers as an--*
taan 500 An eri .an colleges, believe t*-? we sbtrald nor be forced
to figbt in the Vie-aim war bew.a the Vlctn..en `oar is rn)u.G
sad i==oral." The sa=es and ca=pes nc+rspap.r &l alinae of
these signatories are availa`ale if d:dreL (On. of t'be xig-nau-ias,
;-.ereatiagly enough. was a V-_iversity of Deaher ea ~pne ecisr
listed er,lp as David P2.:TER=.O,N, possibly ider.:ical wit: the pre.saat
Zxeeutive Dire. t of the aJoremar-iotrc' USS?A).
S. ?'n n er irally, at Leant, it will be noted that the c.&. pes
to,-er---meet and press leader ship ac:Dereacs to the various "eon "
re paigns bas i=ers.ased over the past Lure year s. T e i ranr.
e-
of two h-a.ndre.d 'd n.-~et7-eight ca= .p`s ed!:or s in it
gaada effort i.n )-tap 196e, teDecs a f ig tee_.,g tr end.
/S/
Howard J. O-bo=
Director of Secnrit f
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
.t?-, r eved for Relaese
pate.
- h
1. of Security provided the following
in answer . -y request for information on. any of the
students from the press association that visited the Agency
on 14 February.
a. Guy MEN DEZ: wrote articles in the Kentuck
Colonel June-Sept '68 (U. of Kentucky)
has a member of an SDS revolutionary group.
Co-authored articles with Daniel Collerin.
b. Randy FURST: editorial staff of the National
Guardian (a weekly founded by the extreme
el-' American Labor Party)
C. Peter HELWIG: Ne.? }iaven Courier Journal
in Sept. 6E invo veo witn group promot.ng
the party for an Alternative Candidate
(Dick Gregory)
2. cautioned that -there was no positive
'identification that the students who attended the briefing
here t.'ere in fact the People on whom he had information. It
could have been a coincidence of names.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
~~y-orod Sos 3.IU'?
Dtte dK v p~
G3AUS lS
':a.c C1ec::
no Rcc;:es t
SUB3sC?: L`r.ited States Stucie,it Tress Association (USSPA) (ML)
LOCATION: 1779 Church Strtet,?N.W.
W3thineton, D.C.
OT.ber Identifying Data: aint>ins Cor es;.cnde^.ts ebsoad :
appreciate receiving any information yo:;
may have or. ti)e above or gari.atio~.
fi}St Vv K;IT (_"L1 YL' UAIS.k
F~'? IcentL:-- = P' JVl'
a a~~
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
0ct71
COLLEGE PR:SS SERVICE STILL OPERATING
AT 1779 CHURCH STREET NORTHKEST, WASHIN,f TON, D.C. TELPFriOHi't::'?
201 387 757S1
}rte' `+~~ JAK ~1?5~ i
Date I
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
c SAC 0:,- ~
U :5j. PROJECT F7-5I5TA1-.ICE 533 9;?-3
IN ADO17ION! TO PREVIOJS REI?U1:RE!i='s1T5 ?L< tc( ::;It L'o ser:iccnrr. t L stt s
to sebetace the w?br rifort.
O:I coc:W_fts LLAt EPA':
.!iif ic;:1t. fact t_?ie Troup to curt ir..f 2uencc
?lniteu States, hor?c~er, it %~as
&: article of this nature in u
raY rave been oti:?atcd by for
IC continental
that the appea-saee of
fubi.-xatiou such :s ti:r #s-b,
vesir to 5n;i:c. sinilis, cc_:ses
of cc:ie::.rlsr~tit;_, fe-baps era .'tie ..a?~..^.d.
Lcnta is Cf the Srrxrlry i-*Erb
;
cr the Etrb.
Liberatier. ;.e, s .w7'.':cc? _ tri: s bscribes to U
?Y. i:e,:.rtc' :e Tie t _ ed:te- Of :ae -
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
199
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTRAL INTELLIGENCE AGENCY,
c ET AL.,
Defendants.
Upon consideration of defendant's motion for extension
of time to complete processing of documents, plaintiff's opposi-
tion thereto, and plaintiff's cross-motions for discovery and a
Vaughn index, it is by this Court, this _ day of
1984,
ORDERED that defendants are to complete all processing
and production of documents responsive to plaintiff's Freedom
of Information Act request, as set forth in the Stipulation
entered into by the parties and approved by this Court on
September 9, 1982, within thirty (30) days of the entry of the
order; and it is further
ORDERED that the stay of proceedings approved by this
Court on September 9, 1982 is lifted to permit Plaintiff to take
discovery of defendants to ascertain whether all documents
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
200
responsive to plaintiff's request have been identified; and it
ORDERED that the defendants prepare and produce a
Vaughn index for all documents responsive to plaintiff's requests,
and for which exemptions are claimed by defendants, within sixty
(60) days of the entry of this Order.
John J. Pratt
United States District Judge
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
APPENDIX 3.-LETTERS TO GOVERNMENT INFORMATION,
JUSTICE, AND AGRICULTURE SUBCOMMITTEE REGARD-
ING H.R. 5164
A. LETTER FROM R. SAMUEL PAZ, PRESIDENT, AND RAMONA RIPSTON,
EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION OF SOUTH-
ERN CALIFORNIA, DATED JUNE 7, 1984
Honorable Glenn English
Representative, Oklahoma
House Committee on Government Operations
2157 RHOB
Washington, DC 20515
On behalf of the American Civil Liberties Union of
Southern California, we want to express our opposition
to H.R. 5164, the Central Intelligence Agency Informa-
tion Act.
Our affiliate has been concerned about this legis-
lation for some time and has studied it carefully. The
Executive Comittee on June 5, 1964 voted without
opposition tmo take a position against it and to commun-
icate that position to the members of the Congress.
(See enclosed statement).
Our 22,000 member organization, like the rest of
the ACLU, has a deep commitment to the Freedom of
Information Act (FOIA) and to the principles upon which
it is based. That commitment and our considerable
litigation experience with intelligence agencies has
made us wary of any proposals to broaden the categories
of exempted material.
Our analysis of H.R. 5164 has raised many questions
about whether it would limit the public's access to
information and restrict the opportunities for judicial
review. h our view, these questions have not been
satisfact6rily answered. Furthermore, it is not at all
clear that the best way to reduce the backlog of requests
to the CIA for information and, at the same time, to
reduce the' burden of the CIA of processing requests is
through exempting (with certain exceptions) the opera-
tional files of the CIA from search and review.
AMERICAN
CIVIL LIBERTIES UNION
OF SOUTHERN CALIFORNIA
S]] S. Shall, Rac.
Lo. Ana..... callsomi. 00005
T.le3h.r. [phone]
President
R. Samuel Paz
Vice-Pros/dents
Peggy Johnson
Duncan Donovan
Michael Linliald
Mary Ellen Gale
Secretary
Rae Klaus
measurer
John T. Tale. Jr.
Executive Director
Ramona Ripslon
Associate Director
Carol A. Sobel
Assistant Director
Victor Ludwig
Legislative Advocate
Brent A. Barnhart
Daphne Macklin
Mariorie C. Swartz
Public Information Director
Linda Valentino
Chapter Director
Marcel, Howell
Development Director
Sandra Jones
Director
Fred Okrand
Counsel
Dorothy Tril1o Lang
Susan McGrelvy
Mark Rosenbaum
Gary Williams
ACLU
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
The ACLU/SC has concluded that no action which limits, or
appears to limit, the access of the public to information under
the FOIA should be taken by Congress. On the contrary, it is our
conviction that protecting and broadening the FOIA is the wisest
course at this time, in the face of the trend toward increasing
secrecy in government and intrusion on the First Amendment rights
of its citizens.
We urge you to vote against H.R. 5164 if and when it comes
before you in committee or on the floor of the House of Represen-
tatives.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Policy Adopted by Executive Committee of the
ACLU of Southern California on June 5, 1984
The American Civil Liberties Union of
Southern California opposes enactment of
HR 5164 and SB 1324. The proper solution
for the backlog of FOIA-CIA requests is
not increased exemptions, but rather is
found in additional funding and stronger
judicial review of obstructive conduct.
Any bill which seemingly reduces review,
or hampers its implementation, increases
the risk of abuse by the CIA.
ACLU
AMERICAN
CIVIL LIBERTIES UNION
OF SOUTHERN CALIFORNIA
6335, Snano place
Los Angeles. California 90005
Telephone [phone]
President
R. Samuel Paz
Vice-Presidents
Duncan Donovan
Peggy Johnson
Mary Ellen Gale
Michael Linfield
Secretary
John Heilman
Treasurer
John T. Tate, Jr.
Executive Director
Ramona Ripston
Associate Director
Carol A. Sobel
Assistant Director
Victor Ludwig
Legislative Advocate
Daphne Macklin
Marjorie C. Swartz
Public Information Director
Sandra Larne
Development Director
Sandra Jones
Director
Fred Okrand
Counsel
Gilbert Gaynor
Susan McGreivy
Mark Rosenbaum
Gary Williams
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
B. LETTER FROM JACK LANDAU, EXECUTIVE DIRECTOR, AND ELAINE P.
ENGLISH, DIRECTOR, FOI SERVICE CENTER, REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS, DATED JUNE 26, 1984
THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
Legal Defense First Amendment
Fund Clearinghouse
FOI Service Center
with SPJ'SDX
Government Information, Justice and
Agriculture Subcommittee
Government Operations Committee
U.S. House of Representatives
B-349C Rayburn House Office Building
Washington, D.C.
Dear Mr. Chairman and members of the Subcommittee:
On behalf of the Reporters Committee for Freedom of the
Press, I urge you to oppose passage of H.R.5164, the Central
Intelligence Agency Information Act, which is now under
consideration by this Subcommittee.
We do not object to giving the CIA some special protective
rights under the FOI Act even though it has never lost a case
involving properly classified information, given that agency's
special mission and its huge back-log of requests. But this
bill insulates the CIA from giving out any information about
its "operational" activities even if these activities violate
the Constitution or federal law. If this bill is passed,
Congress will be exempting from public accountability
activities by an agency which are not authorized by our law or
our government.
For over ten years, the Reporters Committee has been a
leading supporter of the Freedom of Information Act. We
sponsor a special project, the FOI Service Center, which
advises approximately 1,000 reporters and journalists each year
on the use of this and other open government statutes. When we
appeared, at your invitation, last month to testify on S.774,
we outlined in detail our efforts to support the FOI Act in its
present form.
Steering Committee
Mao Roylnson
Diane Camper
AUSTIN. TEXAS
MINNEAPOLIS
WASHINGTON
ABO News
New York Times
Sam Kinch
Austin Wehrwein
David Beckwith
Christine Russell
John Chancellor
Dallas Morning News
Minneapolis Star
Time Magazine
W shington Post
NBC News
DENVER
PORTLAND, ORE.
Alfred Friendly, Sr.
How rd K. Smith
Welter Cronklte
Jack Taylor
Floyd McKay
Freelance
Fr glance
CBS News
Denver Post
KGW.TV
Sale Fritz
Lesley Stahl
Net Hentotf
JACKSON, MISS.
ASHEVILLE, N.C.
Los Angeles Times
'CAS News
The Now Yorker
William F. Minor
Catherine Mitchell
Hays Gorey
Phllip,Taubman
Anthony Lukas
Columnist
University of
Time Magazine
New York Times
Freelance
Factual Reporting
North Carolina
Morton Kondracke
The New Republic
Bob Woodward
Washington Post
Dan Rather
'
service
LOS ANGELES
at Asheville
Jack C. Landau
NEW YORK
CBS News
William Few
SPJISDX
Newhouse
Tom Brokaw
David Rosenbaum
'Los Angeles Times
Tx officio)
Newspapers
'NBC News
-New York Times
MIAMI
Jack Naleon
Earl Caldwell
Barbara Walters
Gene Miller
'Los Angeles Times
New York News
ABC News
Miami Herald
?ia?minc.nun ov.oo??a a?h
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
We must, therefore, oppose H.R.5164. This bill proposes to
give special and unprecedented treatment to the Central
Intelligence Agency, an agency which has often demonstrated its
long-standing hostility toward the FOI Act. Much of this bill
is premised on trust of the CIA. But this agency has shown
that it can make serious mistakes in judgment in carrying out
covert and other operational activities and in its
information-collecting role. Some of these decisions, it has
been shown, were the result of political pressure and others
were taken in arrogant disregard of constitutional rights.
The agency has also in the past done little to instill
public confidence in its disclosure policies. Its arbitrary
processing rules and its excessive delays are a few examples of
how this agency has misused its authority under the FOI Act.
While we recognize that H.R.5164 is a vast improvement over
the bill (S.1324) passed by the Senate, we continue to be wary
of the CIA's claims that this bill will not lead to the
withholding of any presently releaseable information. Even if
this is factually correct, we believe that special legislation
like this sets a bad precedent for the FOI Act. We fear that
other agencies, with sensitive intelligence or investigatory
missions, will seek similar treatment and totally erode the
effectiveness of the Act.
Unlike other special statutes recognized by FOIA that
merely limit an agency's discretion to release carefully
delineated types of information, this bill gives the agency
carte blanche authority to remove entire files from all aspects
of the statute. The files which the CIA can keep secret are
those most important to and most representative of its
statutory mission -- its "operational files.' Exempting
"operational files" -- without any time limit -- is to seal
forever the information which the public is most interested in:
the operations of the agency. H.R.5164 and the accompanying
report of the Permanent Select Committee on Intelligence (H.R.
Rep. 98-726) attempt to define 'operational files" narrowly.
Both stress that only information regarding sources and methods
can be protected. They reiterate that the CIA must continue to
search and review for potential disclosure all raw data
collected as well as the finished product of
intelligence-gathering. But even the House Report, itself,
makes clear that the smooth functioning of this system depends
on the CIA's own recordkeeping systems. Thus, the CIA would
appear to have full authority to alter its recordkeeping system
and totally undercut the delicate balance achieved by this
bill.
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
Full de novo judicial review is some safeguard on the
agency's action. However, FOIA experience with judicial review
of the CIA has indicated that this is far from a perfect system
of protection. Perhaps because of the complexities and
sensitivity of these recordkeeping systems, the courts remain
very deferential to the agency's claims. Moreover H.R.5164
places the initial burden on the requester to allege by sworn
affidavit that information has been improperly placed in an
operational file -- a very difficult burden for a FOIA
requester with little knowledge of the agency's files to meet.
Under this bill the agency can withhold operational files
from the public forever. Thus, historically valuable
information where disclosure would not harm in any way our
national security can remain perpetually hidden from the
public.
Finally, the bill will allow the agency to keep from the
public evidence of its employees' illegal activities. While
H.R.5164 would open up for search and review "the specific
subject matter of an investigation" conducted by Congress or a
number of entities within the executive branch, this does
little to give the public a realistic avenue to information
about agency abuses. Even under this procedure, an individual
must have some preliminary reason to suspect an abuse before a
request for an investigation can be lodged. And once again,
H.R.Report 98-726 points out that most complaints are sent to
the CIA itself and thus, much of this protection, depends on
the "good faith' of the agency.
Members of this Committee and CIA officials say that the
public will know about illegal activities in two ways: either
the CIA will investigate itself and then the results will be
public; or the CIA will ask Congress to investigate it. We
cannot believe that this fairy tale is being seriously used --
as it is -- to obtain support for this bill. Does anyone
seriously believe that any government agency is going to
initiate an investigation of its illegal behavior unless there
is some outside force -- such as the press -- which causes an
investigation to take place? And yet this most secret of all
agencies is asking for the right to engage in a total cover-up
and not even to respond to queries about its illegal behavior.
In short, we believe that too much of this bill is hinged
on promises and assurances made by the Central Intelligence
Agency. The public will be excluded from many traditional
avenues of oversight, and thus much of this task will fall on
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9
the shoulders of Congress. While we do not wish to suggest
that the CIA is not law-abiding, its past record in handling
FOIA requests does make us wary of its present 'promises' to
preserve openness. Therefore, we urge this Subcommittee not to
endorse this bill.
ncerey A
9faine P. En! ish, Esq.
Director, FO Service
Center
Approved For Release 2008/11/06: CIA-RDP89B00236R000200240007-9